D.M. v. Apuron

• Decision Date: 23 February 2023
• Docket Number: CIVIL 19-00030
• Parties: D.M., Plaintiff, v. ANTHONY SABLAN APURON; HOLY SEE (State of the Vatican city), Its Instrumentalities and/or Agents - Does 1-10; ROMAN CATHOLIC ARCHBISHOP OF AGANA; CAPUCHIN FRANCISCANS; CAPUCHIN FRANCISCANS PROVINCE OF ST. MARY; CAPUCHIN FRANCISCANS CUSTODY OF STAR OF THE SEA; and FATHER DUENAS MEMORIAL SCHOOL, Defendants.
• Court: U.S. District Court — District of Guam

D.M., Plaintiff,
v.
ANTHONY SABLAN APURON; HOLY SEE (State of the Vatican city), Its Instrumentalities and/or Agents - Does 1-10; ROMAN CATHOLIC ARCHBISHOP OF AGANA; CAPUCHIN FRANCISCANS; CAPUCHIN FRANCISCANS PROVINCE OF ST. MARY; CAPUCHIN FRANCISCANS CUSTODY OF STAR OF THE SEA; and FATHER DUENAS MEMORIAL SCHOOL, Defendants.

CIVIL No. 19-00030

United States District Court, D. Guam

February 23, 2023

DECISION AND ORDER

GRANTING HOLY SEE'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION, LACK OF PERSONAL JURISDICTION, AND INSUFFICIENT SERVICE OF PROCESS (ECF NO. 51)

Frances M. Tydingco-Gatewood, Chief Judge

This action arose from the alleged sexual abuse of a minor attending a Catholic high school on Guam during the school year 1994-1995 by the then Archbishop of the Archdiocese of Guam, Anthony Apuron. Plaintiff D.M. brought suit against the Holy See, a foreign sovereign, among other defendants. The matter came before the court for hearing on Defendant Holy See's Motion to Dismiss for Lack of Subject Matter Jurisdiction, Lack of Personal Jurisdiction, and Insufficient Service of Process. The Holy See sought dismissal of the action against it, arguing that the First Amended Complaint (the “FAC”) was defectively served upon it. The Holy See also argued that Plaintiff's claims must be dismissed under the Foreign Sovereign Immunities Act for lack of subject matter jurisdiction and lack of personal jurisdiction. Following the hearing, the court permitted the

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parties to submit supplemental briefs.^[1] Having reviewed the parties' briefs and relevant authority, the court hereby grants the Holy See's motion as more fully discussed below.

II. ALLEGATIONS IN THE FAC

A. Allegations of child sexual abuse committed against Plaintiff

Plaintiff grew up in Saipan and attended Father Duenas Memorial School (“FDMS”) in Guam during the 1994-1995 academic year. See FAC at ¶¶20-21, ECF No. 1-1. The Plaintiff was a 14-15 year old freshman at the time. Id. at ¶25. Because FDMS did not offer boarding on weekends, arrangements were made for him to stay with Apuron^[2] in his personal residence on the weekends, and the Plaintiff returned to Saipan about one weekend each month. Id. at ¶¶22-24.

During the first weekend at Apuron's home, the Plaintiff went to the downstairs bedroom assigned to him and fell asleep wearing a pajama top and shorts. Id. at ¶¶27 and 29. He was awakened by the sound of the bedroom door opening, and the Plaintiff saw Apuron slowly entering the room. Id. at ¶29. The Plaintiff pretended he was asleep. Id. at ¶30. Apuron quietly made his way to the Plaintiff's bed and began touching himself. Id. at ¶31. Apuron came closer, kneeled down on the floor at the middle of the Plaintiff's bed and moved his hand up and down the Plaintiff's thigh. Id. Apuron allegedly placed his hand under the Plaintiff's pajama shorts and fondled the Plaintiff's genitals. Id. at ¶32. Apuron did this for some time, breathing “as if he'd been running.” Id. Apuron then stopped, removed his hand quickly, and got up. Id. The Plaintiff cried for a couple hours before falling back asleep. Id.

Apuron allegedly returned later that night or early morning, pinning the Plaintiff down and sodomizing him, with the Plaintiff yelling for Apuron to stop because the Plaintiff felt like the pain “would never stop.” Id. at ¶33. This was just the first of many alleged sexual assault incidents that

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occurred that school year. Id. at ¶35.

The Plaintiff “was alone, afraid and scared” and “felt like he had no one to talk to about what Apuron had done.” Id. at ¶36. Out of fear of Apuron and embarrassment, the Plaintiff could not tell his family why he wanted to be away from Guam on the weekends. Id. at ¶37.

Because he was so traumatized by Apuron's alleged assaults, the Plaintiff claimed he was “demonstrating signs that he was suffering from abuse” and the “faculty and staff of [FDMS] either knew or should have known that [he] was suffering from abuse and either intentionally ignored what was going on, or were negligent in their care and supervision” of the Plaintiff. Id. at ¶38.

At the end of the school year, the Plaintiff returned to Saipan and refused to return to FDMS. Id. at ¶39. He convinced his parents to send him to a school in Hawaii, where he eventually graduated. Id.

B. Allegations of child sexual abuse in the Catholic Church in the United States

From 1981 to 1986, Reverend Thomas P. Doyle (“Rev. Doyle”) was an employee and canon lawyer for the Apostolic Nunciature, or embassy, for the Holy See in Washington, D.C. Id. at ¶13. In 1985, Rev. Doyle and others wrote a 92-page report entitled “the Problem of Sexual Molestation by Roman Catholic Clergy: Meeting the Problem in a Comprehensive and Responsible Manner” (the “1985 Report”). Id. at ¶14. This report was released confidentially to United States bishops and also shared with the Papal Nuncio to the United States, who traveled to the Holy See to discuss the report. Id. at ¶¶14-15.

The FAC asserts that the 1985 Report “put the Holy See and United States bishops on notice of ‘sexual molestation of children by Clerics . . .' in the Catholic Church, and the need for immediate action.” Id. at ¶16. The 1985 Report noted that the “‘circle of responsibility' for child sex abuse extends to the Holy See and the ‘Holy Father himself.'” Id. at ¶16.e. The report further warned that “‘it is imperative to clearly understand that transfer or removal [of an abusing priest] isolated from any other action is far from adequate and could in fact lead to a presumption of irresponsibility or even liability.'” Id. at ¶16.g (bracketed language in original). The 1985 Report also made specific recommendations to address the issue but the “Holy See did not follow or institute the recommendations of the 1985 Report.” Id. at ¶¶16.h-j and 17.

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The FAC asserts that there have been at least ten grand jury investigation reports issued in the United States between 2002 and 2018 involving Roman Catholic clergy sexually abusing children. Id. at ¶18. Additionally, in 2002, the Boston Globe issued an investigative report into sexual abuse of children by clergy in the Boston Archdiocese, including an alleged cover up of sex abuse by a cardinal. Id. at ¶19.

C. Alleged relationship between the defendants

The FAC asserts that the Holy See has “unqualified and direct power over” the worldwide Roman Catholic Church, id. at ¶6, and that it “acted through individuals, corporations, and associations.” Id. at ¶7. The Holy See is the “overarching parent organization” of the Archdiocese of Agana,^[3] the Capuchins^[4] and FDMS.^[5] Id. at ¶49. The FAC claims that the Archdiocese of Agana, the Capuchins and FDMS “are not independent of or separate from the Holy See but are instead alter ego entities of the Holy See.”^[6] Id.

According to the FAC, the Holy See operates on Guam as a business through the alter ego entities, which are managed and operated by Doe Defendants 1-10 on behalf of and at the direction of the Holy See. Id. at ¶53. Revenues generated from tuition charged by FDMS were allegedly sent

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directly or indirectly to the Holy See, thus benefitting the Holy See. Id. at ¶54.

Additionally, “[t]he Holy See holds power to control the alter ego entities, and the obligation to protect those in its care[,] like the children . . .[,] from sexual abuse and assaults by the Holy See's agents and employees.” Id. at ¶61. The alter ego entities were the agents of the Holy See and were motivated in part to further the purposes of the Holy See. Id.

The Holy See, through the Pope, appoints the bishop of the Archdiocese of Agana, and only the Holy See, through the Pope, can suspend, remove, transfer or relieve the bishop of the Archdiocese of Agana. Id. at ¶¶50-51. The Pope appointed and then later removed Archbishop Apuron. Id. at ¶52. The FAC alleges Apuron sexually assaulted the Plaintiff and other children while he was both an agent of the Holy See and an employee of the Holy See through the alter ego entities. Id. at ¶¶55-57. The Holy See, through its agents, granted Apuron the authority to perform as a Roman Catholic priest, and certified and held Apuron out to the community of the faithful as a fit and competent agent of the Holy See. Id. at ¶62.

Apuron allegedly sexually assaulted the Plaintiff repeatedly while the Plaintiff was under Apuron's authority, influence, and control. Id. at ¶63. The alleged sexual assaults on Plaintiff “occurred while Apuron was acting in the scope of his employment, the agency relationship with the Holy See and its alter ego entities and/or this conduct was committed within the apparent authority arising from this employment and/or agency.” Id. at ¶64.

The Holy See allegedly knew or should have known of the rampant sexual abuse of minors on Guam by its employees, including Apuron. Id. at ¶65. The Holy See took no action to stop the alleged abuses and instead ignored or covered those abuses up so that it could continue to enjoy the revenue provided by the alter ego entities and Apuron. Id. at ¶66.

Apuron answered directly to the Pope in Rome when the allegations of Apuron's abuse of children became public. Id. at ¶58. The Holy See allegedly only took action when Apuron's actions “could no longer be hidden or denied.” Id. at ¶59.

D. Filing of action and alleged theories of liability

On August 8, 2018, the Plaintiff filed the original Complaint in the Superior Court of Guam.

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See Compl., ECF No. 1-1 at 53-68.^[7] The FAC was filed on January 14, 2019, to add the “Holy See (State of Vatican city), Its Instrumentalities and/or Agents - Does 1-10” as defendants. See FAC, ECF No. 1-1 at 2-25.^[8] The FAC set forth the following causes of action:

Cause of Action	Defendant(s)
1	Child Sexual Abuse	Apuron
2	Child Sexual Abuse (Vicarious Liability)	all defendants except...