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Shovah v. Mercure

United States District Court, Second Circuit

September 3, 2013

Michael Shovah, Plaintiff,
Gary Mercure, The Roman Catholic Diocese of Albany, New York, Inc. Defendants.



Michael Shovah alleges that Gary Mercure, a former priest from the Roman Catholic Diocese of Albany New York, Inc. (the "Diocese"), engaged in sexual exploitation and abuse of children in violation of 18 U.S.C. §§ 2422 and 2423. Shovah claims that the Diocese breached its fiduciary duty to Shovah by permitting Mercure to hold himself out as a Roman Catholic Priest and negligently supervised Mercure, which facilitated Shovah's abuse. Shovah also claims that the Diocese's conduct was outrageous and caused Shovah to suffer extreme emotional distress. The Diocese moves to dismiss the claims against it for want of personal jurisdiction. Mot. Dismiss, ECF No. 90. For the reasons explained below, that motion is denied.


Gary Mercure served as a priest for the Diocese. Compl. ¶ 8, ECF No. 1. Shovah alleges that Mercure transported him from New York to Vermont with the intent to engage in criminal sexual activity with the Plaintiff. Id. ¶¶ 15-17. The Diocese did not sanction, sponsor, or authorize Mercure's trip to Vermont. Farano Aff. ¶ 23, ECF No. 90-1.

The Diocese of Albany ("Diocese") is a New York special act corporation created under the New York Religious Corporations Law and maintains its principal office in Albany. Compl. ¶ 7; Farrell Aff. (April 26, 2013) ¶ 11, ECF No. 90-4. The Diocese territory overlaps with fourteen New York State counties. Farrell Aff. ¶ 11. The Diocese does not own any real property, maintain an office, or possess any financial accounts in Vermont. Id. ¶¶ 4-6.

The Evangelist serves as the weekly newspaper of the Diocese and maintained an average weekly circulation of over 46, 000 copies between 2002 and 2012. Blain Aff. ¶ 3, ECF No. 90-5. A total of 40 Vermonters received The Evangelist during the same period. Id. ¶ 4. Between 2002 and 2012, 235 Vermonters gave philanthropic gifts totaling $56, 305.00, which represents 0.080 percent of all monies received by the Diocese during that period. Prindle Aff. ¶¶ 5-6.; List of Gifts from Vermont Residents, ECF No. 92-4. In the same ten years, the Diocese utilized at least six Vermont vendors, see Vendor Lists, ECF No. 92-3, and twelve Vermont students were enrolled in Diocesan schools. See List of Vermont Children Enrolled in Diocese Schools, ECF No. 92-6.

Priests incardinated to the Diocese of Albany conducted a number of services in Vermont between 2002 and 2012.[1] Doyle Aff. ¶¶ 5-6, ECF No. 90-2. From July 2002 to February 2009, the Diocese permitted Father Zelker, a priest at St. Mary's Parish in Granville, New York, to celebrate a Sunday morning Mass. at the St. Frances Cabrini Church in West Pawlet, Vermont. Zelker Aff. (June 12, 2013) ¶ 8, ECF No. 93-2. When he announced the arrangement, Kenneth Angell, the Bishop of Burlington, explained that Father Zelker's role had been authorized by Howard Hubbard, the Bishop of Albany. Letter from Kenneth Angell, the Bishop of Burlington, to the St. Frances Cabrini Parish (June 27, 2002), ECF No. 103-1. At the end of 2008, Bishop Hubbard wrote to Salatore Matano, Angell's successor as Bishop of Burlington, to explain that the Albany Diocese's pastoral planning process had recommended "that [the Albany Diocese] not continue to staff St. Frances Cabrini Parish in West Pawlet of the Burlington Diocese." Letter from Howard Hubbard, Bishop of Albany, to Salvatore Matano, Bishop of Burlington (Dec. 30, 2008), ECF No. 103-5. In addition to Father Zelker, thirteen priests from the Diocese of Albany conducted at least sixteen services of worship in Vermont between 2002 and 2012. Pl.'s Mem. in Opp'n, Ex. A.

Individual parishes within the Diocese had their own contacts with Vermont. Each parish in the Albany Diocese constitutes a separate religious corporation. Farrell Reply Aff. (June 13, 2013) ¶ 3, ECF No. 93-3. Pursuant to the New York Religious Corporations Law, each parish is governed by five trustees, which include the Bishop of Albany, the vicar-general of the Diocese, the local pastor, and two laypersons of the church. Id. ¶ 4. Each parish owns its real property, establishes its own operating budget, relies on its own parishioners for charitable contributions to support its budget, and hires and supervises its own employees. Id. ¶¶ 5-8. In sum, six parishes within the Diocese have employed a total of eighteen employees who reside in Vermont and have served a total of seventy-eight parishioners who reside in Vermont. See Costello Decl. (June 13, 2013) ¶¶ 8-25, ECF No. 93-4. These parishes are engaged in business dealings with a total of twenty-one Vermont vendors and accepted advertisements from eleven Vermont vendors for publication in church materials between 2002 and 2012. Id.


On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of showing that the court has jurisdiction over the defendant. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994) ("The burden of proving jurisdiction is on the party asserting it."). Where there has been limited discovery and the motion is being decided without an evidentiary hearing, the plaintiff need make only a prima facie showing of jurisdiction, through its own affidavits and supporting materials. Tom and Sally's Handmade Chocolates, Inc. v. Gasworks, Inc., 977 F.Supp. 297, 300 (D. Vt. 1997). Although the Court must resolve factual disputes in favor of Shovah, it must accept as true any facts contained in the Diocese of Albany's supporting affidavits that he does not dispute. See Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 198 (2d Cir. 1990) (explaining that a Court may rely on undisputed facts to establish jurisdiction).

To exercise personal jurisdiction over the Diocese, the Court must determine (1) the Diocese is subject to service of process under Vermont laws and (2) that the Court's assertion of jurisdiction under those laws comports with the requirements of due process. See Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996). Because Vermont's long-arm statute reflects a "clear policy to assert jurisdiction over individual defendants to the full extent permitted by the Due Process Clause, " Id. at 567 (internal quotation omitted), the two inquiries merge into one: whether the Court's exercise of personal jurisdiction over the Diocese satisfies the requirements of due process.

The due process requirement for personal jurisdiction has two components: the minimum contacts inquiry and the reasonableness inquiry. The first component "protects a person without meaningful ties to the forum state from being subjected to binding judgments within its jurisdiction." Metro. Life Ins. Co., 84 F.3d at 567. Courts differentiate between two types of jurisdiction: "general or all-purpose jurisdiction, and specific or case-linked jurisdiction." Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846, 2851 (2011). In this case, Shovah advances a theory of general but not specific jurisdiction. See Pl.'s Reply Mem. at *6, ECF No. 92. The second component of due process "asks whether the assertion of personal jurisdiction comports with traditional notions of fair play and substantial justice'-that is, whether it is reasonable under the circumstances of the particular case." Metro. Life Ins. Co., 84 F.3d at 568 (quoting Int'l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945)).

I. General Jurisdiction

For a court to assert general jurisdiction over a corporation, its contacts with the forum state must be "so continuous and systematic' as to render them essentially at home...." Goodyear, 131 S.Ct. at 2851 (quoting Int'l Shoe, 326 U.S. at 317). "There is no talismanic significance to any one contact or set of contacts that a defendant may have with a forum state; ...

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