Robles v. Holy See (Vatican City), 20-CV-2106 (VEC)
| Decision Date | 20 December 2021 |
| Docket Number | 20-CV-2106 (VEC) |
| Parties | THOMAS ALBERTO ROBLES, Plaintiff, v. HOLY SEE (STATE OF VATICAN CITY); THE VATICAN; OUR LADY OF MOUNT CARMEL PARISH; CHURCH OF OUR LADY OF MT. CARMEL; OUR LADY OF MT. CARMEL DEVELOPMENT CORPORATION; ARCHDIOCESE OF NEW YORK a/k/a ROMAN CATHOLIC ARCHDIOCESE OF NEW YORK; ARCHBISHOP OF NEW YORK; and THE SOCIETY OF THE CATHOLIC APOSTOLATE a/k/a PALLOTTINES; Defendants. |
| Court | U.S. District Court — Southern District of New York |
In 1974, Barry F. Bossa pled guilty to misdemeanor sexual abuse for performing oral sex on a twelve-year-old boy. Seven years later, in 1981, he was ordained as a Catholic priest. Bossa then became a parish priest at Mt. Carmel Church in New York City, where Thomas Alberto Robles, the plaintiff in this case and a minor at the time, was a parishioner. According to Mr Robles, between 1981 and 1986, Bossa repeatedly sexually abused him. Mr. Robles has brought this suit against several defendants, including various non-profit ecclesiastical organizations in New York (the “New York Defendants”), the Archbishop of New York, and the Holy See, otherwise known as the Vatican. The Holy See has moved to dismiss for lack of subject-matter jurisdiction, lack of standing, and failure to state a claim upon which relief can be granted. For the reasons that follow, the Holy See's motion to dismiss is GRANTED without prejudice to Plaintiff seeking leave to amend as to his vicarious liability negligence claim and with prejudice as to all other claims.
Mr. Robles, a New York resident, filed this suit on March 19, 2020, alleging that Bossa sexually abused him between January 1, 1981 and December 31, 1986. Compl., Dkt. 3 ¶¶ 1, 4, 7. At the time of the alleged abuse, Mr. Robles was a minor attending Mt. Carmel Church, where Bossa was a priest. Id. ¶¶ 7-8. The Holy See is a foreign state, [1] and it is the ecclesiastical, governmental, and administrative capital of the Roman Catholic Church, located in the Vatican City State, Italy. Id. ¶ 17. Plaintiff maintains that all Defendants had various employment and supervisory responsibilities over Bossa during the time of the alleged abuse. Id. ¶¶ 2-4, 38, 41, 77-79. With respect to the Holy See, Plaintiff alleges that the sovereign's policies regarding handling sexual abuse allegations against members of the clergy - primarily the 1962 Crimen sollicitationis (the “1962 Policy”) and the 1917 Canon of Law (the “Canon”) - contributed to his abuse. Id. ¶¶ 69-74; see Haller Decl., Dkt. 78-5, Ex. E (1962 Policy).[2]According to Plaintiff, when they applied, those policies required complete secrecy regarding certain allegations of sexual misconduct and forbade clergy members from revealing, reporting, or warning of sexual abuse committed by other clergy to anyone outside the Church or to most within the Church, other than through a mandatory reporting process discussed below. Compl. ¶¶ 69-74. On the basis of these policies and the Holy See's status as an employer, Mr. Robles asserts five claims against the Holy See: (1) negligence, both direct and via vicarious liability; (2) negligent training, supervision, and retention, both direct and via vicarious liability; (3) gross negligence; (4) breach of contract; and (5) violation of Customary International Law, both direct and via vicarious liability. Id. ¶¶ 102-68.
After Plaintiff served the Holy See on January 5, 2021, see Dkt. 66, the Holy See moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6) on the grounds that: this Court lacks jurisdiction over it under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1330 et seq.; Plaintiff lacks standing; and Plaintiff failed to state a claim. See Not. of Mot., Dkt. 74; See Def. Mem., Dkt. 75 at 1-2, 27, 29.[3] As the following analysis shows, all of Plaintiff's claims fail, although they do so at different stages of the FSIA analysis.
In its motion to dismiss, the Holy See raises a facial attack against the Complaint under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). Def. Mem. at 1. To survive the Holy See's motion to dismiss, Mr. Robles' “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In general, “a complaint does not need to contain detailed or elaborate factual allegations, but only allegations sufficient to raise an entitlement to relief above the speculative level.” Keiler v. Harlequin Enters. Ltd., 751 F.3d 64, 70 (2d Cir. 2014) (citation omitted). The Court accepts all factual allegations in the complaint as true and draws all reasonable inferences in the light most favorable to the plaintiff. See Gibbons v. Malone, 703 F.3d 595, 599 (2d Cir. 2013). Although the Court accepts factual allegations as true, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
There is a presumption in the FSIA that foreign states are immune from the jurisdiction of courts in the United States. 28 U.S.C. § 1330(a)-(b) (); Schoeps v. Bayern, 27 F.Supp.3d 540, 542 (S.D.N.Y. 2014) () (quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989)). A foreign state is only subject to the jurisdiction of a U.S. court if one of the FSIA's enumerated exceptions applies. 28 U.S.C. § 1604; Atlantica Holdings, Inc. v. Sovereign Wealth Fund Samruk-Kazyna JSC, 813 F.3d 98, 106 (2d Cir. 2016); see also 28 U.S.C. § 1330(a) (providing original jurisdiction). Here, Plaintiff argues that two exceptions apply: the Commercial Activity Exception, 28 U.S.C. § 1605(a)(2), and the Tortious Act Exception, 28 U.S.C. § 1605(a)(5). The Court finds that the latter exception applies, but that, insofar as it applies, the Discretionary Function Exclusion from the Exception, discussed infra at 23-28, also applies, leaving the Court without jurisdiction over the Holy See.
The Commercial Activity Exception to the FSIA provides jurisdiction when the action is based upon (1) “a commercial activity carried on in the United States by the foreign state”; (2) “an act performed in the United States in connection with a commercial activity of the foreign state elsewhere”; or (3) “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). Whether an action is commercial in character is “determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.” 28 U.S.C. § 1603(d). A sovereign engages in commercial activity when it acts “not as [a] regulator of a market, but in the manner of a private player within it.” Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992).
The U.S. Supreme Court has held that courts should look to the “gravamen of the complaint” when determining whether a claim against a foreign state is commercial. Saudi Arabia v. Nelson, 507 U.S. 349, 357 (1993) (citation omitted). The Court does not need to determine whether the Holy See was otherwise engaged in commercial activity within the meaning of the statute because Plaintiff's claims are clearly not commercial.
The gravamen of Plaintiff's complaint is a personal injury claim based on alleged sexual abuse. In Nelson, an American employee of a Saudi hospital sued the Kingdom of Saudi Arabia for injuries from his alleged detention and torture by the Saudi Government. 507 U.S. at 352-55. The Supreme Court determined that, although the commercial activities of being recruited and employed by Saudi Arabia led to the employee's alleged injury, the gravamen of the employee's claim was tortious and not commercial. Id. at 358. While Plaintiff argues that the Holy See is a commercial actor and provides many examples of activities engaged in by the Holy See that are purportedly commercial, See Pl. Opp., Dkt. 86 at 5-6, Plaintiff does not plausibly argue that the essence of his complaint is commercial. See Doe v. Holy See, 434 F.Supp.2d 925, 942 (D. Or. 2006) () (citing Nelson, 507 U.S. at 363), rev'd on other grounds, 557 F.3d 1066 (9th Cir. 2009); Def. Reply, Dkt. 87 at 4.[4] The employment of Bossa may have been commercial in some sense of the term, but Bossa's alleged tortious behavior was not. To the extent that other plaintiffs have attempted to rely on the Commercial Activity Exception as a basis for jurisdiction over the Holy See for clergy sexual abuse claims, courts have consistently held that such claims are tortious in nature and therefore do not fall within the Commercial Activity Exception. O'Bryan v. Holy See, 556 F.3d 361, 380 (6th Cir. 2009); Doe, 434 F.Supp.2d at 942; see also O'Bryan v. Holy See, 471 F.Supp.2d 784, 788 (W.D. Ky. 2007).
Apparently hoping that this Court would somehow be persuaded to sidestep precedent relative to the inapplicability of the Commercial Activity Exception to clergy...
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