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Hearing Date: October 25, 2011 at 10:00 a.m. PACHULSKI STANG ZIEHL & JONES LLP 10100 Santa Monica, Boulevard, 11th Floor Los Angeles, California 90067 Telephone: (310) 277-6910 Facsimile: (310) 201-0760 James I. Stang, Esq. (admitted pro hac vice) -and780 Third Avenue, 36th Floor New York, New York 10017 Telephone: (212) 561-7700 Facsimile: (212) 561-7777 Ilan D. Scharf, Esq. Counsel for the Official Committee of Unsecured Creditors of The Christian Brothers Institute and Christian Brothers of Ireland, Inc. UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK Chapter 11 In re: Case No. 11-22820 (RDD) THE CHRISTIAN BROTHERS INSTITUTE, et al., (jointly administered) Debtors. RESPONSE OF OFFICIAL COMMITTEE OF UNSECURED CREDITORS TO MOTION OF THE CATHOLIC ARCHBISHOP OF SEATTLE TO SEEK DETERMINATION OF THE EXTENT OF 11 U.S.C. 362 STAY WITH REGARD TO EDMUND RICE CONGREGATION OF CHRISTIAN BROTHERS - NORTH AMERICAN PROVINCE TO: THE HONORABLE ROBERT D. DRAIN UNITED STATES BANKRUPTCY JUDGE The Official Committee of Unsecured Creditors (the Committee) of The Christian Brothers Institute (CBI) and Christian Brothers of Ireland, Inc. (CBOI and, collectively with CBI, the Debtors and each individually a Debtor), the debtors and debtors in possession in the above-captioned cases (the Cases) under chapter 11 of Title 11 of the United States Code (the Bankruptcy Code), by and through its undersigned counsel, hereby responds (the Response) to the Motion of the Corporation of the Catholic Archbishop of Seattle (the
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Archdiocese) to Seek Determination of the Extent of the 11 U.S.C. 362 Stay with Regard to Edmund Rice Christian Brothers - North American Province (the Motion) [Docket No. 69]. In support of its Response, the Committee respectfully states as follows: Preliminary Statement 1. By its Motion, the Archdiocese seeks a determination that the Edmund
Rice Christian Brothers - North American Province (the NAP) has no separate legal existence from the Debtors. As explained in detail below, such sweeping relief will necessarily determine the Debtors interest in property, including insurance policies that Debtor CBI has scheduled as property of its estate, and cannot properly be obtained by motion, with no meaningful opportunity for discovery and no evidentiary hearing. Rather, Bankruptcy Rule 7001(2) clearly requires an adversary proceeding. 2. The procedural protections and discovery opportunities afforded by an
adversary proceeding are especially critical in this matter where the nature of the relationship between the Debtors and the various other Christian Brothers entities, including NAP, is factually complex. Substantial discovery will be required to uncover these facts. In fact, the Motion identifies some of the evidence that shows the long history of inconsistencies in the representations of the Debtors identity and the purported separateness (or lack thereof) of the various Christian Brothers entities.1 3. A determination at this time that NAP and the Debtors are one and the
same could be extremely prejudicial to the estates and their creditors. At the present time, the Committee has been told by Debtors counsel that NAP has no assets (save perhaps its disputed claims to insurance policies that were scheduled as CBIs assets). However, neither the
The term entity is defined in Section 101(15) of the Bankruptcy Code. The Committee is not using the term entity as a defined term and, by its usage, is not admitting to or characterizing the civil legal status of any party allegedly existing under Canon Law or civil law.
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Committee nor the Court have been presented with any admissible evidence regarding the assets, much less the nature and extent of NAPs liabilities. Additionally, a determination that NAP and the Debtors are one and the same could impair the Committees ability to bring assets of the worldwide Congregation of Christian Brothers (the Congregation) into the estates or impair the ability of the abuse victims to hold the Congregation liable for their claims. This is consequential as Debtors counsel has represented to the Committee that it is not aware of any NAP assets (other than certain insurance policies) while the media reports that assets of the Congregation are substantial. The Archdioceses request to substantively consolidate NAP with the Debtors, thinly disguised as a motion to extend the automatic stay, could have implications well beyond simply staying the Washington State Court Actions (as defined below). The Motion seeks a vague determination that NAP is part of the Debtors without providing any of the requisite detail needed for the Court to actually make such a finding. For example: which Debtor is NAP a part of? Are the Debtors subsidiaries of the NAP or is NAP a subsidiary of the Debtor? Or is the relationship something else altogether? 4. A premature and potentially erroneous determination that NAP has no
separate legal existence from the Debtors is unnecessary. The Committee understands that the plaintiffs in the pending litigation in the State of Washington and the Debtors, and their related Christian Brothers entities, are willing to agree to a meaningful stay of the Washington State Court Actions in order to facilitate a global mediation. 5. The Archdiocese is a codefendant with one or both of the Debtors in
various cases arising out of sex abuse at a high school known as ODea High School (ODea), and a boarding school and orphanage known as Briscoe Memorial School (Briscoe). ODea and Briscoe are or were owned by the Archdiocese and managed or operated by the Debtors and/or other related Christian Brothers entities. The Archdiocese and the Congregation of
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Christian Brothers are also each named as insureds in at least two insurance policies (as defined below, the Policies) that provide coverage for at least a portion of the sex abuse cases pending against the Debtors and the Archdiocese. Notably, NAP is not named as an insured under the Policies and CBI has scheduled interests in these Policies as assets of the estate. 6. The heart of the Motion is the Archdioceses acknowledged desire to have
this Court assess its position as to the insurance policies and liability issues under Washington law.2 Specifically, the Archdiocese seeks to limit the Debtors interests in the Policies to fifty percent (50%) of the funds available under the Policies based on postpetition agreements between the insurers, NAP, and the Archdiocese. Notwithstanding the admitted relationship between NAP and the Debtors (at least, vis-a-vis the Policies), the postpetition agreements were not executed by CBI, were not disclosed by CBI to the Court or the Committee, and were never submitted by CBI to this Court for approval. The agreements purport to divide the insurance proceeds of the Policies scheduled as assets of CBIs and limit the per occurrence liability of the carriers. The agreements were executed by Brother Griffith, the Vice-President of the Debtors, a member of CBIs board of directors, and the individual who executed the Debtors first day affidavits and signed the Debtors schedules under penalty of perjury. Brother Griffith purports to have executed these agreements limiting the Debtors interests in the Policies while wearing his Province Leadership Team hat rather than his corporate officer/board member hat. 7. The Archdioceses understandable anxiety regarding the propriety and
enforceability of these agreements is evidenced by the fact that the Motion is one of three ways in which the Archdiocese seeks to sanitize the agreements and limit the Debtors rights to the proceeds of the Policies. The Archdiocese has also filed a declaratory relief action
Motion at p. 6.
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(Archdiocese Coverage Proceeding)3 against the Debtors and the insurers; and motions to approve and enforce two settlement agreements between the Archdiocese and plaintiffs in the sex abuse litigation pending in the State of Washington (removed to this Court) which refer to the insurance agreements and appear to assume that they are valid and enforceable. 8. The Archdiocese Coverage Proceeding seeks a relief regarding the scope
of coverage for all insurance policies that may cover claims in these chapter 11 cases irrespective of whether those policies are known to the Debtors or the Committee and prior to the expiration of the claims bar date in these cases when it will be possible to identify those polices. The complaint does not name the Congregation even though the Congregation of Christian Brothers is one of the named insureds on both Policies that are identified in the Complaint. Therefore, the Coverage Proceeding, as presently couched, cannot bar the Congregation from asserting rights under the Policies. 9. The execution of the agreements pertaining to the Policies is even more
troubling to the Committee because Debtors counsel represents both the Congregation and NAP in pending litigation and these representations were not disclosed to the Court. The interests of the Congregation and NAP appear to be adverse to the interests of the Debtors estates. 10. Substantively consolidating NAP with the Debtors and determining the
Debtors rights under the Policies will clearly have serious consequences for these estates which cannot be fully anticipated at this time. The matters that could be implicated include the Debtors rights under other insurance policies that may not clearly name or identify the Debtors as insureds or the Debtors rights with respect to property that may be titled in the name of the Congregation or other Christian Brothers entities.
3
See Corrected Complaint for Declaratory Judgment (the Complaint) filed in Corporation of the Catholic Archbishop of Seattle v. Congregation of Christian Brothers of Ireland, Christian Brothers Institute, Maryland Casualty Company, and Pacific Indemnity Co., Adv. Pro. No. 11-08332 (RDD ).
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11.
The Court should deny the Archdioceses Motion and stay the
Archdiocese Coverage Proceeding until after the expiration of the claims bar date and such time that the Committee has had a meaningful opportunity to (a) review claims and related documents, (b) assess the Debtors right under any insurance policies that may provide coverage to the Debtors for such claims, including policies that as yet are unknown to the Committee, and (c) assess whether any other potential property of the estates is affected by these issues. Relevant Facts4 A. The Congregation of Christian Brothers5 12. The Congregation of Christian Brothers (the Congregation) is a Catholic
religious order founded in 1802. The Congregation purports to be a canonical organization set up by the Roman Catholic Church as a teaching order under the church.6 The Congregations members are referred to as Brothers. The Brothers are not ordained priests,7 but take vows of poverty, chastity, and obedience.8 The Committee understands that the Congregations religious mission is primarily focused on youth education. The Congregation has delineated various geographic provinces throughout the world, including North America, in which the Congregation
4
Descriptions of facts herein are upon information and belief based on the nascent stage of the Committees investigation of the Debtors and their relationship to other Christian Brothers entities. The Committee reserves all rights to amend its statement of facts as more information is made available to the Committee.
5
This description of the Congregation includes a recital of its and NAPs purported status under Canon Law. This recital is necessary because the Debtors and the Archdiocese use canonical verbiage to characterize the legal status of the Congregation and NAP. The canonical legal status is irrelevant as this Courts determination of the Congregations and NAPs status in this case will be determined by applicable civil law and not the internal operating rules of the Roman Catholic Church. In re Roman Catholic Archdiocese of Portland, 335 B.R. 842, 866 (Bankr. D. Ore. 2005).
6
See Transcript of 341 Meeting held on June 28, 2011 (341 Tr.) at 23:13-16, attached hereto as Exhibit A. See also THE HONORABLE S.H.S. HUGHES, Q.C., ROYAL COMMISSION OF INQUIRY INTO THE RESPONSE OF THE NEWFOUNDLAND CRIMINAL JUSTICE SYSTEM TO COMPLAINTS , Vol. 1, p. 1 (May 31, 1991) (the Hughes Commission Report) (available at http://lewisday.ca/ldllf.files/pdf/Mt.Cashel vol1.pdf (last visited on September 22, 2011)); REPORT OF THE COMMISSION TO INQUIRE INTO CHILD ABUSE, 6.01 (May 2009) (available at http://www.childabusecommission.ie/rpt/01-06.pdf (last visited on September 22, 2011)) (the Abuse Commission Report).
7 8
See Hughes Commission Report at p. 5. See Abuse Commission Report at 6.87.
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operates.9 The Congregation has had a continuous presence in North America since approximately the early twentieth century.10 Prior to approximately 1966, the Congregation had one North American Province (the Old NAP) operating in the United States and Canada. By the mid-1960s, the Congregation divided its North American Province into three provinces: the Eastern American Province (the Eastern Province); the Western American Province a/k/a Brother Rice Province (the Western Province); and the Canadian Province a/k/a St. Josephs Province (collectively, with the Eastern Province and the Western Province, the Three Provinces).11 Each of the Old NAP and the Three Provinces were headed by a Provincial and a council of Consultors. 13. In 2005, the Three Provinces merged into a single province (the 2005
Restructuring) called the Edmund Rice Christian Brothers North American Province, which the Committee understands is the same entity as the entity defined in the Motion as the NAP. 12 NAP is headed by a Provincial Leader (similar to the Provincial) and a Provincial Leadership Team (similar to Consultors) of seven brothers (all of whom are also the directors or trustees of each of the Debtors and other related entities).13 14. Since the 1950s, the Congregations Brothers appear to have operated in at
least fifty (50) schools, orphanages, or other educational facilities in New York, New Jersey, Florida, Rhode Island, Massachusetts, Illinois, Michigan, Washington, California, Hawaii, Montana, South Carolina, Texas, and Arizona. Based on the information available to the
See Deposition of Br. Vincent McNally conducted on June 22, 2007 at 13:17 - 14:21 (the McNally Dep.), attached hereto as Exhibit B.
10
See Hughes Commission Report at p. 4 (The Congregation of Christian Brothers was first established on North America as a separate province in New York in 1916); Griffith Aff. at 4 ([CBI] was formed in 1903).
11 12 13
See Ex. B, McNally Dep. at 17:15-18:16; see also Motion at p. 8. See Ex. A, 341 Tr. at 32:12-21. See Ex. A, 341 Tr. at 22:20-23:5 and 38:20-39:11.
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Committee, the Committee expects that the number of sex abuse claims that will be filed against the Debtors will be a several fold multiple of currently known claims. B. The Congregations Civil Entities 15. According to the Motion, the Congregations provinces in North America
are not recognized under civil law as entities that can hold property and enter into contracts.14 Like other U.S.-based dioceses and religious orders, the Congregations or NAPs temporal affairs are conducted through civil entities. The Old NAP operated through debtor CBI.15 CBI appeared to continue as the civil entity for the Eastern Province after the Old NAP was split up.16 The Western Province appeared to operate through Debtor CBOI after the Western Province was formed. CBI and CBOI currently own property that is used by Brothers of NAP, and in the past was used by Brothers of one or more of the Three Provinces in North America. CBI and CBOI each also entered into contracts on behalf of or for the benefit of Brothers, NAP, and/or the Congregation in North America.17 C. The Chapter 11 Cases 16. On April 28, 2011 (the Petition Date), each of the Debtors commenced
their Case by filing a voluntary petition for relief under chapter 11 of the Bankruptcy Code. Pursuant to 1107(a) and 1108 of the Bankruptcy Code, the Debtors continue to operate as debtors in possession. 17. CBI alleges that it is a domestic not-for-profit 501(c)(3) corporation
organized under 102(a)(5) of the New York Not-for-Profit Corporation Law. CBOI alleges
14 15
See Motion at pp. 8-9; Ex. A, 341 Tr. at 87:14-17.
See Transcript of deposition of Brother Daniel J. Casey conducted on January 8, 2010 at 144:4-145:21, attached hereto as Exhibit C.
16
See Transcript of deposition of Br. Charles J. Avendano conducted on January 12, 2006 at 126:19-25, attached hereto as Exhibit D.
17
The Debtors may have operated certain of their schools through additional corporations.
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that it is a domestic not-for-profit 501(c)(3) corporation organized under the Not-for-Profit Corporation Law of the State of Illinois. The Debtors allege that they were formed, for the purposes of, among other things, establishing, conducting and supporting Catholic elementary schools. The Debtors state that their immediate need for relief before this court stems from the fact that the [Debtors] have been named in numerous sexual abuse lawsuits which are alleged to have occurred between approximately 30 to 50 years ago primarily in Washington State and St. Johns Newfoundland, Canada. See Local Rule 1007-2 Affidavit of Brother Kevin Griffith (the First Day Affidavits) dated April 28, 2011 filed in each of the Debtors Cases [Docket No. 2] at 5. 18. The First Day Affidavits were signed by Brother Kevin Griffith in his
capacity as each of the Debtors Vice-President. Brother Griffith is also a member of CBIs board of directors. Brother Griffith also is a member of NAPs Provincial Leadership Team. However, in his First Day Affidavits, Brother Griffith fails to even mention the existence of the Congregation or NAP. This lack of candor is troubling to the Committee (and may have been intentionally misleading) because, among other things, the very day that Brother Griffith signed the First Day Affidavits, he signed away rights in the Policies in which he later attested that CBI has an interest.18 19. On May 11, 2011 the United States Trustee for Region 2 (the U.S.
Trustee) appointed six members to the Committee. On May 23, 2011, the U.S. Trustee appointed a seventh member to the Committee. The Committee is comprised of seven individuals who are plaintiffs in cases pending against at least one of the Debtors in either Washington State or Canada.
18
Brother Griffiths conduct became even more egregious, when, several days after he signed the agreements (and several days after the Petition Date), counsel for NAP confirmed that Griffiths execution of one of the agreements on the wrong signature line could be reformed. The agreements are discussed in detail below at Section F and are attached as Exhibits E and F.
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D.
The Pending Personal Injury Cases 20. The Archdiocese and the Debtors are each defendants in two cases (the
Washington State Court Actions) cited by the Archdiocese in its Motion that are pending in the Superior Court of the State of Washington, Kings County (the Washington State Court).19 The named defendants in these Washington State Court Actions are: a. b. c. d. e. the Archdiocese; Congregation of the Brothers of the Christian Schools of Ireland; Congregation of Christian Brothers; Congregation of Christian Brothers of Ireland; Congregation of Christian Brothers North American Province a/k/a Western Province; f. g. Motion at p. 2. 21. The Washington State Court Actions stem from sex abuse by Brothers of Christian Brothers Institute; and The Christian Brothers of Ireland, Inc.
the Congregation at Briscoe and ODea. The laundry list of names for the Congregation in the captions for the Washington State Court actions highlights the confusion surrounding the identity the Debtors, their related religious entities, and which assets (including but not limited to insurance policies) are property of the estates.
19
There are other actions pending against the Debtors and the Archdiocese in the Washington State Court, as well as actions that have been removed to this Court. However, those cases are not at issue in the Motion.
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E.
The Insurance Policies at Issue 1. Maryland Casualty Company Policy 22. Maryland Casualty Company (Maryland) issued Policy Number
CB28110713 (the Maryland Policy). The Maryland Policy was in effect from April 1, 1973 to April 1, 1976. The Maryland Policy provided comprehensive liability coverage to various named insured, including the Archdiocese and the Congregation of Christian Brothers, but only with respect to the Operation of ODea High School. The Maryland Policy provides general liability coverage with a limit of $300,000 per occurrence. 2. Pacific Indemnity Company Policy 23. Pacific Indemnity Company (Pacific and, collectively with Maryland,
the Insurers) issued Policy No. LAC73510 (the Pacific Policy and, collectively with the Maryland Policy, the Policies). The Pacific Policy was in effect from October 11, 1966 to October 11, 1969. The Pacific Policy provided comprehensive to various named insureds, including the Archdiocese, Briscoe, and the Congregation of Christian Brothers. The Pacific Policy provides comprehensive liability coverage with limits of $250,000 per occurrence. 24. Numerous claims have been filed against the Debtors, the Old NAP, NAP,
the Congregation, and the Archdiocese based on sex abuse that occurred in ODea and Briscoe during the coverage periods for each of the Policies. It appears that some of the pending claims (and in all likelihood some as yet unasserted claims) in Washington State are or will be covered by the Policies. F. NAP, the Archdiocese, and the Insurers Entered Into Postpetition Agreements Purporting to Allocate the Proceeds of the Policies Among Themselves 25. On or after the April 28, 2011 Petition Date, NAP entered into an
Agreement & Release Regarding Payment of Insurance Proceeds with the Archdiocese and
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Pacific (the Pacific Agreement). A true and correct copy of the Pacific Agreement is attached hereto as Exhibit E. Brother Griffith signed the Pacific Agreement as of April 28, 2011, the Petition Date. Discovery will reveal whether he signed it before the filing of the voluntary petition and when he actually delivered the executed Pacific Agreement to the other parties. The Archdiocese also signed the Pacific Agreement as of April 28. Likewise, discovery will reveal whether the Archdiocese signed and delivered the Pacific Agreement before the filing of the voluntary petition. Pacific signed the agreement as of April 29, after the Petition Date. 26. Also on or after April 28, 2011, NAP entered into an Agreement &
Release Regarding Payment of Insurance Proceeds with the Archdiocese and Maryland (the Maryland Agreement and, collectively with the Pacific Agreement, the Coverage Agreements). A true and correct copy of the Maryland Agreement is attached hereto as Exhibit F. Brother Griffith signed the Maryland Agreement as of April 28, 2011, the Petition Date. Discovery will reveal whether he signed it before the filing of the voluntary petition and when he actually delivered the executed Maryland Agreement to the other parties. The Archdiocese also signed the Maryland Agreement as of April 28. Likewise, discovery will reveal whether the Archdiocese signed and delivered the Maryland Agreement before the filing of the voluntary petition. Maryland signed the agreement as of April 29. On May 4, NAPs counsel at Gordon Tilden Thomas & Cordell LLP (Gordon Tilden)20 reaffirmed Brother Griffiths execution of the Maryland Agreement due to his original execution of the Maryland Agreement on the wrong signature line.21
20
Gordon Tilden is local counsel to CBI in the Washington State Court Actions and has been retained as special counsel to the Debtors in these Cases.
21
While Gordon Tilden, unlike the Debtors bankruptcy and lead litigation counsel, did disclose the prepetition representation of NAP in its employment application, the firm said it was representing NAP in connection with litigation matters. The disclosure did not reference any representation of NAP in insurance matters.
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27.
The Coverage Agreements were both executed by Brother Kevin Griffith,
in his capacity as Deputy Province Leader of NAP.22 On or about the same time he executed the Coverage Agreements on behalf of NAP, Brother Griffith also signed the First Day Affidavits on behalf of each Debtor in his capacity as Vice-President of each Debtor. However, Brother Griffith failed to disclose in those Affidavits the existence of the Coverage Agreements. 28. On June 7, 2011, Debtor CBI filed its Schedules of Assets and Liabilities
(the CBI Schedules) [Docket No. 35]. The CBI Schedules were signed by Brother Griffith, under penalty of perjury, in his capacity as CBIs Vice-President. CBIs Schedules list interests in the Policies as property of the Debtor. A true and correct copy of the applicable portions of the CBI Schedules is attached hereto as Exhibit G. 29. On June 4, 2011, Debtor CBOI filed its Schedules of Assets and Liabilities
(the CBOI Schedules) [Docket No. 37]. The CBOI Schedules were signed by Brother Griffith in his capacity as CBOIs Vice-President. However, CBOI did not list the Policies as an asset of CBOI. 30. On June 28, 2011, Brother Griffith appeared on behalf of the Debtors at
the first meeting of creditors (the 341 Meeting). The examination included discussion of the Debtors insurance program and included questions by the Archdiocese alluding to the Coverage Agreements. 23 At the 341 Meeting, Brother Griffith testified as follows:
22
Brother Griffith executed the Coverage Agreements in his capacity as the Deputy Province Leader of the Congregation of Christian Brothers North American Province as opposed to the Edmund Rice Christian Brothers North American Province. It is unclear why Brother Griffith appears to have executed documents on behalf of an entity (i.e., the Old NAP) that he testified no longer exists after the 2005 Restructuring. See Ex. A, 341 Tr. at 32:12-21. Moreover, the Policies at issue provided coverage to the Congregation for operations at Briscoe and ODea between 1966 and 1976. The Committee understands that the Old NAP had split into the Three Provinces as of 1966. It is unclear to the Committee whether the Policies provide coverage to the Western Province, the Old NAP, or NAP. This is another example of the lack of clarity regarding which rights belong to which Christian Brothers entity.
23
See generally Ex. A, 341 Tr. at 72:5-93:23.
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Q [by Michael Patterson]: You understand that the Archdiocese of Seattle and the Congregation of Christian Brothers have policies in common, do you not? Insurance policies. *** A: [Interposing] Yes. Q: And you understand that there was an agreement reached between the Archdiocese of Seattle and the Congregation of Christian Brothers as it relates to those policies, do you not? [colloquy between counsel] A: I am tangentially aware that that conversations regarding what youve just said had taken place. Ex. A., 341 Tr. at 86:3-25. 31. Shockingly, on June 28, 2011, Brother Griffith could only recall that he
was tangentially aware of conversations about Coverage Agreements he had signed as of April 28, 2011. Even a quick read of the transcript makes evident, in hindsight, that Brother Griffith and the Debtors were being obtuse, if not evasive, about the Debtors interests in the Policies and completely failed to disclose the existence and substance of the Coverage Agreements. 32. Agreements: a. Why did an officer of the Debtors (Brother Griffith) and a The Committee has the following concerns about the Coverage
fiduciary of the estates with a duty to maximize the assets of the estates sign an agreement on behalf of another entity (NAP) that appears to provide that NAP (but not the Debtors) is the named insured under the Policies? This is especially troubling in light of the fact that it appears that NAP is an unincorporated association that owns no assets and thus has no need for insurance to protect those assets.
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b.
Why did the same officer of the Debtors and CBI board member
(Brother Griffith) then sign, under penalty of perjury, CBIs schedules that provide that interests in the Policies are property of CBIs estate? c. Why did an officer of the Debtors and CBI board member (Brother
Griffith) sign the Coverage Agreements purporting to allocate the proceeds of the Policies between two non-debtor entities on the day, if not after, the petitions were filed? d. postpetition? e. void ab initio? f. Did the Archdiocese or the Insurers violate the automatic stay by Are the Coverage Agreements postpetition transactions that are Why did Brother Griffith reaffirm the Maryland Agreement
executing the Coverage Agreements? g. conveyances? h. The Coverage Agreements also appear to accept a narrow Are the Coverage Agreements voidable prepetition transfers or
definition of occurrence by limiting coverage of all acts against each plaintiff to a single occurrence. In the alternative, the scope of the term occurrence should cover multiple occurrences against a single plaintiff (e.g., abuse by multiple Brothers or multiple instances of abuse by the same Brother against a single plaintiff). i. Do the Coverage Agreements enable Maryland and Pacific to
reduce their per claim limit under certain circumstances and pay less than the full amount of their per occurrence limit? For example, if a claimant agrees to settle its claim against the Archdiocese for $125,000 and Maryland (whose policy purports to have a $300,000 per occurrence limit) pays only $125,000 to settle a claimants lawsuit against the Archdiocese, do
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the Coverage Agreements limit to $150,000 the amount that Maryland is obligated to pay to settle the claimants claim against the Christian Brothers rather than $175,000, thus effectively reducing the per claim limit to $275,000 rather than $300,000. j. Were the Coverage Agreements executed on the advice of
Debtors counsel who also represents other Christian Brothers entities with interests adverse to the interests of the estates (see discussion below)? G. The Archdiocese Coverage Proceeding 33. In addition to the instant Motion, the Archdiocese seeks to address
coverage issues with respect to the Policies through the Archdiocese Coverage Proceeding. The Archdiocese seeks broad declaratory relief in the Archdiocese Coverage Proceeding, as follows: The parties are entitled to a declaration of their respective rights, duties and obligations under the Policies, including, but not limited to: (a) the extent to which the interests of CBOI and CBI in said policies or their rights thereunder are property of the estate under 11 U.S.C. 541; and (b) the extent to which CCAS has interests in the Polices for at least half of per occurrence limits of liability coverage consistent with prior courses of dealing with regard to these Policies. This includes pending settlements, some of which have concluded or will conclude, for claims that were in existence as of the petition date, utilizing, in part, policy proceeds, by agreement of the Christian Brothers, CCAS and the insurers. This also includes any other Policies that may be implicated by claims arising in the CBOI and CBI bankruptcy proceedings. Complaint at 21 (emphasis added). 34. Thus, the Archdiocese seeks comprehensive relief regarding the scope of
coverage for all insurance policies that may cover claims in these chapter 11 cases irrespective of whether those policies are known to the Debtors or the Committee and prior to the expiration of the claims bar date in these cases.24 The complaint does not name the Congregation even though the Congregation of Christian Brothers is one of the named insureds on both Policies that are
24
The Debtors and/or other Christian Brothers entities may be named or unnamed insured in policies owned by institutions where Brothers abused children or other dioceses, such as the policies owned by the Archdiocese.
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identified in the Complaint. Therefore, the Archdiocese Coverage Proceeding, as presently couched, cannot bar the Congregation from asserting rights under the Policies. 35. Proceeding with litigation that seeks such wide ranging relief at this time,
prior to the expiration of the bar date, without affording the Debtors and the Committee an opportunity to evaluate all claims against the estates that may implicate yet unknown insurance policies, and without the one of the named insureds as a party would be premature, a waste of the Courts and the estates resources, and grossly unfair to the estates and the Committee. H. Debtors Counsel Represents the Congregation in Related Litigation Regarding the Proper Identity of the Congregation and the Province(s) and Thus the Debtors Counsel is Conflicted in this Matter 36. The Debtors bankruptcy and longtime litigation counsel, Tarter Krinsky
& Drogin LLP (TKD), currently represents the Congregation in a case pending before the Second Circuit where the question of whether the Congregation is part of or separate from NAP is directly at issue. See Ellul v. Mercy International Association, Case No. 11-1682 (2d Cir.). The plaintiffs in Ellul brought claims against the Congregation and another religious order under the Alien Tort Claims Act. See Ellul v. The Congregation of Christian Brothers, Case No. 09Civ.-10590(PAC) (S.D.N.Y.) (the Ellul District Court Case). The Ellul plaintiffs assert that they were removed from their homes in England and Malta and transported to Australia under the auspices of the Immigration (Guardianship of Children) Act of 1946 (the Guardianship Act) enacted by Australia as part of its White Australian Policy. See Ellul v. The Congregation of Christian Brothers, 2011 WL 1085325 *1, Case No. 09-Civ.-10590(PAC) (S.D.N.Y., March 23, 2011) (the Ellul District Court Decision), a true and correct copy of which is attached hereto as Exhibit H. The Ellul plaintiffs allege breaches of customary international law, including child trafficking, salvery, involuntary servitude, forced child labor, cruel inhuman, and degrading treatment, conversion, unjust enrichment, constructive trust, 17
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accounting, and breaches of fiduciary or special duty.25 The Ellul plaintiffs served their complaint on the Congregation by delivering a copy of the Complaint to the Congregation of Christian Brothers North American Province in Elizabeth, New Jersey. The Ellul plaintiffs allege that they had been injured by the Congregation in Australia. 37. The Congregation, represented by TKD, argued the following: a. That the Congregation is an unincorporated association of men based in Rome, Italy; b. The Congregation does not maintain or conduct business in New Jersey or New York; c. The Congregation had a separate province in Australia called Christian Brothers Oceana (the Australian Province); and d. The Congregation is a separate and distinct entity from the North
American Province and the Australian Province. See Memorandum of Law in Support of The Congregation of Christian Brothers Motion to Dismiss the Class Action Complaint dated May 10, 2011 at p. 3-4 and Declaration of Brother Mark Anthony Murphy dated May 10, 2010, both filed in the Ellul District Court Case and attached hereto as Exhibits I and J, respectively. 38. The District Court dismissed the Ellul plaintiffs complaint based on (a) a
finding that service on the North American Province is not good service on the Congregation or the Australian Province because they are each separate juridic entities and (b) a finding that the Claims asserted by the Ellul plaintiffs were time-barred under the applicable statute of limitations. The Ellul plaintiffs appealed to the Second Circuit. That appeal (the Ellul Appeal)
25
Ex. H, Ellul District Court Decision, 2011 WL 108532 at *1.
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is currently pending before the Second Circuit.26 TKD continues to represent the Congregation in that appeal.27 39. TKD failed (and continues to fail) to disclose its representation of the
Congregation in connection with the Debtors application to retain TKD as counsel in connection with these Cases.28 However, TKDs conflict is readily apparent with respect to any litigation over the rights of the Province(s), the Debtors, and the Congregation vis-a-vis one another, and in particular with respect to any litigation that may seek to bring some or all of the assets of the Congregation into the estates under various theories, including, veil piercing or substantive consolidation. I. There is Substantial Inconsistency About the Debtors and Their Related Entities 40. Based on the record available to the Committee at this time (including the
facts set forth by the Archdiocese in its Motion), there are substantial inconsistent representations concerning the relationship of the Debtors to various other Christian Brother entities, including the Congregation, the Old NAP, the current NAP, and the Three Provinces, and with respect to what assets, including insurance policies, are property of the estates. 41. Counsel for the Debtors represents other Christian Brothers entities with
adverse interests to the Debtors estates with respect to the very issues that are at the heart of the Archdioceses Motion and Coverage Proceeding. Therefore, it is imperative that the Committee have a meaningful opportunity to investigate and assess these issues and their effect on the
26 27
See Ellul v. Mercy International Association, Case No. 11-1682 (2d Cir.).
See Acknowledgment and Notice of Appearance filed by TKD on May 17, 2011 in the Ellul Appeal and attached as Exhibit K hereto.
28
See Application for Retention of Attorney for Debtors-In-Possession [Docket No. 14]. The Committee learned of TKDs representation of the Congregation in the Ellul case on or about September 27, 2011. On October 4, 2011, after investigating and assessing the matter, the Committee informed TKD and the U.S. Trustee of TKDs undisclosed conflict. As of the date hereof, TKD has not disclosed its representation of the Congregation to the Court.
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Debtors estates before the Court makes any determinations with respect to these relationships. Moreover, based on TKDs conflicts and the importance of the issues raised in the Archdiocese Coverage Action to the Debtors creditors, the Committee is likely to intervene in that action. However, the Committee should not be forced to carry the Debtors burden or blindly intervene in the action without necessary information. Discussion A. The Court Should Deny the Archdioceses Motion 42. The Archdioceses Motion seeks extension of the automatic stay to NAP.
As noted above, the Committee is confused as to the scope of the relief because it cannot discern whether it relates to the Old NAP or the current NAP. The Archdiocese argues that this province is one and the same as the Debtor because it is an unincorporated association, has no separate legal existence, and cannot be sued. Without addressing the merits of this position, the Courts determination as to the legal status of NAP (in whichever incarnation) is premature and unnecessary. Moreover, such a premature determination could be severely prejudicial to the Debtors estates and their creditors. 43. By the Motion, the Archdiocese seeks (a) relief that will determine the
validity, priority, or extent of the Debtors interest in property (i.e., the Policies), (b) to obtain equitable relief (i.e., merging the Debtors and NAP is an equitable remedy), or (c) obtain declaratory relief with respect to the foregoing. These matters can be properly adjudicated only in an adversary proceeding (which the Archdiocese has also commenced) and not through a motion for determination of the extent of the automatic stay.29 44. Ruling on the Motion is unnecessary because the Committee understands
that the Debtors, their related Christian Brothers entities, and the plaintiffs in the Washington
29
See Fed.R.Bank.P. 7001(2),(7), and (10).
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State Court Actions are all amenable to a meaningful stay of Washington State Court Actions to facilitate a global mediation of all outstanding issues, including insurance issues. In fact, the Washington State Court Actions have been on a consensual hold for several months. A consensual stay will moot the necessity of extending the automatic stay of section 362 to include NAP and any premature and unnecessary determination by this Court that the Debtors and NAP are one and the same. 45. The current record on the legal status of the Debtors, NAP, and the
Congregation is anything but clear. Over the history of the Debtors and the Christian Brothers entities, as evidenced by the attachments to the Archdioceses Motion, there have been inconsistent statements both among the Brothers themselves and third parties dealing with Christian Brothers entities as to status of the various entities, their relationship to each other and whether or not they are in fact separate civil legal entities. Critically, whether NAP is an unincorporated association (as sworn by Brother Griffith, in the presence of two TKD attorneys, at the 341 Meeting), or merely one of several subdivisions of the Congregation (as sworn by a member of the Congregation in the Ellul case in a declaration submitted by TKD) is unclear. If NAP is a subdivision of the Congregation, the Committee believes that the Debtors may be special purpose entities of the Congregation formed by representatives of the Congregation to implement its goals. The Committee believes that this structure could result in the Congregations assets being part of the Debtors estates under various theories, including substantive consolidation, and/or the Congregation being liable for the claims against the Debtors under other theories, including alter ego, principal/agent (Debtors were the agents of the Congregation), and respondent superior. A premature judicial determination by this Court in connection with the Motion that NAP is, as the Archdiocese contends, an unincorporated association that is part of the Debtors, could preclude or impair the Committees ability to
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subsequently establish that that Debtors various provinces are merely divisions of the Congregation and the Debtors are the agents or alter egos of the Congregation. The difference is consequential: the Debtors represent that the NAP has no significant assets (save perhaps insurance), while the media reports that the assets of the Congregation are substantial. Similarly, at present, neither the Committee nor the Court has seen any evidence of what liabilities may exist against NAP and a determination that the NAP is part of the Debtors could saddle the Debtors estates with unknown liabilities and dilute the claims of creditors. 46. It would be procedurally improper and grossly unfair to the creditors to
make a determination on this factually intensive issue, which could have significant impact on the ultimate recovery of the creditors of these estates, solely at the request of the Archdiocese in a motion for extension of the stay, without the procedural safeguards and discovery afforded by an adversary proceeding. In any event, the factual determination sought by the Archdiocese in the Motion cannot be made without extensive discovery and an evidentiary hearing. Accordingly, the Committee urges the Court to deny the Motion. B. The Court Should Stay the Archdiocese Coverage Proceeding 47. The Committee recognizes that no motion is before the Court with respect
to the Archdiocese Coverage Proceeding. However, the Motion, the Archdiocese motion for approval and enforcement of settlement agreements, and the Archdiocese Coverage Proceeding are closely related an all implicate the Policies. The Archdiocese Coverage Proceeding, however, seeks declaratory relief regarding all insurance policies affecting the Debtors estates prior to the expiration of the claims bar date, including policies that are as yet unknown and policies that do not cover the Archdiocese. The scope of relief sought is breathtaking, premature, and improper. In addition, the Committee is working hard to understand the relationship between the Debtors and the various Christian Brothers entities but this process is far from complete.
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48.
The Debtors bankruptcy counsel and the Debtors themselves appear to be
conflicted in this matter. Debtors counsel appears to have a conflict and split loyalties because of its prior and undisclosed representation of the Congregation and NAP. Accordingly, it will be necessary for the Committee to intervene in the Archdiocese Coverage Action to insure that the estates interests are protected. 49. Accordingly, the Court should Stay the Archdiocese Coverage Proceeding
until (a) the Debtors retain coverage counsel; (b) the bar date to assert claims against the Debtors has passed; and (c) the Committee has had a meaningful opportunity to review and assess the relationship between the Debtors and the other Christian Brothers entities and claims asserted against the Debtors.
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WHEREFORE, the Committee respectfully requests that the Court deny the Archdioceses Motion, stay the Archdiocese Coverage Action, and grant such other and further relief as is just and proper. Dated: New York, New York October 18, 2011 PACHULSKI STANG ZIEHL & JONES LLP
/s/ Ilan D. Scharf Ilan D. Scharf, Esq. 780 Third Avenue, 36th Floor New York, NY 10017-2024 Telephone: (212) 561-7700 Facsimile: (212) 561-7777 -andJames I. Stang, Esq. (admitted pro hac vice) 10100 Santa Monica Blvd., Suite 1100 Los Angeles, California 90067-4100 Telephone: (310) 277-6910 Facsimile: (310) 201-0760 Counsel for the Official Committee of Unsecured Creditors of The Christian Brothers Institute and The Christian Brothers of Ireland, Inc.
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Exhibit A
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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------X IN THE MATTER OF: Case No. 11-22820 Paul Schwartzberg THE CHRISTIAN BROTHERS INSTITUTE, ET AL. -------------------------------X 341 HEARING June 28, 2011 2:00 P.M. HELD AT: OFFICE OF THE UNITED STATES TRUSTEE New York, NY PAUL SCHWARTZBERG Trustee SCOTT MARKOWITZ, ESQ. Representing Christian Brothers JAMES STANG, ESQ. Representing the Official Committee MIKE PATTERSON, ESQ. Representing the Archdiocese of Seattle FATHER ROBERT HOTSER DARRYL COCHRAN, ESQ. Representing Mr. Robert Shanks MICHAEL PFAU, ESQ. Representing various creditors JEFF BODEN, ESQ. Representing various claimants
BEFORE:
APPEARANCES:
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EXAMINATION OF K. GRIFFITH BY J. STANG
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examination regarding what was going to happen today? A: Q: No. Um, actually one was cited by Mr. McNally and Did
Brothers of Ireland was signed by Patrick Hayes. you speak with Mr. Hayes? A: Q: No.
Did you review the monthly operating reports
before, uh, Mr. Hayes and Mr., uh, McNally signed them? A: I am--I am somewhat familiar with whats in
those reports, but, uh, I dont know that Id say I reviewed them. Q: Are you the person in, uh, c-, Christian
Brothers Institute whos most familiar with its assets and liabilities? A: Uh, Id say there are several of us who are
as familiar. Q: A: Team. Q: A: Could you identify them, please? Uh, Hugh ONeill, myself, Mary Lynch, Mark And who would they be? Well, the members of the Province Leadership
Murphy, Raymond Veracruzi [phonetic] and Dan Casey. Q: Is that true for the Institute and the
Ubiqus/Nation-Wide Reporting & Convention Coverage 22 Cortlandt Street Suite 802, New York, NY 10007 Phone: 212-227-7440 * 800-221-7242 * Fax: 212-227-7524
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Brothers of Ireland? A: Q: A: Q: That is correct. Same people. Same people. Okay. Um, are you familiar with an entity For CBI and CBOI.
called the Congregation of Christian Brothers? A: Im familiar with the Congregation of I am a member.
Christian Brothers. Q: A: Q: A: What is it? What is it? Uh huh.
Its a canonical organization.
The
Congregation of Christian Brothers is a canonical organization set up by the Roman Catholic Church as a teaching order under the church. Q: A: Q: And where is it headquartered? Uh, Rome. Okay. And do you refer to it as the
congregation or as the curiae, or as something else? How should we refer to it today? A: Q: The Congregation. The Congregation. Um, is everyone who is a
Christian Brother--is that the right, uh, is that the right way of describing it or-Ubiqus/Nation-Wide Reporting & Convention Coverage 22 Cortlandt Street Suite 802, New York, NY 10007 Phone: 212-227-7440 * 800-221-7242 * Fax: 212-227-7524
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A: Q:
[Interposing] Yes. Uh, is everyone whos a Christian Brother a
member of the Congregation? A: Everyone who is a Christian Brother is a
canonical member of the Congregation of Christian Brothers, yes. Q: When you say canonical member, do I need to
look to canon law to understand what that means? A: Well, I say it that way because its not a Its a canonical entity.
legal entity. Q:
Is there a civil law entity in the United
States, much like the Institute, which is a New York corporation, or the Brothers of Ireland, which I believe is now - - corporation, is there a similar kind of civil corporation for the Congregation itself? A: Q: A: Q: A: Q: Rome? A: Q: No, I have not. Have you ever, um, been missioned or tasked
No, there is not. Is there one in Italy? Not that Im aware of. Okay. Uh, how long have you been a brother?
Thirty-two years. Um, have you ever served the congregation in
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outside of the United States? A: No, I have not. Well, Ive never been Ive--Ive
assigned outside of the United States.
been two places outside of the United States for conferences. Q: A: Okay. But Ive never been missioned outside of the
United States, no. Q: Okay. Um, now, what is the relationship of
an entity that Ive come to know as the North American Province, to the congregation? A: The--the Congregation of Christian Brothers
is made up of the five provinces and one region. Again they are canonical entities. Edmund Rice
Christian Brothers North America is one of those five provinces. Q: Okay. And when you say that they are
canonical entities, the congregation is chartered somehow by the Holy See? Thats, uh, it exists by
virtue of the authority of the Holy See? A: Q: Correct. Okay. Are the Provinces created by the Holy
See, or are they created by the leadership of the congregation?

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A:
The leadership of the congregation, with
approval from the Holy See. Q: Okay. Um, what is the relationship of
Christian Brothers, Inc. to the North American Province? A: Christian Brothers, Inc. is a corporation. MR. MARKOWITZ: Wait. Wait. Just so
were clear, Christian Brothers, Inc., is that an entity? MR. STANG: sorry. I--Im--Im sorry. Im
I apologize.
Christian Brothers
Institute. Q: What is the relationship of Christian
Brothers Institute to the North American Province? A: Christian Brothers Institute is a corporation
of Edmund Rice Christian Brothers North America. Q: Its a--its a corporation of. Does--does
the Province own--I dont understand the of part. What does that mean, to be of the Province? MR. MARKOWITZ: If you dont know the
legal significance, then you dont know-Q: [Interposing] Well, well, just explain to me
what you meant by that. A: Well, its a corpor-, its a--its a-Ubiqus/Nation-Wide Reporting & Convention Coverage 22 Cortlandt Street Suite 802, New York, NY 10007 Phone: 212-227-7440 * 800-221-7242 * Fax: 212-227-7524
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Christian Brothers Institute is a legal corporation with trustees. Q: Okay. And whats its relationship to the
North American Province? A: Q: Im not clear what the question is. Okay. Um--
TRUSTEE PAUL SCHWARTZBERG: [Interposing] He doesnt understand the question. Q: Province. A: Q: A: Q: --we have a canonical entity, which is the Uh, does it own any real estate? No. Does it own any personal property? Not that Im aware of. Okay. Um, so its basically a group of men
who work towards a common purpose or purposes? A: Q: A: Q: Its a-[Interposing] Is that a fair statement? Its a religious congregation. Okay. Um, the--the Christian Brothers
Institute, from its schedules, has real estate. A: Q: Province?

Correct. Okay. Is that real estate owned by the
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A:
That real estate is owned by Christian Its the corporation that owns
Brothers Institute.
that real estate is Christian Brothers Institute. Q: Okay. And the leadership of the Institute
are all members of the Christian Brothers prov-, uh, North American Province. A: Q: Correct. Okay. Can there be any leadership of
Christian Brothers Institute--I guess its a board or you called it a leadership team I think, you--you-A: [Interposing] The leadership team is the
canonical entity. Q: A: trustees. Q: Okay. And--and do you-Okay. Christian Brothers Institute is a--a legal
TRUSTEE PAUL SCHWARTZBERG: [Interposing] Can I--can I interrupt really quick? MR. MARKOWITZ: Yeah, I was going to--
TRUSTEE PAUL SCHWARTZBERG: [Interposing] Are there any creditors here that arent, uh, professionals, attorneys that have questions of Brother Griffith?
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just want to make sure those people dont get drowned out. Sir, did you-Now? Yeah, I--I
MR. ROBERT HOTSER:
TRUSTEE PAUL SCHWARTZBERG:
mean, this could--I--I see where this is going, so I wanted--I wanted people who are actual, uh, uh, um, to have an opportunity and not have to, uh, uh, if they dont want to sit through all, you know-MR. HOTSER: My name is Father Robert
Hotser and Im a creditor, uh, I just wanted-a housekeeping question. I didnt receive,
uh, information about this meeting today, and I am on the list of the - - creditors, and I was wondering why that would have happened. I notified the attorney for the Debtors, I notified the White Plains Clerk-TRUSTEE PAUL SCHWARTZBERG: [Interposing] That--that would have been the clerks office. The clerks office, uh,
note--uh, sent--would have sent out the Notices. MR. MARKOWITZ: schedules. It wasnt whats in our
I think hes in a--a potentially
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disputed claim. TRUSTEE PAUL SCHWARTZBERG: MR. MARKOWITZ: Oh, okay.
He may have filed a
proof of claim, but-TRUSTEE PAUL SCHWARTZBERG: [Interposing] Oh, oh, you filed a proof of claim or--or--if you werent listed in the Debtors schedules, original mailing matrix, thats who the clerks office would have sent out letters, uh, out--the notice out to. MR. MARKOWITZ: And I dont recall
getting a letter from - - . MR. HOTSER: Yes, I sent a letter to
you, Mr. Markowitz. MR. MARKOWITZ: recall. MR. HOTSER: And I asked you--I asked Okay. I dont--I dont
you to place me on any--any mailing list. MR. MARKOWITZ: a card or something? Okay. Well, do you have
Cause I dont recall
getting a letter, we can-MR. HOTSER: [Interposing] Sure. Okay.
Before Mr. Markowitz leaves, make sure you

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2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q:
get, uh, give your, uh, okay. MR. HOTSER: I can send another copy of
the letter to you, if youd like. MR. MARKOWITZ: Either one, or give me a
card with your address. TRUSTEE PAUL SCHWARTZBERG: Okay. All Uh,
is there anybody else who has any? right, Mr. Stang, Im sorry, I-[Cross talk] TRUSTEE PAUL SCHWARTZBERG: okay, you-MALE VOICE: Ill wait.
Oh, oh, oh,
Ill wait. Okay. Okay.
TRUSTEE PAUL SCHWARTZBERG: Okay.
Um, in order to be on the Board of directors
of Christian Brothers Institute do you have to be a--a Christian Brother? A: Q: A: Did you have to be? Yes. No. There have been times when there have
been non-Christian Brothers who are Trustees of Christian Brothers Institute. Q: Was there ever a time when a majority of the
Board was other than Christian Brothers?

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A: Q: Ireland?
Not to my knowledge. Okay. How about, um, the Brothers of
Has there ever been a time, uh, do you have
to be a--a--a brother to be on their Board--on that Board? A: Q: A: Q: Do you have to be? Uh huh. No. Okay. Has there ever been a time when a
majority of the Board was not Christian Brothers? A: Uh, I do not--I do not know the past history
of Christian Brothers of Ireland, uh, when the--the, uh, the canonical entity restructured, I know youre aware that there were three provinces that became one province, Edmund Rice Christian Brothers North America, so prior to that, Christian Brothers of Ireland was not an entity that I would have been involved with, so I cant speak for their history, uh, I dont know who the trustees were from 1966 until 2005. Q: A: Q: A: 2005 is when the restructuring occurred? Correct. And youre familiar-[Interposing] My anUbiqus/Nation-Wide Reporting & Convention Coverage 22 Cortlandt Street Suite 802, New York, NY 10007 Phone: 212-227-7440 * 800-221-7242 * Fax: 212-227-7524
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Q: A:
[Interposing] Im sorry. My understanding is that most of the time it
was--it was, uh, they were Christian Brothers, uh, I do not know whether there were non-Christian Brothers that were part of that. Q: Okay. Are you familiar with the history of
the Brothers of Ireland since the restructuring? A: Q: The Christian Brothers of Ireland? Yes. Uh, I--Im trying to come up with a
shorthand for-A: Q: A: Q: [Interposing] CBOI. CBOI. Okay. Are you familiar with the history of CBOI
since the-A: Q: A: Q: [Interposing] Yes. --restructuring? Correct. Okay. Um, so if Christian Brothers Institute
is, uh, owns real estate, we know that from the schedules, does it own that real estate to effectuate the mission of the Province? A: Q: And to provide housing for the Brothers. Which is part of its mission, I assume part
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of what pr-, uh, Christian Brothers do is take care of brothers. A: Well, when--when I hear the word mission I Uh, part
think of--of the work that the brothers do.
of the--part of what Christian Brothers Institute, the--the--the properties that we own, uh, uh, a great deal of the properties provide housing for the brothers. Q: So if there is any property that, um, is
owned by CBI, is it owned in connection with the purposes of the Province, be it its religious mission or its obligation to take care of brothers? A: Q: A: Q: Correct. Okay. Yes. Okay. Um, when you stood up and des-, And is the same true for CBOI?
described, um, the other cr-, the needs of, uh, the creditor structure, you referred to agreement--you referenced to a deficit in support for the retirement needs of--of brothers. Um, is there an agreement
between CBI and any other person or thing, or entity, for the maintenance and support of the brothers? A: Q: I do not know what your-[Interposing] Okay.
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A: Q:
--sure what your question is. Uh, if Im a retired brother and I have
housing needs, is it CBIs obligation to assist me in those housing needs? A: It is the obligation of Edmund Rice Christian
Brothers North America to provide those needs. Q: A: Q: A: Q: Is it the obligation of CBI? Not necessarily. It is the obligation of CBOI? Not necessarily. Okay. Uh, when you say not necessarily,
they--they could do it but they dont have to? A: Well, CB--yeah, CBI--CBI provides what--some
of the brothers live in residences that are not part of CBI or CBOI. Q: A: Thats what Im trying to say.
But those are-[Interposing] Some of the brothers--some of
the needs of the brothers for--for residential living, are not connected to CBI or CBOI. Q: Who pays the, uh, are they rented properties,
where they live? A: Uh, some of them are rented properties, some
of them are, uh, uh, you know, properties where theyre--theyre allowed to live without a rent.
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Q:
Does CBI provide rental payments for, uh,
brothers residential needs if theyre not residing at owned property? A: Q: Not always. Okay. Does it provide stipends or any form
of support to the owner of the property for the brothers who are living at properties not owned by CBI? A: Q: Not always. Okay. So it would be a gift from the
property owner where theyre living to let them live there, or--or the brothers, uh, Im sorry, let me get that. A: C--CBOI is--does not have a centralized
system for funding-Q: A: [Interposing] Uh huh. --so some of the brothers who, uh, would live
in, uh, some of the brothers who administer in schools, many of our residences are connected to the schools, so the school would provide for the living needs of the brothers. Q: A: Okay. The stipend and/or salary that a brother
might get from a given school, and CBOI, does not come
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to an--excuse me, in CBI, does not come to CBI, it goes to the community in which the brother lives. Q: A: Okay. And those communities are not part of
Christian Brothers Institute. Q: A: Q: Do brothers take an oath of poverty? A vow of poverty. I--Im sorry, a vow of poverty. You have to
say yes or no for the recording. A: Q: A: Q: A: Q: Yes. Okay. A vow of poverty. It just cant pick up the head shakes. Sorry. Okay.
Um, as part of the vow of poverty, is there a
promise or a vow that any of your personal property belongs to the congregation? A: Q: Correct. Okay. So the fact that someone might get
compensation from the school for services directly from a check from the school is simply a mechanical issue of how the money flows, because that money actually belongs to-A: [Interposing] The individual would not get a
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check from the school. lives will. Q:
The community in which he
The money--
[Interposing] But I thought there was an
instance where someone might get a check directly from the institution or-A: [Interposing] No, the money does not go
directly to a brother, it goes to the community in which the brother resides. Q: Okay. So, uh, sorry. Okay. So the checks
made out to, uh, XYZ Community House or XYZ Community - - to Brother Smith. A: Q: Thats the usual way of operating, yes. If a check were made out to Brother Smith,
hed have to account for it somehow to be--to--to his community? A: Ordinarily we would require that he, uh, sign
that check over to the community. Q: Okay. Um--
TRUSTEE PAUL SCHWARTZBERG: [Interposing] I dont want to cut you off cause I--again I want to give you some leeway, but again a lot of these kind of questions are more like deposition style, and I want you, to the extent you have things in
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the schedules or things that are more appropriate for a 341 meeting, uh, it would be good for you to get those out, because I want you to be able to get to those--heart of those questions. These are the kind of
questions that were - - deposition style than - - . MR. STANG: I have probably more
examination questions, but, uh-MR. MARKOWITZ: Well. MR. STANG: --deposition, but. [Interposing] Okay.
Um, you referred previously to a leadership Does that exist--that exists at the
congregation level? A: Q: On the canonical level. Okay. It also exists at the provincial le-,
at the Province level? A: Uh, the congregation has a leadership team, a
canonical leadership team. Q: A: Okay. The pro-, Edmund Rice Christian Brothers
North America has a province leadership team. Q: Okay. Are you a member of that province
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Q:
And you understand that you were the brother
that was designated to sign the agreement as representing the Congregation of Christian Brothers as to their interest in those insurance policies with the Archdiocese. A: As representing Edmund Rice Christian
Brothers North America. Q: A: America. Q: A: Q: Okay. Thats the name of the Province. And is it your statement that North American Okay. And the North American Province.
That is Edmund Rice Christian Brothers North
Province is not a civil, legal entity, is that correct? A: Q: correct? A: Q: Yes. Okay. And does that canonical en-, entity Correct. And that it is a canonical entity, is that
operate in Washington State? A: have-Q: [Interposing] Well-Ubiqus/Nation-Wide Reporting & Convention Coverage 22 Cortlandt Street Suite 802, New York, NY 10007 Phone: 212-227-7440 * 800-221-7242 * Fax: 212-227-7524
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A: Q:
Edmund Rice Christian Brothers North America. Okay. And then there was a province
leadership team set up, is that correct? A: Uh, well, the--there--previously there were
three teams, one for each-Q: A: Q: A: Q: team. A: Q: A: [Interposing] Right. --of the Provinces. Im talking about the-[Interposing] And in 2005 there was one team. The provident--the providence leadership Were--were you on that team? Yes. Okay. And who else was on that team? Three from
Uh, there were nine of us - - in.
each of the former provinces. Q: Okay. And then, uh, an organization called
Mt. Sion Community, Inc. was formed, is that correct? MR. MARKOWITZ: A: Q: Yes. All right. And what was the purpose of that, Do you know the answer?
uh, entity, the Mt. Sion Community, Inc.? A: To provide for the needs of the providence
leadership team. Q: Okay. And then adding--
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TRUSTEE PAUL SCHWARTZBERG: do you need to take a break? EXAMINATION BY MR. MIKE PATTERSON Q:
Unless you--
Okay.
Brother, my name is Mike Patterson and I Is one of the
represent the Archdiocese of Seattle.
communities that is operated by the Congregation of Christian Brothers, ODay High School? A: Uh, the brothers have a relationship with
ODay High School, yes. Q: Okay. And who would, uh, understand and be
able to talk about, uh, the organization that runs ODay High School? In other words, who signed the
contract, what entity on behalf of the Christian Brothers-MR. MARKOWITZ: [Interposing] Im going Again hes basically
to object to this line.
a co-defendant in a lit-, in these abuse litigation-TRUSTEE PAUL SCHWARTZBERG: [Interposing] You have--you have to explain, if you-MR. MARKOWITZ: no, I-Ubiqus/Nation-Wide Reporting & Convention Coverage 22 Cortlandt Street Suite 802, New York, NY 10007 Phone: 212-227-7440 * 800-221-7242 * Fax: 212-227-7524
[Interposing] Oh, no,
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TRUSTEE PAUL SCHWARTZBERG: [Interposing] Im not a judge, I cant tell you-MR. MARKOWITZ: [Interposing] I know
youre not a judge, you-TRUSTEE PAUL SCHWARTZBERG: [Interposing] You could--you could--you could tell him not to answer-MR. MARKOWITZ: [Interposing] Yeah. --the
question and we could--we could set an adjourn-MR. MARKOWITZ: say-TRUSTEE PAUL SCHWARTZBERG: adjourn date and, uh-MR. MARKOWITZ: get a 2004 order. [Interposing] Or he can Its that simple, because --set an [Interposing] You can
basically hes fishing for information which, in li-, in litigation that you guys are-arent you a party to the litigation, dont you have cross claims them and various litigations? MR. HARRISON: Well, here--
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MR. MARKOWITZ: right or wrong?
[Interposing] Is that
--heres the brother, uh, youve listed two
insurance policies-MR. MARKOWITZ: - - . --as being assets of CBI, is that correct? Yes. MR. MARKOWITZ: schedules, correct. And-TRUSTEE PAUL SCHWARTZBERG: [Interposing] Do you need to look at the schedules or-MR. MARKOWITZ: the-TRUSTEE PAUL SCHWARTZBERG: [Interposing] Okay. And you also signed an agreement with the [Interposing] He knows They are listed on the [Interposing] Okay. Get
Archdiocese, did you not, you, Brother, signed an agreement on behalf of the Congregation of Christian Brothers, North American province, that represented that that organization, the Congregation of Christian Brothers North American province, owned those
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insurance policies, did you not? A: I would-MR. MARKOWITZ: [Interposing] All right,
he could--he doesnt know the answer to that, but-A: [Interposing] I would have to look and see-MR. MARKOWITZ: --the schedules are
listed, uh, on Schedule B it listed some insurance policies. First of all, generally
on Schedule B its questionable whether those are really assets, okay? Cause theyre
surrender like term policies arent put on that--on that schedule, those are things that have cash value generally. We listed the in
an exercise of caution because we may have some right to tap into those insurance policies to pay claims, uh, of the type of injury claims youre involved in. MR. HARRISON: MR. MARKOWITZ: MR. HARRISON: Okay. Im not going to-[Interposing] And Mr.
Markowitz, Im trying to get some clarification here with regard to who owns those policies or who the Christian Brothers
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believe own those polices, all right? MR. MARKOWITZ: Well, theyre not
owned--theyre not owned policies, theyre-MALE VOICE: answer, Mike. Mike--and you know that
Theyre named as-[Interposing] I--I dont
MR. PATTERSON: know that.
I dont know that answer. --at least that was your
MALE VOICE:
representation to us. MR. PATTERSON: representation-Is CBI, or your no-, I mean, where did you No. The
get the information that CBI-MR. MARKOWITZ: [Interposing] May have--
--owned those two policies? MR. MARKOWITZ: them. We didnt say they owned
Where does it say that it says we
owned them? TRUSTEE PAUL SCHWARTZBERG: Well, why
dont we--why dont we do this, this-[Cross talk] TRUSTEE PAUL SCHWARTZBERG: Can I--
excuse me, please, everybody, why dont you refer to the schedule, ask him the question,
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well just do this simply.
If, uh, uh,
Brother Griffith--Griffin--Griffith doesnt know--lets say he doesnt know. counsel--okay, do you have them? If his If his
counsel to wa-, doesnt want him to answer, his counsel--lets not have back and forth between counsel, okay? point quicker that way. Just well get to the Uh, sir--so sir, Im
sorry, why dont you repeat the question or-or-[Background conversation] By the way, Brother--Brother Griffith-[Interposing] Yes. --uh, did you actually take a look at the
actual policies that are listed on the--on that, uh, on that schedule? A: Ive been advised not to respond to these
questions by my legal counsel, so Im not going to respond to these questions at this time. Q: Well, when you signed this document,
representing that CBI owned those two policies-MR. MARKOWITZ: [Interposing] He didnt
sign any documents, please, please, Mike. MALE VOICE: Mike, do you--do you know
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as to--do you understand what that schedule is? That--thats no ownership. Out of an
abundance of--of caution-MR. PATTERSON: [Interposing] But
theyre listing those as assets. MR. MARKOWITZ: interest in. MALE VOICE: Interest in. Well, okay, but Im --because I say, it says
MR. PATTERSON: trying to find out. Have you looked at-MR. MARKOWITZ:
[Interposing] It could
be an additional insured-MR. PATTERSON: MR. MARKOWITZ: [Interposing] Okay. --it could be a party-We were told
we didnt look at it closely.
that they had claims related to this, so we listed them in the-MR. PATTERSON: [Interposing] Okay. But
theyre listed as being an interest for CBI. Is that correct? MR. MARKOWITZ: MR. PATTERSON: MALE VOICE: Thats how we list them. Okay.
Out of an abundance of
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caution. The actual policies themselves, Brother, have
the Congregation of Christian Brothers listed on the insurance policies. What is the relationship between
CBI and the Congregation of Christian Brothers? MR. MARKOWITZ: those questions. As it relates to these policies. MR. MARKOWITZ: answers. MR. PATTERSON: MR. MARKOWITZ: Same answers as what? Same answers as the Same--same--same Hes already answered
corporate--for lack of a better term, the hierarchical structure of the Christian Brothers and Christian Brothers Institute, as he already answered Mr. Stangs questions at length. MR. PATTERSON: So youre not going to
allow him to answer that question? MR. MARKOWITZ: it. MR. PATTERSON: MR. MARKOWITZ: He hasnt answered it. Whats the relationship Hes already answered
between--forget the insurance policy

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question.
Whats the relationship between
Christian Brothers Institute, the Debtor, and Christian Brothers? MR. GRIFFITH: Christian Brothers, uh,
the Congregation of Christian Brothers? MR. MARKOWITZ: MR. GRIFFITH: entity. Yes. Is a, uh, canonical
It consists of five provinces and Edmund Rice Christian Brothers
one region.
North America is one of the five provinces. Christian Brothers Institute is a corporate, uh, entity. What is the relationship between North
American province and the Christian Brothers--the Congregation of Christian Brothers? A: The nor-, Edmund Rice Christian Brothers
North America is a province of the Congregation of Christian Brothers. Q: Is it a separate entity from the Congregation
of Christian Brothers, North American province? MR. MARKOWITZ: answer. I dont know the canonical answer to that. Okay. Is North American province a legal If you dont know the
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entity? A: Q: A: No. Okay. Yes. MR. MARKOWITZ: I think he answered its Is it a canonical entity?
a community of men who have a common goal. Like if you and I got together and we wanted to go fishing every day, thats what it would be like. Q: When you signed the agreement with regard to
the policies in question here between the Archdiocese and the Christian Brothers, did you not sign that as representative of the cor-, Congregation of Christian Brothers, dash, North American Province? MR. MARKOWITZ: right there? MR. PATTERSON: MR. MARKOWITZ: the question? MR. PATTERSON: A: Yes. MR. MARKOWITZ: Are you asking if thats Well, I just-Yes. So why are you asking Do you have the document
his signature, or--I dont even understand the question now.

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MR. PATTERSON:
All right.
Well, the
question is are they one and the same organization. Whats that-MALE VOICE: and the same? MR. PATTERSON: Are the Congregation of [Interposing] Is who, one
Christian Brothers and North American Province, are they one and the same organization? No, they are not. Well, why did you list them together as being
owners of that policy? MR. MARKOWITZ: as the owners? Theyre not listed as two things, theyre Congregation of--can I see that Where did we list them
listed as one thing. again, please?
Yeah, thats--thats not two entities, The Congregation of Christian We are the North
thats one entity.
Brothers, North American Province.
American Province of the Congregation of Christian Brothers. Q: A: And if you-[Interposing] The Congregation of Christian
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Brothers is bigger than the North American Province. We do not make up the Congregation of Christian Brothers. MALE VOICE: And if you look at the
title policy, which you have, Mike, thats the name of the policy. We thought out of an
abundance of caution, to make sure that these guys know, that there might be a policy available to whatever entity, and thats why it was listed there, so these guys know about that insurance policy. And there may be We never
claims against it or there may not.
listed it as ownership, and you know that, Mike. TRUSTEE PAUL SCHWARTZBERG: okay. sir? MR. PATTERSON: Uh, yeah, I do. Okay. Right, uh,
Do--do you have any more questions,
TRUSTEE PAUL SCHWARTZBERG: MR. PATTERSON:
I do, but it sounds like
were going to have to do this in the context of a 2004 exam, unless they allow me to ask some questions-[Cross talk]
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Q:
But let me ask you this; who can best answer
questions about the relationship between the North American Province and the Congregation of Christian Brothers? A: Q: A: About the relationship between them? Yes. Any number of people can answer those It depends on what the questions are.
questions. Q:
Well, questions as they relate to operations
in Washington State. A: Q: Im--Im not sure what your question is. Well, if I were to ask somebody about what
the relationship is between North American Province and the Congregation of Christian Brothers as it relates to any assets in Washington State, or that may impact any liabilities in Washington State, who would that person be? MR. MARKOWITZ: Uh, are assets of non-
debtors youre asking about? MALE VOICE: He doesnt--he doesnt know Do you have
what youre talking about.
anything else about--do you have any questions about this debtor, or these schedules, or the Chapter 11 case-Ubiqus/Nation-Wide Reporting & Convention Coverage 22 Cortlandt Street Suite 802, New York, NY 10007 Phone: 212-227-7440 * 800-221-7242 * Fax: 212-227-7524
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MR. PATTERSON: what?
[Interposing] You know
I was asking questions about this
debtor-MALE VOICE: [Interposing] Okay. So--
MR. PATTERSON: MALE VOICE:
--and these schedules. Theres no assets
Okay.
listed in the State of Washington here, so what are you asking? didnt list? MR. PATTERSON: Well, insofar as those Is there assets we
insurance policies are applicable assets, they are assets in the State of Washington. Are you aware of that? MALE VOICE: Theyre interest and Hes
insurance policies, potentially. answered that question. policies.
Theyre liability
Theyre not cash surrender - If
policies, you cant turn them into cash.
you make claims against them and they decide to pay them-[Interposing] You--you understand that, uh,
the Archdiocese-MR. MARKOWITZ: [Interposing] I mean Mr.
Stang might correct me, but if he knows how

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to turn them into cash? You understand that the Archdiocese of
Seattle and the Congregation of Christian Brothers have policies in common, do you not? policies. MR. MARKOWITZ: Okay. MR. MARKOWITZ: [Interposing] Yes. And you understand that there was an I guess, I-Okay. Insurance
agreement reached between the Archdiocese of Seattle and the Congregation of Christian Brothers as it relates to those policies, do you not? MR. MARKOWITZ: me the question? MR. PATTERSON: Brother. MR. MARKOWITZ: MALE VOICE: Do you know, do you-No, Im asking the I dont. Are you asking
[Interposing] Only if you
know the answer, Kevin. MR. MARKOWITZ: Do you know that?
I am tangentially aware that--that
conversations regarding what youve just said have taken place.

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Q:
And you understand that you were the brother
that was designated to sign the agreement as representing the Congregation of Christian Brothers as to their interest in those insurance policies with the Archdiocese. A: As representing Edmund Rice Christian
Brothers North America. Q: A: America. Q: A: Q: Okay. Thats the name of the Province. And is it your statement that North American Okay. And the North American Province.
That is Edmund Rice Christian Brothers North
Province is not a civil, legal entity, is that correct? A: Q: correct? A: Q: Yes. Okay. And does that canonical en-, entity Correct. And that it is a canonical entity, is that
operate in Washington State? A: have-Q: [Interposing] Well-Ubiqus/Nation-Wide Reporting & Convention Coverage 22 Cortlandt Street Suite 802, New York, NY 10007 Phone: 212-227-7440 * 800-221-7242 * Fax: 212-227-7524
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A: Q: operate-A:
--we have--we have a community---you have ODay High School, does it
[Interposing] The ODay High School, to my
knowledge, is owned by the Archdiocese of Seattle. Q: A: Q: A: Okay. Does it operate--
[Interposing] We do not own---I said does it operate. Thats what Im asking you; what do you mean
by operate? Q: Does it-MR. MARKOWITZ: Q: [Interposing] Again, I--
[Interposing] Does it staff in part with
Christian Brothers, ODay High School? A: Q: We have brothers at ODay High School. Is that the North American Province? MR. MARKOWITZ: I think youre--I think
youre going beyond the scope of the 341 meeting, honestly. I mean, youre ask--
youre a co-defendant in litigation, youre-this isnt an opportunity for you to get discovery. I assume youve been in
litigation for ten years, youve had the opportunity to get this discovery, so I--Im
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going to cut that off now. questions-MR. PATTERSON: thought we had-MR. MARKOWITZ: MR. PATTERSON:
Do you have any
[Interposing] Well, we
--about the schedule---a partnership with
the, uh, the Christian Brothers at that time. We thought they were being-MR. MARKOWITZ: [Interposing] Well, why
dont you speak to us afterwards, and Tony, and-MR. PATTERSON: and trustworthy. MR. MARKOWITZ: Why dont you speak to --open, and fair, and--
us afterwards, uh, with Tony, and well discuss those issues with you. I think
theyre are legal issues that arent really that relevant in a 341 meeting. any-MR. PATTERSON: [Interposing] Well, they Do you have
are relevant, insofar as that is an asset being claimed by CBI-MR. MARKOWITZ: [Interposing] Weve
discussed that, we--weve just told you three

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times. MR. PATTERSON: --that its represented
as being an asset of the Congregation of Christian Brothers North American Province, so it is, it--it has a lot of bearing. TRUSTEE PAUL SCHWARTZBERG: the bearing-MR. MARKOWITZ: [Interposing] Do you--do I dont see
you have a copy of the insurance policy? MR. PATTERSON: MR. MARKOWITZ: MR. PATTERSON: Yes, I do. Okay. Well, the full insurance
policies, but I have the declaration pages here. TRUSTEE PAUL SCHWARTZBERG: Scott, could
you provide him copies of the insurance cr-, policy? [Cross talk] MR. MARKOWITZ: schedule then. [Cross talk] TRUSTEE PAUL SCHWARTZBERG: All right. Well strike it from the
All right, gentlemen, gentlemen, stop, stop. Scott, can you provide him copies of both of
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the insurance policies? MR. MARKOWITZ: He has them. He has them.
TRUSTEE PAUL SCHWARTZBERG: MR. MARKOWITZ: He has them.
TRUSTEE PAUL SCHWARTZBERG: he only has the declaration. MR. MARKOWITZ:
He just said
Its not our policies,
those are his policies. MR. PATTERSON: Well, no, no, I have
the--I dont have them here with me. TRUSTEE PAUL SCHWARTZBERG: No, no, but
you--oh, you--but theyre in your possession somehow, okay. All right. Yeah, exactly, but Im a
MR. PATTERSON:
little perplexed by, you know, they should be listed-[Cross talk] MR. MARKOWITZ: but okay. MR. PATTERSON: Mr. Markowitz? MR. MARKOWITZ: I dont--I dont You dont understand it, --I dont understand it,
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MR. PATTERSON:
[Interposing] Well,
because theyre an asset of ours. TRUSTEE PAUL SCHWARTZBERG: MR. MARKOWITZ: of an interest. insured. Okay. Okay.
So maybe theyre
Maybe you want additional
I dont know the answer. Mike, are you saying that
MALE VOICE:
were not indi-, that the Congregation of North American Province is not additional insured? MR. PATTERSON: Well, what Im saying is
that I dont--its been represented in the legal documents in the State of Washington that CBI never operated--never had any operations in the State of Washington. In
fact you brought a summary judgment on that basis. MALE VOICE: Thats right. And youve also--now
MR. PATTERSON:
youre claiming that somehow they may have an interest in those insurance policies as they relate to these issues, so I am--Im a bit confounded, Tony, uh-TRUSTEE PAUL SCHWARTZBERG:
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[Interposing] Okay. some questions? [Cross talk]
Mr. Stang, do you have
TRUSTEE PAUL SCHWARTZBERG: please. Please.
All right,
[Cross talk] MALE VOICE: said ownership-[Cross talk] MALE VOICE: --that those insurance To be clear, Mike, we never
policies were used, and if I didnt list them, these guys would be very upset with me, and rightfully so, and thats why, out of an abundance of caution, whatever insurance policies that may be at play here are listed on that-MR. MARKOWITZ: [Interposing] But you
told us we didnt list enough yesterday. TRUSTEE PAUL SCHWARTZBERG: Okay. Lets
go back to Mr. Stangs, uh, line of questioning, then. [Cross talk] EXAMINATION BY MR. JAMES STANG
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SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY ---------------------------------------X R.E., R.P., G.S., J.B., A.W., L.W., M.B., M.M., and W.D., Plaintiffs,
5
- against -
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
ELLEN GRAUER COURT REPORTING CO. LLC 126 East 56th Street, Fifth Floor New York, New York 10022 212-750-6434 REF: 84646A Deposition of VINCENT McNALLY, pursuant to Notice, before Melissa Gilmore, a Notary Public of the State of New York. June 22, 2007 9:30 a.m. Defendants. NO.: 04-2-00112-9 SEA ---------------------------------------X 470 Park Avenue South New York, New York CORPORATION OF CATHOLIC ARCHBISHOP OF SEATTLE, a sole corporation; and CONGREGATION OF CHRISTIAN BROTHERS -BROTHER RICE PROVINCE, EASTERN AMERICAN PROVINCE -- CONGREGATION OF CHRISTIAN BROTHERS, f/k/a CONGREGATION OF CHRISTIAN BROTHERS -- NORTH AMERICAN PROVINCE; and CHRISTIAN BROTHERS' INSTITUTE, a New York not for profit corporation,
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McNALLY Rochelle, New York, have the resources necessary for the ministries that go on there for these brothers. And I oversee the -- the supports that are required of brothers who are retired but living in mission communities. They don't require the services at St. Joe's. And I also oversee the -- the supports that we would receive to enable these ministries to take place from brothers who are working in schools receiving a stipend for their work, and that really is on a monthly basis that we do that type of thing. So it would be some income work, some expense work in overseeing that operation, as well as retirement income that comes in in brothers' names. It doesn't go to them. It comes to the brothers for their support from social security. And as I said, most recently from the beginning, it's been pretty well property management. Q. Brother, could you briefly describe for us the functions of the Christian Brothers Institute?
13
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McNALLY that's possible. A. Well, we are in the Christian Brothers. We are in all the continents of the world, except Antarctica, and we would be organized because we are big that way in so many parts of the world. We would be -- our congregation would be broken down organizationally into provinces, and there would be our provinces and also regions. Regions are pretty well parts of the congregation that -- that can focus on the missions that are within that region, but they are not altogether ready to be independent as a province might be. It would need help like for pastoral visits of leadership. It would need some financial assistance as well, hence we have things like mission collections in our school for the region that is in Latin America, Peru, for example. We have leadership at all of these levels. Q. Have you finished? That's fine. A. Is that enough? Q. I don't want to cut you off. If you have finished your answer, I can ask more
15
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McNALLY A. Fundamentally, the institute exists for setting up and continuing the operations of schools. I think primarily it was set up for schools in the New York area, but from the time of that inception to the present, of course, we have set up schools and administered schools outside the New York City area. Q. Do you know how long the Christian Brothers Institute has been in existence? A. I think from the early to -- yeah, early 1900s. I'm not quite sure specifically. Q. Is it a corporate entity? A. Yes. Q. Do you know where it's incorporated? A. In New York State. Q. Could you briefly describe for me the organization of the congregation of Christian Brothers, as briefly as you can while still giving us sufficient detail? How is that for an assignment? A. Well, we are -Q. I don't mean to interpret. A. Sure. Q. Start at the top and work down, if
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McNALLY questions. A. Okay. Q. Is there an organization in Rome in connection with the congregation of Christian Brothers? A. Yes, we would have our -- well, we would have our leadership center would be based -- would be in Rome. It would be located there. Q. And there is a congregational leadership team in Rome; is that correct? A. Yes. Well, they would be based there. They pretty well spend their time mostly on the road visiting other parts of the congregation. Q. I will come back to the congregational leadership team in a moment. Let's focus on North America. Currently, is there a North American Province? A. Yes, there is. Q. Currently, how is the North American Province organized? A. We also have a leadership team. A province leadership team.
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McNALLY Q. Correct. And I will come back to that too. A. Okay. Q. Thanks. Let me try to help you, Brother, and I never mean to cut you off. A. That's okay. Q. Is the entire United States of America within one province of the Christian Brothers at the current time? A. Yes, the United States would be part of this one province. Q. Is the overall province, of which the United States is a part, that's the North American Province? A. I'm sorry, could you repeat that? Q. Yeah. There is a North American Province, correct? A. Yes. Q. And the United States is part of North American Province at the current time? A. Yes. Q. Is Canada also part of the North American Province currently?
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McNALLY And then it was even during our formation years, I think it was in 1964, the -what we call the eastern part of the province and the western part of the province became its own province. So in North America at one time there were three provinces. Q. Could you describe for us, beginning approximately 1964, what the Eastern Province consisted of, ballpark is fine? A. Okay. The ballpark analogy. In 1964 we were -- we, Christian Brothers, in the Eastern Province were in New York. We were in Massachusetts, New Jersey. That's as far as I can go right now on that one, as far as locations where we were. Q. How about the Western Province beginning around '64? A. I never really had much contact with the west other than Chicago comes to mind, of course, because there were fellows in my group who were from the Chicago area. Seattle comes to mind now. I'm thinking of schools now where my classmates came from. Those would be the places that I
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McNALLY A. Yes. Q. And what about Mexico, Latin America? A. We have no brothers in Mexico yet, but -- and Latin America is not really part of the North America Province organizationally, only in that relationship of region I mentioned earlier with the -- with the province. They require support, financial, and we operate that through missions, mission collections in school, for example, but -- and also pastoral visits would be made by the North America leadership team to Latin America. Q. Has the United States always been a single entity portion of the North American Province? A. No, it has not always been. Q. Can you describe the history for us? A. At one time we were much -- similar to the way we are now, one province in the United States and Canada. Then in 1962, I think it was Canada became it's own province. That was the year I joined the brothers. So I think I'm pretty sure that was the year.
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McNALLY would be sure of. If at some point in the conversation we have another place comes to mind, I would certainly mention that but... Q. Have you ever visited Seattle? A. Yes. Q. How often, if more than once? A. I would say it could have been three times. It may have been -- two times -- I know I have been there twice. There could have been three times. Q. Do you recall approximately when you visited Seattle? A. I think I visited in the early '80s. I was attending a leadership conference at the time and that's when I visited. I would say about the early '80s because I had just been named superior of a community, and they would have an orientation workshop for us and -along with people who had been newly appointed as principals. So that's where we gathered. Q. Is it fair to say you never visited the Briscoe School? A. We had a cookout there. I didn't visit the school, I apologize. We were at the
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SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY No. 08-2-02340-9 SEA -------------------------------------X D.L., Plaintiff, -againstCORPORATION OF THE CATHOLIC ARCHBISHOP OF SEATTLE, a sole corporation; CONGREGATION OF CHRISTIAN BROTHERS-BROTHER RICE PROVINCE, EASTERN AMERICAN PROVINCE-CONGREGATION OF CHRISTIAN BROTHERS, f/k/a CONGREGATION OF CHRISTIAN BROTHERS-NORTH AMERICAN PROVINCE, and CHRISTIAN BROTHERS' INSTITUTE, a New York not for profit corporation, and EDWARD G. COURTNEY, Defendants. -------------------------------------X January 8, 2010 New York, New York WITNESS: Brother Daniel J. Casey
Reported by:
Angela Castoro, RPR, CSR
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BROTHER CASEY 1:44 P.M. and this is tape number three of the videotaped deposition of Brother Daniel Casey. Q. Brother Casey, are you ready to continue? A. Yes. Q. Resuming after lunch break, you will recall Brother Casey before we broke for lunch I was asking you questions about Exhibit 5, which is a document you have authored, correct? A. Yes. Q. And I was asking you some questions about the Christian Brothers of Ireland Inc., a corporation whose board of directors you sit on and also the Christian Brothers Institute Inc.. I am going to refer to that as CBI. You will understand what I am referring to if I use those initials, correct? A. Yes. Q. And you said that you also sat on that corporation's board. Do you sit on the boards of any other corporations?
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BROTHER CASEY Incorporated. Q. What's their purpose or mission? A. The same thing as its operation handling finances. It is a corporation incorporated in Toronto. Q. Okay. What else? A. Those similar to CBI and Christian Brothers of Ireland, those are the operating corporations that I sit on, yes. Q. You refer to them as operating corporations. What do you mean by that? A. It is my word. Q. I just want to understand it and use -A. It handles the operation of financial operations of the leadership in brothers communities. Q. The Western Province was not a corporation, was it? A. No. Q. Okay. And the Eastern Province was not a corporation, was it? A. Correct, it was not. Q. Would it be a fair statement that
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BROTHER CASEY A. Right this very minute? Q. Let's say in the last ten years as part of your leadership work with the province. A. Many boards. I have sat on boards for school corporations. I sat on the board of directors for the Illinois Catholic Conference. I have sat on the board of directors for Pathways to Hope, a corporation in Illinois. I sat on the board of directors for a retirement corporation for religious in Illinois. I have sat on -- I currently sit on a housing corporation board of directors for -- whose mission is housing for brothers. I am sure I am leaving some out. Q. Any other -- do you sit on any other boards of directors of corporations that are incorporated to assist or work with the management of the Christian Brothers congregation, such as CBI or the Christian Brothers of Ireland, Inc.? Anything else? A. Yes. Q. Okay. What? A. St. Joseph's Province House
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BROTHER CASEY CBI and the Christian Brothers of Ireland Inc. are corporations set up to assist in the business operations of those geographical provinces? MS. CARR: Objection. Foundation. A. I was not part of setting up those corporations. Q. Was that part of their purpose as of the time that you sat on the boards of those corporations? A. Part of the purpose would be to -the finances of the brothers leadership and of the brothers communities, yes. Q. Was it just kind of the business arm of the province? MS. CARR: Objection. Foundation. And object to form. Q. They conduct business on part of the province? A. Yes. Q. And the brothers that work and live in the province? A. They handle the finances of the brothers who work and live in the province.
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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING
R.E., S.H., R.C., Plaintiffs, vs. CORPORATION OF THE CATHOLIC ARCHBISHOP OF SEATTLE, a sole corporation; CHRISTIAN BROTHERS OF THE MIDWEST d/b/a CONGREGATION OF CHRISTIAN BROTHERS, an Illinois not for profit corporation, Defendants.
) ) ) ) ) No. 04-0-0112-9 SEA ) ) ) ) ) ) ) ) ) )
VIDEOTAPED DEPOSITION OF BROTHER CHARLES J. AVENDANO, VOLUME II January 12, 2006 Seattle, Washington
Byers & Anderson, Inc. Court Reporters/Video/Videoconferencing One Union Square 600 University St. Suite 2300 Seattle, WA 98101 (206) 340-1316 (800) 649-2034 2208 North 30th Street, Suite 202 Tacoma, WA 98403 (253) 627-6401 (253) 383-4884 Fax scheduling@byersanderson.com www.byersanderson.com
25th Anniversary 1980-2005
Brother Charles J. Avendano, Vol II January 12, 2006
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Q Okay. A And then in '66 or '67, we split the United States into two parts. Q The -- and the two parts were the Brother Rice province, which was the western province, and -- is it called the eastern province? A The eastern province. Q Is it called anything else? This is just for my own edification. A Not that I can recall. Q Is it called the St. Patrick's province or something like that? A I really can't recall. Q Okay. And then one final question on the splitting of the provinces. When did the eastern province headquarters move from West Park to New Rochelle, if you know. A I don't know the exact year. Q Okay. Do you know whether the Christian Brothers Institute's role changed in any way after the division of the North American province into two or three different provinces? A The Christian Brothers Institute, if I'm correct, was the legal corporate name, and that stayed with the eastern province. The Canadians would have had to
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A Yes.
1 2 MS. KALZER: Object to the form. 3 Q (By Mr. Pfau) Okay. Will you take a look at 4 Exhibit 81, please. 5 In -- this is a letter you received from Brother 6 J.C. Brickell -7 A Brickell. 8 Q Brickell, CFC. 9 Can you remind me what those initials stand for? 10 A Christianarium -11 Q It's Latin; correct? It's Latin? 12 A Latin. Christianarium fratrus -13 Q A/K/A Christian Brothers of Ireland? 14 A Yes. 15 Q All right. What does the title "consultor" mean? 16 A He was one of the advisors to the provincial. Q Okay. He's now writing you from Salinas, California. 17 18 Why is he -19 MR. GOLDSTEIN: I'm sorry. I must 20 be looking at the wrong exhibit. 21 MS. KALZER: Wrong one. 22 MR. PFAU: It's 81. 23 MR. GOLDSTEIN: Oh, okay. Sorry. 24 Go ahead. Q (By Mr. Pfau) You had previously been -- when you 25
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were at Briscoe, your superior was writing to you from New York; right? A Correct. Q Why is he writing to you from Salinas, California? A I think at this time we had -- we had split into two provinces. Q Do you recall when that occurred? A I don't. Q All right. Did it occur between the time you left Briscoe and either -- well, strike that. Did it occur during the time you were at Briscoe or during the time you were at -A It was at -Q -- Honolulu? A It was after. It was while I was in Honolulu. Q Okay. And it says, "Christian Brothers Brother Rice Provinciate." I thought the provincial after the split was located in Chicago. Am I incorrect? A No. Originally, they located in Salinas, California. Then they moved up to Vallejo and then Chicago. Q Okay. So when the North American province first split, did it split into three provinces or two? A I'm trying to think of when the Canadians split off. I think they split first.
develop their own corporate entity, and I assume we developed our own corporate entity in the west. Q Do you know that for a fact -A No. Q -- or are you assuming that? A I'm just assuming that's what happened. Q Are you aware -- in your many years as a brother of the western province, are you aware of any entity like Christian Brothers Institute that functions and serves the western province only? A I'm not sure. Q Okay. The -- back to Exhibit 81. You're being written by the new -- or the consultor, which is an assistant to the provincial; correct? A Right. Q And he is requesting your thoughts about the future of Briscoe. I assume he's doing that because you had been a superior for three years; right? A Correct. Q He states that "In addition, the change in the make-up of the student body from boys with one or more or both parents deceased, but otherwise normal to emotionally disturbed boys was carefully considered."
Brother Charles J. Avendano, Vol II January 12, 2006
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Slip Copy, 2011 WL 1085325 (S.D.N.Y.) (Cite as: 2011 WL 1085325 (S.D.N.Y.))
Only the Westlaw citation is currently available. United States District Court, S.D. New York. Emmanuel ELLUL, et al., v. CONGREGATION OF CHRISTIAN BROTHERS, et al., Defendants. No. 09 Civ. 10590(PAC). March 23, 2011. OPINION & ORDER Honorable PAUL A. CROTTY, District Judge. *1 The Congregation of Christian Brothers (CCB) and Order of the Sisters of Mercy FN1 (OSM; collectively, Defendants) move to dismiss the class action complaint of Emmanuel Ellul, Valerie Carmack, and Hazel Goulding (collectively, Plaintiffs), which alleges violations of the Alien Tort Statute, 28 U.S.C. 1350 FN2 (ATS). Starting in the 1940s and continuing for decades thereafter, children were taken from the United Kingdom and Malta to orphanages and work camps in Australia. While the program was created by the Australian government, the children were treated shamelessly, abused, and neglected, subjected to forced labor, and denied education. Based on this conduct, Plaintiffs allege (1) breaches of customary international law, including child trafficking, slavery, involuntary servitude, forced child labor, and cruel, inhuman, and degrading treatment or punishment; and (2) common law claims for conversion, unjust enrichment, constructive trust, accounting, and breach of fiduciary and/or special duty. (Compl. 4). FN1. Plaintiffs voluntarily dismissed their complaint against Mercy International Association following the pre-motion conference. FN2. The ATS provides that [t]he district
courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. 28 U.S.C. 1350. The law of nations is synonymous with customary international law. Flores v. S. Peru Copper Corp., 414 F.3d 233, 237 & n. 2, 247 (2d Cir.2003). CCB moves under Fed.R.Civ.P. 12(b) to dismiss because (1) the Court lacks subject matter jurisdiction; (2) the Court lacks personal jurisdiction over CCB; (3) CCB is not a proper defendant and has not been properly served with the summons and complaint; and (4) all of the Plaintiffs' purported claims are barred by the applicable statutes of limitation. (CCB, Mem. in Supp. 2). OSM brings a motion to dismiss or for summary judgment on the grounds that (1) OSM is not a legal entity and lacks capacity to be sued; (2) the claims are barred by the statute of limitations; (3) Goulding, the only plaintiff suing OSM, fails to state claim under the ATS; and (4) even if she did state a claim, it should be dismissed for forum non conveniens. Finally, Plaintiffs cross-move for alternative service of process, for discovery under Fed.R.Civ.P. 56(f), and to strike the Local Civil Rule 56.1 Statement and declaration submitted by OSM. The Court GRANTS Defendants' motions to dismiss. OSM is not a legal entity. CCB was improperly served; is outside the Court's personal jurisdiction; and is not the same entity alleged to have committed the acts alleged in the complaint. In addition, the claims are barred by the statute of limitations. In light of this disposition, the Court does not consider whether there has been a violation of customary international law; or whether the claims would survive a forum non conveniens analysis. I. Facts FN3 FN3. Unless otherwise noted, all facts are taken from the Complaint.
2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
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Emmanuel Ellul, Valerie M. Carmack, and Hazel Goulding each claim that as young children they were removed from their native lands and transported halfway around the world to Australia, where they were badly mistreated. The conduct occurred pursuant to the plan set forth in the Immigration (Guardianship of Children) Act of 1946, enacted by Australia's Commonwealth Government as part of the Government's White Australia Policy officially adopted in 1901. (Compl. 56, 60). In 2001, the Australian Senate investigated the abuse which occurred and published its findings in a report entitled Lost Innocents-Righting the Record (2001 Report). On November 15, 2009, the Australian Prime Minister formally apologized for his government's role. (Id. 3). II. Procedural History *2 Plaintiffs contend that the Court has jurisdiction under the Alien Tort Statute, 28 U.S.C. 1350 because they are aliens or nonresidents of the United States who allege grave violations of the specific, universal, and obligatory norms of customary international law. Plaintiffs maintain that the Court has personal jurisdiction over CCB because it resides or does business in New York State; has purposely availed itself of New York law; and owns property in this judicial district. (Id. 6, 7). They contend that OSM is a single pontifical entity unified by the common mission of charity. (Mem. in Opp. 18). Finally, they argue that it was not until 2001 when they had the information to reasonably discover their injury and causes of action against these Defendants. CCB denies any participation in the alleged child trafficking and forced labor scheme, as well as any minimum contacts with New York State. OSM argues that it is not a legal entity and cannot be sued. Both maintain that the alleged claims are untimely; have no nexus to the United States; and did not violate international law when they occurred. If they are to be tried anywhere, they contend, Australia should be the trial site. III. Discussion
a. Wrong Defendants Named i. Failure to Serve CCB and Lack of Personal Jurisdiction Plaintiffs named the wrong association of Christian Brothers, and then served an entirely different association of Christian Brothers. Their mistake is more than semantic, as they argue. (Mem. in Opp. 14). CCB is an unincorporated association based in Rome, Italy, one of several separate juridic entities serving different provinces around the world, each one legally distinct from the others. (CCB, Mem. in Supp. 3; Reply Mem. 4-5). Plaintiffs did not make service in Rome. Rather service was made on the Congregation of Christian Brothers-North American Province in Elizabeth, New Jersey and New Rochelle, New York. The Congregation of Christian Brothers of North America is a separate entity, and distinct from the Congregation of Christian Brothers of Rome. Plaintiffs do not refute CCB's argument that it does not maintain offices or conduct business in New Jersey or New York; and that it is not affiliated with any schools in New York or associated with the New Jersey. In any event, the Complaint's allegations deal with a separate juridical entity located in Australia, called Christian Brothers Oceania. (CCB, Mem. in Supp. 4 (citing the Code of Canon Law)). That entity is separate and apart from the entities in Rome and North America. While Plaintiffs maintain that CCB controls all Christian Brothers communities, there is no evidence or allegation that the Australian organization of Christian Brothers was acting under the control or authority of the Rome organization when the conduct occurred. Service on the North American province is not good service on CCB (Rome), which is a separate entity from the Christian Brothers Oceania which may have committed wrongs in Australia. Plaintiffs' claims against CCB are dismissed. ii. OSM's Capacity to be Sued *3 OSM argues that it is not a legal entity and cannot be sued. Both capacity to be sued and legal existence are prerequisites to the suability of an en-
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tity .... Roby v. Corporation of Lloyd's, 796 F.Supp. 103, 110 (S.D.N.Y.1992), aff'd, 996 F.2d 1353 (2d Cir.1993); see United Mine Workers v. Coronado Coal Co., 259 U.S. 344, 351 (1922) (It is well settled that it must appear that an association, if it is not a corporation, has received by appropriate legislation a legal status before it, or its members, may be sued in the name of the group.). Fed.R.Civ.P. 17(b) provides for capacity to sue or be sued for individuals, corporations, and (3) for all other parties, by the law of the state where the court is located, except that: (A) a partnership or other unincorporated association with no such capacity under that state's law may sue or be sued in its common name to enforce a substantive right existing under the United States Constitution or laws The complaint alleges that OSM is a religious order of nuns founded in Dublin, Ireland in 1831, but does not claim that it is a legal entity. (Compl. 47). As explained by affidavit, there are nine regional Sisters of Mercy organizations throughout the world with separate, autonomous legal governance structures. (McDermott Decl. 3). Unlike other hierarchically-structured Roman Catholic orders, with a central governance authority, Sisters of Mercy is a generic term used to describe vowed religious women who serve throughout the world as members of one of the nine autonomous organizations. (Id.). While these regional organizations are capable of being sued, OSM must be dismissed from this lawsuit because it is not an organization with a structure and purpose to act as an entity. Plaintiffs offer nothing to refute the fact that there is no legal entity, unincorporated or otherwise, called the Order of the Sisters of Mercy, except for a decision by the Sacred Congregation of the Roman Catholic Church that OSM is organized under pontifical right. This, however, is a religious determination, not a legal ruling. In addition, the common purpose to which Plaintiffs point-charity-is too vague to unify these regional organizations into a single legal entity. See Klinghoffer v.
S.N.C. Achille Lauro, 739 F.Supp. 854, 858 (S.D.N.Y.1990) (holding that persons united in a common enterprise must be using certain methods to constitute an unincorporated business association), vacated on other grounds, 937 F.2d 44 (2d Cir.1991). In addition, as with CCB, Plaintiffs served the North American Sisters of Mercy, not the Australian organization alleged to have committed these acts. Service on the North American Sisters of Mercy does not create jurisdiction over the entity in Australia. b. Statute of Limitations The statute of limitations affirmative defense normally cannot be decided on a motion to dismiss. In re S. African Apartheid Litig., 617 F.Supp.2d 228, 287 (S.D.N.Y.2009). However, an exception is made where the complaint facially shows noncompliance with the limitations period and the affirmative defense clearly appears on the face of the pleading. Id.; see McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.2004) (statute of limitations bar warrants 12(b)(6) dismissal if the defense appears on the face of the complaint). *4 The statute of limitations under the ATS, borrowed from the Torture Victim Protection Act, is ten years. See, e.g., Papa v. United States, 281 F.3d 1004, 1012 (9th Cir.2002); Doe v. Karadzic, 93 Civ. 878(PKL), 2000 WL 763851, at *1 n. 3 (S.D.N.Y. June 13, 2000). Since the conduct alleged commenced more than sixty years ago, it has expired. The pendent state law claims are also untimely. A three year statute of limitations applies to conversion claims, Sporn v. MCA Records, Inc., 448 N.E.2d 1324, 1326-27 (N.Y.1983); and six years for unjust enrichment, constructive trust, accounting, and breach of fiduciary duty. Itakura v. Primavera Galleries Inc., 2009 WL 1873530, at *2 (S.D.N.Y. June 30, 2009); Ciccone v. Hersh, 530 F.Supp.2d 574, 579 (S.D.N.Y.2008), aff'd, 320 Fed. Appx. 48 (2d Cir.2009). The cause of action accrues when the plaintiff
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knows or has reason to know of the injury forming the basis of the action. See In re World War II Era Japanese Forced Labor Litig., 164 F.Supp.2d 1160, 1180-81 (N.D.Cal.2001). Although Plaintiffs' claims accrued decades ago, an exception may be made if they would reasonably have had difficulty discerning the fact or cause of injury at the time it was inflicted. Kronisch v. United States, 150 F.3d 112, 121 (2d Cir.1998). The standard for discovery is not high; it only requires, knowledge of, or knowledge that could lead to, the basic facts of the injury, i.e., knowledge of the injury's existence and knowledge of its cause or of the person or entity that inflicted it .... [A] plaintiff need not know each and every relevant fact of his injury or even that the injury implicates a cognizable legal claim. Rather, a claim will accrue when the plaintiff knows, or should know, enough of the critical facts of injury and causation to protect himself by seeking legal advice. Id. (quoting Guccione v. United States, 670 F.Supp. 527, 536 (S.D.N.Y.1987)). Here, Plaintiffs have long known of the basic facts of their injuries and claims for damages. None of them had to wait until the 2001 Report, each of the plaintiffs had actual knowledge of nearly all of the facts supporting their ATS claims for decades. See Guccione v. United States, 670 F.Supp. 527, 536 (S.D.N.Y.1987), aff'd, 847 F.2d 1031 (2d Cir.1988) . Indeed, they provided the testimony that resulted in this Report, and their personal experiences and recollections form the factual basis for the present claims. Additionally, equitable tolling is appropriate only in rare and exceptional circumstances, in which a party is prevented in some extraordinary way from exercising [their] rights. Johnson v.. Nyack Hosp., 86 F.3d 8, 12 (2d Cir.1996); see also Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000). Nothing in the record supports a suggestion that Plaintiffs were continuously denied access to any adequate justice system or prevented by a fear of retaliation. See S.Rep. No. 102-249, at 10-11
(1991). Rather, they have long know about the factual basis for this action. Even if documents may have been withheld from Plaintiffs, none was essential to commencing this lawsuit. See Deutsch v. Turner Corp., 324 F.3d 692 (9th Cir.2003); Van Tu v. Koster, 364 F.3d 1196, 1200 (10th Cir.2004). The cases Plaintiffs rely on are inapposite. Thompson v. Metro. Life Ins. Co., 149 F.Supp.2d 38 (S.D.N.Y.2001); Bodner v. Banque Paribas, 114 F.Supp.2d. 117 (E.D.N.Y.2000). They considered claims in which unknown assets were looted and the plaintiffs were unaware of any injury. Here, there was no concealment; Plaintiffs knew at all times what their injuries were and how they occurred. *5 Finally, equitable estoppel is not appropriate for the facts alleged. Unlike equitable tolling, which is invoked in cases where the plaintiff is ignorant of his cause of action because of the defendant's fraudulent concealment, equitable estoppel is invoked in cases where the plaintiff knew of the existence of his cause of action but the defendant's conduct caused him to delay in bringing his lawsuit. Cerbone v. Int'l ladies' Garment Workers' Union, 768 F.2d 45, 49-50 (2d Cir.1985). One example is where the defendant causes the late filing by falsely promising not to plead the statute of limitations as a defense. See, e.g., Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir.1990). Because the records withheld were not necessary to commence this lawsuit, Plaintiffs have alleged no facts to support a claim of equitable estoppel. IV. Conclusion The Court has no jurisdiction over either Defendant, and the case against each must be dismissed. Furthermore, the proposed action is barred by the applicable statute of limitations. The Clerk of the Court is directed to terminate this case. SO ORDERED. S.D.N.Y.,2011. Ellul v. Congregation of Christian Bros.
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Exhibit I
11-22820-rdd 1:09-cv-10590-PAC Document 21 Filed 05/10/10 Page 1 of Document Case Doc 119 Filed 10/18/11 Entered 10/18/11 13:49:24 Main 37 Pg 107 of 149
Anthony D. Dougherty, Esq. (AD 7265) Linda S. Roth, Esq. (LR 8255) TARTER KRINSKY & DROGIN LLP 1350 Broadway New York, New York 10018 (212) 216-8000 (Tel.) (212) 216-8001 (Fax) Attorneys for Defendant, The Congregation of Christian Brothers UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------------x : EMMANUEL ELLUL, VALERIE CARMACK AND : HAZEL GOULDING, on behalf of themselves and all : others similarly situated, : : Plaintiffs, : : -against: THE CONGREGATION OF CHRISTIAN BROTHERS, : : THE ORDER OF THE SISTERS OF MERCY, MERCY : INTERNATIONAL ASSOCIATION and CATHOLIC : RELIGIOUS ORDER DOES 1-10, : : Defendants. ------------------------------------------------------------------------x
09 CIV 10590 (PAC)
MEMORANDUM OF LAW IN SUPPORT OF THE CONGREGATION OF CHRISTIAN BROTHERS MOTION TO DISMISS THE CLASS ACTION COMPLAINT
TABLE OF CONTENTS PRELIMINARY STATEMENT .......................................................................................................2 THE COMPLAINT ...........................................................................................................................2 ARGUMENT.....................................................................................................................................5 POINT I POINT II THE COMPLAINT SHOULD BE DISMISSED BECAUSE THIS COURT LACKS SUBJECT MATTER JURISDICTION ..................6 THE COMPLAINT SHOULD BE DISMISSED BECAUSE THE ROME CONGREGATION HAS NOT BEEN SERVED WITH THE SUMMONS OR COMPLAINT ................................................11 A. Service of Process Under the Foreign Sovereigns Immunity Act ..............11 B. Service of Process Under Fed. R. Civ. P. 4 ................................................12 POINT III THE ROME CONGREGATION IS NOT SUBJECT TO THE JURISDICTION OF THIS COURT..............................................................14 A. Jurisdiction Under New York State Law ....................................................14 B. Federal Due Process Requirements ............................................................17 POINT IV PLAINTIFFS CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS........................................................................................20 A. Plaintiffs Fail To Satisfy ATCAs 10-Year Statute of Limitations ............20 (1) Emmanuel Ellul (Ellul) ..................................................................21 (2) Valerie Carmack (Carmack)...........................................................21 (3) Hazel Goulding (Goulding)............................................................22 (4) Generally............................................................................................23 B. Plaintiffs Fail To Demonstrate That They Meet Any Tolling Requirement................................................................................................25 C. Plaintiffs Also Fail To Satisfy The Statutes of Limitation For Their Pendant Claims..................................................................................27 CONCLUSION..................................................................................................................................30
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TABLE OF AUTHORITIES Cases: 37 Park Drive South, Inc. v. Duffy, 63 A.D.3d 1040, 881 N.Y.S.2d 481 (2d Dept 2009) ............................................................29 A.R. Intl Anti-Fraud Systems, Inc. v. Pretoria Nat. Cent. Bureau of Interpol, 634 F. Supp. 2d 1108 (E.D. Cal. 2009)..................................................................................10 Agostinello v. Great Neck Union Free Sch. Dist., No. 09-0772-CV, 2009 WL 3849598 (2d Cir. Nov. 18, 2009)..............................................28 Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006) .............................................................................................26 n.10 Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal., 480 U.S. 102 (1987)...............................................................................................................18, 19 Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937, 173 L.Ed.2d 868 (2009)...........................................................5, 6 Baldwin County Welcome Center v. Brown, 466 U.S. 147 (1984)...............................................................................................................26 Ball v. Metallurgic Hoboken-Overpelt, S.A., 902 F.2d 194 (2d Cir. 1990)...................................................................................................15 BBC Chartering & Logistic Co. KG v. Usiminas Mecanica S/A, No. 08 Civ. 200 (WHP), 2009 WL 259618 (S.D.N.Y. Feb. 4, 2009)....................................15 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)...............................................................................................................5, 6 Brzak v. United Nations, 597 F.3d 107 (2d Cir. 2010)...................................................................................................28 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)...............................................................................................................17 Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005) .............................................................................................26 n.10 Carnegie-Mellon University v. Cohill, 484 U.S. 343 (1988)...............................................................................................................27
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ii
Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002)...................................................................................................23 n.9 Chavez v. Carranza, 559 F.3d 486 (6th Cir. 2009) .................................................................................................25, ................................................................................................................................................26 n.10 Chen v. China Central Television, No. 06 Civ. 414, 2007 WL 2298360 (S.D.N.Y. Aug. 9, 2007) .............................................7 Cleveland v. Caplaw Enters., 448 F.3d 518 (2d Cir. 2006)...................................................................................................5 Concesionaria DHM, S.A. v. Intl Fin. Corp., 307 F. Supp. 2d 553 (S.D.N.Y. 2004)....................................................................................23 n.9 Cottone v. Selective Surfaces, Inc., 68 A.D.3d 1038, 892 N.Y.S.2d 466 (2d Dept 2009) ............................................................29 Deutsch v. Turner Corp., 324 F.3d 692 (9th Cir. 2003) .................................................................................................26 Doe I v. Karadzic, No. 93 Civ. 0878 (PKL), 2000 WL 763851 (S.D.N.Y. June 13, 2000).................................20 EMD Constr. Corp. v. New York City Dept of Hous. Pres. & Dev., 70 A.D.3d 893, 895 N.Y.S.2d 469 (2d Dept 2010) ..............................................................29 Evans v. Perl, No. 602898/05, 2008 WL 1735059 (Sup. Ct. N.Y. Cty. Apr. 9, 2008).................................29 Faherty v. Fender, 572 F. Supp. 142 (S.D.N.Y. 1983).........................................................................................16 Federman v. Empire Fire and Marine Ins. Co., 597 F.2d 798 (2d Cir. 1979)...................................................................................................27 Filler v. Hanvit Bank, 378 F.3d 213 (2d Cir. 2004)...................................................................................................8 Forsyth v. Cessna Aircraft Co., 520 F.2d 608 (9th Cir. 1975) .................................................................................................29 Gottlieb v. Northriver Trading Co., 58 A.D.3d 550, 872 N.Y.S.2d 46 (1st Dept 2009) ...............................................................29
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iii
Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99 (1945).................................................................................................................27 Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996) .................................................................................................26 n.10 In re Gaston & Snow, 243 F.3d 599 (2d Cir. 2001)...................................................................................................28 In re Ski Train Fire in Kaprum, Austria, No. 04 Civ. 1402, MDL 1428 (SAS), 2004 WL 2674644 (S.D.N.Y. Nov. 23, 2004) ..........14 In re Terrorist Attacks on September 11, 2001, 538 F.3d 71, 85 (2d Cir. 2008)...............................................................................................8, ................................................................................................................................................10-11 n.5 In re Union Carbide, 634 F. Supp. 842 (S.D.N.Y. 1986).........................................................................................19 In re World War II Era Japanese Forced Labor Litig., 164 F. Supp. 2d 1160 (N.D. Cal. 2001) .................................................................................20, 25, ................................................................................................................................................26, 28 Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841 (5th Cir. 2000) .......................................................................................................8 Landoil Res. Corp. v. Alexander & Alexander Serv. Inc., 565 N.E.2d 488, 77 N.Y.2d 28 (1990)...................................................................................14 Ledwith v. Sears, Roebuck & Co., 231 A.D.2d 17, 660 N.Y.S.2d 402 (1st Dept 1997) .............................................................28 Lehman v. United States, 154 F.3d 1010 (9th Cir. 1998) ...............................................................................................26 Malanga v. Chamberlain, 71 A.D.3d 644, 896 N.Y.S.2d 385 (2d Dept 2010) ..............................................................29 Manliguez v. Joseph, 226 F. Supp. 2d 377 (E.D.N.Y. 2002) ...................................................................................20 McGough v. Leslie, 65 A.D.3d 895, 884 N.Y.S.2d 756 (1st Dept 2009) .............................................................30 Mende v. Milestone Tech., Inc., 269 F. Supp. 2d 246 (S.D.N.Y. 2003)....................................................................................16
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iv
Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560 (2d Cir. 1996).....................................................................................................17, 18 Morando v. Morando, 41 A.D.3d 559, 840 N.Y.S.2d 593 (2d Dept 2007) ..............................................................29 Mother Doe I v. Maktoum, 632 F. Supp. 2d 1130 (S.D. Fla. 2007) ..................................................................................16, 17 Mroz v. City of Tonawanda, 999 F. Supp. 436 (W.D.N.Y. 1998) .......................................................................................27 Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005).............................................................................................5 Newmarkets Partners LLC v. Oppenheim, 638 F. Supp. 2d 394 (S.D.N.Y. 2009)....................................................................................14 Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010)...............................................................................................5 Proforma Partners, L.P. v. Skadden Arps Slate Meagher & Flom, LLP, 280 A.D.2d 303, 720 N.Y.S.2d 139 (1st Dept 2001) ...........................................................27 Realuyo v. Villa Abrille, 01 Civ. 10158, 2003 WL 21537754 (S.D.N.Y. July 8, 2003) ...............................................15, 16 Robinson v. Overseas Military Sales Corp., 21 F.3d 502 (2d Cir. 1994).....................................................................................................14 Shaulian-Tehrani v. Khatami, No. 06 Civ. 6868(DC), 2008 WL 708252 (S.D.N.Y. Mar. 17, 2008) ...................................14 Sole Resort, S.A. DE C.V. v. Allure Resorts Mgmt., 450 F.3d 100 (2d Cir. 2006)...................................................................................................16 Tachiona v. U.S., 386 F.3d 205 (2d Cir. 2004)...................................................................................................14 Two Rivers v. Lewis, 174 F.3d 987 (9th Cir. 1999) .................................................................................................20 Underhill v. Hernandez, 168 U.S. 250 (1897)...............................................................................................................10 n.5
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United States v. First Nat. City Bank, 379 U.S. 378 (1965)...............................................................................................................19 Verdon v. Consolidated Rail Corp., 828 F. Supp. 1129 (S.D.N.Y. 1993).......................................................................................6 Whitaker v. Fresno Telsat, Inc., 87 F. Supp. 227 (S.D.N.Y. 1999)...........................................................................................18 Wiesenthal v. Wiesenthal, 40 A.D.3d 1078, 838 N.Y.S.2d 581 (2d Dept 2007) ............................................................29 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980)...............................................................................................................17 Statutes: 28 U.S.C. 1332(c) ...........................................................................................................................7 28 U.S.C. 1332(e) ...........................................................................................................................7 28 U.S.C. 1350................................................................................................................................2 28 U.S.C. 1603(a) ...........................................................................................................................6 28 U.S.C. 1603(b) ...........................................................................................................................7 28 U.S.C. 1604................................................................................................................................6 28 U.S.C. 1605................................................................................................................................6, 6 n.3 28 U.S.C. 1605(a) ...........................................................................................................................6 n.3 28 U.S.C. 1607................................................................................................................................6, 6 n.3 28 U.S.C. 1608................................................................................................................................11 n.6 28 U.S.C. 1608(b) ...........................................................................................................................11 Rules: Fed. R. Civ. P. 4(e) ............................................................................................................................13 Fed. R. Civ. P. 4(e)(1)........................................................................................................................12 Fed. R. Civ. P. 4(h) ............................................................................................................................12
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vi
Fed. R. Civ. P. 12(b) ..........................................................................................................................2, 5 Fed. R. Civ. P. 12(b)(1)......................................................................................................................2 Fed. R. Civ. P. 12(b)(2)......................................................................................................................2 Fed. R. Civ. P. 12(b)(5)......................................................................................................................2 Fed. R. Civ. P. 12(b)(6)......................................................................................................................2, 5, 6 Fed. R. Civ. P. 44.1............................................................................................................................28 n.11 N.Y. CPLR 202..................................................................................................................................27, 28 N.Y. CPLR 301..................................................................................................................................14, 15 N.Y. CPLR 306-b ..............................................................................................................................13 N.Y. CPLR 313..................................................................................................................................13 N.J. Rule of Court 4:4-3.....................................................................................................................13 N.J. Rule of Court 4:4-4.....................................................................................................................13 Other: 1983 Code of Canon Law, Canon 431-59 .........................................................................................4
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vii
PRELIMINARY STATEMENT The Congregation of Christian Brothers (the Rome Congregation) submits this memorandum of law in support of its motion to dismiss the Class Action Complaint (the Complaint or Compl.) pursuant to Rule 12(b) of the Federal Rules of Civil Procedure because: (1) this Court lacks subject matter jurisdiction; (2) this Court lacks personal jurisdiction over the Rome Congregation; (5) the Rome Congregation is not a proper defendant and has not been properly served with the Summons and Complaint; and (6) all of Plaintiffs purported claims are barred by the applicable statutes of limitation. Although the complaint is 44 pages long and contains 153 enumerated paragraphs, it completely fails to state any cognizable claim against the Rome Congregation. THE COMPLAINT In this action, which relies heavily on the Alien Tort Claims Act, 28 U.S.C. 1350 (ATCA), Plaintiffs none of whom reside in, or have any connection to, New York allege that the Rome Congregation is liable for violations of customary international law regarding child trafficking, forced unpaid child labor, slavery or involuntary servitude and cruel, inhuman and degrading treatment. Plaintiffs also assert pendant claims for unjust enrichment, breach of fiduciary and/or special duty, conversion, constructive trust and accounting. As the Complaint itself reveals, all of Plaintiffs claims are based on events that purportedly occurred in the 1940s, 50s and 60s when Plaintiffs, as children, were transported from the United Kingdom and Malta to orphanages and work farms in Australia under the auspices of a program developed, implemented and championed by the Australian government. Significantly, no allegations in the Complaint suggest any reason why the United States in general, or the Southern District of New York in particular, should insinuate itself into a dispute
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based on events that allegedly occurred entirely overseas at the direction of foreign sovereigns more than half a century ago. In fact, the Complaint expressly alleges that the transportation of children from the United Kingdom and Malta to Australia was undertaken in accordance with the Immigration (Guardianship of Children) Act of 1946 which was enacted by Australias Commonwealth Government as part of the so-called White Australia Policy officially adopted by Australian governments from 1901 onwards. Foreign governments and their alleged agents (such as the Rome Congregation here), are wholly immune from prosecution in United States courts pursuant to the Foreign Sovereign Immunities Act. Notably, the Rome Congregation, does not have orphanages, work farms or even offices in Australia, and it denies any participation in the child trafficking and child labor schemes described in the Complaint. Given, however, that the Rome Congregation was (improperly) named as a defendant, the Complaint should be dismissed because, according to the Complaint, the Rome Congregation was, at all relevant times, operating as an agent or instrumentality of the Australian government. Apparently ignoring the extraterritorial nature of their claims, Plaintiffs filed their Complaint with this Court and attempted to serve the Rome Congregation by delivering a copy of the Summons and Complaint to the Congregation of Christian Brothers North American Province (the NAP) in Elizabeth New Jersey presumably under the belief that in so doing, they were serving the Rome Congregation. Plaintiffs are mistaken. The Rome Congregation is an unincorporated association of men that is based in Rome, Italy.1 It does not maintain offices or conduct business in New Jersey or in New York, and even if it did, such service would not comply with the dictates of the FSIA. Murphy Decl. at 4. The Rome Congregation is a separate and distinct entity from the NAP. Thus, service on the NAP is not an appropriate or
1
See Declaration of Brother Mark Anthony Murphy (Murphy Decl.) at 2.
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sufficient way to obtain jurisdiction over the Rome Congregation. Further, as discussed in more detail below, neither the NAP nor the Rome Congregation (which are entirely separate juridic entities) are proper defendants in this case. Consistent with the allegations contained in the Complaint, the province involved is another separate juridic entity located in Australia, called Christian Brothers Oceania. Murphy Decl. at 2. Thus, the Rome Congregation is an improper defendant who has never been served (properly or otherwise) with the Summons or the Complaint and the Complaint should be dismissed for insufficient service of process. To the extent that Plaintiffs allegations rely upon an agency relationship between the Congregation and any Province, the allegations must fail because every province is a separate juridical person. (See, e.g., 1983 Code of Canon Law, Canon 431-592). Moreover, even if the Summons and Complaint had been properly served (which they were not), the Complaint should still be dismissed for lack of jurisdiction. Although Plaintiffs allege that the Rome Congregation has minimum contacts with New York through its purported affiliation with various Catholic educational institutions, those allegations are incorrect. The Rome Congregation is not affiliated with any schools in New York and allowing the present action to proceed against an entity with no contacts or ties to New York would clearly violate long standing legal principles regarding the exercise of jurisdiction over foreign entities. Finally, even if this Court somehow determines that it has subject matter jurisdiction over the instant dispute and personal jurisdiction over the Rome Congregation, Plaintiffs admittedly ancient claims should still be dismissed as untimely. Decades have passed since Plaintiffs were allegedly transported to Australia from the United Kingdom and Malta, and decades more have passed since Plaintiffs became adults able to seek legal redress for whatever damages they allegedly sustained back when America was rebounding from World War II, the Dodgers still
2
A copy of the 1983 Code of Canon Law, Canon 431-459 is attached hereto.
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played baseball in Brooklyn and James Cagney won the Best Actor award for his portrayal in Yankee Doodle Dandy. In sum, the Rome Congregation is immune from the jurisdiction of this Court pursuant to the FSIA and the Complaint should be dismissed for lack of subject matter jurisdiction. The Complaint should also be dismissed because Plaintiffs are not entitled to wait eons to prosecute their ancient claims nor are they entitled to prosecute their claims in a judicial forum with no connection to the parties or the purported wrongdoing. ARGUMENT On motions to dismiss pursuant to Fed. R. Civ. P. 12(b), courts are required to dismiss all causes of action that fail to state a claim upon which relief can be granted. In considering such motions, Courts must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege a plausible set of facts sufficient to raise a right to relief above the speculative level. Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Recently, the Supreme Court clarified the appropriate pleading standard in Ashcroft v. Iqbal, by setting forth a two-pronged approach for courts deciding a motion to dismiss. --- U.S. ---, 129 S. Ct. 1937 (2009). The Court instructed district courts to first, identify[ ] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. 129 S. Ct. at 1950. Second, if a complaint contains well-pleaded factual allegations[,] a court should assume their veracity and then determine whether they plausibly give rise to an
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entitlement to relief. Id. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Id. at 1949 (quoting Twombly, 550 U.S. at 556-57) (internal citations omitted)). Moreover, under Rule 12(b)(6), courts are required to dismiss actions that fail to state a claim upon which relief can be granted because they are time barred. Verdon v. Consolidated Rail Corp., 828 F. Supp. 1129, 1137 (S.D.N.Y. 1993). POINT I THE COMPLAINT SHOULD BE DISMISSED BECAUSE THIS COURT LACKS SUBJECT MATTER JURISDICTION The Foreign Sovereign Immunities Act (FSIA), provides that, a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.3 28 U.S.C. 1604. Under the FSIA, a foreign state includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state. 28 U. S. C. 1603(a). An agency or instrumentality of a foreign state is further defined as an entity: (1) which is a separate legal person, corporate or otherwise, and
Sections 1605 through 1607 create exceptions to the general rule of immunity. None of the exceptions are applicable to the case at bar. For example, section 1605 creates an exception for a variety of circumstances including situations where a foreign state has waived immunity, engaged in commercial activity in the United States or which has an effect on the United States, involving admiralty claims and maritime liens, personal injury or property loss in the United States, property rights involving property located in the United States or a mortgage foreclosure. Section 1605(a) creates an exception for acts of terrorism and section 1607 creates an exception for counterclaims asserted against a foreign state that initiates litigation in the United States.
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(2)
which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and which is neither a citizen of a State of the United States as defined in section 1332(c) and (e) of this title, nor created under the laws of any third country. 28 U.S.C. 1603(b).
(3)
As alleged in the Complaint, the Rome Congregation was an agency or instrumentality of the Australian government. It is, therefore, immune from the jurisdiction of this Court. See Chen v. China Central Television, No. 06 Civ. 414, 2007 WL 2298360 (S.D.N.Y. Aug. 9, 2007)4 (Crotty, J.) (claims asserted pursuant to the Alien Tort Claims Act and the Torture Victims Protection Act against television station that was instrumentality of the Peoples Republic of China dismissed sua sponte for lack of subject matter jurisdiction under the FSIA). The Rome Congregation is an unincorporated association of men recognized by the Holy See. It is not a citizen of the United States, nor was it created under the laws of a third country. Murphy Decl. at 3. In addition, as set forth in the Complaint, the Rome Congregation was purportedly functioning as an organ of the Australian government when the Australian government implemented the child migration programs and policies now at issue. While the word organ is not defined in the FSIA, the Second Circuit examines certain criteria to determine whether a particular entity qualifies as an organ of a foreign state. These criteria are as follows: (1) whether the foreign state created the entity for a national purpose; (2) whether the foreign state actively supervises the entity; (3) whether the foreign state requires the hiring of public employees and pays their salaries; (4) whether the entity holds exclusive rights to some right in
4
Copies of all unreported cases are attached hereto.
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the [foreign] country; and (5) how the entity is treated under foreign state law. Filler v. Hanvit Bank, 378 F.3d 213, 217 (2d Cir. 2004) (quoting Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 846-47 (5th Cir. 2000)). Under Filler, courts are invited to engage in a balancing process, without particular emphasis on any given factor and without requiring that every factor weigh in favor of, or against, the entity claiming FSIA immunity. In re Terrorist Attacks on September 11, 2001, 538 F.3d 71, 85 (2d Cir. 2008). Numerous allegations in the Complaint demonstrate that the Rome Congregation was an organ of the Australian government with respect to the governments child migration program and policy. Paragraph 56 of the Complaint alleges that the transportation of children from the United Kingdom and Malta was part of the legalized racism of the so-called White Australia Policy, officially adopted by Australian governments from 1901 onwards pursuant to which Australia sought to import pure white stock or good British stock in order to preserve its purported character as an entirely white or Caucasian nation. Paragraph 60 of the Complaint alleges that the Australian government enacted a child migration statute known as the Immigration (Guardianship of Children) Act of 1946 (IGOC Act) and that Clause 6 of the Act stated: The Minister shall be the guardian of the person, and of the estate in Australia, of 1. 2. every evacuee child; and every immigrant child who arrives in Australia after the commencement of this Act, to the exclusion of the father and mother and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of twenty one years or leaves Australia permanently, or until the provisions
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of this Act cease to apply to and in relation to the child, whichever first happens. Paragraph 61 of the Complaint then alleges that Subsection 5(1) of the Act enabled the Minister to delegate his functions and powers as guardian: to any officer or authority of the Commonwealth or of any State or Territory of the Commonwealth all or any of his peers and functions under this Act (except this power of delegation) so that the delegated powers and functions may be exercised by the delegate with respect to the matters or class of matters, or the child or class of children, specified in the instrument of delegation. The Complaint goes on to allege in paragraphs 62 and 63 that the Minister delegated his powers as guardian of child migrants to State welfare authorities who eventually drew up indentures with receiving agencies such as the Rome Congregation. The indentures provided, among other things, that the agencies would comply with the provisions on its part relating to such children and contained in the [IGOC Act] and the Child Welfare Act of 1947 and the regulations made thereunder and amendments thereto. In fact, Plaintiffs allege that Defendants conduct took place under color of law and/or in concert with those acting under color of official authority The Government of Australia officially sanctioned the child migration scheme, making it a coventurer, and through its knowledge of the conditions of forced child labor ratified the unlawful conduct and acts alleged herein. Moreover, Defendants were aided and abetted by the Government of Australia which continued to pay numerous subsidies to Defendants despite their knowledge of systematic use of forced child labor by Defendants and despite their knowledge that these subsidies were not used for the education, welfare or maintenance of former child migrants. Compl. at 151. Multiple allegations in the Complaint also set forth how the Australian government financed the migration program and Australias ownership and control of the program is demonstrated in paragraph 89 of the Complaint where the Acting Secretary of the Western
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Australia Child Welfare Department speaking about the child migration and labor program recommends certain changes to the program and then states: Although I realize that if these recommendations are carried out the Institution will be deprived of a considerable amount of labour, I am afraid that if something is not done to rectify the present position both this Department and the Bindoon authorities will leave themselves open to a charge of exploiting child labour. Australias stewardship of the program is also evidenced by paragraph 99 of the Complaint which states that in November 2009 Australias Prime Minister accepted responsibility for Australias role in the child migration program and issued a historic apology. Based on the language of the Complaint, it is clear that the Rome Congregation was an organ of the Australian government when it assumed the obligations of the Minister under the IGOC Act and supposedly transported, received and housed child migrants and thus, it is immune from prosecution in the United States pursuant to the FSIA. A.R. Intl Anti-Fraud Systems, Inc. v. Pretoria Nat. Cent. Bureau of Interpol, 634 F. Supp. 2d 1108, 1116 (E.D. Cal. 2009) (action dismissed for lack of subject matter jurisdiction where allegations in complaint demonstrated that defendant was foreign law enforcement agency immune from suit pursuant to FSIA)5.
In In re Terrorist Attacks on September 11, 2001, 538 F.3d 71 (2d Cir. 2008), the Second Circuit considered whether the FSIA grants immunity to individual officials of foreign governments for acts performed as part of their official duties. In deciding that such officials are entitled to immunity, the Court held that the term agency as used in the FSIA has a more abstract common meaning than a governmental bureau or office; an agency is any thing or person through which action is accomplished. The Court further found that such a reading of agency is consistent with the notion that the state cannot act except through individuals and that the act-of-state doctrine precludes courts from sitting in judgment on the acts of the government of another done within its own territory. Id. at 83 (quoting Underhill v. Hernandez, 168 U.S. 250, 252 (1897)). In other words, the acts of representatives of the state are those of the state itself.
5
Although the claims asserted in the present action are asserted against the Rome Congregation and not its individual members, the findings in In re Terrorist Attacks are still instructive since the Rome Congregation is a thing or person working within the context of a government legislated program to accomplish the governments White Australia Policy. Thus, assuming the Rome Congregation is the proper Defendant (which it is not), like the
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10
POINT II THE COMPLAINT SHOULD BE DISMISSED BECAUSE THE ROME CONGREGATION HAS NOT BEEN SERVED WITH THE SUMMONS OR COMPLAINT A. Service of Process Under the Foreign Sovereigns Immunity Act Because the Rome Congregation was allegedly an agent or instrumentality of the Australian government, plaintiffs were required to serve the Rome Congregation in accordance with the service provisions outlined in the FSIA in order to properly invoke the jurisdiction of this Court. Section 1608(b) of the FSIA provides for service on an agent or instrumentality of a foreign government by delivery of the summons and complaint on an agent authorized to receive service of process in the United States or by delivery of the summons and complaint in accordance with applicable international convention. If service by the foregoing means cannot be accomplished, then the FSIA alternatively provides for service by delivery of the summons and complaint as directed by authority of the foreign state in response to a letters rogatory, by mail sent by the clerk of the court and requesting a signed receipt or as directed by court order.6
individuals who were awarded immunity in In re Terrorist Attacks, the Rome Congregation is entitled to immunity here.
6
28 U.S.C. 1608 provides in relevant part: (b) Service in the courts of the United States and of the States shall be made upon an agency or instrumentality of a foreign state: (1) by delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the agency or instrumentality; or (2) if no special arrangement exists, by delivery of a copy of the summons and complaint either to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process in the United States; or in accordance with an applicable international convention on service of judicial documents; or (3) if service cannot be made under paragraphs (1) or (2), and if reasonably calculated to give actual notice, by delivery of a copy of the
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As stated in the Affidavit of Service on file with the Court, Plaintiffs did nothing more than attempt service on the Rome Congregation by delivering a copy of the Summons and Complaint to the NAP at 742 Monroe Avenue, Elizabeth, New Jersey and leaving the documents with a Brother Daniel Casey. The Rome Congregation, however, does not have an office in Elizabeth, New Jersey and Brother Casey was not authorized to accept service on its behalf at this NAP location. Service of the Complaint did not conform with the procedures set forth in the FSIA and Plaintiffs have not invoked the jurisdiction of this Court. Consequently, the Complaint should be dismissed. B. Service of Process Under Fed. R. Civ. P. 4 Even if the Rome Congregation were not an agent or instrumentality of the Australian government, the Complaint should still be dismissed for insufficient service of process. Fed. R. Civ. P. 4(h) provides that in order to commence an action against an unincorporated association such as the Rome Congregation, the association must be served in a judicial district of the United States: (A) (B) in the manner prescribed by Rule 4(e)(1) for serving an individual; or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and if the
summons and complaint, together with a translation of each into the official language of the foreign state-(A) as directed by an authority of the foreign state or political subdivision in response to a letter rogatory or request or (B) by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the agency or instrumentality to be served, or (C) as directed by order of the court consistent with the law of the place where service is to be made.
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agent is one authorized by statute and the statute so requires by also mailing a copy of each to the defendant. Fed. R. Civ. P. 4(e) further provides that service may be accomplished by following the state law for serving a summons in an action were the district court is located or where service is made by: (i) delivering a copy of the summons and the complaint to the individual personally; (ii) leaving a copy of the summons and complaint at the individuals home with someone of suitable age and discretion who resides there; or (iii) delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process. Both the law of New York, where this Court is located, and the law of New Jersey, where Plaintiffs attempted service on the Rome Congregation, require service of a summons and complaint on a potential defendant by delivering the summons and complaint to the named defendant (or some other person of suitable age and discretion) at a location where the potential defendant resides or works or by delivering the summons and complaint to an agent authorized to accept service. N.Y. CPLR 306-b, 313; N.J. Rule of Court 4:4-3 and 4:4-4. Here, Plaintiffs failed miserably to comply with the federal rules regarding service of process. As previously discussed, Plaintiffs attempted to serve the Rome Congregation by delivering a copy of the Summons and Complaint to the NAP on Monroe Street in Elizabeth, New Jersey and leaving the documents with Brother Daniel Casey. While Monroe Street in Elizabeth is the home of the NAP, the Rome Congregation and the NAP are separate and distinct legal and juridic entities. The Rome Congregation is a religious order subdivided into separate juridic entities which serve particular territories (provinces) around the world. Murphy Decl. at 2. Each Province is legally and juridically separate from every other Province. Murphy Decl. at 2.
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Thus, service on the NAP and Brother Casey was not an appropriate or sufficient way to obtain jurisdiction over the Rome Congregation. As such, the Complaint must be dismissed. ShaulianTehrani v. Khatami, No. 06-Civ-6868(DC), 2008 WL 708252, at *3-4 (S.D.N.Y. Mar. 17, 2008) (claims brought pursuant to ATCA dismissed for insufficient service or process); Tachiona v. U.S., 386 F.3d 205, 224 (2d Cir. 2004) (where service of process pursuant to FSIA was held insufficient, claim should have been dismissed). POINT III THE ROME CONGREGATION IS NOT SUBJECT TO THE JURISDICTION OF THIS COURT When deciding whether to exercise jurisdiction over non-resident defendants, federal courts look to the law of the state in which the court sits. Newmarkets Partners LLC v. Oppenheim, 638 F. Supp. 2d 394, 400 (S.D.N.Y. 2009); see also Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994). Accordingly, this Court should not, and actually cannot, exercise jurisdiction over the Rome Congregation unless jurisdiction is: (i) proper under New Yorks Civil Practice Law and Rules; and (ii) consistent with federal due process requirements. See In re Ski Train Fire in Kaprun, Austria, No. 04 Civ. 1402, MDL 1428 (SAS), 2004 WL 2674644, at *2 (S.D.N.Y. Nov. 23, 2004). A. Jurisdiction Under New York State Law N.Y. CPLR 301 permits a court to assert personal jurisdiction over a defendant who is present in New York on a continuous and systematic basis. Landoil Res. Corp. v. Alexander & Alexander Serv. Inc., 77 N.Y. 2d 28 (1990). Trying to meet this requirement, Plaintiffs allege that the Rome Congregation resides or does business in New York and that the Rome Congregation has minimum contacts with New York because it conducts continuous business
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activities within the jurisdiction. (Compl. at 6.) To support their conclusory jurisdictional allegations, Plaintiffs assert that the Rome Congregation has established and maintained educational institutions in New York City since the turn of the 20th Century and that the Rome Congregation is affiliated financially and otherwise with familiar local high schools and colleges such as Power Memorial, Cardinal Hayes and Iona College. (Compl. at 42-43.)7 There is no jurisdiction over the Rome Congregation in the present action because it is not engaged in such a continuous and systematic course of doing business [in New York] as to warrant a finding of its presence in the jurisdiction. Ball v. Metallurgic Hoboken-Overpelt, S.A., 902 F.2d 194, 198 (2d Cir. 1990) (Since a corporation amenable to jurisdiction under section 301 may be sued in New York on causes of action wholly unrelated to acts done in New York . . . its exposure to suit on such a wide range of legal actions requires a showing that it is doing business in New York with a fair measure of permanence and continuity. (citations omitted)); BBC Chartering & Logistic Co. KG v. Usiminas Mecanica S/A, No. 08 Civ. 200 (WHP), 2009 WL 259618, at *3 (S.D.N.Y. Feb. 4, 2009) (Courts generally focus on: [1] the existence of an office in New York; [2] the solicitation of business in New York; [3] the presence of bank accounts or other property in New York; and [4] the presence of employees or agents in New York . . . . (citation omitted)); Realuyo v. Villa Abrille, 01 Civ. 10158, 2003 WL 21537754, at *7-8 (S.D.N.Y. July 8, 2003) (finding the exercise of jurisdiction over internet news service stationed outside of New York and merely available to New Yorkers through the internet, violates the constitutional guarantee of due process because it fails to comply with traditional notions of fair play and substantial justice. (citations omitted)).
None of the New York schools listed in the Complaint participated in any way in the child trafficking scheme or other misconduct alleged in the Complaint and Plaintiffs do not suggest otherwise.
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As Plaintiffs themselves concede, the current superior general of the Christian Brothers and head of its Congregational Leadership Team is headquartered in Rome, Italy not New York City, not New York State and not even the United States. (Compl. at 41.) The Rome Congregation does not maintain offices in New York and, contrary to Plaintiffs contention, it is not affiliated financially or otherwise with any New York educational programs or institutions. Further, the educational institutions listed in the Complaint (Compl. at 43) were/are separate not-for profit education corporations organized under the laws of the state of New York legal entities that are entirely separate and distinct from the Rome Congregation. Murphy Decl. at 5. Accordingly, the Rome Congregation is not doing business in New York (continuously or even sporadically) and it is not subject to the jurisdiction of this Court. See Mende v. Milestone Tech., Inc., 269 F. Supp. 2d 246, 253 (S.D.N.Y. 2003); Realuyo, 2003 WL 21537754, at *7-8; Faherty v. Fender, 572 F. Supp. 142, 144-45 (S.D.N.Y. 1983); see also Sole Resort, S.A. DE C.V. v. Allure Resorts Mgmt., 450 F.3d 100, 103 (2d Cir. 2006). In Mother Doe I v. Maktoum, 632 F. Supp. 2d 1130 (S.D. Fla. 2007), a case that is remarkably similar to the case at bar, former child jockeys brought an action in the Southern District of Florida pursuant to the ATCA against senior government officials of the United Arab Emirates (UAE) alleging that the officials personally participated in the kidnapping, trafficking and enslavement of young boys when the boys were transported from South Asia and Africa to the UAE and other countries to work as jockeys. Defendants moved to dismiss for lack of personal jurisdiction and argued that the exercise of jurisdiction by the Southern District of Florida would be improper because the individual defendants had no ties to Florida. Among other things, the defendants did not conduct business in Florida nor did they own any business or corporation that was registered in or conducted business in Florida. Id. at 1137-1138. After
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analyzing the complaint and sworn declarations addressing the jurisdictional allegations made against each defendant, the Court found that defendants, who plaintiffs argued were regular and active participants in Floridas thoroughbred horse racing and breeding scene, did not have sufficient contacts with the State of Florida and dismissed the complaint. Id. at 1147. In keeping with the holding in Mother Doe, the present Complaint should also be dismissed as the Rome Congregation has no ties with New York. B. Federal Due Process Requirements There are two components to a federal due process inquiry minimum contacts with the forum and reasonableness. Both components must be satisfied before this Court can exercise jurisdiction over a foreign entity like the Rome Congregation. See Metro. Life. Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 568 (2d Cir. 1996). Yet, neither component is satisfied here. To establish minimum contacts plaintiffs must demonstrate that: (i) the Rome Congregation purposefully availed itself of the privilege of conducting activities within the forum State i.e. New York; (ii) that the Rome Congregations contacts with the forum are such that it could reasonably anticipate being haled into court there; and (iii) that a continuous and systematic portion of the Rome Congregations business is conducted in the forum. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473-76 (1985); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). As already noted, Plaintiffs cannot establish that the Rome Congregation has sufficient minimum contacts (or any contacts) with New York to justify bringing the association before a judicial tribunal here. Plaintiffs allege only that jurisdiction is proper based on the Rome Congregations purported affiliation with New York parochial schools and colleges. This
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allegation, however, is just plain wrong and cannot in any way support the jurisdictional prerequisite of minimum contacts or create jurisdiction where none exists. As for the second due process element, to establish reasonableness, courts generally consider the following factors: (i) the burden on defendant of submitting to the courts jurisdiction; (ii) the interests of the forum state; (iii) the plaintiffs interest in obtaining relief; (iv) judicial economy; and (v) the shared interests of the states in advancing social policies. See Metro Life, 84 F.3d at 568. Notably, the reasonableness test is applied on a sliding scale. Thus, the weaker the plaintiffs showing on minimum contacts, the less a defendant need show in terms of unreasonableness to defeat jurisdiction. Id. at 569 (quotation and brackets omitted); Whitaker v. Fresno Telsat, Inc., 87 F. Supp. 2d 227, 234 (S.D.N.Y. 1999) (citations omitted). However, given the complete absence of minimum contacts between the Rome Congregation and New York, this Court need not even consider the question of reasonableness. Without minimum contacts, the exercise of jurisdiction is per se unreasonable and improper. If this Court were to consider the reasonableness factors anyway, it is readily apparent that due process would not be served by the exercise of personal jurisdiction over the Rome Congregation. Without question, the Rome Congregation would face a substantial burden travelling to defend itself in New York where it does not maintain an office and where none of its officials or members reside. Potential witnesses (to the extent they are even still alive so many years after the alleged wrongdoing) would not be in New York and relevant documents (to the extent they still exist) would similarly be located outside of New York presumably in Europe and Australia. The Rome Congregation would also face the severe burden of defending itself in a foreign legal system. As the United States Supreme Court stated in Asahi Metal Indus. Co., Ltd.
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v. Super. Ct. of Cal., The unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders. 480 U.S. 102, 114 (1987). Moreover, New York has no interest in or connection to the issues or claims raised in the Complaint. No party not even one of the named Plaintiffs resides in New York, none of the conduct underlying the claims occurred in New York and none of the claims involve social policies implemented in this forum. In fact, both the United Kingdom and Australia where the child welfare programs at issue were allegedly implemented have already spent considerable time, money, resources and political capital investigating these types of claims and establishing relief funds and other initiatives8 [g]reat care and reserve should be exercised when extending our notions of personal jurisdiction into the international field. Asahi Metal Indus. Co., Ltd., 480 U.S. at 115 (quoting United States v. First Nat. City Bank, 379 U.S. 378, 404 (1965) (Harlan, J., dissenting)). Finally, putting aside the international implications of having this Court intervene in the procedural and substantive policies of other nations, the local New York interest of judicial economy would hardly be served by the exercise of jurisdiction in a case that is, in all respects, foreign to this state, this country and this continent. This is particularly true here, where foreign Plaintiffs have initiated litigation against foreign Defendants in the Southern District of New York a district which has been recognized as one of the busiest judicial districts in the nation with one of the heaviest dockets. See, e.g., In re Union Carbide, 634 F. Supp. 842, 861 (S.D.N.Y. 1986).
See generally LOST INNOCENTS: RIGHTING THE RECORD REPORT ON CHILD MIGRATION (S. COMM. 2001) (Austl.), available at http://www.aph.gov.au/senate/committee/clac_ctte/completed_inquiries/199902/child_migrat/report/report.pdf (last visited May 6, 2010).
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The exercise of jurisdiction by this Court over the Rome Congregation would be unreasonable and would surely offend traditional notions of fair play and substantial justice. Accordingly, the Complaint should be dismissed for lack of jurisdiction. POINT IV PLAINTIFFS CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS Plaintiffs purport to state claims against the Rome Congregation pursuant to ATCA and federal common law. Plaintiffs further purport to state pendant claims against the Rome Congregation for unjust enrichment, breach of fiduciary and/or special duty, conversion, constructive trust and accounting. Each and every one of Plaintiffs claims, however, is untimely and barred by the applicable statutes of limitation. A. Plaintiffs Fail To Satisfy ATCAs 10-Year Statute Of Limitations The statute of limitations for claims brought under the ATCA is ten years, see Doe I v. Karadzic, No. 93 Civ. 0878(PKL), 2000 WL 763851, at *1, n.3 (S.D.N.Y. June 13, 2000); Manliguez v. Joseph, 226 F. Supp. 2d 377, 386 (E.D.N.Y. 2002), and under federal law, a plaintiffs cause accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action. In re World War II Era Japanese Forced Labor Litig., 164 F. Supp. 2d 1160, 1180-81 (N.D. Cal. 2001) (quoting Two Rivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999)). For example, in In re World War II Era Japanese Forced Labor Litig., the court concluded that the Korean and Chinese plaintiffs were aware of their [forced labor] injuries no later than when [World War II] ended in 1945[,] and noted that [t]hese cases were initiated in 1999 and 2000, over 50 years later and well outside the ten year [ATCA] limitations period. 164 F. Supp. 2d at 1181.
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Similarly, the conduct alleged in the present Complaint occurred in the 1940s, 1950s and 1960s between 40-70 years ago but Plaintiffs did not file this lawsuit until two (2) days shy of 2010 (on December 30, 2009), rendering it untimely. (1) Emmanuel Ellul (Ellul)
According to the Complaint, Plaintiff, Ellul, was born on February 12, 1946 and departed Malta for Australia on July 12, 1960 at 14 years of age. (Compl. at 8, 10.) He allegedly traveled to Tardun, a school in Australia where the Christian Brothers purportedly operated a 70,000 acre farm, with his three brothers Peter (age 16), Michael (age 12) and Raphael (age 10). (Compl. at 8, 11.) Their family members came to see them off at the docks in Malta. (Compl. at 10.) Further alleged, Ellul and his brothers were later told that there was no point in attempting to contact their parents because they were dead (Compl. at 11), and on March 26, 1963 Ellul left the institution at age 17 and allegedly worked on a farm for a year thereafter. (Compl. at 17.) The Complaint is devoid of any allegation that Ellul did not know his parents names or contact information. It is also silent as to what efforts, if any, Ellul actually made to locate his parents. Ellul must have known his parents names, address and telephone number by age 14 there is no evidence in the Complaint that he suffered from any intellectual deficiency to suggest otherwise. If Ellul was not yet aware he had a claim, due diligence at the age of majority when he was allegedly released from the farm, should have revealed as such over four (4) decades ago. (2) Valerie Carmack (Carmack)
Plaintiff Carmack was born in Britain on January 7, 1943 and traveled to Australia at age 10 on January 28, 1953 where she worked at Nazareth House until 1959. (Compl. at 19-21.)
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According to the Complaint, As an adult, Carmack returned to Nazareth House to obtain her birth certificate when she was getting married. She was informed there, for the first time, that she might have a mother. (Compl. at 25.) Additionally, as stated in the Complaint, In 1993, she again traveled to Australia and contacted State Government officials seeking any records about herself. She was given an index card entitled Migrant Child attached to another document entitled Movements and Remarks. (Compl. at 26.) At the very least, Carmack had knowledge available to her upon which to commence an action in 1993 17 years ago if not sooner. (3) Hazel Goulding (Goulding)
According to the Complaint, Plaintiff Goulding arrived in Australia in 1947 with her sister and began working at the age of eight for the Sisters of Mercy. (Compl. at 27-29.) As the Complaint itself states, in Hazels case, her family somehow managed to track down her whereabouts and contacted the Sisters of Mercy institution. She was eventually returned with her sister to England in 1954 at approximately age 15. (Compl. at 37, 39.) Since she and her family did not get what they believed they had bargained for, Goulding should have known she had a cause of action at that time or at the very least, three years thereafter, at age 18. Furthermore, as the Complaint indicates, Goulding returned to Australia in 1970 where she sought out numerous Catholic organizations for her personal records and [was] informed that no records exist. (Compl. at 40.) If Goulding was not aware she had a cause of action against the parties she alleges caused her harm by 1970 (which she should have been), she certainly had information available to her by then (at age 31) indicating as such. Notably, the very fact that she returned to Australia to investigate in 1970 as alleged, is evidence that she
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knew something was amiss by then four (4) decades ago. It also shows that she was not under any threat returning to Australia, and no such threat is alleged. (4) Generally
The Complaint also shows that the student recruitment program purportedly advanced by the Christian Brothers was open and notorious it was advertised in radio broadcasts and appeared in newspaper accounts half a century ago. (Compl. at 9.) Moreover, the actions alleged took place in the United Kingdom, Malta and Australia all well developed countries. (See generally Compl.). It is further stated in the Complaint that allegations of abuse at the Australian institutions at issue began surfacing in the mid-1990s from former residents (Compl. at 68) certainly before the 2001 Australian Senate Report to which Plaintiffs cite9 as the means by which the alleged child migration scheme was revealed. (Compl. at 3; LOST INNOCENTS: RIGHTING THE RECORD REPORT ON CHILD MIGRATION (S. COMM. 2001) (Austl.), available at http://www.aph.gov.au/senate/committee/clac_ctte/completed_inquiries/ 1999-02/child_migrat/report/report.pdf (last visited May 6, 2010) (hereinafter, Senate Report). However, even more noteworthy, there were a wealth of publications and resources regarding child migration available to Plaintiffs as early as 1981. Senate Report at 2-4. In fact, throughout the 1980s and 1990s, numerous books were published, numerous reports were issued and resources were established for the sole purpose of addressing child migration. The Senate Report Plaintiffs reference, (Compl. at 3), makes it abundantly clear that reports specifically regarding this subject matter were released in Western Australia, Tasmania, Victoria, New South
On a motion to dismiss, [a] court generally may consider documents referenced in the complaint and documents that are in the plaintiffs possession or that the plaintiff knew of and relied on in bringing suit. Concesionaria DHM, S.A. v. Intl Fin. Corp., 307 F. Supp. 2d 553, 555 (S.D.N.Y. 2004) (citations omitted). In fact, [e]ven where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (internal quotations and citation omitted).
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Wales, South Australia and Queensland in 1981, 1984, 1990, 1992 & 1994, 1995, and 1999, respectively. Senate Report at 2-4. According to the Senate Report, from 1981 through 1999, details of migrant children from both Britain and Malta who had been in care in Australia came to light. Senate Report at 2. During this time period, books such as PHILIP BEAN & JOY MELVILLE, LOST CHILDREN OF THE EMPIRE (1989), MARGARET HUMPHREYS, EMPTY CRADLES (1994), and ALAN GRILL, ORPHANS OF THE EMPIRE (1997) were published. Senate Report at 2. Additionally, child migration was also the topic of a television documentary, Lost Children of the Empire, broadcast by ABC in 1989 and of a mini-series, The Leaving of Liverpool, broadcast by ABC in 1994. Id. at 2-3. These publications led to a growing awareness and understanding of the history and issues surrounding child migration. Id. at 3. Furthermore, the Child Migrants Trust was established in the United Kingdom in 1987. Senate Report at 3. It was an independent, professional social work agency that work[ed] on behalf of all former child migrants to find information about their childhood, search for their famil[ies], provide counseling and support reunions. Id. at 3. By June 1996, the Western Australian Legislative Assembly also appointed a Select Committee into Child Migration to investigate child migration between 1900 and 1967. Id. And between November 1997 and June 1998, a UK Health Committee traveled to Australia and New Zealand to hear evidence from many former child migrants, resulting in the issuance of a report to the UK Government in July 1998, to which it responded in December 1998 offering sincere regrets on behalf of the Government and acknowledging that forced migration was misguided. Id. at 3-4. The UK Government established a support fund of 1 million over three years to help those unable to pay for their first visit to the [UK] to meet close family members and a central database of
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information held in the UK to help former child migrants to trace records and establish links with the past. Id. at 4. All of this occurred before 1999 over ten years before Plaintiffs filed this lawsuit. B. Plaintiffs Fail To Demonstrate That They Meet Any Tolling Requirement Factors to consider in determining whether to equitably toll the statute of limitations on ATCA claims include: (1) lack of notice of the filing requirement, (2) lack of constructive knowledge of the filing requirement, (3) diligence in pursuing ones rights, (4) absence of prejudice to the defendant, and (5) the plaintiffs reasonableness in remaining ignorant of the particular legal requirement. Chavez v. Carranza, 559 F.3d 486, 492 (6th Cir. 2009). However, Plaintiffs fail to allege facts sufficient to meet these criteria. The Complaint is silent as to any potential lack of notice or constructive knowledge that these claims had to be filed long ago (factors (1) and (2) above). Plaintiffs have had information available to them upon which to commence this action for decades. At the very least, as alleged, they knew that what they had expected to receive in Australia is not what they actually received (factors (3) and (5) above). (Compl. at 1-3, 8-18, 20-35, 37-40, 58-59, 64-75, 78-79, 91, 9394, 109-12, 115-16, 119-20, 149-50.) Their exorbitant delay in seeking legal recourse has, without doubt, also unusually prejudiced Defendants because witnesses are likely dead, memories have long faded and any documents potentially relevant to this litigation may no longer be in existence (factor (4) above). As such, Defendants would be profoundly prejudiced in having to defend themselves against these antiquated claims. In In re World War II Era Japanese Forced Labor Litig., 164 F. Supp. 2d 1160, 1181 (N.D. Cal. 2001), the court concluded that equitable tolling did not apply since [n]one of the allegations in the Korean and Chinese plaintiffs complaints suggest[ed] that they could not have
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attempted to bring these claims sooner and stated that, [a]t bottom, [o]ne who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence. (quoting Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984)). In fact, [e]quitable tolling is not available to avoid the consequences of ones own negligence. Lehman v. United States, 154 F.3d 1010, 1016 (9th Cir. 1998), cert. denied, 526 U.S. 1040 (1999). Likewise, equitable tolling does not apply here. Plaintiffs do not allege any extraordinary circumstances were in existence that would provide justification for the application of the equitable tolling doctrine.10 Nothing made it impossible for Plaintiffs to assert their claims in a timely manner. As the face of the Complaint demonstrates, Plaintiffs all reached the age of majority over forty (40) years ago and had knowledge available to them on which to base this lawsuit well over ten (10) years ago. See discussion supra Part IV.A. Moreover, allegations in a complaint that defendants kept plaintiffs ignorant of essential facts in defendants possession have been found insufficient to trigger tolling under the ATCA. Deutsch v. Turner Corp., 324 F.3d 692, 717-18 (9th Cir. 2003). Plaintiffs ATCA claims must, therefore, be dismissed, along with the remainder of their Complaint as addressed in more detail below.
10
For example, no claims of pervasive violence (Chavez v. Carranza, 559 F.3d 486, 493 (6th Cir. 2009)), no fear of reprisals against Plaintiffs or their relatives (Arce v. Garcia, 434 F.3d 1254, 1259, 1262-63 (11th Cir. 2006) (finding District Court did not abuse its discretion by equitably tolling the statute of limitations on refugees claims until the end of the civil war in El Salvador because plaintiffs legitimately feared any action earlier would have led to harsh reprisals and brutalities against their family members and friends remaining in El Salvador)), no situation involving a need to wait for a civilian president to be elected after a group of military officers seized power and tried to rule a country (Cabello v. Fernandez -Larios, 402 F.3d 1148, 1155 (11th Cir. 2005) (finding that until the first post-junta civilian president was elected, the political climate in Chile prevented plaintiffs family from pursuing any efforts to learn of the circumstances surrounding his murder)), and no delay based on a need to wait for a regime to be overthrown (Hilao v. Estate of Marcos, 103 F.3d 767, 773 (9th Cir. 1996) (tolling claims against now former President, Ferdinand Marcos, until he left office due to extraordinary conditions including intimidation and fear of reprisals) are alleged in the Complaint.
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C.
Plaintiffs Also Fail To Satisfy The Statutes Of Limitation For Their Pendant Claims When deciding which statutes of limitation are applicable to pendent claims, a federal
court will look to the choice of law rules and statutes of limitation of the state in which it sits. Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99, 109-10 (1945); Mroz v. City of Tonawanda, 999 F. Supp. 436, 449 (W.D.N.Y. 1998) (citing Carnegie-Mellon University v. Cohill 484 U.S. 343, 351 (1988); Federman v. Empire Fire and Marine Ins. Co., 597 F.2d 798, 813 (2d Cir. 1979)). New Yorks borrowing statute provides that an action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state [(here, New York)] or the place without the state where the cause of action accrued [(here in the United Kingdom, Malta and/or Australia)], except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply. N.Y. CPLR 202 (McKinney 2003) (emphasis added). Here, Plaintiffs causes of action accrued outside of New York in the United Kingdom, Malta and Australia. As such, their alleged injuries occurred in these jurisdictions all outside of the United States, let alone New York. See Proforma Partners, L.P. v. Skadden Arps Slate Meagher & Flom, LLP, 280 A.D.2d 303, 303, 720 N.Y.S.2d 139, 140 (1st Dept 2001) (Generally, a cause of action [sounding in tort] accrues at the time and in the place of injury) (citation omitted), lv. to appeal denied, 96 N.Y.2d 722, 759 N.E.2d 373, 733 N.Y.S2d 374 (2001). Furthermore, not one of the named Plaintiffs is a resident of New York State. Thus, CPLR 202 requires that Plaintiffs claims be timely under the limitations periods of New York, the United Kingdom, Malta and Australia. CPLR 202 also renders inapplicable modern choice-of-law considerations, as CPLR 202 is in the nature of an exception to the normal New York conflicts rule of applying the law of the jurisdiction with the most significant
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contacts. In re Gaston & Snow, 243 F.3d 599, 608 (2d Cir. 2001) (citing Ledwith v. Sears, Roebuck & Co., 231 A.D.2d 17, 24, 660 N.Y.S.2d 402, 406 (1st Dept 1997) (Modern choiceof-law decisions are simply inapplicable to the question of statutory construction presented by CPLR 202. . . . CPLR 202 is to be applied as written, without recourse to a conflict of law analysis.). As such, this Court need not assess the timeliness of these claims in the United Kingdom, Malta and Australia because, pursuant to CPLR 202, their untimeliness in New York renders them time-barred. 11 These claims must, therefore, be dismissed. Plaintiffs Complaint contains claims for unjust enrichment, breach of fiduciary and/or special duty, conversion, constructive trust and accounting. (See Compl. at Counts IV-VIII.) Provided Plaintiffs ATCA claims are dismissed (which they should be), federal question jurisdiction does not exist in this case. As such, there is no basis for supplemental jurisdiction over Plaintiffs pendant claims. Brzak v. United Nations, 597 F.3d 107, 113-14 (2d Cir. 2010) (We have said that if a plaintiffs federal claims are dismissed before trial, the state claims should be dismissed as well. (internal quotations and citations omitted)); Agostinello v. Great Neck Union Free Sch. Dist., No. 09-0772-CV, 2009 WL 3849598, at *2 (2d Cir. Nov. 18, 2009) (finding that since the district court had dismissed all claims over which it had original jurisdiction, the district court properly declined to exercise supplemental jurisdiction over Plaintiffs state law failure to accommodate claim.). Regardless, [i]t has long been established that a federal court addressing state law claims generally utilizes its own states statute of limitations, In re World War II Era Japanese Forced Labor Litig., 164 F. Supp. 2d at 1182
11
It may well be that all claims time-barred under the New York statutes of limitation are also time-barred by the relevant statutes of limitation in the United Kingdom, Malta and Australia. It would be very timely and costly for the Rome Congregation to ascertain the United Kingdom, Malta and Australia limitations periods for the purposes of this motion, but they reserve without prejudice their right to address this issue at some future time, should the court deem such assessment necessary. See Fed. R. Civ. P. 44.1.
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(quoting Forsyth v. Cessna Aircraft Co., 520 F.2d 608, 613 (9th Cir. 1975)), and all of Plaintiffs pendant claims are time-barred in New York. New Yorks statute of limitations for unjust enrichment, breach of fiduciary and/or special duty, constructive trust, and accounting claims is six (6) years. See, e.g., EMD Constr. Corp. v. New York City Dept of Hous. Pres. & Dev., 70 A.D.3d 893, 894, 895 N.Y.S.2d 469, 470 (2d Dept 2010) (stating a six-year statute of limitations period is applicable to unjust enrichment claims); 37 Park Drive South, Inc. v. Duffy, 63 A.D.3d 1040, 1041, 881 N.Y.S.2d 481, 482 (2d Dept 2009) (same); Cottone v. Selective Surfaces, Inc., 68 A.D.3d 1038, 1041, 892 N.Y.S.2d 466, 469-70 (2d Dept 2009) ([C]laims grounded on breach of fiduciary duty are governed by a three-year limitations period when only damages are sought, [but a] six-year limitations period applies when equitable relief is requested. (As is the case here. (See Compl. at 133.)); Wiesenthal v. Wiesenthal, 40 A.D.3d 1078, 1079, 838 N.Y.S.2d 581, 583 (2d Dept 2007) (same); Morando v. Morando, 41 A.D.3d 559, 561, 840 N.Y.S.2d 593, 595 (2d Dept 2007) (A cause of action to impose a constructive trust is subject to a six-year limitations period.); Gottlieb v. Northriver Trading Co., 58 A.D.3d 550, 551, 872 N.Y.S.2d 46, 46-47 (1st Dept 2009) (As the remedy of an accounting is equitable in nature, the six-year statute of limitations applies to Plaintiffs breach of fiduciary duty claim.); Evans v. Perl, No. 602898/05, 2008 WL 1735059, at *6 (Sup. Ct. N.Y. Cty. Apr. 9, 2008) (An action for an accounting requires a fiduciary relationship between the parties and proof of wrongdoing. It is an equitable remedy that may be predicated on claims of breach of fiduciary duty. Consequently[,] it is subject to a six year statute of limitations. (citations omitted)). Further, the statute of limitations for conversion claims in New York is only three (3) years. See, e.g., Malanga v. Chamberlain, 71 A.D.3d 644, 645-46, 896 N.Y.S.2d 385, 386 (2d
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Dept 2010) (controlling three-year statute of limitations for conversion); McGough v. Leslie, 65 A.D.3d 895, 896, 884 N.Y.S.2d 756, 757 (1st Dept 2009) (holding conversion claims barred by three-year statute of limitations). Plaintiffs claims fail to satisfy any of these applicable statutes of limitation. Accordingly, all of Plaintiffs pendant claims must also be dismissed. CONCLUSION For all of the foregoing reasons, the Rome Congregations motion to dismiss should be granted and the Complaint against the Rome Congregation should be dismissed in its entirety. Dated: New York, New York May 10, 2010 Respectfully submitted, TARTER KRINSKY & DROGIN LLP Attorneys for Defendant, The Congregation of Christian Brothers By: /s/ Anthony D. Dougherty Anthony D. Dougherty, Esq. (AD 7265) Linda S. Roth, Esq. (LR 8255) 1350 Broadway New York, New York 10018 (212) 216-8000
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11-22820-rdd
Doc 119
Main Document
Exhibit J
11-22820-rdd 1:09-cv-10590-PAC Document 19 10/18/11 13:49:24 Main Document Case Doc 119 Filed 10/18/11 Entered Filed 05/10/10 Page 1 of 2 Pg 145 of 149
11-22820-rdd 1:09-cv-10590-PAC Document 19 10/18/11 13:49:24 Main Document Case Doc 119 Filed 10/18/11 Entered Filed 05/10/10 Page 2 of 2 Pg 146 of 149
11-22820-rdd
Doc 119
Main Document
Exhibit K
11-22820-rdd 11-1682 Document: 31 Page: 1 10/18/11 13:49:24 Main Document Case: Doc 119 Filed 10/18/11 Entered 05/17/2011 292222 2 Pg 148 of 149
ACKNOWLEDGMENT AND NOTICE OF APPEARANCE
Short Title: Ellul v. The Congregation of Christian Brothers, et al. Docket No.: 11-1682
--------------------LLP
Lead Counsel of Record (name/firm) or Pro se Party (name): Anthony D. Dougherty of Tarter Krinsky & Drogin Appearance for (party/designation): Appellee, The Congregation of Christian Brothers DOCKET SHEET ACKNOWLEDGMENT/AMENDMENTS Caption as indicated is: (I) Correct ( ) Incorrect. See attached caption page with corrections. Appellate Designation is: ( I) Correct ( ) Incorrect. The following parties do not wish to participate in this appeal: Parties: ) Incorrect. Please change the following parties' designations: Party Correct Designation
------------------------------------------------------------
Contact Information for Lead Counsel/Pro Se Party is: (I) Correct ( ) Incorrect or Incomplete, and should be amended as follows: Name: Anthony D. Dougherty Firm: Tarter Krinsky & Drogin LLP Address: 1350 Broadway, 11th Floor Telephone: 212-216-8000 Email: adougherty@tarterkrinsky.com
Fax: 212-216-8001
RELATED CASES
( I ) This case has not been before this Court previously.
) This case has been before this Court previously. The short title, docket number, and citation are: ______________
) Matters related to this appeal or involving the same issue have been or presently are before this Court. The short titles, docket numbers, and citations are:
--------------------------------------------------------------CERTIFICATION
I certify that ( ) I am admitted to practice in this Court and, if required by LR 46.l(a)(2), have renewed my admission on ___________________ OR that ( ,( ) I applied for admission on May 17, 2011 or renewal on ____________________ . If the Court has not yet admitted me or approved my renewal, I have completed Addendum A. Signature of Lead Counsel of Record: /s/ Anthony D. Dougherty --------~~----~~--~-------------------------------------Type or Print Name:_A_n_th_o--,ny,--D_.D_o_u..::.g_he_rt.. :.y__________________________________________________________ OR Signature of pro se litigant: ____________________________________________________________________ Type or Print Name: ______________________________________________ ( ( ) I am a pro se litigant who is not an attorney. ) I am an incarcerated pro se litigant.
11-22820-rdd 11-1682 Document: 31 Page: 2 10/18/11 13:49:24 Main Document Case: Doc 119 Filed 10/18/11 Entered 05/17/2011 292222 2 Pg 149 of 149
ADDENDUM A TO ACKNOWLEDGMENT AND NOTICE OF APPEARANCE Instructions: This addendum must be (1) completed by counsel whom the Court has not yet admitted or approved for renewed admission, (2) submitted in CM/ECF as a separate attachment when filing the Acknowledgment and Notice of Appearance (use the multiple attachments option in CM/ECF when filing the Acknowledgment and Notice of Appearance) with client personal contact information redacted, and (3) submitted in unredacted form in accordance with the procedures outlined in Interim Local Rule 25.2(c) and (d). If counsel represents multiple parties in the same appeal for which the Acknowledgment and Notice of Appearance is being filed, the attorney must separately list each client and provide the client's personal contact information. Attach additional pages as necessary. Case Information: Docket Number:
Personal Contact Information: Client 1:
~~-2~~
____ _
Name:
The Congregation of Christian Brothers
Address: REDACTED Telephone:_R_E_D_A_C_TE_D _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Fax: REDACTED _
Email:
Client 2:
REDACTED
Name:
Address: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Telephone: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Fax: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___
-------------------------------------------------------------------------
Email:
Client 3:
Name:
Address:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
---------------------------------------------
Telephone:. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Fax: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___
Email:
Client 4:
Name:
Address: Telephone:. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Fax: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___
------------------------------------------------------------------------------------------------------------------
Email:
Client 5:
Name:
Address:, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
-------------------------------------------------------------------------
Telephone:. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Fax: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___
Email:

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See Hughes Commission Report at p. 5. See Abuse Commission Report at 6.87.

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See Motion at pp. 8-9; Ex. A, 341 Tr. at 87:14-17.

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The Coverage Agreements were both executed by Brother Kevin Griffith,

See generally Ex. A, 341 Tr. at 72:5-93:23.

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Ex. H, Ellul District Court Decision, 2011 WL 108532 at *1.

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See Fed.R.Bank.P. 7001(2),(7), and (10).

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The Debtors bankruptcy counsel and the Debtors themselves appear to be

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EXAMINATION OF K. GRIFFITH BY J. STANG

Did you review the monthly operating reports

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EXAMINATION OF K. GRIFFITH BY J. STANG

Christian Brothers. Q: A: Q: A: What is it? What is it? Uh huh.

Its a canonical organization.

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EXAMINATION OF K. GRIFFITH BY J. STANG

[Interposing] Yes. Uh, is everyone whos a Christian Brother a

member of the Congregation? A: Everyone who is a Christian Brother is a

Is there a civil law entity in the United

Thirty-two years. Um, have you ever served the congregation in

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EXAMINATION OF K. GRIFFITH BY J. STANG

assigned outside of the United States.

United States, no. Q: Okay. Um, now, what is the relationship of

See, or are they created by the leadership of the congregation?

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EXAMINATION OF K. GRIFFITH BY J. STANG

The leadership of the congregation, with

Institute. Q: What is the relationship of Christian

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EXAMINATION OF K. GRIFFITH BY J. STANG

Institute, from its schedules, has real estate. A: Q: Province?

Correct. Okay. Is that real estate owned by the

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EXAMINATION OF K. GRIFFITH BY J. STANG