O'Bryan v. Holy See, Civil Action No. 3:04CV-338-H.

• Decision Date: 10 January 2007
• Docket Number: Civil Action No. 3:04CV-338-H.
• Parties: James H. O'BRYAN et. al., Plaintiffs v. HOLY SEE, Defendant.
• Court: U.S. District Court — Western District of Kentucky

471 F.Supp.2d 784

James H. O'BRYAN et. al., Plaintiffs v. HOLY SEE, Defendant.

Civil Action No. 3:04CV-338-H.

United States District Court, W.D. Kentucky, at Louisville.

January 10, 2007.

COPYRIGHT MATERIAL OMITTED

Adrienne W. Kim, William F. McMurry, William F. McMurry & Associates, Louisville, KY, Marci A. Hamilton, Washington Crossing, PA, for Plaintiffs.

Jeffrey S. "Lena, Berkeley, CA, John David Dyche, R. Gregg Hovious, Tachau, Maddox, Hovious & Dickens PLC, Louisville, KY, for Defendant.

MEMORANDUM OPINION

HEYBURN, Chief Judge.

Plaintiffs James O'Bryan, Donald Poppe, and Michael Turner ("Plaintiffs") filed this putative class action against the Holy See ("Defendant") in its Capacity as a foreign state and in its capacity as an unincorporated association and head of an international religious organization, alleging claims for liability under the doctrines of respondeat superior for acts of bishops and priests, violations of customary international law of human rights, negligence, breach of fiduciary duty, infliction of emotional distress, deceit, and misrepresentation. Plaintiffs' claims arise from sexual abuse by local Catholic priests many years ago. They seek monetary and injunctive relief.

This Court has previously ruled that the Holy See is considered a foreign state, and, therefore the Foreign Sovereign Immunity Act ("FSIA") governs any claims against it. Defendant now challenges the Court's subject matter jurisdiction under FSIA. Applying FSIA and its various exceptions present a number of novel, complex, and intertwined questions. The Court ultimately concludes that some of Plaintiffs' claims premised upon the acts and omissions of Holy See officials and employees within the United States fit within the federal court jurisdiction under FSIA.

I.

Plaintiffs' factual and legal allegations are critical to the subsequent FSIA analysis. Their central thrust is that the "root [of the childhood sexual abuse] problem" is "the deliberate failure of the Holy See to take effective action to prevent childhood sexual abuse by its priests, clerics, bishops, archbishops, cardinals, agents, and employees." Plaintiffs say that the Holy See imposed a policy of secrecy surrounding incidents of childhood sexual abuse and failed to take steps to prevent abuse, punish offenders, or avoid recidivism by prior offenders. Plaintiffs make four specific allegations.

Plaintiffs allege first that the Holy See violated its international law obligations under the Universal Declaration of Human Rights and the Convention on the Rights of the Child. Second, Plaintiffs allege that Defendant, "by and through its agents, servants and employees," breached duties owed to Plaintiffs. Those duties included the duty to provide safe care, custody, and control to the minor children entrusted to Roman Catholic; the duty to warn parents of those children that the priests and other clerics to whom they entrusted their children were known perpetrators of childhood sexual abuse; and the duty to report known or suspected perpetrators of childhood sexual abuse to the appropriate authorities. Third, Plaintiffs allege that the Holy See breached fiduciary duties owed to Plaintiffs, including but not limited the duty to warn parents of children placed in the care, custody, and control of known perpetrators of childhood sexual abuse and the duty to report known or suspected perpetrators of child sexual abuse to the appropriate authorities. Fourth, Plaintiffs allege that Defendant's conduct constitutes an outrage and infliction of emotional distress. Fifth and sixth, in claims solely against the Holy See in its capacity as an incorporated association and head of an international religious organization, Plaintiffs allege torts of deceit and misrepresentation. Plaintiffs also seek a variety of injunctive relief.

Plaintiffs actually represent two classes of persons. Class One consists of those who have not previously brought claims for childhood sexual abuse against a diocese, archdiocese, or other Roman Catholic body. Class Two consists of those who have previously brought such claims and who have released that body from further liability. With one exception, the claims of the two classes are identical. Only the Class One Plaintiffs seek to hold the Holy See responsible under the doctrine of respondeat superior for the conduct of its "agents, servants, employees, and ostensible agents" in the United States.

II.

For most of our nation's history, it was our national policy to grant foreign states complete immunity from civil suits in United States courts. Beginning in 1952, this view began to change. Gradually, a view evolved that one could sue foreign states in United States courts under certain limited exceptions. The specific determinations were generally left to the State Department until 1976 when Congress enacted FSIA, which sought to codify the existing exceptions. Now, FSIA provides the sole basis for obtaining jurisdiction over a foreign state in United States courts. Argentine Republic v. Amerada Hess Shipping Corporation, 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989).

Under FSIA, foreign sovereigns are presumptively immune from the jurisdiction of the United States courts. See 28 U.S.C. § 1604; Byrd v. Corporacion Forestal y Industrial De Olancho S.A., 182 F.3d 380, 388 (5th Cir.1999). To assert subject matter jurisdiction over a foreign sovereign, a court must meet one of FSIA's exceptions. See 28 U.S.C. § 1330(a); see also 28 U.S.C. § 1605. Plaintiffs have alleged that several exceptions to the FSIA apply: the waiver exception, the commercial activity exception, and the tortious conduct exception. See Complaint at 4-7. The first two are relatively straightforward and the Court discusses each in this Section. The tortious conduct exception requires a more lengthy discussion found in Section III.

A.

Plaintiffs assert that the Holy See waived its FSIA immunity either "implicitly or explicitly" by "among other things" failing to raise a waiver defense over decades of settling and acquiescing in settlements of childhood sexual abuse claims. See Complaint at 6. The Court finds no evidence that it has done so in this suit. Indeed, the Holy See has vigorously advocated its immunity throughout this litigation.

Furthermore, under established law, Defendant has not implicitly waived immunity under FSIA. The implied waiver exception "must be construed narrowly." See, e.g., Smith v. Socialist People's. Libyan Arab Jamahiriya, 101 F.3d 239, 243 (2d Cir.1997). Generally, implied waiver, of immunity under FSIA is found under only three circumstances:

(1) a foreign state has agreed to arbitration in another country; (2) a foreign state has agreed that a contract is governed by the law of a particular country; and (3) a foreign state has filed a responsive pleading in a case without raising the defense of sovereign immunity.

In re Republic of Philippines, 309 F.3d 1143, 1151 (9th Cir.2002). None of the circumstances discussed by the Ninth Circuit seems to apply here. Plaintiffs have not pled that Defendant has agreed to arbitration, that Defendant has agreed that "a contract is governed by the law of a particular country," or that Defendant has filed a pleading in this case without raising the defense of sovereign immunity. Therefore, the Court concludes that Plaint tiff cannot meet the waiver exception to FSIA.

B.

Plaintiffs also argue that the Holy See is liable under FSIA's commercial activity exception. The commercial activity exception contains three clauses, any one of which satisfies the exception:

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case in which the action is based upon [1] a commercial activity carried on in the United States by the foreign state; [2] or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; [3] or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.

28 U.S.C. § 1605(a)(2). A "commercial activity" means "either a regular course of commercial conduct or a particular commercial transaction or act." 28 U.S.C. § 1603(d). Judge Michael Mosman of the United States District Court of the District of Oregon has authored a scholarly and exhaustively researched opinion examining the Holy See's liability under the commercial activity exception. See Doe v. Holy See, 434 F.Supp.2d 925 (D.Or.2006). This Court generally endorses Judge Mosman's reasoning. There are two distinctions, however, between this case and Doe. First, the claim in Doe was related to the alleged tortious conduct of one priest; in this case, the claim encompasses a much broader range of alleged activities. Second, the plaintiff in the Doe case sought liability against the Holy See under only the first and third clauses of the commercial activity exception; Plaintiff here seeks liability via all three clauses.

Like the court in Doe, however, the Court here concludes that the "true essence" of the claim here is not commercial. Id. at 942 (citing Saudi Arabia v. Nelson, 507 U.S. 349, 363, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993)). Plaintiffs' claims "clearly sounding in tort" and their complaint does not alleged "property damage, breach of contract for goods or services, product liability, copyright infringement, an indebtedness yet unpaid on a loan or other transaction, or any other theory whose true essence is commercial." Doe, 434 F.Supp.2d at 942. Because the complaint fails to allege activities that are commercial in nature, the commercial activity exception does not apply.¹

III.

Section 1605(a) of the FSIA also provides an exception to foreign sovereign immunity for tortious acts of a foreign state or its agents. The tort exception provides:

A foreign state shall not be immune...