Wheeler v. Ne. Province Jesus
| Decision Date | 30 March 2017 |
| Docket Number | SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-16-74 |
| Parties | BENJAMIN WHEELER, Plaintiff, v. NORTHEAST PROVINCE OF THE SOCIETY OF JESUS, et al., Defendants. |
| Court | Maine Superior Court |
STATE OF MAINE
CUMBERLAND, ss
Before the court is a motion by defendant Roman Catholic Bishop of Portland (hereafter the "Diocese") for summary judgment and judgment on the pleadings.
Wheeler's complaint names four defendants: the Northeast Province of the Society of Jesus, Reverend James Talbot, the Diocese, and Cheverus High School. At the outset of the action Cheverus filed a motion to dismiss. In an order dated August 12, 2016 that motion was granted in part and denied in part. Wheeler then filed an amended complaint which dropped certain claims against Cheverus and reorganized the claims against the other defendants.
Thereafter the Jesuits and Cheverus filed motions for judgment on the pleadings based on the statute of limitations. By order dated March 3, 2017 the court denied the motions by the Jesuits and Cheverus for judgment on the pleadings.
The motion for judgment on the pleadings by the Diocese adopts the statute of limitations arguments made by the Jesuits and Cheverus, and the court therefore denies the motion by the Diocese for judgment on the pleadings for the reasons set forth in its March 3, 2017 order. The motion by the Diocese for summary judgment remains to be decided.
Summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. In considering a motion for summary judgment, the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements. E.g., Johnson v. McNeil, 2002 ME 99 ¶ 8, 800 A.2d 702. The facts must be considered in the light most favorable to the non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a party in opposition to summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99 ¶ 8, 694 A.2d 924.
However, where a party can demonstrate that the evidence it needs to oppose summary judgment is not in its possession but may be obtainable through discovery, decision on a summary judgment motion may be postponed. Specifically, Rule 56(f) provides that when a party can show a sufficient need for discovery to obtain admissible evidence in opposition to a motion for summary judgment, the court may order a continuance to permit depositions to be taken or discovery to be had.
As discussed in prior orders, plaintiff Benjamin Wheeler's claims in this action all stem from the allegation that Wheeler was sexually abused on several occasions by Father Talbot at St. Jude's Church in Freeport in January through April of 1998, when Wheeler was nine years old. First Amended Complaint ¶¶ 13-14. As against the named defendants other than Talbot, Wheeler's claims are essentially based on theories that they facilitated Talbot's abuse, failed to protect Wheeler from the abuse, and failed to disclose a risk that they knew or should have known Talbot presented.
Specifically, Count I of Wheeler's first amended complaint asserts claims against the Diocese based on the following:
Count II of Wheeler's first amended complaint asserts an intentional infliction of emotional distress claim against the Diocese based on its alleged facilitation of Talbot's abuse and its non-disclosure of what Wheeler alleges was a known risk presented by Talbot.
Count III of Wheeler's first amended complaint asserts a claim that the Diocese engaged in fraudulent concealment of Talbot's propensity to abuse children.
Count IV of Wheeler's first amended complaint asserts a civil conspiracy claim against the Diocese and the other defendants.
The Diocese contends that there is no evidence that the Diocese had any knowledge of any accusations against Talbot or of the risk that Talbot would sexually abuse minors until June 1998 - after the alleged abuse of Wheeler had occurred - and that the Diocese immediately suspended Talbot from his clerical duties in the Diocese in June 1998 when it learned of an accusation against Talbot involving a child named Michael Doherty. The Diocese argues that knowledge by the Diocese that Talbot presented a risk is an essential element of all of Wheeler's claims, and that the Diocese is therefore entitled to summary judgment.
The Diocese further argues that its motion is not premature because discovery was undertaken by the same attorney now representing Wheeler in a lawsuit brought by Doherty and that discovery did not uncover any evidence of knowledge on the part of the Diocese.
Wheeler for his part contends that the Diocese's summary judgment motion is premature because there are several avenues of discovery that should be undertaken and Wheeler is not limited by the discovery taken in the Doherty case. Wheeler also contends that on the existing record there is sufficient evidence that at least one person in authority in the Diocese was on notice of the possibility of sexual abuse by Talbot prior to the alleged abuse of Wheeler. Specifically, Wheeler has offered evidence that a number of years prior to the alleged victimization of Wheeler, Father Chabot, the pastor of Sacred Heart parish in Yarmouth, had seen Talbot bring Michael Doherty, at that time a student at Cheverus, back to the Rectory to stay overnight on one or more occasions. Doherty Affidavit ¶¶ 6-11. As noted above, Dohertylater accused Talbot of sexual abuse, and Wheeler argues that Doherty's overnight stays at the Rectory with Talbot at least put the Diocese on notice of the risk that Talbot would victimize children.2
While arguing that the motion by the Diocese is premature and that further discovery is necessary, Wheeler has not followed the proper procedure for seeking a continuance under Rule 56(f). As the Law Court ruled in Bay View Bank N.A. v. Highland Golf Mortgagees Realty Trust, 2002 ME 178 ¶ 22, 814 A.2d 449, a party seeking a continuance for further discovery under Rule 56(f) must make a motion under that rule. The Court observed that First Circuit precedent provides "a helpful, but not mandatory, framework" for evaluating such a motion and includes the following requirements; (1) that the motion be made within a reasonable time after the filing of the summary judgment motion; (2) that the movant place the trial court on notice that it seeks to delay action on the motion; (3) that the movant has been diligent and show good cause why the discovery sought was not previously practicable; (4) that the motion set forth a plausible basis for believing that the discovery sought would probably leads to evidence that would affect the outcome of the motion; and (5) that the motion attest that the movant has personal knowledge of the recited grounds for the continuance. Id.
In this case Wheeler's counsel has not filed a motion and does not attest that he has personal knowledge of the requested continuance. He has, however, promptly placed the court on notice that he is seeking further discovery. Moreover, and crucially, counsel for the Diocese ismore than ordinarily knowledgeable as to the rules of civil procedure, and the Diocese does not raise the absence of a motion or the absence of any attestation of personal knowledge as reasons to ignore Wheeler's 56(f) request.3 Nor does the Diocese argue that counsel for Wheeler has not been sufficiently diligent in seeking discovery to date.
As noted above, the First Circuit precedent referred to in the Bay View Bank decision is "not mandatory." In addition, the court is not ordinarily inclined to resolve issues based on arguments that have not been raised by the parties. Accordingly, it will focus on the argument that has been made by the Diocese - that there is no plausible basis for concluding that further discovery would elicit evidence that the Diocese had knowledge of the risk that Talbot would sexually abuse children. On that issue Wheeler is seeking to depose Talbot and Bishop Gerry, neither of whom has never been deposed, and to obtain any personnel file maintained on Talbot by the Jesuits or the Diocese. The Diocese argues that Talbot previously invoked the Fifth Amendment, that Bishop Gerry is 88 years old, and that counsel for Wheeler previously had the opportunity to take discovery when representing Michael Doherty in a case filed in 1998.
Even if he has the same counsel, Wheeler's discovery cannot be limited because discovery was not taken in the Doherty case. Moreover, any knowledge or suspicion (or lack thereof) that Bishop Gerry had concerning Talbot would be highly relevant to Wheeler's claims against the Diocese. Wheeler has also furnished information that in 2015 Talbot made some admissions during a parole hearing that raises the possibility that Talbot would no longer invoke the Fifth Amendment.4 Finally, although Wheeler provides no support for his contention thatthere is a personnel file on Talbot that was supposed to be turned over to Massachusetts authorities, Wheeler is entitled to ask for any such personnel file hat may exist.
Accordingly, the court concludes there is a plausible basis to allow further discovery.
Discovery may lead to evidence of actual knowledge within the Diocese of the risk that Talbot allegedly presented....
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