Brennan v. Roman Catholic Diocese of Syracuse, 8:07-cv-1848-T-23TGW.
| Decision Date | 20 August 2008 |
| Docket Number | No. 8:07-cv-1848-T-23TGW.,8:07-cv-1848-T-23TGW. |
| Citation | 575 F.Supp.2d 1256 |
| Parties | Dennis BRENNAN, Plaintiff, v. The ROMAN CATHOLIC DIOCESE OF SYRACUSE, NEW YORK, INC., Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Thomas H. McGowan, Law Office of Thomas H. McGowan, St. Petersburg, FL, for Plaintiff.
F. Robert F. Radel, II, Butler Pappas, LLP, Tampa, FL, for Defendant.
Dennis Brennan sues the Roman Catholic Diocese of Syracuse, New York, Inc., (the "Diocese") for breach of contract, fraud, and intentional infliction of emotional distress. The defendant moves (Doc. 6) to dismiss for lack of personal jurisdiction or, in the alternative, to transfer. Brennan responds (Doc. 11) in opposition.
A citizen of Florida, Brennan resides in Pinellas County. The Diocese, a citizen of New York, resides in Syracuse. (Docs. 1 and 2) In 2001, Brennan recovered a memory, suppressed for more than four decades, of his childhood rape in Syracuse by a Roman Catholic priest. (Doc. 1, ¶¶ 7-8) In January, 2002, Brennan contacted the Diocesan Bishop Thomas Costello ("Bishop Costello"), "who verbally agreed that the [Diocese] would pay for counseling for Brennan, in the State of Florida." (Doc. 1, ¶ 10) In April, 2002, Brennan began attending counseling sessions with Dr. Mary D. Lutzo ("Dr. Lutzo"), a psychologist, at her St. Petersburg office. (Doc. 12, Ex. B, ¶ 11) On April 29, 2002, Dr. Lutzo requested and obtained Bishop Costello's approval of a therapy known as Eye Movement Desensitization and Reprocessing ("EMDR"). (Doc. 12, Ex. B, ¶ 12) During a May 28, 2002, telephone call, Dr. Lutzo recommended continuation of Brennan's treatment, and Bishop Costello agreed. (Doc. 12, Ex. B, ¶ 13) On June 26, 2002, after receiving Dr. Lutzo's invoice, Bishop Costello told Dr. Lutzo that the Diocese "would agree to continued therapy." (Doc. 12, Ex. B, ¶ 15) The Diocese periodically paid Dr. Lutzo in St. Petersburg. (Doc. 1, ¶ 11; Doc. 12, Ex. B, ¶ 11)
After several months of counseling, in February, 2003, Brennan demanded a monetary settlement from the Diocese. (Doc. 1, ¶ 12) In a March 17, 2003, letter, the Diocese's victim assistance coordinator, Teresa Secreti ("Secreti"), acknowledged Brennan's accusation of sexual abuse, requested Brennan's medical records, and authorized therapy through April 15, 2003, to afford "us time to review the records." Although the Diocese never renewed the authorization, Dr. Lutzo continued to treat Brennan. (Doc. 12, Ex. B, ¶ 32)
In a January 5, 2004, letter to Bishop Costello, Dr. Lutzo requested payment for counseling from April 23, 2003, through July 9, 2003. (Doc. 12, Ex. B, ¶ 33) Secreti responded by informing Dr. Lutzo that the Diocese "will make the final payment of $1,450.00 as a continuation of our earlier cooperation." (Doc. 12, Ex. B, ¶ 38) Dr. Lutzo continued to treat Brennan and again requested payment in June, 2005. Secreti told Dr. Lutzo that the Diocese declined to resume payment without "a letter stating that any potential legal process against the Diocese of Syracuse was stopped." (Doc. 12, Ex. B, ¶ 50) Dr. Lutzo directed the Diocese to Brennan to discuss "the legal process." (Doc. 12, Ex. B, ¶ 50) Notwithstanding Brennan's failure to send the requested letter, the Diocese paid Dr. Lutzo in August, 2005. (Doc. 12, Ex. B, ¶ 50)
During the summer of 2005, Brennan commenced an anti-depressant medication regimen "advised" by Secreti. (Doc. 1, ¶ 24) Dr. Lutzo referred Brennan to Dr. Walter Griffith, a St. Petersburg psychiatrist, "to monitor his reaction to the anti-depressant medications." (Doc. 1, ¶ 24; Doc. 12, Ex. B, ¶ 61) Dr. Griffith evaluated Brennan and referred him to Dr. Karen Moorhead, a clinical psychologist, for further testing. (Doc. 1, ¶¶ 27-28) In an October 9, 2006, letter to Secreti, Dr. Lutzo requested that Brennan "be allowed to see Dr. Moorhead." (Doc. 1, ¶ 29) In a November 1, 2006, letter to the Diocese, Brennan explained that his health insurance required a $500 "out-of-network" co-payment for the testing. (Doc. 1, ¶ 31; Doc. 12, Ex. 6) Brennan wrote that "[w]hile I do not agree that I should have to use my insurance to pay for any of this, I have been willing to do so and meet the diocese half way." (Doc. 12, Ex. 6) Secreti called Dr. Lutzo and "told her that the [Diocese] would pay the $500 to Dr. Moorhead." (Doc. 1, ¶ 32) After examining Brennan on November 14, 2006, Dr. Moorhead concluded that Brennan suffered from depression and a "failure to thrive." (Doc. 1, ¶¶ 32-33)
In a November 21, 2006, letter to Secreti, Brennan requested reimbursement in the amount of $1,418.46 (the $500 co-payment plus an aggregate prescription co-payment of $918.46). (Doc. 1, ¶ 35; Doc. 12, Ex. 7) Receiving neither a response nor reimbursement, Brennan left a message for Secreti on January 8, 2007. (Doc. 12, Ex. 8) Secreti returned Brennan's call the next day. Brennan explains that "[w]hen I asked her when I could expect reimbursement, Ms. Secreti stated that it was the policy of the Diocese of Syracuse' not to pay any co-pays incurred by victims of abuse like myself." (Doc. 12, Ex. 8) When Brennan "questioned this alleged policy, Ms. Secreti stated that the diocese was waiting for Dr. Moorhead's report before deciding whether to pay my out-of-pocket co-pays." (Doc. 12, Ex. 8) In a January 9, 2007, letter to Bishop Costello, Brennan requested reimbursement of $2,478.46 ($1,418.46 plus an additional $1,060.00 paid to Dr. Moorhead). (Doc. 12, Ex. 8)
On April 6, 2007, Dr. Lutzo sent the Diocese the outline of a therapeutic plan for Brennan. Endorsed by Dr. Lutzo, Dr. Moorhead, and Dr. Griffith, the plan included six-weeks of intensive, residential therapy in New Mexico. (Doc. 1, ¶ 37, Ex. J) On April 25, 2007, Brennan called Secreti regarding payment of his medical expenses and approval of the residential program. (Doc. 12, Ex. A, ¶ 27) Secreti explained that the Diocese had not decided about the residential program but Secreti did not mention the medical bills. (Doc. 12, Ex. A, ¶ 27) On or about April 25, 2007, Secreti called Dr. Lutzo to confirm her receipt of the treatment plan. (Doc. 12, Ex. B, ¶ 69) Noting that Brennan "has been concerned about payment of medical bills," Secreti asked Dr. Lutzo "to tell [Brennan] that the Diocese of Syracuse would pay for anything not covered by his insurance." (Doc. 12, Ex. B, ¶ 69) Dr. Lutzo responded that she "didn't know what bills [Secreti] was specifically referring to" but that she would convey the message to Brennan. (Doc. 12, Ex. B, ¶ 69)
On April 27, 2007, Secreti informed Brennan that the Diocese still had not made a decision about the residential program; however, Secreti did not mention the medical bills. (Doc. 12, Ex. B, ¶ 28) Sometime after June 18, 2007, Brennan called Secreti, who explained "that she had `tentative verbal approval to continue with out-patient counseling' as recommended by Dr. Moorhead" in an earlier psychological evaluation. (Doc. 1, ¶ 38) When Brennan pressed her about the residential program, Secreti requested authorization to review Brennan's medical records. (Doc. 1, ¶ 38) After reviewing the records, Secreti told Brennan the Diocese "was going to go with Dr. Moorhead's `original recommendation' of continued out-patient therapy." (Doc. 1, ¶ 40)
In a June 26, 2007, letter, Secreti wrote that "[a]lthough we are unable to assist with th[e] request [for residential treatment], the diocese will provide reimbursement for counseling as stated in the original recommendation made by Dr. Moorhead." (Doc. 1, ¶ 41, Ex. L) Secreti wrote, "[P]lease know we are concerned for you and we are committed to providing the continued assistance in your healing process." (Doc. 12, Ex. 10) About two months after Brennan initiated this action, the Diocese sent a final payment to Dr. Lutzo to cover Brennan's counseling through November 14, 2007. (Doc. 12, Ex. B, ¶ 81)
Brennan argues that a basis for personal jurisdiction exists under section 48.193(1)(b), Florida Statutes, which provides that "[c]ommitting a tortious act within [Florida]" subjects a defendant to personal jurisdiction in Florida. No physical presence is required if the tort causes an injury in Florida. Wendt v. Horowitz, 822 So.2d 1252, 1260 (Fla.2002). "[T]elephonic, electronic, or written communications into Florida" provide a basis for jurisdiction if the tort arises from the communications and "`depend[s] upon proof of either the existence or the content of any of the communications.'" Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1168 (11th Cir.2005) (quoting Carlyle v. Palm Beach Polo Holdings, Inc., 842 So.2d 1013, 1017 (Fla. 4th DCA 2003)); Wendt, 822 So.2d at 1260. Brennan alleges that the Diocese communicated via telephone and mail with Brennan and his agent, Dr. Lutzo, both located in Florida. The fraud claim and intentional infliction of emotional distress claim allegedly arose from the communication and depend upon proof of the existence and content of the communication. Assuming the complaint alleges a claim for fraud and for emotional distress, section 48.193(1)(b) provides a basis for jurisdiction.
Brennan argues that a basis for personal jurisdiction exists under section 48.193(1)(g), which provides that "[b]reaching a contract in [Florida] by failing to perform acts required by the contract to be performed in [Florida]," subjects a defendant to the jurisdiction of a Florida court. Brennan must state a claim for breach of contract. See Interfase Mktg., Inc. v. Pioneer Techs. Group, Inc., 774 F.Supp. 1355, 1356-57 (M.D.Fla.1991). If Brennan alleges an express promise to pay money and the contract states no place of payment, the defendant's breach of contract occurs in Brennan's domicile. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 503 (Fla.1989); ...
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