http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00SOL Reformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgSOL Reform2013-01-06 15:56:072014-06-02 16:03:46Sex abuse suit against Holy Redeemer principal tossed; judge says too much time has passed, Detroit Free Press
http://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpg00solreformhttp://sol-reform.com/News/wp-content/uploads/2016/04/Hamilton-Logo.jpgsolreform2013-01-06 07:03:002013-01-06 07:03:00Our homegrown pro-rape culture is out and proud – from Steubenville to the expiration of VAWA
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The NYPD is investigating whether the hoops coach at Holy Cross HS in Queens had
any inappropriate contact with the students he’s accused of watching take
showers, law-enforcement sources told The Post yesterday.
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This matter is before the Court on a motion to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6), brought by Defendant Diocese of Camden, New Jersey (“Defendant” or “Diocese”). [Docket Item 17.] Plaintiff Bryson’s Amended Complaint [Docket Item 14] asserts three counts against Defendant arising from sexual abuse Plaintiff allegedly suffered more than 40 years ago at the hands of Father Joseph Shannon, a priest in the Diocese: (1) liability under the New Jersey Child Sexual Abuse Act (“CSAA”), N.J. Stat. Ann. § 2A:61B-1 (“Count I”), (2) negligent retention and supervision of Father Shannon and failure to provide a safe environment for Plaintiff (“Count II”), and (3) breach of fiduciary duty by failing to adequately supervise Plaintiff and to warn him of the dangers posed by Father Shannon (“Count III”). [Am. Compl. at 10-14.] Father Shannon is not a defendant in this action.
Defendant moves for dismissal on the grounds that it cannot be liable under the CSAA, because it does not qualify as a passive abuser under state law, and that all of Plaintiff’s claims are time-barred. The Court must decide whether Defendant fits the definition of “a person standing in loco parentis within the household” under the CSAA, and whether the relevant statutes of limitations are tolled by the CSAA, the “discovery rule” or by reason of insanity. Because the Court finds that Defendant was not “within the household” for purposes of the statue, the Court will dismiss Count I. The Court further finds that Defendant’s motion to dismiss Plaintiff’s common law claims must be denied, because Plaintiff has presented a plausible argument for tolling the statute of limitations, which requires a hearing.
II. BACKGROUND
Plaintiff Bryson was born in 1961 and attended St. Anthony of Padua Catholic School (“St. Anthony”) in Camden, N.J. 1 [Am. Compl. ¶¶ 5-6.] Father Shannon was an ordained Catholic priest living and working in the Diocese of Camden at St. Anthony, and, when Plaintiff was in the first grade, Father Shannon would care for Plaintiff after school until Plaintiff’s mother arrived several hours later. [Id. ¶¶ 6-7.] Plaintiff would stay late at least once a week. [Id. ¶ 7.] Father Shannon counseled Plaintiff on religious matters and visited Plaintiff’s home at least once, purportedly to offer counsel and support to Plaintiff and his family. [Id. ¶¶ 8-10.]
One day, Father Shannon took Plaintiff to the basement of St. Anthony, hugged him, removed Plaintiff’s pants and “sexually abused [Plaintiff] by fondling his penis, among other things.” [Id. ¶ 11.] Father Shannon instructed Plaintiff to keep the incident secret and said that “God wants us to feel good” by engaging in sexual conduct. [Id.] Plaintiff did not mention the incident to anyone. [Id.] Plaintiff asserts that the sexual abuse was repeated every time Father Shannon cared for Plaintiff after school until Plaintiff transferred to public school for the second [367] grade, as well as when Father Shannon disciplined Plaintiff for behavioral misconduct during school. [Id. ¶¶ 11-12.] Plaintiff asserts that he repressed all memories of abuse until February 10, 2010, when he “saw an adult male who triggered the memory of a priest.” [Id. ¶ 15.]
Nearly two years later, on January 27, 2012, Plaintiff filed his first Complaint [Docket Item 1], which was amended. Defendant filed the present motion to dismiss.
The Court has diversity jurisdiction over this matter under 28 U.S.C. § 1332(a) because Plaintiff is a citizen of Ohio, Defendant is a New Jersey non-profit corporation with its principal place of business in New Jersey, and the amount in controversy exceeds $75,000. [Am. Compl. ¶¶ 1-3.]
In addition to the facts above, Plaintiff alleges in his Amended Complaint that the Diocese “fraudulently concealed the wrongful acts and omissions by the Diocese that led to [Plaintiff’s] abuse . . . .” [Id. ¶ 18.] Plaintiff alleges that the Diocese knew or should have known about Father Shannon’s abuse of Plaintiff and other boys, yet continued to place Father Shannon in contact with young boys and affirmatively represented to the public that children were safe around him. [Id. ¶¶ 23-25, 28.] Plaintiff alleges that the Diocese followed a “policy” handed down from the Vatican to keep allegations of sexual abuse secret, to investigate claims internally, and keep all documentation confidential. [Id. ¶¶ 29-30.] Later, Plaintiff claims the National Catholic Conference of Bishops instructed bishops across the country, including the bishop of the Diocese, to destroy all documentation of incidents of abuse. [Id. ¶ 31.] Plaintiff asserts that the Diocese “concealed, altered, or destroyed documents which disclosed the Diocese’s knowledge and wrongdoing with regard to Father Shannon.” [Id. ¶ 32.]
III. Discussion
A. Standard of review
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) may be granted only if, accepting the well-pleaded allegations in the complaint as true and viewing them in light most favorable to the plaintiff, the court concludes that the plaintiff fails to set forth a claim upon which relief may be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). However, the presumption of truth does not apply to legal conclusions set forth in the complaint. Iqbal, 556 U.S. at 678. A complaint will survive a motion to dismiss if it contains sufficient factual matter to “state a claim to relief that is plausible on its face.” Id. at 663.
Sitting in diversity, the Court must apply the substantive law of the state whose laws govern the action, in this case, New Jersey. See Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1365 (3d Cir. 1993). The state’s highest court is the “authoritative source” of state law. Spence v. ESAB Group, Inc. 623 F.3d 212, 216 (3d Cir. 2010). If the state’s highest court has not ruled on the issue, the federal court must predict how the state’s highest court would resolve the issue,Borman v. Raymark Indus., Inc., 960 F.2d 327, 331 (3d Cir. 1992), and, in those circumstances, intermediate court opinions should be given significant weight. Rolick v. Collins Pine Co., 925 F.2d 661, 664 (3d Cir. 1991).
B. Liability under the New Jersey Child Sexual Abuse Act
Count I of the Amended Complaint alleges that the Diocese “acted as [Plaintiff’s] guardian in the place of his parents, [368] and stood in loco parentis to [Plaintiff].” [Am. Compl. ¶ 38.] The Diocese “provided necessary shelter, food, educational instruction, recreational activities, and emotional support to [Plaintiff].” [Id.] Plaintiff alleges that the Diocese “knowingly permitted or acquiesced” to Father Shannon’s abuse of Plaintiff, incurring liability under the CSAA. [Id. ¶ 40.]
Defendant argues that it cannot be held liable under the CSAA as a matter of law, because it does not qualify as “a person standing in loco parentis within the household,” a requirement for incurring passive liability. 2 [Def. Mot. Br. at 4-5.] Specifically, Defendant argues that it did not function as Plaintiff’s parent and was not part of Plaintiff’s household. [Id. at 5.] Defendant acknowledges that the Supreme Court of New Jersey held a boarding school to be in loco parentis and “within the household” under the CSAA in Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 902 A.2d 900 (2006), but Defendant argues that this case is distinguishable because Plaintiff did not reside at St. Anthony. [Id. at 5.] Instead, Defendant points to New Jersey cases that held or concluded that a day school was not “within the household”: D.M. v. River Dell Reg’l High Sch., 373 N.J. Super. 639, 862 A.2d 1226 (N.J. Super. Ct. App. Div. 2004), cert. denied, 188N.J. 356, 907 A.2d 1016 (2006); Smith v. Estate of Kelly, 343 N.J. Super. 480, 778 A.2d 1162 (N.J. Super. Ct. App. Div. 2001), and Y.G. v. Bd. of Educ. for the Twp. of Teaneck, No. 2124-08, 2011 N.J. Super. Unpub. LEXIS 954, 2011 WL 1466277 (N.J. Super. Ct. App. Div. Apr. 19, 2011). [Id. at 5-6.]
Plaintiff responds that private schools stand in loco parentis of children they undertake to care for and protect. [Pl. Opp’n at 5-6.] Additionally, Plaintiff argues that New Jersey courts read the term “household” expansively, and do not require residence under a single roof. [Id. at 7.] Plaintiff concludes that Defendant is a person standing in loco parentis within the household because it provided Plaintiff with food, shelter, educational instruction, recreational activities and emotional support, as the school did for the plaintiff in Hardwicke. [Id.] Plaintiff notes that an unpublished decision from the District of New Jersey, Nunnery v. Salesian Missions, Inc., No. 07-2091, 2008 U.S. Dist. LEXIS 31207, 2008 WL 1743436 (D.N.J. Apr. 15, 2008), found a private day school to be “within the household” for purposes of the CSAA, and Plaintiff urges the Court to follow that decision. [Id. at 8-9.]
i. The Child Sexual Abuse Act
The CSAA defines sexual abuse as “an act of sexual contact or sexual penetration between a child under the age of 18 years and an adult.” N.J. Stat. Ann. § 2A:61B-1(a)(1). In addition, a “parent, resource family parent, guardian or other person standing in loco parentis within the household who knowingly permits or acquiesces in sexual abuse by any other person also commits sexual abuse,” although the statute exempts from liability those who fail to protect the victim because of a reasonable fear of physical or sexual abuse to themselves. Id.
The statute does not define the phrase “within the household” but the Supreme Court of New Jersey has interpreted that language. In Hardwicke, after finding the boarding school qualified as a “person” and stood in loco parentis of the victim, the Supreme Court of New Jerseydetermined that a boarding school was “within the household” for purposes of the statute. [369] Hardwicke, 902 A.2d at 913-15. The court stated that, under New Jersey law, the term “household” is not a term of art and its meaning “depends on the circumstances of the case and has not been restricted to persons with familial relations,” nor does the term include only those residing under the same roof. Id. at 914-15. A household is determined by “the qualities and characteristics” of the relationship in question. Id. at 915. Applying this definition to the facts, the court determined that
the School provides food, shelter, educational instruction, recreational activities and emotional support to its full-time boarders – in other words, housing with the amenities characteristic of both a school and a home. We find that ‘the qualities and characteristics of the [School-student] relationship,’ establish the School as a household under the CSAA.
Id. (citation omitted).
ii. Analysis
Plaintiff urges the Court to extend the holding of Hardwicke and find a private day school to be “within the household” for purposes of the CSAA, but the Court declines to do so. The Court assumes for the purposes of this analysis that the Diocese is a “person” and stands in loco parentis within the meaning of the statute. See Hardwicke, 902 A.2d at 913 (finding that the boarding school “is a person under the passive abuse provision of the CSAA”), Veronia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995) (“for many purposes, school authorities ac[t] in loco parentis”) (internal quotation marks omitted). However, Defendant does not fit a reasonable definition of “within the household.”
“Household” is a flexible term, but it is not infinitely malleable. The Hardwicke court stated that “household” need not imply residency under a single roof or a familial relationship, but all of the cases the court cited in defining the term involved parties that shared at least one of those two characteristics. See Mazzilli v. Accident & Cas. Ins. Co. of Winterthur, Switzerland, 35 N.J. 1, 170 A.2d 800, 807 (N.J. 1961) (holding, for insurance purposes, that a wife was a resident of her husband’s household even though she didn’t live under the same roof); Gibson v. Callaghan, 158N.J. 662, 730 A.2d 1278, 1286 (N.J. 1999) (holding, for insurance purposes, that a grandmother and her grandson’s wife were part of the same household, when the grandson’s wife moved into the grandmother’s home in her absence); Miller v. U.S. Fid. & Guar. Co., 127 N.J. Super. 37, 316 A.2d 51, 56 (N.J. Super. Ct. App. Div. 1974) (holding that a son was a resident of both his natural mother’s and his natural father’s households); Resolution Trust Corp. v. Associated Gulf Contractors, Inc., 263 N.J. Super. 332, 622 A.2d 1324, 1329-30 (N.J. Super. Ct. App. Div. 1993)(finding a housekeeper qualified as a household member for purposes of legal service of process, when she lived in the home at the time); Borough of Glassboro v. Vallorosi, 117 N.J. 421, 568 A.2d 888, 889 (N.J. 1990) (holding ten college students living in the same home qualified as a “family” for zoning purposes), and Storch v. Sauerhoff, 334 N.J. Super. 226, 757 A.2d 836, 840-41 (N.J. Super. Ct. Ch. Div. 2000) (finding that, while the plaintiff and defendant did not live under the same roof and were not blood relatives, “the defendant has been a member of the plaintiff’s family for the past 30 years” because she married the plaintiff’s father, and, for this reason, among others, found the two to be “household members”). If, as Plaintiff argues, neither a single roof nor a familial relationship is required to be “within the household,” the Hardwickedecision suggests that a closely analogous, intimate relationship is required.
[370] In Hardwicke, the court found the boarding school to be “within the household” only after noting that the students were “full-time boarders” and depended on the school, in the absence of their parents or other care givers, for “amenities characteristic of . . . a home,” including the basic necessities of life, such as food and shelter. Hardwicke, 902 A.2d at 915. For practical purposes, the boarding school was “the household” of the plaintiff victim. Here, Plaintiff resided at all times with his parents, who provided him with home amenities, including food and shelter; he did not reside at the school as the plaintiff did in Hardwicke. Defendant educated and provided religious counseling to Plaintiff through Father Shannon and others, and cared for Plaintiff a few hours per week after school. In doing so, Defendant provided services and amenities normally associated with those of a typical after-school program of a school or a church, not those of a home. Defendant did not function as a parent to Plaintiff in the same way the boarding school did in Hardwicke to the plaintiff in that case. Father Shannon was not a member of the household, nor had he visited Plaintiff’s home on more than one occasion. The qualities and characteristics of the relationship here are not sufficiently strong to establish that Defendant was within the Plaintiff’s household.
This result comports with a reasonable reading of the text of the statute. The CSAA was enacted to broaden the class of persons who could be potentially liable, see Hardwicke 902 A.2d at 912(describing the legislative history of the CSAA and the intent to expand the class of active and passive abusers subject to suit), but the insertion of “within the household” must be read as a limiting factor on passive liability. The legislature could have omitted the phrase and extended potential liability to all persons who stood in loco parentis of the victim. The legislature chose not to do so. The legislature chose also to insert the definite article, “the household,” which generally restricts the phrase’s meaning to the household which cares for plaintiff, rather than, for instance, an institution or organization of which plaintiff is a member. Here, Defendant provided services and amenities normally associated with school or church, with no residential component, and, without additional facts establishing a relationship more analogous to that of a parent or more evocative of home life, Defendant does not fit a reasonable definition of “within the household.”
The New Jersey courts that have considered this question have declined to hold a day school “within the household” for purposes of the CSAA. In River Dell, the New Jersey Superior Court, Appellate Division ruled that a public day school did not qualify as “in loco parentis within the household,” and affirmed dismissal of claims against the school under the CSAA. River Dell, 862 A.2d at 1232 (reversing the trial court’s order of summary judgment on other claims and remanding for a hearing to determine the dates of accrual of the plaintiffs’ causes of action under applicable statutes). The Appellate Division decided River Dell before the Supreme Court of New Jersey decided Hardwicke, but the state Supreme Court denied certiorari for River Dell six weeks after deciding Hardwicke. See Hardwicke, 902 A.2d at 900 (opinion issued on Aug. 8, 2006), andRiver Dell, 907 A.2d 1016 (N.J. 2006) (denying certiorari on Sept. 21, 2006). As the Appellate Division later noted in Y.G., if the Supreme Court of New Jersey believed that Hardwickechanged the result in River Dell, “we have no doubt the Court would have at the very least remanded the case for further proceedings consistent with that decision.” Y.G., 2011 N.J. Super. Unpub. LEXIS 954, 2011 WL 1466277, at *3.
[371] In Y.G. itself, an unpublished opinion, the Appellate Division held that “a public day school is not a household for purposes of the CSAA.” Id. The court reasoned that a day school is not “a parental substitute” in the same way a boarding school is, nor does a day school provide “amenities normally associated with a home environment for its students.” Id. Although this opinion is not binding precedent for the purposes of this motion, it is the most recent indication of how the Supreme Court of New Jersey likely would rule on the issue. See also Smith v. Estate of Kelly, 343 N.J. Super. 480, 778 A.2d 1162 (N.J. Super. Ct. App. Div. 2001) (finding a Diocese not a household for purposes of the CSAA).
Plaintiff urges the Court to follow Nunnery, an unpublished opinion from this District that held a day school could be considered “within the household.” The Court is not persuaded by the one-paragraph reasoning of Nunnery on this question, see Nunnery, 2008 U.S. Dist. LEXIS 31207, 2008 WL 1743436, at *6 (extending Hardwicke and finding the day school fit the statutory definition because it provided shelter, food, instruction, recreation and emotional support to the plaintiff), and this federal Court is to look for guidance on state law issues from the opinions of the New Jersey Supreme Court and the intermediate appellate court, rather than a conflicting opinion of this court.
Therefore, the Court holds, upon the facts pled by Plaintiff, that the Defendant does not fit the definition of “within the household” for purposes of the CSAA, and the Court will grant the motion to dismiss Count I of the Amended Complaint.
B. Negligence and breach of fiduciary duty
The Amended Complaint, on its face, sufficiently pleads negligence and breach of fiduciary duty causes of action to survive a motion to dismiss. Defendant, however, argues that the common law claims are barred by the statute of limitations and must be dismissed. Plaintiff and Defendant agree that the causes of actions are subject to a two-year statute of limitations under N.J. Stat. Ann. § 2A:14-2. The parties dispute whether the limitations period was tolled until Feb. 10, 2010, when Plaintiff allegedly recovered his memory of the abuse.
i. Tolling under the CSAA
Without explanation, Plaintiff asserts that the CSAA’s accrual provision tolls the limitations period for the related common law claims. [Pl. Opp’n at 10.] Defendant responds that the common law claims cannot be tolled under the CSAA, citing a footnote in Hardwicke that states “[t]o the extent that the principal opinion below may suggest the liberal tolling provisions of the statute apply to common-law causes of action based on conduct not within the definition of sexual abuse found in the CSAA, we disagree.” Hardwicke, 902 A.2d at 919 n.12 (citation omitted). [Def. Mot. Br. at 6.]
Because the definition of passive sexual abuse incorporates “a person standing in loco parentis within the household,” and Defendant does not fit that definition, and because the conduct giving rise to the common law causes of action does not otherwise fit the definition of sexual abuse,Hardwicke forecloses Plaintiff’s argument, and the statute of limitations cannot be tolled for the common law claims under the CSAA.
ii. Tolling under New Jersey’s discovery rule
Plaintiff claims that he is entitled to the benefit of the so-called “discovery rule,” an equitable doctrine which tolls the applicable statute of limitations “until plaintiff knew or had reason to know of the [372] existence” of the wrong suffered. Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563, 566 (N.J. 1973). Plaintiff alleges that he fully repressed memories of his abuse (“traumatic amnesia”) until February 10, 2010, and that the original Complaint in this action was timely filed, less than two years after the “discovery” of his memories of abuse. [Pl. Opp’n at 10-13.]
Defendant argues that the discovery rule is inappropriate in a repressed memory case. [Def. R. Br. at 11.] Defendant argues that in Jones v. Jones, 242 N.J. Super. 195, 576 A.2d 316 (N.J. Super. Ct. App. Div. 1990), the Court considered whether a plaintiff victim of sexual abuse, who repressed awareness of an incestuous relationship with her father, could toll the statute of limitations by reason of “insanity” under N.J. Stat. Ann. § 2A:14-21. Jones, 576 A.2d at 318-19, 321. The Court held that “mental trauma resulting from a pattern of incestuous sexual abuse may constitute insanity under N.J.S.A. 2A:14-21, so as to toll the statute of limitations.” Id. at 321.From this, Defendant draws two conclusions. First, tolling statutes of limitations in repressed memory cases should be analyzed under the insanity provision of the statute, not under the discovery rule. [Def. R. Br. at 11.] Second, Defendant argues that Plaintiff does not qualify for the insanity tolling because Plaintiff cannot prove that the “insanity resulted from the defendant’s bad acts.” Jones, 576 A.2d at 321 (quoting 3 Kyle v. Green Acres at Verona, Inc., 44 N.J. 100, 207 A.2d 513, 520 (N.J. 1965)). [Def. R. Br. at 11-12.]
Jones does not suggest that the discovery rule is categorically inapplicable in a repressed memory case; the Jones court considered plaintiff’s insanity tolling claim because the plaintiff pled that theory for tolling the limitations period, and the court concluded that mental trauma possibly could constitute insanity for limitations purposes. Jones, 576 A.2d at 321. The Jones court cited the Lopez discovery rule approvingly as a potential means to toll the statute of limitations for another of the plaintiff’s claims, and stated that the doctrine “is bottomed on equitable considerations and, hence, the exact contours of the doctrine defy rigid definition. Suffice it to say, the rule has been applied in a variety of factual and legal settings.” Jones, 576 A.2d at 322.
More recently, the Appellate Division described the discovery rule approvingly related to sexual abuse cases when the plaintiffs allegedly were unaware of facts giving rise to a school’s liability: “If these allegations [that a victim of sexual abuse was unaware of the school’s potential liability] are indeed correct . . . discovery rule principles articulated in Lopez v. Swyer [citation omitted] would serve to preserve the remaining plaintiffs’ claims. This issue, likewise, requires exploration in a plenary hearing on remand.” River Dell, 862 A.2d at 1233.
Lopez itself concerned a medical malpractice case, where an injured patient did not become aware of potential negligence on the part of her doctor until after the statute of limitations had run. Lopez, 300 A.2d at 565. The Supreme Court of New Jersey ruled that determining the applicability of the equitable tolling doctrine was a matter that should be made by a judge at a preliminary hearing outside the presence of the jury. Id. at 567. The judge should take into account the equitable claims on both sides, including damage to [373] the injured party of barring the claim and the burden on defendants of defending an action based on conduct in the distant past. Id.
The Court need not belabor the point. Plaintiff has pled a plausible explanation for his delay in bringing the claim: he had no memory of the sexual abuse that had occurred when he was seven years old until 2010. Based on the flexible, equitable nature of the New Jersey discovery rule, as well as language in the River Dell case, the Court holds that Plaintiff should be allowed to make an argument for equitable tolling at a preliminary hearing. At that time, Plaintiff may present arguments and evidence that he fully repressed memories of his abuse until February 2010 and that to deny his claim would be inequitable, and Defendant may present arguments and evidence that defending a law suit long after the alleged injury occurred is unjust and outweighs Plaintiff’s interest in pursuing his claim against the Diocese. But such a matter needs to be resolved after a hearing, and Plaintiff’s claims cannot be dismissed now as a matter of law. 4
IV. CONCLUSION
The Court will grant Defendant’s motion to dismiss Count I, but will deny the motion to dismiss Counts II & III; Plaintiff will have the burden of establishing that his remaining claims are timely as a matter of equitable tolling in a preliminary hearing to be commenced when Plaintiff, within 90 days hereof, files a motion for said hearing. Meanwhile, Defendant shall file its answer to Counts II & III of the Amended Complaint within fourteen (14) days of entry of the accompanying Order. The accompanying Order will be entered.
November 14, 2012
Date
/s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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*1 Now before the Court is defendant Three Angels Broadcasting Network, Inc.’s (3ABN) motion to dismiss for lack of subject matter jurisdiction (Doc. 30). Specifically, in reliance on FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1) and12(b)(6), 3ABN argues plaintiff’s Count IV requires dismissal, as plaintiff does not accuse defendant Tommy Shelton (Shelton) of performing any act within the scope of 18 U.S.C. § 2423. Alternatively, 3ABN alleges Count IV is time barred, pursuant to 18 U.S.C. § 2255(b). Thus, as Count IV is plaintiff’s sole claim with an independent basis for federal subject matter jurisdiction, 3ABN argues this entire cause of action requires dismissal. For the reasons stated below, the Court cannot reach the merits of 3ABN’s motion; thus, it is DENIED. Thus, plaintiff’s motion to exclude 3ABN’s declarations and incorporated memorandum of law is rendered MOOT (Doc. 44).
I. INTRODUCTION
Plaintiff filed the instant complaint in the United States District Court for the Northern District of Illinois on June 20, 2011 (Doc. 1). Plaintiff bases jurisdiction on 28 U.S.C. §§ 1331 and 1367, as well as 18 U.S.C. § 2255, which states that certain victims of sexual abuse may file personal injury suits “in any appropriate United States District Court.” SeeU.S.C. § 2255(a). The allegations of the complaint state that Shelton began sexually abusing plaintiff in 1997, while working for 3ABN in Virginia. In 2001, Shelton moved to Kentucky and commuted to Illinois to work at 3ABN, where he allegedly resumed his abuse of plaintiff, who was a minor at that time. Thus, plaintiff’s instant complaint alleges four separate claims for relief. Pertaining to 3ABN, plaintiff alleges Count I, a negligence claim. The three remaining Counts are brought solely against Shelton; Count II, a claim for sexual assault and battery; Count III, alleging intentional infliction of emotional distress; and Count IV, a claim for civil remedies under 18 U.S.C. § 2255, based on Shelton’s alleged violation of 18 U.S.C. § 2423.
II. LAW AND APPLICATION
The allegations of Count IV form the crux of the instant dispute. 18 U.S.C. § 2255 provides:
(a) In general.—Any person who, while a minor, was a victim of a violation of section 2241(c), 2242, 2243, 2251,2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor, may sue in any appropriate United States District Court and shall recover the actual damages such person sustains and the cost of the suit, including a reasonable attorney’s fee. Any person as described in the preceding sentence shall be deemed to have sustained damages of no less than $150,000 in value.
(b) Statute of limitations.—Any action commenced under this section shall be barred unless the complaint is filed within six years after the right of action first accrues or in the case of a person under a legal disability, not later than three years after the disability.
*2 As the predicate offense upon which plaintiff bases his claim for civil remedies, he cites Shelton’s alleged violation of18 U.S.C. § 2423. Section 2423(b) states, “[a] person who travels in interstate commerce or travels into the United States … for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.”
As explained above, the subject matter jurisdiction of this cause of action is based on 28 U.S.C. § 1331, federal question jurisdiction, and 28 U.S.C. § 1367(a), supplemental jurisdiction, as plaintiff brings a cause of action pursuant to 18 U.S.C. § 2255. Thus, plaintiff’s Count IV arises under the “Constitution, laws, or treaties of the United States.” See28 U.S.C. § 1331.
Instantly, 3ABN argues its motion is properly characterized as one brought pursuant to Rules 12(b)(1) and 12(b)(6). 3ABN argues that plaintiff’s Count IV does not properly allege Shelton engaged in “illicit sexual conduct” or “sexual acts” as defined under Sections 2423(f) and 2246(2). Further, 3ABN alleges plaintiff does not properly allege Shelton crossed state lines, “for the purpose of engaging in any illicit sexual conduct.” Alternatively, 3ABN argues Section 2255(b) renders plaintiff’s Count IV time-barred, as the statute of limitations for filing Count IV has expired. Thus, as plaintiff’s Count IV does not properly allege the necessary elements of a violation of Section 2423, and is time-barred pursuant to Section 2255(b), 3ABN argues this entire cause of action requires dismissal for lack of subject matter jurisdiction.
Preliminarily, the Court must note that while 3ABN attempts to characterize its instant motion as one brought pursuant to Rule 12(b)(1), it is in fact a Rule 12(b)(6) motion. It is well-settled that a claim alleging a cause of action arising under the Constitution, laws, or treaties of the United States is, “enough to support subject matter jurisdiction unless the claim is so plainly insubstantial that it does not engage the court’s power.” Jogi v. Voges, 480 F.3d 822, 825 (7th Cir.2007);Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (cautioning against “drive-by jurisdictional rulings,” as “[j]urisdiction … is not defeated … by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover,” as the district court has jurisdiction if “the right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another”) (ellipses in original) (quoting Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946)).
Thus, as the Seventh Circuit has explained,
[W]here a challenge to the court’s jurisdiction is also a challenge to the existence of a federal cause of action … jurisdiction cannot be defeated by the possibility that plaintiff may not have stated a cause of action. Instead, the case should be dismissed for lack of jurisdiction only if the claim “clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.”
Instantly, Section 1331 supplies subject matter jurisdiction, as a claim for remedies under 18 U.S.C. § 2255, presents a federal question. 3ABN’s motion attacks the merits of plaintiff’s Count IV, as it argues plaintiff has not sufficiently alleged that Shelton violated 18 U.S.C. § 2423 and did not timely file his claim. However, as plaintiff’s claim is not “wholly insubstantial and frivolous,” the Court does in fact have jurisdiction to hear plaintiff’s claim. See Bell, 327 U.S. at 682–683;see also Leauell v. Kieffer, 189 F.3d 492, 494 (7th Cir.1999) (“The statute of limitations is an affirmative defense … Neither does it affect the district court’s jurisdiction.”). Whether the Court should exercise supplemental jurisdiction over plaintiff’s state law claims is not an issue properly before the Court. Thus, the Court construes 3ABN’s motion as one brought pursuant to Rule 12(b)(6).
Although the Court construes the instant motion as one brought pursuant to Rule 12(b)(6), the Court cannot reach the merits of 3ABN’s arguments. Although plaintiff does not raise the issue, it is clear from the complaint that 3ABN is solely a named defendant as to Count I, plaintiff’s state law negligence claim. 3ABN is not a named defendant as to Counts II through IV. As 3ABN states, Count IV is directed, “only at defendant Tommy Shelton” (Doc. 30–1, p. 1). Accordingly, 3ABN does not have standing to challenge the legal sufficiency of Count IV’s allegations or its timeliness. See Ashcroft v. Dep’t of Corrections, 2007 WL 1989265, *8 (W.D.N.Y.2007) (“Thus, DOCS (and other moving defendants) lack standing to move to dismiss claims against the non-appearing defendants Madison, Zon, and Ashby and their motions as to these claims is denied.”); Dover Ltd. v. A.B. Watley, Inc., 2006 WL 2987054, *8 (S.D.N.Y.2006) (defendant named solely in Count I does not have standing to dismiss six additional counts for failure to state a claim); Norfolk Fed’n of Bus. Dist. v. Dep’t of Hous. & Urban Dev., 932 F.Supp. 730, 741–42 (E.D.Va.1996); Standard Chlorine of Delaware, Inc. v. Sinibaldi, 1994 WL 796603, *7 n. 5 (D.Del.1994) (“Mantas Inc. is not named as a defendant in Count VI and accordingly has no standing to move for its dismissal or for summary judgment on the count.”).2
III. CONCLUSION
For the above-stated reasons, the Court cannot reach the merits of 3ABN’s arguments. Accordingly, 3ABN’s motion to dismiss for lack of subject matter jurisdiction is DENIED (Doc. 30). Thus, plaintiff’s motion to exclude 3ABN’s declarations and incorporated memorandum of law is rendered MOOT (Doc. 44).
Shelton is currently in prison in Virginia. Although Shelton has not provided the Court with his current address, the Court’s independent search of the Virginia Department of Corrections’ website reveals that Shelton currently resides at the Fairfax County Adult Detention Center. Thus, the Clerk is instructed to change the docket sheet to reflect Shelton’s current address as the following:
Sex abuse suit against Holy Redeemer principal tossed; judge says too much time has passed, Detroit Free Press
/in Michigan /by SOL ReformSex abuse suit against Holy Redeemer principal tossed; judge says too much time has passed, Detroit Free Press
http://www.freep.com/article/20130116/NEWS01/130116045
Our homegrown pro-rape culture is out and proud – from Steubenville to the expiration of VAWA
/in Uncategorized /by solreform.
Date: 01/06/2013
Author: Pam Spaulding
Source: Pam’s House Blend
View PDF:
Why are you hiding? | Conversations That Heal
/in Uncategorized /by solreformWhy are you hiding? | Conversations That Heal.
PDF: http://sol-reform.com/news/2012/why-are-you-hiding.pdf
Cops investigating whether Holy Cross HS coach had inappropriate contact with students he 'watched shower'
/in New York /by solreformThe NYPD is investigating whether the hoops coach at Holy Cross HS in Queens had
any inappropriate contact with the students he’s accused of watching take
showers, law-enforcement sources told The Post yesterday.
Date: 11/22/2012
Author: Larry Ceola
Source: NY POST
PDF: http://sol-reform.com/New_York/2012_News/cops_probe_coach.pdf
Bryson v. Diocese of Camden, 909 F. Supp. 2d 364 (D.N . J. 2012)
/in Cases (New Jersey), New Jersey /by SOL Reform[366] SIMANDLE, Chief Judge:
I. INTRODUCTION
This matter is before the Court on a motion to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6), brought by Defendant Diocese of Camden, New Jersey (“Defendant” or “Diocese”). [Docket Item 17.] Plaintiff Bryson’s Amended Complaint [Docket Item 14] asserts three counts against Defendant arising from sexual abuse Plaintiff allegedly suffered more than 40 years ago at the hands of Father Joseph Shannon, a priest in the Diocese: (1) liability under the New Jersey Child Sexual Abuse Act (“CSAA”), N.J. Stat. Ann. § 2A:61B-1 (“Count I”), (2) negligent retention and supervision of Father Shannon and failure to provide a safe environment for Plaintiff (“Count II”), and (3) breach of fiduciary duty by failing to adequately supervise Plaintiff and to warn him of the dangers posed by Father Shannon (“Count III”). [Am. Compl. at 10-14.] Father Shannon is not a defendant in this action.
Defendant moves for dismissal on the grounds that it cannot be liable under the CSAA, because it does not qualify as a passive abuser under state law, and that all of Plaintiff’s claims are time-barred. The Court must decide whether Defendant fits the definition of “a person standing in loco parentis within the household” under the CSAA, and whether the relevant statutes of limitations are tolled by the CSAA, the “discovery rule” or by reason of insanity. Because the Court finds that Defendant was not “within the household” for purposes of the statue, the Court will dismiss Count I. The Court further finds that Defendant’s motion to dismiss Plaintiff’s common law claims must be denied, because Plaintiff has presented a plausible argument for tolling the statute of limitations, which requires a hearing.
II. BACKGROUND
Plaintiff Bryson was born in 1961 and attended St. Anthony of Padua Catholic School (“St. Anthony”) in Camden, N.J. 1 [Am. Compl. ¶¶ 5-6.] Father Shannon was an ordained Catholic priest living and working in the Diocese of Camden at St. Anthony, and, when Plaintiff was in the first grade, Father Shannon would care for Plaintiff after school until Plaintiff’s mother arrived several hours later. [Id. ¶¶ 6-7.] Plaintiff would stay late at least once a week. [Id. ¶ 7.] Father Shannon counseled Plaintiff on religious matters and visited Plaintiff’s home at least once, purportedly to offer counsel and support to Plaintiff and his family. [Id. ¶¶ 8-10.]
One day, Father Shannon took Plaintiff to the basement of St. Anthony, hugged him, removed Plaintiff’s pants and “sexually abused [Plaintiff] by fondling his penis, among other things.” [Id. ¶ 11.] Father Shannon instructed Plaintiff to keep the incident secret and said that “God wants us to feel good” by engaging in sexual conduct. [Id.] Plaintiff did not mention the incident to anyone. [Id.] Plaintiff asserts that the sexual abuse was repeated every time Father Shannon cared for Plaintiff after school until Plaintiff transferred to public school for the second [367] grade, as well as when Father Shannon disciplined Plaintiff for behavioral misconduct during school. [Id. ¶¶ 11-12.] Plaintiff asserts that he repressed all memories of abuse until February 10, 2010, when he “saw an adult male who triggered the memory of a priest.” [Id. ¶ 15.]
Nearly two years later, on January 27, 2012, Plaintiff filed his first Complaint [Docket Item 1], which was amended. Defendant filed the present motion to dismiss.
The Court has diversity jurisdiction over this matter under 28 U.S.C. § 1332(a) because Plaintiff is a citizen of Ohio, Defendant is a New Jersey non-profit corporation with its principal place of business in New Jersey, and the amount in controversy exceeds $75,000. [Am. Compl. ¶¶ 1-3.]
In addition to the facts above, Plaintiff alleges in his Amended Complaint that the Diocese “fraudulently concealed the wrongful acts and omissions by the Diocese that led to [Plaintiff’s] abuse . . . .” [Id. ¶ 18.] Plaintiff alleges that the Diocese knew or should have known about Father Shannon’s abuse of Plaintiff and other boys, yet continued to place Father Shannon in contact with young boys and affirmatively represented to the public that children were safe around him. [Id. ¶¶ 23-25, 28.] Plaintiff alleges that the Diocese followed a “policy” handed down from the Vatican to keep allegations of sexual abuse secret, to investigate claims internally, and keep all documentation confidential. [Id. ¶¶ 29-30.] Later, Plaintiff claims the National Catholic Conference of Bishops instructed bishops across the country, including the bishop of the Diocese, to destroy all documentation of incidents of abuse. [Id. ¶ 31.] Plaintiff asserts that the Diocese “concealed, altered, or destroyed documents which disclosed the Diocese’s knowledge and wrongdoing with regard to Father Shannon.” [Id. ¶ 32.]
III. Discussion
A. Standard of review
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) may be granted only if, accepting the well-pleaded allegations in the complaint as true and viewing them in light most favorable to the plaintiff, the court concludes that the plaintiff fails to set forth a claim upon which relief may be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). However, the presumption of truth does not apply to legal conclusions set forth in the complaint. Iqbal, 556 U.S. at 678. A complaint will survive a motion to dismiss if it contains sufficient factual matter to “state a claim to relief that is plausible on its face.” Id. at 663.
Sitting in diversity, the Court must apply the substantive law of the state whose laws govern the action, in this case, New Jersey. See Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1365 (3d Cir. 1993). The state’s highest court is the “authoritative source” of state law. Spence v. ESAB Group, Inc. 623 F.3d 212, 216 (3d Cir. 2010). If the state’s highest court has not ruled on the issue, the federal court must predict how the state’s highest court would resolve the issue,Borman v. Raymark Indus., Inc., 960 F.2d 327, 331 (3d Cir. 1992), and, in those circumstances, intermediate court opinions should be given significant weight. Rolick v. Collins Pine Co., 925 F.2d 661, 664 (3d Cir. 1991).
B. Liability under the New Jersey Child Sexual Abuse Act
Count I of the Amended Complaint alleges that the Diocese “acted as [Plaintiff’s] guardian in the place of his parents, [368] and stood in loco parentis to [Plaintiff].” [Am. Compl. ¶ 38.] The Diocese “provided necessary shelter, food, educational instruction, recreational activities, and emotional support to [Plaintiff].” [Id.] Plaintiff alleges that the Diocese “knowingly permitted or acquiesced” to Father Shannon’s abuse of Plaintiff, incurring liability under the CSAA. [Id. ¶ 40.]
Defendant argues that it cannot be held liable under the CSAA as a matter of law, because it does not qualify as “a person standing in loco parentis within the household,” a requirement for incurring passive liability. 2 [Def. Mot. Br. at 4-5.] Specifically, Defendant argues that it did not function as Plaintiff’s parent and was not part of Plaintiff’s household. [Id. at 5.] Defendant acknowledges that the Supreme Court of New Jersey held a boarding school to be in loco parentis and “within the household” under the CSAA in Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 902 A.2d 900 (2006), but Defendant argues that this case is distinguishable because Plaintiff did not reside at St. Anthony. [Id. at 5.] Instead, Defendant points to New Jersey cases that held or concluded that a day school was not “within the household”: D.M. v. River Dell Reg’l High Sch., 373 N.J. Super. 639, 862 A.2d 1226 (N.J. Super. Ct. App. Div. 2004), cert. denied, 188N.J. 356, 907 A.2d 1016 (2006); Smith v. Estate of Kelly, 343 N.J. Super. 480, 778 A.2d 1162 (N.J. Super. Ct. App. Div. 2001), and Y.G. v. Bd. of Educ. for the Twp. of Teaneck, No. 2124-08, 2011 N.J. Super. Unpub. LEXIS 954, 2011 WL 1466277 (N.J. Super. Ct. App. Div. Apr. 19, 2011). [Id. at 5-6.]
Plaintiff responds that private schools stand in loco parentis of children they undertake to care for and protect. [Pl. Opp’n at 5-6.] Additionally, Plaintiff argues that New Jersey courts read the term “household” expansively, and do not require residence under a single roof. [Id. at 7.] Plaintiff concludes that Defendant is a person standing in loco parentis within the household because it provided Plaintiff with food, shelter, educational instruction, recreational activities and emotional support, as the school did for the plaintiff in Hardwicke. [Id.] Plaintiff notes that an unpublished decision from the District of New Jersey, Nunnery v. Salesian Missions, Inc., No. 07-2091, 2008 U.S. Dist. LEXIS 31207, 2008 WL 1743436 (D.N.J. Apr. 15, 2008), found a private day school to be “within the household” for purposes of the CSAA, and Plaintiff urges the Court to follow that decision. [Id. at 8-9.]
i. The Child Sexual Abuse Act
The CSAA defines sexual abuse as “an act of sexual contact or sexual penetration between a child under the age of 18 years and an adult.” N.J. Stat. Ann. § 2A:61B-1(a)(1). In addition, a “parent, resource family parent, guardian or other person standing in loco parentis within the household who knowingly permits or acquiesces in sexual abuse by any other person also commits sexual abuse,” although the statute exempts from liability those who fail to protect the victim because of a reasonable fear of physical or sexual abuse to themselves. Id.
The statute does not define the phrase “within the household” but the Supreme Court of New Jersey has interpreted that language. In Hardwicke, after finding the boarding school qualified as a “person” and stood in loco parentis of the victim, the Supreme Court of New Jerseydetermined that a boarding school was “within the household” for purposes of the statute. [369] Hardwicke, 902 A.2d at 913-15. The court stated that, under New Jersey law, the term “household” is not a term of art and its meaning “depends on the circumstances of the case and has not been restricted to persons with familial relations,” nor does the term include only those residing under the same roof. Id. at 914-15. A household is determined by “the qualities and characteristics” of the relationship in question. Id. at 915. Applying this definition to the facts, the court determined that
Id. (citation omitted).
ii. Analysis
Plaintiff urges the Court to extend the holding of Hardwicke and find a private day school to be “within the household” for purposes of the CSAA, but the Court declines to do so. The Court assumes for the purposes of this analysis that the Diocese is a “person” and stands in loco parentis within the meaning of the statute. See Hardwicke, 902 A.2d at 913 (finding that the boarding school “is a person under the passive abuse provision of the CSAA”), Veronia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995) (“for many purposes, school authorities ac[t] in loco parentis”) (internal quotation marks omitted). However, Defendant does not fit a reasonable definition of “within the household.”
“Household” is a flexible term, but it is not infinitely malleable. The Hardwicke court stated that “household” need not imply residency under a single roof or a familial relationship, but all of the cases the court cited in defining the term involved parties that shared at least one of those two characteristics. See Mazzilli v. Accident & Cas. Ins. Co. of Winterthur, Switzerland, 35 N.J. 1, 170 A.2d 800, 807 (N.J. 1961) (holding, for insurance purposes, that a wife was a resident of her husband’s household even though she didn’t live under the same roof); Gibson v. Callaghan, 158N.J. 662, 730 A.2d 1278, 1286 (N.J. 1999) (holding, for insurance purposes, that a grandmother and her grandson’s wife were part of the same household, when the grandson’s wife moved into the grandmother’s home in her absence); Miller v. U.S. Fid. & Guar. Co., 127 N.J. Super. 37, 316 A.2d 51, 56 (N.J. Super. Ct. App. Div. 1974) (holding that a son was a resident of both his natural mother’s and his natural father’s households); Resolution Trust Corp. v. Associated Gulf Contractors, Inc., 263 N.J. Super. 332, 622 A.2d 1324, 1329-30 (N.J. Super. Ct. App. Div. 1993)(finding a housekeeper qualified as a household member for purposes of legal service of process, when she lived in the home at the time); Borough of Glassboro v. Vallorosi, 117 N.J. 421, 568 A.2d 888, 889 (N.J. 1990) (holding ten college students living in the same home qualified as a “family” for zoning purposes), and Storch v. Sauerhoff, 334 N.J. Super. 226, 757 A.2d 836, 840-41 (N.J. Super. Ct. Ch. Div. 2000) (finding that, while the plaintiff and defendant did not live under the same roof and were not blood relatives, “the defendant has been a member of the plaintiff’s family for the past 30 years” because she married the plaintiff’s father, and, for this reason, among others, found the two to be “household members”). If, as Plaintiff argues, neither a single roof nor a familial relationship is required to be “within the household,” the Hardwickedecision suggests that a closely analogous, intimate relationship is required.
[370] In Hardwicke, the court found the boarding school to be “within the household” only after noting that the students were “full-time boarders” and depended on the school, in the absence of their parents or other care givers, for “amenities characteristic of . . . a home,” including the basic necessities of life, such as food and shelter. Hardwicke, 902 A.2d at 915. For practical purposes, the boarding school was “the household” of the plaintiff victim. Here, Plaintiff resided at all times with his parents, who provided him with home amenities, including food and shelter; he did not reside at the school as the plaintiff did in Hardwicke. Defendant educated and provided religious counseling to Plaintiff through Father Shannon and others, and cared for Plaintiff a few hours per week after school. In doing so, Defendant provided services and amenities normally associated with those of a typical after-school program of a school or a church, not those of a home. Defendant did not function as a parent to Plaintiff in the same way the boarding school did in Hardwicke to the plaintiff in that case. Father Shannon was not a member of the household, nor had he visited Plaintiff’s home on more than one occasion. The qualities and characteristics of the relationship here are not sufficiently strong to establish that Defendant was within the Plaintiff’s household.
This result comports with a reasonable reading of the text of the statute. The CSAA was enacted to broaden the class of persons who could be potentially liable, see Hardwicke 902 A.2d at 912(describing the legislative history of the CSAA and the intent to expand the class of active and passive abusers subject to suit), but the insertion of “within the household” must be read as a limiting factor on passive liability. The legislature could have omitted the phrase and extended potential liability to all persons who stood in loco parentis of the victim. The legislature chose not to do so. The legislature chose also to insert the definite article, “the household,” which generally restricts the phrase’s meaning to the household which cares for plaintiff, rather than, for instance, an institution or organization of which plaintiff is a member. Here, Defendant provided services and amenities normally associated with school or church, with no residential component, and, without additional facts establishing a relationship more analogous to that of a parent or more evocative of home life, Defendant does not fit a reasonable definition of “within the household.”
The New Jersey courts that have considered this question have declined to hold a day school “within the household” for purposes of the CSAA. In River Dell, the New Jersey Superior Court, Appellate Division ruled that a public day school did not qualify as “in loco parentis within the household,” and affirmed dismissal of claims against the school under the CSAA. River Dell, 862 A.2d at 1232 (reversing the trial court’s order of summary judgment on other claims and remanding for a hearing to determine the dates of accrual of the plaintiffs’ causes of action under applicable statutes). The Appellate Division decided River Dell before the Supreme Court of New Jersey decided Hardwicke, but the state Supreme Court denied certiorari for River Dell six weeks after deciding Hardwicke. See Hardwicke, 902 A.2d at 900 (opinion issued on Aug. 8, 2006), andRiver Dell, 907 A.2d 1016 (N.J. 2006) (denying certiorari on Sept. 21, 2006). As the Appellate Division later noted in Y.G., if the Supreme Court of New Jersey believed that Hardwickechanged the result in River Dell, “we have no doubt the Court would have at the very least remanded the case for further proceedings consistent with that decision.” Y.G., 2011 N.J. Super. Unpub. LEXIS 954, 2011 WL 1466277, at *3.
[371] In Y.G. itself, an unpublished opinion, the Appellate Division held that “a public day school is not a household for purposes of the CSAA.” Id. The court reasoned that a day school is not “a parental substitute” in the same way a boarding school is, nor does a day school provide “amenities normally associated with a home environment for its students.” Id. Although this opinion is not binding precedent for the purposes of this motion, it is the most recent indication of how the Supreme Court of New Jersey likely would rule on the issue. See also Smith v. Estate of Kelly, 343 N.J. Super. 480, 778 A.2d 1162 (N.J. Super. Ct. App. Div. 2001) (finding a Diocese not a household for purposes of the CSAA).
Plaintiff urges the Court to follow Nunnery, an unpublished opinion from this District that held a day school could be considered “within the household.” The Court is not persuaded by the one-paragraph reasoning of Nunnery on this question, see Nunnery, 2008 U.S. Dist. LEXIS 31207, 2008 WL 1743436, at *6 (extending Hardwicke and finding the day school fit the statutory definition because it provided shelter, food, instruction, recreation and emotional support to the plaintiff), and this federal Court is to look for guidance on state law issues from the opinions of the New Jersey Supreme Court and the intermediate appellate court, rather than a conflicting opinion of this court.
Therefore, the Court holds, upon the facts pled by Plaintiff, that the Defendant does not fit the definition of “within the household” for purposes of the CSAA, and the Court will grant the motion to dismiss Count I of the Amended Complaint.
B. Negligence and breach of fiduciary duty
The Amended Complaint, on its face, sufficiently pleads negligence and breach of fiduciary duty causes of action to survive a motion to dismiss. Defendant, however, argues that the common law claims are barred by the statute of limitations and must be dismissed. Plaintiff and Defendant agree that the causes of actions are subject to a two-year statute of limitations under N.J. Stat. Ann. § 2A:14-2. The parties dispute whether the limitations period was tolled until Feb. 10, 2010, when Plaintiff allegedly recovered his memory of the abuse.
i. Tolling under the CSAA
Without explanation, Plaintiff asserts that the CSAA’s accrual provision tolls the limitations period for the related common law claims. [Pl. Opp’n at 10.] Defendant responds that the common law claims cannot be tolled under the CSAA, citing a footnote in Hardwicke that states “[t]o the extent that the principal opinion below may suggest the liberal tolling provisions of the statute apply to common-law causes of action based on conduct not within the definition of sexual abuse found in the CSAA, we disagree.” Hardwicke, 902 A.2d at 919 n.12 (citation omitted). [Def. Mot. Br. at 6.]
Because the definition of passive sexual abuse incorporates “a person standing in loco parentis within the household,” and Defendant does not fit that definition, and because the conduct giving rise to the common law causes of action does not otherwise fit the definition of sexual abuse,Hardwicke forecloses Plaintiff’s argument, and the statute of limitations cannot be tolled for the common law claims under the CSAA.
ii. Tolling under New Jersey’s discovery rule
Plaintiff claims that he is entitled to the benefit of the so-called “discovery rule,” an equitable doctrine which tolls the applicable statute of limitations “until plaintiff knew or had reason to know of the [372] existence” of the wrong suffered. Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563, 566 (N.J. 1973). Plaintiff alleges that he fully repressed memories of his abuse (“traumatic amnesia”) until February 10, 2010, and that the original Complaint in this action was timely filed, less than two years after the “discovery” of his memories of abuse. [Pl. Opp’n at 10-13.]
Defendant argues that the discovery rule is inappropriate in a repressed memory case. [Def. R. Br. at 11.] Defendant argues that in Jones v. Jones, 242 N.J. Super. 195, 576 A.2d 316 (N.J. Super. Ct. App. Div. 1990), the Court considered whether a plaintiff victim of sexual abuse, who repressed awareness of an incestuous relationship with her father, could toll the statute of limitations by reason of “insanity” under N.J. Stat. Ann. § 2A:14-21. Jones, 576 A.2d at 318-19, 321. The Court held that “mental trauma resulting from a pattern of incestuous sexual abuse may constitute insanity under N.J.S.A. 2A:14-21, so as to toll the statute of limitations.” Id. at 321.From this, Defendant draws two conclusions. First, tolling statutes of limitations in repressed memory cases should be analyzed under the insanity provision of the statute, not under the discovery rule. [Def. R. Br. at 11.] Second, Defendant argues that Plaintiff does not qualify for the insanity tolling because Plaintiff cannot prove that the “insanity resulted from the defendant’s bad acts.” Jones, 576 A.2d at 321 (quoting 3 Kyle v. Green Acres at Verona, Inc., 44 N.J. 100, 207 A.2d 513, 520 (N.J. 1965)). [Def. R. Br. at 11-12.]
Jones does not suggest that the discovery rule is categorically inapplicable in a repressed memory case; the Jones court considered plaintiff’s insanity tolling claim because the plaintiff pled that theory for tolling the limitations period, and the court concluded that mental trauma possibly could constitute insanity for limitations purposes. Jones, 576 A.2d at 321. The Jones court cited the Lopez discovery rule approvingly as a potential means to toll the statute of limitations for another of the plaintiff’s claims, and stated that the doctrine “is bottomed on equitable considerations and, hence, the exact contours of the doctrine defy rigid definition. Suffice it to say, the rule has been applied in a variety of factual and legal settings.” Jones, 576 A.2d at 322.
More recently, the Appellate Division described the discovery rule approvingly related to sexual abuse cases when the plaintiffs allegedly were unaware of facts giving rise to a school’s liability: “If these allegations [that a victim of sexual abuse was unaware of the school’s potential liability] are indeed correct . . . discovery rule principles articulated in Lopez v. Swyer [citation omitted] would serve to preserve the remaining plaintiffs’ claims. This issue, likewise, requires exploration in a plenary hearing on remand.” River Dell, 862 A.2d at 1233.
Lopez itself concerned a medical malpractice case, where an injured patient did not become aware of potential negligence on the part of her doctor until after the statute of limitations had run. Lopez, 300 A.2d at 565. The Supreme Court of New Jersey ruled that determining the applicability of the equitable tolling doctrine was a matter that should be made by a judge at a preliminary hearing outside the presence of the jury. Id. at 567. The judge should take into account the equitable claims on both sides, including damage to [373] the injured party of barring the claim and the burden on defendants of defending an action based on conduct in the distant past. Id.
The Court need not belabor the point. Plaintiff has pled a plausible explanation for his delay in bringing the claim: he had no memory of the sexual abuse that had occurred when he was seven years old until 2010. Based on the flexible, equitable nature of the New Jersey discovery rule, as well as language in the River Dell case, the Court holds that Plaintiff should be allowed to make an argument for equitable tolling at a preliminary hearing. At that time, Plaintiff may present arguments and evidence that he fully repressed memories of his abuse until February 2010 and that to deny his claim would be inequitable, and Defendant may present arguments and evidence that defending a law suit long after the alleged injury occurred is unjust and outweighs Plaintiff’s interest in pursuing his claim against the Diocese. But such a matter needs to be resolved after a hearing, and Plaintiff’s claims cannot be dismissed now as a matter of law. 4
IV. CONCLUSION
The Court will grant Defendant’s motion to dismiss Count I, but will deny the motion to dismiss Counts II & III; Plaintiff will have the burden of establishing that his remaining claims are timely as a matter of equitable tolling in a preliminary hearing to be commenced when Plaintiff, within 90 days hereof, files a motion for said hearing. Meanwhile, Defendant shall file its answer to Counts II & III of the Amended Complaint within fourteen (14) days of entry of the accompanying Order. The accompanying Order will be entered.
November 14, 2012
Date
/s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
Walker v. Three Angels Broadcasting Network, Inc., No.12–cv–114–DRH–SCW, 2012 WL 4088844 (S.D. Ill. Sept. 17, 2012)
/in Cases, Cases (IL), Illinois /by SOL ReformS.D. Illinois.
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