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In re Roman Catholic Diocese of Albany

United States Court of Appeals, Second Circuit

February 7, 2014

In re ROMAN CATHOLIC DIOCESE of ALBANY, NEW YORK, INC. Michael SHOVAH, Plaintiff-Respondent,
v.
ROMAN CATHOLIC DIOCESE of ALBANY, NEW YORK, INC., Defendant-Petitioner, Fr. Gary MERCURE, Defendant-Respondent.

Submitted: January 14, 2014.

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[Copyrighted Material Omitted]

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Defendant-Petitioner, the Roman Catholic Diocese of Albany, New York, petitions this Court for a writ of mandamus directing the United States District Court for the District of Vermont (William Sessions, III, Judge) to dismiss the case against it for lack of personal jurisdiction. The district court found the Diocese " at home" in Vermont, and therefore subject to general jurisdiction in that state, based on occasional worship services held there by a small number of priests associated with the Diocese and other limited contacts. The district court's jurisdictional analysis is clearly erroneous. Subjecting the Diocese to suit and the resultant foray into sensitive documents--investigations into allegations of sexual abuse by its employees--when the case would be time-barred if brought in New York (likely the only state with jurisdiction) constitutes " exceptional circumstances" warranting the " extraordinary remedy" of a writ of mandamus. A writ of mandamus is the only " adequate means" for the Diocese to prevent that irreparable harm. The clarity of the district court's error, taken together with the substantial confidentiality interests at stake (which are amplified by the fact that the case against the Diocese is unlikely to ultimately proceed to trial in any forum), establish that the Diocese has a " clear and indisputable" right to the writ.

Accordingly, we GRANT the Diocese's petition for a writ of mandamus, VACATE the September 3, 2013 order of the district court, and instruct the district court to grant the Diocese's motion to dismiss the claims against it for lack of personal jurisdiction.

MICHAEL L. COSTELLO, Tobin and Dempf LLP, Albany, NY (Meir Feder, Jones Day, New York, NY; Thomas E. McCormick, McCormick, Fitzpatrick, Kasper & Burchard, P.C., Burlington, VT, on the brief), for Defendant-Petitioner.

JEROME F. O'NEILL, O'Neill Kellner & Green, P.C., Burlington, VT, for Plaintiff-Respondent.

SHANNON BERTRAND, Kenlan, Schwiebert, Facey & Goss, P.C., Rutland, VT, for Plaintiff-Respondent.

Before: WINTER, WESLEY, AND CHIN, Circuit Judges.

OPINION

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PER CURIAM:

Michael Shovah filed suit in the United States District Court for the District of Vermont against the Diocese and its former priest, Gary Mercure, alleging that Mercure transported Shovah (when he was a minor sometime in the late 1980s[2] from

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New York to Vermont for the purpose of sexually abusing him, and did sexually abuse him. Shovah asserted only general (not specific) jurisdiction over the Diocese: the Diocese's alleged wrongs--breach of fiduciary duty to Shovah by permitting Mercure to hold himself out as a Roman Catholic priest and negligent supervision of Mercure--did not arise from its contacts with Vermont.

The Diocese is a New York special act corporation with its principal office in Albany, New York. It covers fourteen counties in New York, and does not own real property, maintain an office, or have any financial accounts in Vermont. Each parish in the Diocese constitutes a separate religious corporation that owns its real property, establishes its own operating budget, hires and supervises its own employees, and relies on its own parishioners for charitable contributions. From 2002 through 2012, six of the Diocese's more than 100 parishes were located near the Vermont border, and served a total of 78 parishioners who resided in Vermont; those parishioners constitute 2.2% of the six parishes' combined registered parishioners. From 2002 through 2012, the six border parishes employed 18 Vermont residents, used a total of 21 Vermont vendors (in contrast to the 698 non-Vermont vendors), and accepted advertisements from eleven Vermont merchants (including a barber shop, a pizza parlor, a chiropractor, a law firm, and a funeral home) for publication in church materials.

During those ten years, the Diocese's weekly newspaper, The Evangelist, had a weekly circulation of 46,224; forty of those subscribers were Vermont residents. During the same period, the Diocese received.080% (or $56,305) of its more than $67 million in philanthropic gifts from Vermonters. Twelve Vermont students enrolled in Diocesan schools.

Between 2002 and 2012, at least thirteen of the Diocese's approximately 200 priests conducted a combined total of sixteen services of worship in Vermont. In addition, from July 2002 to February 2009, the Diocese authorized Father Zelker, a New York priest, to celebrate Sunday morning mass at a Vermont church. Father Zelker neither served nor was ever designated as a pastor of the Vermont church.

Following jurisdictional discovery, the Diocese moved to dismiss the action for want of personal jurisdiction. In opposition, Shovah pressed a jurisdictional predicate based on " Diocesan employees working and living in Vermont, Diocesan publications [being] sent to Vermont residents[,]... [Diocese parishes] accepting advertising from Vermont vendors, and Diocesan parishioners, students and contributors residing in Vermont."

The district court denied the Diocese's motion to dismiss. Although the court acknowledged that the Diocese " maintains no financial or physical foothold in the state," and that its " direct contacts with the state... have been limited," it concluded that Father Zelker's weekly masses that ended in 2009 and the sixteen services of worship conducted by thirteen Diocese priests over a ten-year period were imputable to the Diocese and together were " sufficiently continuous and systematic to render the Diocese at home in Vermont." Shovah v. Mercure, 2:11-CV-201, 2013 WL 4736836, *3-4 (D. Vt. Sept. 3, 2013). Based primarily on those two sets of contacts, the court found that Shovah had sufficiently pled jurisdiction and then declined

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to address whether the parishes' contacts were imputable to the Diocese and could also serve as a ...


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