Circuit Rejects Bid to Sue Albany Diocese in Vermont

, New York Law Journal


Map of Albany diocese and distance to Vermont federal court in Burlington

A plaintiff's attempt to sue the Roman Catholic Diocese of Albany in Vermont for negligent supervision of a former priest accused of sexually abusing a minor has been dismissed by a federal appeals court.

Taking the rare step of issuing a writ of mandamus, the U.S. Court of Appeals for the Second Circuit said the diocese's "scant" contacts with Vermont through occasional worship services held over the border from New York fell far short of giving a Vermont federal court in Burlington jurisdiction over the case.

The Second Circuit ordered U.S. District Judge William Sessions to dismiss Shovah v. Roman Catholic Diocese of Albany, New York, 13-4736-cv, where allegations against the diocese in New York for the alleged actions of former priest Gary Mercure in the late 1980s were barred by the statute of limitations.

"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 writ of mandamus," Judges Ralph Winter, Richard Wesley and Denny Chin said by per curium opinion.

Plaintiff Michael Shovah alleged that, when he was a minor during the late 1980s, Mercure took him across the border from New York to Vermont and sexually abused him.

Shovah's claims included a breach of fiduciary duty by permitting Mercure to hold himself out at as a priest and negligent supervision of Mercure.

When the diocese moved to dismiss, Sessions held on Sept. 3, 2013 that there was personal jurisdiction and the case could proceed. The diocese filed a petition for a writ of mandamus at the circuit, where the court granted expedited consideration of the matter in December and received papers on Jan. 14.

From 2002 to 2012, the Albany Diocese had six of its more than 100 parishes located near the Vermont border and served 78 parishioners who lived in Vermont. Those six parishes employed 18 Vermont residents, used 21 Vermont vendors and accepted advertisements from Vermont businesses.

During the same time period, some 13 of the diocese's 200 priests held a total of 16 worship services in Vermont and, from 2002 to 2009, an additional priest celebrated Sunday morning mass at a Vermont church.

Sessions had found personal jurisdiction based on the services alone, saying the 13 priests and the weekly Sunday masses together were "sufficiently continuous and systematic to render the Diocese at home in Vermont."

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