Shovah v. Mercure et al

Filing 131

MEMORANDUM OPINION AND ORDER denying 109 Motion for Leave to Appeal. Signed by Judge William K. Sessions III on 11/5/2013. (jam) Text clarified on 11/5/2013 (jlh).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
MICHAEL SHOVAH,
Plaintiff,
v.
GARY MERCURE, THE ROMAN
CATHOLIC DIOCESE OF ALBANY,
N.Y., INC.,
Defendants.

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No.

2:11-cv-00201-wks

MEMORANDUM OPINION AND ORDER
Defendant the Roman Catholic Diocese of Albany, N.Y., Inc.
(“Diocese”) moved to certify an interlocutory appeal of the
Court’s September 3, 2013 Opinion and Order (“Opinion”) pursuant
to 28 U.S.C. § 1292(b).

The Opinion denied the Diocese’s Motion

to Dismiss for want of personal jurisdiction.

The Diocese

argues that the Opinion presents an open issue requiring
resolution by the Second Circuit.

For the reasons described

below, the Court denies the Diocese’s Motion for Permission to
Appeal.
Plaintiff Michael Shovah brought suit alleging that while
employed as a Roman Catholic priest for the Diocese, Defendant
Gary Mercure transported Shovah from New York to Vermont for the
purpose of engaging in criminal sexual activity.
14–17, ECF No. 1.

Compl. ¶¶ 12,

Shovah further alleges that the Diocese

breached its fiduciary duty to Shovah in failing to prevent
Mercure’s wrongful conduct, neglecting to adequately supervise
Mercure, and failing to exercise reasonable care to prevent harm
to Shovah.

Id. ¶¶ 15–29.

The Complaint asserts a claim of

outrageous conduct by the Defendants and asks for damages
accordingly.

Id. ¶¶ 30–33.

In April 2013, the Diocese filed a Motion to Dismiss for
lack of personal jurisdiction claiming a lack of requisite
contacts with the state of Vermont.
No. 90.

See Mot. to Dismiss, ECF

After hearing oral argument, the Court issued an

Opinion denying the Diocese’s Motion to Dismiss.
No. 106.

See Op., ECF

The Court applied the standard set out in Goodyear,

Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011)
and found that the Diocese had sufficient contacts to establish
general jurisdiction within the District of Vermont.

Op. 7, 11.

The Diocese has requested permission to appeal the Opinion
and Order denying its motion to dismiss.
Appeal (“Mot. to Appeal”), ECF No. 109.

Mot. for Permission to
It argues that the

decision involves a controlling question of law with substantial
grounds for a difference of opinion and that immediate appeal
could materially advance the ultimate determination of the
litigation.

Id.

It asserts that an appeal must consider

whether the Goodyear standard “precludes the exercise of general
jurisdiction over an out-of-state religious corporation with ‘no
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financial or physical foothold’ in the forum state based solely
on limited ministerial contacts.”

Id.

Under 28 U.S.C. 1292(b), a district court may order an
interlocutory appeal if it believes that its decision “involves
a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate termination
of the litigation.”

28 U.S.C. 1292(b).

District courts have

“first line discretion to allow interlocutory appeals.”
v. Chambers Cnty. Comm’n, 514 U.S. 35, 47 (1995).

Swint

A litigant

cannot pursue an interlocutory appeal every time he or she
disagrees with a decision.

See Coopers & Lybrand v. Livesay,

437 U.S. 463, 475 (1978) (finding that even after certification
the appellant must convince the court of appeals that
“exceptional circumstances justify a departure from the basic
policy of postponing appellate review until after the entry of a
final judgment,” suggesting that the district court may properly
deny interlocutory appeal where no exceptional circumstances
exist).
The Court does not consider these circumstances to be
particularly suitable for interlocutory review.

The decision

did not involve a novel or unsettled area of law.

The Court

analyzed the facts presented before agreeing with the Plaintiff
that exercising personal jurisdiction was warranted.
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As the Diocese acknowledged, the Court applied the Goodyear
standard in deciding the Motion to Dismiss.

Op. 7.

Contrary to

the Diocese’s claim that the decision rested only on limited
ministerial contacts, however, the Court considered all relevant
contacts of the Diocese with Vermont.

In its decision, the

Court included not only ministerial duties performed in Vermont,
but also the number of Vermonters served by the Diocese, its
newsletter circulation in Vermont, the charitable donations from
the state, and other financial contacts in Vermont.
10–11.

Op. 2–4, 7,

Whether Goodyear created a new, more rigorous standard,

as the Diocese suggests, Mot. to Appeal 6, is beside the point.
The Court applied the new standards and in doing so weighed
numerous factors to come to a decision.
Although a denial of a Motion to Dismiss for lack of
personal jurisdiction may involve a controlling question of law,
here there were no substantial grounds for a difference of
opinion. The Court carefully considered the Diocese’s contacts
with Vermont and concluded that they were sufficient to warrant
the exercise of personal jurisdiction.

Further, because the

case involves more than one defendant, an immediate appeal will
not materially advance but substantially delay the termination
of the litigation.

Personal jurisdiction clearly applies to

Defendant Mercure.

Permitting an interlocutory appeal in the

case involving the Diocese would necessarily delay discovery
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relating to Defendant Mercure.

Finally, the Diocese may not be

prejudiced by denial of the appeal since a ruling denying
general jurisdiction may result in the same lawsuit being filed
in New York.
The Diocese has filed a supplemental memorandum, citing
comments by Justices of the U. S. Supreme Court during oral
argument in Daimler AG v. Barbara Bauman, et al., No 11-965.
The Diocese suggests the Court may rule that general
jurisdiction is limited to the state of incorporation and
principal place of business.

First, Goodyear has not been

interpreted by courts to define elements of general jurisdiction
in such a restrictive way. Moreover, Daimler may not be relevant
to this case, since the Ninth Circuit attributed general
jurisdiction by analyzing contacts within California of a
subsidiary, Mercedes Benz USA, a separate corporation.

This

Court analyzed the issue of general jurisdiction by assessing
the Diocese’s contacts in Vermont.
Certainly, if the Supreme Court rules as the Diocese
suggests, that general jurisdiction applies only on to the state
of incorporation and principal place of business, this Court
will reconsider its ruling.

But that does not suggest the

matter should be sent to the Second Circuit on an interlocutory
basis to await the Supreme Court’s ruling in Daimler.

All of

the reasons cited above suggest discovery should proceed.
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The Court finds no exceptional circumstances warrant an
interlocutory appeal, and the Diocese’s Motion for Permission to
Appeal is denied.
Dated at Burlington, in the District of Vermont, this 5th
day of November, 2013.

/s/William K. Sessions III__
William K. Sessions III
U.S. District Court Judge

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