Doe v. Cunningham

• Decision Date: 26 July 1994
• Docket Number: No. 93-4055,93-4055
• Parties: Jane DOE, Plaintiff-Appellant, v. Father Sebastian CUNNINGHAM, and Province of Our Lady of Consolation, Incorporated, a/k/a Conventual Franciscan Friars, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 879

30 F.3d 879

29 Fed.R.Serv.3d 1428

Jane DOE, Plaintiff-Appellant, v. Father Sebastian CUNNINGHAM, and Province of Our Lady of

Consolation, Incorporated, a/k/a Conventual

Franciscan Friars, Defendants-Appellees.

No. 93-4055.

United States Court of Appeals, Seventh Circuit.

Argued April 18, 1994.

Decided July 26, 1994.

Barry M. Cymerman (argued), Marilee S. Shepard, Peter M. Donohue, Phillips, Donohue & Cymerman, Milwaukee, WI, for plaintiff-appellant.

James E. Bourne, Barbara W. Gernert (argued), Wyatt, Tarrant, Combs & Orbison, New Albany, IN, Michael J. Cohen, Meissner & Tierney, Milwaukee, WI, for defendants-appellees.

Before CUMMINGS, MANION, and ROVNER, Circuit Judges.

MANION, Circuit Judge.

Jane Doe filed suit against Father Maurice Hayes, Father Sebastian Cunningham and the Province of Our Lady of Consolation, Inc., also known as Conventual Franciscan Friars. In this suit, Doe alleged: (1) that Hayes engaged in conduct with her which fell below accepted professional standards for the provision of secular or pastoral counseling services and other pastoral services; (2) that Cunningham was negligent in responding to her complaint about Hayes; and (3) that the Province was negligent in supervising Hayes and was vicariously liable for Hayes, Cunningham and Father Birgans' actions.

Cunningham and the Province filed motions for summary judgment on Doe's claims. They supported their motions with proposed findings of fact and specific references to the pleadings, depositions, responses to requests for admissions and an affidavit supporting these facts. Doe did not file a timely response to these motions. Because Doe failed to respond to the motions, the district court applied its Standing Order and Local Rule 6.05, both of which provide that if a party opposing a motion for summary judgment fails to respond to the motion, the court will conclude that no genuine material issue exists as to any of the proposed findings of fact. Based on the proposed facts, the district court then granted summary judgment in favor of Cunningham and the Province. Doe appeals. We affirm.

I. Statement Of The Facts

In August of 1987, the plaintiff, Jane Doe, began religious instruction with Father Maurice Hayes at St. Stephen Martyr Parish in Milwaukee, Wisconsin. Father Hayes, who is a member of the order of Conventual Franciscan Friars ("the Order"), was assigned to St. Stephen's by the supervising agency of the Order, the Province of Our Lady of Consolation, Inc., also known as Conventual Franciscan Friars ("the Province"). Although Hayes remained a member of the Order, once he was assigned to St. Stephen's he performed his duties under the direction and control of the Archbishop of Milwaukee and was accountable to the Archbishop.

Doe claims that during her religious instruction, she and Hayes engaged in a sexual relationship and that this caused her to suffer psychological and emotional injury. Doe reported this to the Province on or about January 28, 1989, when she telephoned Cunningham. She told Cunningham that she was a member of St. Stephen's, that she had been receiving religious instruction from Hayes, that she had spent a considerable amount of money on Hayes, that Hayes was not a loyal friend or a good priest, and that her relationship with Hayes was more than pastor-parishioner. In addition to her complaint, approximately eight years earlier, Father Birgans, the then Vicar Provincial of the Province, received a telephone call from a person who identified himself as Mr. Best of St. Stephen's and who alleged some unspecified misconduct by Hayes with a female parishioner.

Cunningham, who was the Secretary of the Province, and who acted as a business and office manager, relayed Doe's complaint to his immediate supervisor, Father Pasche. Cunningham and Pasche met with Hayes. Following their meeting, Cunningham contacted the Auxiliary Archbishop of Milwaukee, informed him of Doe's telephone call and of their meeting with Hayes, and recommended that the Auxiliary Archbishop talk to Hayes. Cunningham also reported the phone call to his other supervisor, the Provincial Minister Father Hellman.

Cunningham did not have authority to remove Hayes from St. Stephen's. He also did not have authority to make any other personnel decision concerning Hayes, such as whether Hayes should seek counseling or treatment. Cunningham responded to Doe's call in the only way he could--he reported the calls to his supervisors.

Doe eventually filed suit against Hayes, the Province, and Cunningham, seeking damages for the intimate relationship she claimed to have had with Hayes. In her suit, she alleged that Hayes was negligent in performing pastoral and counseling services, that Cunningham was negligent in responding to her complaint about Hayes and that the Province was negligent in supervising Hayes and was vicariously liable for Hayes, Cunningham and Birgans' actions. Cunningham and the Province filed motions for summary judgment, supported by a statement of proposed findings of fact and portions of the pleadings, depositions, responses to requests for admissions and an affidavit supporting these proposed facts. Doe failed to file a timely response to the motions. Instead, after the filing deadline had passed, she filed a request for an extension of time along with responses to the motions. The district court denied Doe's motion for an extension of time and refused to accept the late responses. The district court then considered Cunningham and the Province's motions for summary judgment. In doing so, the district court enforced its Standing Order and Local Rule 6.05 of the Eastern District of Wisconsin, both of which provide that if a party opposing a motion for summary judgment fails to respond to the motion, the court will conclude that no genuine material issue exists as to any of the proposed findings of fact. Because Doe did not respond to the motions, the court accepted Cunningham and the Province's proposed findings of fact and concluded that the undisputed facts demonstrated that Cunningham and the Province were entitled to judgment as a matter of law. Accordingly, the district court granted their motions for summary judgment. ¹ Doe appeals.

II. Analysis

On appeal, Doe claims that the Standing Order and Local Rule 6.05 are inconsistent with Federal Rule of Civil Procedure 56 and are, therefore, invalid. ² Alternatively, she asserts that even accepting the proposed findings of fact, Cunningham and the Province were not entitled to judgment as a matter of law. In both respects, we disagree.

Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(e). Rule 56(e) further provides:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate shall be entered against him.

We review the district court's grant of summary judgment de novo. AHP Subsidiary Holding Co. v. Stuart Hale Co., 1 F.3d 611, 615 (7th Cir.1993).

The portion of the Standing Order, to which Doe specifically objects, provides: "The court will conclude there is no genuine material issue as to any proposed finding of fact, unless an opposing party asserts that a genuine material issue exists." Local Rule 6.05 is similarly worded and provides: "In deciding a motion for summary judgment, the court will conclude that there is no genuine material issue as to any proposed finding of fact to which no response is set out." Doe asserts that it is improper to conclude that because a party does not object to the proposed findings of fact, no genuine issue exists as to any of the proposed findings of fact. Such a rule, however, whether adopted as part of a court's order or as a Local Rule, is entirely proper. See, e.g., Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir.1989) (concluding that the Northern District of Illinois' Local Rule 12(f), which provides that "[a]ll material facts set forth in the statement ... served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party," is valid). Accord Waldridge v. American Hoechst Corp., 24 F.3d 918, 921 (7th Cir.1994); Schulz v. Serfilco, Ltd., 965 F.2d 516, 519 (7th Cir.1992); Appley v. West, 929 F.2d 1176, 1179 (7th Cir.1991); Skagen v. Sears, Roebuck & Co., 910 F.2d 1498, 1500-01 (7th Cir.1990); Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1103 (7th Cir.1990); Dunlap v. Transamerica Occidental Life Ins. Co., 858 F.2d 629, 632 (11th Cir.1988).

Doe also claims that Local Rule 6.05 and the Standing Order conflict with Rule 56 by "effectively shift[ing] the burden from the moving party to the responding party." Doe is incorrect. In addition to the above quoted language, Section I of the Standing Order provides, in pertinent part: "It is the movant's obligation to present no more and no less than the set of factual propositions upon which movant considers there is no genuine issue of material fact and upon which the movant is entitled to judgment as a matter of law." Similarly Local Rule 6.05 provides: "The movant must present only the factual propositions upon which there is no genuine issue of material fact and which entitle the movant to judgment as a matter of law...." Both the Standing Order and the Local Rule clearly set forth the movant's burden to demonstrate that no genuine issue of material fact exists and that he is entitled to...