Dispensa v. National Conference of Catholic Bishops et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Matt M. Dispensa
v. Civil No. 19-cv-556-LM
Opinion No. 2020 DNH 086
National Conference of
Catholic Bishops et al.
O R D E R
Proceeding pro se, Matt M. Dispensa brings this action
against the National Conference of Catholic Bishops1 (the
“Conference”), Cardinal Daniel Nicholas DiNardo (in both his
individual capacity and his official capacity as the President
of the Conference), the Archdiocese of Boston2, Cardinal Sean P.
O’Malley (in both his individual capacity and his official
capacity as Archbishop of the Archdiocese), Father Jon C.
Martin, and 100 fictitiously named Doe defendants. In essence,
Dispensa alleges that he suffered sexual abuse at Fr. Martin’s
1Appearing in this action in lieu of the National Conference
of Catholic Bishops (the “NCCB”) is its successor entity, the
United States Conference of Catholic Bishops (referred to herein
as the Conference), which formed when the NCCB combined its
operations with the United States Catholic Conference on June
27, 2001.
2The Archdiocese is formally referred to as the Roman
Catholic Archbishop of Boston, a Corporation Sole.
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hands while he was a minor child, and that the other defendants3
wrongfully concealed that abuse from the public and from
prosecuting authorities.
At the center of Dispensa’s action, therefore, are his
claims asserted against Fr. Martin under New Hampshire common
law for sexual abuse of a minor and for assault. Dispensa also
asserts the vicarious liability of the Conference, the
Archdiocese, Cardinal DiNardo, and Cardinal O’Malley for Fr.
Martin’s torts, as well as those defendants’ direct liability
under state law for the negligent retention of Fr. Martin as an
employee.
Arising out of the alleged concealment of Fr. Martin’s
abuse, Dispensa asserts two claims under the federal Racketeer
Influenced and Corrupt Organizations Act (“RICO”) against the
Conference, the Archdiocese, and Cardinal O’Malley, a claim
against the Archdiocese for concealing a felon in violation of
18 U.S.C. § 1001(a), and a claim against the Archdiocese styled
as conspiracy in violation of 18 U.S.C. § 371. Under New
Hampshire law, Dispensa additionally asserts claims against all
3The exception to this statement is Cardinal DiNardo.
Cardinal DiNardo is not alleged either to have concealed Fr.
Martin’s abuse or to have conspired to do so. Dispensa’s theory
of Cardinal DiNardo’s liability appears to be predicated
entirely on Cardinal DiNardo’s position as the current President
of the Conference.
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defendants for breach of fiduciary duty, fiduciary fraud and
conspiracy to commit fiduciary fraud, and intentional infliction
of emotional distress. Finally, Dispensa asserts a state-law
claim against the Archdiocese and Cardinal O’Malley for fraud
and conspiracy to commit fraud.
Now before the court are three motions to dismiss.4 First,
Cardinal DiNardo moves in his individual capacity to dismiss
Dispensa’s claims against him for lack of personal jurisdiction.
Second, the Conference and Cardinal DiNardo in his official
capacity (collectively, the “Conference defendants”) move to
dismiss all of Martin’s claims against them for lack of personal
jurisdiction, and to dismiss his state-law claims for lack of
subject-matter jurisdiction. Third, the Archdiocese and
Cardinal O’Malley in both his individual and his official
capacities (collectively, the “Archdiocesan defendants”) move to
dismiss all of Martin’s claims against them for insufficient
service of process, for lack of personal jurisdiction, and for
improper venue, and to dismiss his state-law claims for lack of
subject-matter jurisdiction. Although the court has twice
extended Dispensa’s deadline to respond—once upon the parties’
4Of the named defendants, only Fr. Martin has not moved to
dismiss Dispensa’s claims.
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unopposed motion and once sua sponte—Dispensa has filed no
objection to any of the three motions.
BACKGROUND
What follows is a summary of Dispensa’s allegations.
Since not later than 1960, the Conference, the Archdiocese,
and Cardinal O’Malley have been aware that Catholic priests were
sexually abusing children in dioceses across the United States.
Despite their knowledge of widespread sexual abuse by priests,
those defendants did nothing to prevent further such abuse, but
instead conspired to conceal it. Over a period of many years,
the Conference, the Archdiocese, and Cardinal O’Malley routinely
concealed sexual abuse by Catholic priests by maintaining secret
records of the abuse, entering into confidential settlements
with abuse victims, obstructing civil and criminal
investigations of abuse by Catholic clergy, and knowingly
allowing priests who were known serial sexual predators of
minors to serve in positions of authority over minor children.
Dispensa was raised in Andover, MA, where he and his family
regularly attended religious services at St. Roberts Bellarmine
Church (the “Church”). Dispensa’s family was devoutly Catholic
and “heavily involved” in activities at the Church. Dispensa
attended day school at the Church, was a member of a Church
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youth group, and served as an altar boy at the Church. Fr.
Martin was an Associate Pastor at the Church from June 1973
through May 1981.
While Fr. Martin was a pastor at the Church, and while
Martin was a minor child, Fr. Martin used and manipulated his
position of respect and authority as pastor and priest to obtain
Dispensa’s unquestioning trust and obedience. From 1975 through
1980, Fr. Martin abused Dispensa’s trust and obedience by
sexually abusing and assaulting him. Fr. Martin instructed
Dispensa not to report the abuse. As a result of Dispensa’s
unquestioning trust in and obedience to Fr. Martin, Dispensa was
unable to understand the wrongfulness of Fr. Martin’s conduct
until April 1981, when he reported it to his parents.
Church officials assured Dispensa’s parents that the abuse
Dispensa had suffered had been an “isolated occurrence,” and the
Conference, the Archdiocese, and Cardinal O’Malley took
unspecified actions to conceal it from Dispensa’s family, the
public, and prosecuting authorities. Nevertheless, Fr. Martin
was removed from his position at the Church in May 1981.
As a result of the trauma he suffered and the betrayal of
his trust, Dispensa repressed his memories of Fr. Martin’s abuse
for an unspecified period of time.
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DISCUSSION
I. Sufficiency of Service on the Archdiocesan Defendants
Dispensa attempted to serve the Archdiocese and Cardinal
O’Malley by mailing one copy of the summons and complaint to
both defendants via certified mail. The envelope containing the
summons and complaint was addressed to Cardinal O’Malley at the
Archdiocese’s principal place of business, in Braintree, MA.
The Archdiocesan defendants received Dispensa’s mailing.
The Archdiocesan defendants do not argue that such service
failed to provide them with actual knowledge of this action or
of Dispensa’s claims. Nevertheless, the Archdiocesan defendants
argue that Dispensa’s service efforts were insufficient for
purposes of Federal Civil Procedure Rule 4.
A. Legal Standard
Motions to dismiss for insufficient service of process are
governed by Federal Civil Procedure Rule 12(b)(5). Under Rule
12(b)(5), objections to the validity of service of process must
be specific and must identify with particularity the manner in
which the plaintiff has failed to satisfy the service
requirements. See Taite v. Bridgewater State Univ., 236 F.
Supp. 3d 466, 472 (D. Mass. 2017) (citing 2 Moore's Federal
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Practice § 12.33[1] (3d ed. 2013)); see also, e.g., O'Brien v.
R.J. O'Brien & Assocs., 998 F.2d 1394, 1400 (7th Cir. 1993).
Once the objecting party has properly challenged service of
process, the burden shifts to the serving party to prove that
service was sufficient. Rivera-Lopez v. Municipality of Dorado,
979 F.2d 885, 887 (1st Cir. 1992). A docketed return of service
generally creates a rebuttable, prima facie presumption that
service was sufficient. Blair v. City of Worcester, 522 F.3d
105, 111 (1st Cir. 2008). The challenging party may rebut the
presumption through presentation of evidence, and the serving
party may either present countervailing evidence or seek a stay
of proceedings pending discovery and/or an evidentiary hearing.
Id. at 112-115. Where evidence establishes the insufficiency of
service, courts enjoy broad discretion either to dismiss an
action entirely for failure to effect service or to quash the
defective service and permit re-service, meanwhile retaining the
case. See Henderson v. United States, 517 U.S. 654, 662 (1996);
see also, e.g., Ramirez De Arellano v. Colloides Naturels Int'l,
236 F.R.D. 83, 85 (D.P.R. 2006).
B. Analysis
Before a federal court may exercise jurisdiction over a
defendant, that defendant must first be properly served with
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process under Rule 4. See United States v. Carr, Case No. 2:11-
CV-00280-GZS, 2012 WL 1109611, at *2 (D. Me. Mar. 2, 2012; see
also, e.g., Direct Mail Specialists v. Eclat Computerized
Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988) (citations
omitted). This is not because service of process is itself a
jurisdictional requirement, but rather because proper service is
instead the mechanism through which exercise of jurisdiction is
effected. Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S.
97, 104 (1987).
1. Sufficiency of Service on the Archdiocesan
Defendants
Under Rule 4, a plaintiff may serve a corporate defendant5
by following the law governing service of either the state where
the district court is located (here, New Hampshire) or the state
where the defendant is located when service is made (here,
Massachusetts). Fed. R. Civ. P. 4(h)(1)(A), 4(e)(1).
Under New Hampshire law, service on a foreign corporation
is accomplished, inter alia, by mailing a copy of the summons
and complaint by registered or certified mail to the corporate
secretary at the principal office listed in the corporation’s
5In his official capacity, the Archbishop of the Archdiocese
and the Archdiocese are one and the same. See, e.g., Zani v.
Phandor Co., 281 Mass. 139, 145 (1932); see also doc. no. 15-3
at 1.
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most recent annual report. RSA 293-A:15.10. Although Cardinal
O’Malley is not the corporate secretary of the Archdiocese,
Dispensa substantially complied with the requirements of Section
293-A:15.10 when he sent the summons and complaint via certified
mail to Cardinal O’Malley at the Archdiocese’s principal
address. Moreover, as a matter of federal procedural law, minor
formal defects in service may be disregarded so long as the
defendant receives actual notice of the complaint and the method
of service is in substantial compliance with the requirements of
Rule 4. See Precision Etchings & Findings, Inc. v. LGP Gem,
Ltd., 953 F.2d 21, 23-25 (1st Cir. 1992) (citations omitted).
Here, it is undisputed that the Archdiocesan defendants actually
received the summons and complaint as a result of Dispensa’s
service efforts. The Archdiocesan defendants’ motion to dismiss
is therefore denied as to the Archdiocese and Cardinal O’Malley
in his official capacity.6
6Because service on these defendants was sufficient under
Rule 4(e)(1) and (h)(1)(A) by reference to New Hampshire law,
the court need not consider whether service could also have been
sufficient under Rule 4(h)(1)(B) or by reference to
Massachusetts law.
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2. Sufficiency of Service on Cardinal O’Malley in
his Individual Capacity
Rule 4 also sets forth the requirements governing service
on an individual defendant. A plaintiff may serve an individual
by delivering a copy of the summons and complaint to the
individual personally, by leaving a copy of the summons and
complaint at the individual’s usual place of abode with a person
residing there of suitable age and discretion, or by delivering
a copy of the summons and complaint to an authorized agent for
receiving such service. Fed. R. Civ. P. 4(e)(2). In the
alternative, a plaintiff may serve an individual by following
the law governing service of either the state where the district
court is located (here, New Hampshire) or the state where the
defendant is located when service is made (here, Massachusetts).
Fed. R. Civ. P. 4(e)(1).
New Hampshire law provides for service on a nonresident
individual defendant through sending the summons and complaint
to the defendant’s last known abode or place of business through
registered mail, then providing proof of such mailing, together
with a statutory fee and further copies of the summons and
complaint, to the New Hampshire Secretary of State. RSA
510:4(II). The requirements for service on an individual under
Massachusetts law are substantially identical to those of
federal Rule 4(e)(2). Mass. R. Civ. P. 4(d)(1).
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Here, Dispensa’s service efforts were not compliant with
federal or Massachusetts law in that Dispensa did not deliver
the summons and complaint to Cardinal O’Malley personally, to
his usual place of abode, or to any person authorized to accept
such service. Fed. R. Civ. P. 4(e)(2); Mass. R. Civ. P.
4(d)(1). Dispensa’s efforts were likewise noncompliant with New
Hampshire law, in that there is no evidence of record to suggest
that Dispensa provided the New Hampshire Secretary of State with
the requisite process and proof of mailing, or that he paid the
required statutory fee. RSA 510:4(II).
For these reasons, the Archdiocesan defendants’ Rule
12(b)(5) motion is granted as to Cardinal O’Malley in his
individual capacity. Moreover, as explained below, this court
could not properly exercise personal jurisdiction over Cardinal
O’Malley in connection with Dispensa’s claims in this action
even if he had been properly served. It would thus be futile to
grant Dispensa an opportunity to cure the identified defects in
service. Dispensa’s claims are therefore dismissed without
prejudice to the extent pled against Cardinal O’Malley in his
individual capacity.
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II. Personal Jurisdiction
All sets of moving defendants—Cardinal DiNardo in his
individual capacity, the Conference defendants, and the
Archdiocesan defendants—move to dismiss Dispensa’s claims for
lack of personal jurisdiction. Defendants argue that each of
them lacks the requisite contacts with New Hampshire. The
Conference defendants and Archdiocesan defendants further argue
that the ends of justice do not require them to be haled into
court in this state.
A. Legal Standard
“To hear a case, a court must have personal jurisdiction
over the parties, that is, the power to require the parties to
obey its decrees.” Astro–Med, Inc. v. Nihon Kohden Am., Inc.,
591 F.3d 1, 8 (1st Cir. 2009) (internal citation and quotations
omitted). Where, as here, a defendant challenges personal
jurisdiction through a motion under Federal Civil Procedure Rule
12(b)(2), the plaintiff has the burden to establish that the
court may properly exercise such jurisdiction. See Hannon v.
Beard, 524 F.3d 275, 279 (1st Cir. 2008); GT Solar Inc. v. Goi,
Case. No. 08–cv–249–JL, 2009 WL 3417587, at *2 (D. N.H. 2009);
ICP Solar Techs., Inc. v. TAB Consulting, Inc., 413 F.Supp.2d
12, 14 (D. N.H. 2006). Allegations of jurisdictional facts are
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construed in the plaintiff's favor. ICP Solar, 413 F.Supp.2d at
14.
There are several appropriate methods for determining
whether a plaintiff has met the burden to establish personal
jurisdiction over a defendant, the “most conventional” of which
(at the pleading stage of a proceeding) is the prima facie
method. See Daynard v. Ness, Motley, Loadholt, Richardson &
Poole, P.A., 290 F.3d 42, 51 (1st Cir. 2002) (citations
omitted). The prima facie method requires the court to consider
“only whether the plaintiff has proffered evidence that, if
credited, is enough to support findings of all facts essential
to personal jurisdiction.” Boit v. Gar-Tec Prod., Inc., 967
F.2d 671, 675 (1st Cir. 1992). The court applies the prima
facie method here.
Under the prima facie standard, courts “take specific facts
affirmatively alleged by the plaintiff as true (whether or not
disputed) and construe them in the light most congenial to the
plaintiff's jurisdictional claim.” Mass. Sch. of Law at
Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir. 1998).
To make a prima facie showing of [personal
jurisdiction over a defendant], the plaintiff
ordinarily cannot rest upon the pleadings, but is
obliged to adduce evidence of specific facts. . . .
[T]he district court acts not as a factfinder, but as
a data collector. That is to say, the court, in a
manner reminiscent of its role when a motion for
summary judgment is on the table, . . . must accept
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the plaintiff's (properly documented) evidentiary
proffers as true for the purpose of determining the
adequacy of the prima facie jurisdictional showing.
Foster–Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 145
(1st Cir. 1995). The plaintiff is thus ordinarily obliged to
rely on specific facts supported by record evidence to defeat a
defendant's motion to dismiss for lack of personal jurisdiction.
See ICP Solar, 413 F.Supp.2d at 14. The court may also consider
uncontested facts submitted by the defendant. See Mass. Sch. of
Law., 142 F.3d at 34. The court does not assess credibility or
engage in other “differential factfinding.” Foster–Miller, 46
F.3d at 145. “Despite the liberality of this approach, the law
does not require [the court] . . . to credit conclusory
allegations or draw farfetched inferences.” Mass. Sch. of Law,
142 F.3d at 34 (internal quotations omitted).
B. Analysis
"Personal jurisdiction implicates the power of a court over
a defendant." Foster-Miller, 46 F.3d at 143. The outer limits
of that power are bounded by the requirements of federal
constitutional due process. Ins. Corp. of Ir. v. Compagnie Des
Bauxites De Guinee, 456 U.S. 694, 702 (1982). Personal
jurisdiction may exist pursuant to federal statute, see United
States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 36 (1st Cir. 1999),
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or pursuant to the forum state’s long-arm jurisdiction law, see
Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995).
Here, as noted, Dispensa asserts civil RICO claims against
the Conference, the Archdiocese, and Cardinal O’Malley. As
discussed below, most courts to have considered the question
have found that the RICO statute contains a broad grant of
personal jurisdiction over civil RICO defendants. Because,
however, the court’s analysis of personal jurisdiction under
RICO depends in part on whether long-arm jurisdiction exists
over at least one RICO defendant, the court begins its analysis
with long-arm personal jurisdiction. Following its discussion
of long-arm jurisdiction, the court turns to statutory personal
jurisdiction under RICO.
1. Long-Arm Personal Jurisdiction
Where no federal statute governing personal jurisdiction is
at issue, the district court looks to the jurisdiction law of
the forum state. See, e.g., Sawtelle, 70 F.3d at 1387. New
Hampshire’s long-arm personal jurisdiction statute creates a
standard co-extensive with federal jurisdictional standards, so
a federal court sitting in the District of New Hampshire may
exercise personal jurisdiction wherever it is possible to do so
within the limits of federal constitutional due process.
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Phillips Exeter Acad. v. Howard Phillips Fund, 196 F.3d 284, 287
(1st Cir. 1999), see also Phelps v. Kingston, 130 N.H. 166, 171
(1987).
Constitutional due process generally requires that the
exercise of personal jurisdiction over a defendant “be
‘consistent with traditional notions of fair play and
substantial justice.’” D'Almeida v. Stork Brabant B.V., 71 F.3d
50, 51 (1st Cir. 1995) (quoting International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)). Specifically, the due
process clause of the Fourteenth Amendment “prohibits a court
from imposing its will on persons whose actions do not place
them in a position where they reasonably can foresee that they
might be called to account in that jurisdiction." Phillips
Exeter, 196 F.3d at 287 (citing World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980)). The court’s analysis of
jurisdictional fairness centers on the quality and quantity of
the defendant's contacts with the forum state. See id. at 288.
Where jurisdiction over multiple defendants is at issue, the
court analyzes each defendant’s contacts with the forum
separately. Calder v. Jones, 465 U.S. 783, 790 (1984).
Two forms of personal jurisdiction can apply to a
nonresident defendant: general and specific. Cossaboon v.
Maine Med. Ctr., 600 F.3d 25, 31 (1st Cir. 2010). Here, it is
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unclear from the allegations of Dispensa’s complaint which form
of personal jurisdiction he intends to rely on. Accordingly,
the court considers the potential applicability of both forms of
personal jurisdiction to each of the moving defendants.
General jurisdiction exists over a defendant when the
defendant has “engaged in continuous and systematic activity” in
the forum state, without regard to whether the claims against
the defendant arise out of the defendant’s forum-directed
contacts. Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir. 1994),
quoting United Elec. Workers v. 163 Pleasant St. Corp., 960 F.2d
1080, 1088 (1st Cir. 1992). General jurisdiction will attach
only where the plaintiff establishes that the defendant’s
affiliations with the forum “are so continuous and systematic as
to render it essentially at home” there. Daimler AG v. Bauman,
571 U.S. 117, 139 (2014) (citation and internal quotation marks
omitted); see also Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 924 (2011) (paradigmatically, an individual
defendant is at home in a forum if domiciled there, and a
corporate defendant is at home in a forum if the forum is its
place of incorporation or the seat of its principal place of
business).
Specific jurisdiction, by contrast, arises when a claim
against a defendant “relates sufficiently to, or arises from, a
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significant subset of contacts between the defendant and the
forum." Phillips Exeter, 196 F.3d at 288. To establish the
existence of specific jurisdiction in connection with a given
claim, a plaintiff must show that the claim arises directly out
of specific contacts between the defendant and the forum state.
Sawtelle, 70 F.3d at 1389. The courts apply a “flexible,
relaxed standard" in determining whether the plaintiff has met
its burden to establish relatedness. Pritzker, 42 F.3d at 61.
In connection with both general and specific jurisdiction,
the plaintiff bears the additional burden to establish that the
defendant’s contacts with the forum were purposeful. Baskin-
Robbins Franchising LLC v. Alpenrose Dairy, Inc., 825 F.3d 28,
35 (1st Cir. 2016). This requires the plaintiff to show that
the defendant “deliberately targeted . . . behavior toward the
society or economy of a particular forum such that the forum
should have the power to subject the defendant to judgment
regarding that behavior." Id. at 36 (internal quotation marks
and modifications omitted) (quoting Carreras v. PMG Collins,
LLC, 660 F.3d 549, 555 (1st Cir. 2011)). The function of the
purposeful availment inquiry is to ensure that the defendant
will not be subjected to jurisdiction in a foreign forum “based
solely on random, isolated or fortuitous contacts.” Id.
(citations and internal quotation marks omitted). Accordingly,
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the two "cornerstones" of purposeful availment are voluntariness
and foreseeability. PREP Tours, Inc. v. Am. Youth Soccer Org.,
913 F.3d 11, 19-20 (1st Cir. 2019).
In the event the plaintiff meets the burden to establish
that the defendant’s purposeful contacts with the forum were
sufficient to support either general or specific jurisdiction,
the burden shifts to the defendant to "present a compelling
case,” in light of the strength of the plaintiff’s showing
regarding the defendant’s jurisdictional contacts, that the
exercise of jurisdiction would not be reasonable. Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 476-478 (1985); see also
Baskin-Robbins, 825 F.3d at 38.
a. Cardinal DiNardo in his Individual Capacity
Dispensa alleges that Cardinal DiNardo works in Houston,
Texas, the seat of the Archdiocese of Galveston-Houston.
Dispensa does not allege that Cardinal DiNardo has ever resided
in New Hampshire, worked in New Hampshire, or directed conduct
toward New Hampshire or any New Hampshire resident. Dispensa’s
only other allegations regarding Cardinal DiNardo relate to
duties of care he allegedly owed Dispensa by virtue of his
office. Dispensa offers no allegations or evidence regarding
Cardinal DiNardo’s individual-capacity conduct.
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For his part, Cardinal DiNardo offers his affidavit stating
that Dispensa was unknown to him prior to this litigation. Doc.
no. 13-2 at ¶ 4. The affidavit states that Cardinal DiNardo
owns no assets in New Hampshire, has no regular contact with New
Hampshire or any New Hampshire residents, does not supervise or
oversee the employment of any persons in New Hampshire, and does
not recall ever visiting New Hampshire. Id. at ¶¶ 6-8. The
affidavit states further that Cardinal DiNardo has never worked
as a clergyman in New Hampshire, in Massachusetts, or anywhere
else in New England. Id. at ¶ 5.
Cardinal DiNardo’s uncontroverted evidence tends to
establish that he is a resident of Texas with no material
contacts to New Hampshire or to any New Hampshire resident;
Dispensa’s allegations do not suggest to the contrary. There
are, moreover, no jurisdictional allegations and no
jurisdictional evidence with any tendency to establish either
that Cardinal DiNardo had the requisite contacts with New
Hampshire or that he deliberately targeted behavior towards this
state. It follows that Dispensa has not met his prima facie
burden to establish that the court can exercise either general
or specific personal jurisdiction over Cardinal DiNardo in his
individual capacity. Cardinal DiNardo’s motion to dismiss for
lack of personal jurisdiction is therefore granted, and
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Dispensa’s claims are dismissed without prejudice to the extent
pled against Cardinal DiNardo in his individual capacity.
b. The Conference Defendants
As to Cardinal DiNardo in his official capacity, Dispensa
alleges that he is the President of the Conference and that he
works in Texas. Dispensa further alleges that, by virtue of his
office, Cardinal DiNardo (together with the Conference) is in a
fiduciary relationship with Dispensa and owes Dispensa a
fiduciary duty of care. In addition, Dispensa alleges that
Cardinal DiNardo is vicariously liable for Fr. Martin’s actions
undertaken within the scope of his employment as a Catholic
priest, and that he owes Dispensa a duty of care in connection
with Fr. Martin’s employment. Finally, Dispensa alleges that
the Conference engaged in a conspiracy with other persons
(specifically the Archdiocesan defendants) to conceal widespread
sexual abuse of minors by Catholic priests, including the abuse
Dispensa suffered at the hands of Fr. Martin.
The Conference defendants offer the affidavit of Theresa
Ridderhoff, its Associate General Secretary. Ridderhoff’s
affidavit states that the Conference is a non-profit corporation
headquartered in and organized under the laws of the District of
Columbia. Doc. no. 14-2 at ¶¶ 2, 4. The affidavit further
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states that the Conference does not do business in New
Hampshire, does not own real or personal property in New
Hampshire, and does not maintain offices in New Hampshire. Id.
at ¶¶ 8-10.
The uncontroverted evidence therefore tends to establish
that the Conference defendants have no material contacts to New
Hampshire or to any New Hampshire resident. Again, Dispensa’s
allegations do not suggest to the contrary, and he has not
proffered any jurisdictional evidence. It follows that Dispensa
has not met his prima facie burden to establish the existence of
long-arm personal jurisdiction, whether general or specific,
over either of the Conference defendants.
c. The Archdiocesan Defendants
Dispensa alleges that the Archdiocese is a Massachesetts
religious corporation headquartered in Braintree, MA. Dispensa
further alleges that Cardinal O’Malley works in Braintree. He
alleges that the Archdiocesan defendants are in a fiduciary
relationship with him and therefore owe him a fiduciary duty of
care, that they are vicariously liable for Fr. Martin’s actions
undertaken within the scope of his employment as a Catholic
priest, and that they owe Dispensa a duty of care in connection
with Fr. Martin’s employment. He further alleges that the
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Archdiocesan defendants engaged in a conspiracy (together with
the Conference) to conceal widespread sexual abuse of minors by
Catholic priests, including the abuse Dispensa suffered at the
hands of Fr. Martin.
The Archdiocesan defendants offer evidence tending to
establish that, consistently with Dispensa’s allegations, the
Archdiocese is a Massachesetts religious corporation
headquartered in Massachusetts, and that Cardinal O’Malley is
likewise a resident of Massachusetts. Doc. no. 15-4 at 8.
There are therefore no allegations and no jurisdictional
evidence with any tendency to suggest either that the
Archdiocesan defendants are at home in New Hampshire or that
Dispensa’s claims arise out of conduct they directed toward New
Hampshire. Thus, Dispensa has not met his prima facie burden to
establish long-arm personal jurisdiction, whether general or
specific, over either of the Archdiocesan defendants.
2. Statutory Personal Jurisdiction Over the
Conference and the Archdiocesan Defendants
Dispensa asserts two civil RICO claims in this action, each
of them against the Conference and the Archdiocesan defendants.
Virtually all courts to have considered the question have
concluded that the RICO statute contains a broad grant of
jurisdictional power. The courts differ in their assessments of
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the precise contours of that power, but there is general and
widespread agreement that under at least some circumstances, the
RICO statute permits courts to exercise personal jurisdiction
over defendants lacking traditional minimum contacts with the
forum.
Dispensa offers no allegations or evidence regarding
personal jurisdiction, and it is unclear whether he intends that
this court should exercise jurisdiction over any defendant
pursuant to the RICO statute. However, because Dispensa is pro
se, the court presumes that he intends the broadest possible
assertion of personal jurisdiction. See Rockwell v. Cape Cod
Hosp., 26 F.3d 254, 255 (1st Cir. 1994). The court must
therefore determine whether, under RICO, it may properly
exercise personal jurisdiction over the RICO defendants in this
action.
The RICO provision implicating the courts’ jurisdictional
power is 18 U.S.C. § 1965. Section 1965 provides as follows:
(a) Any civil action or proceeding under [RICO]
against any person may be instituted in the district
court of the United States for any district in which
such person resides, is found, has an agent, or
transacts his affairs.
(b) In any [civil RICO] action . . . in any district
court of the United States in which it is shown that
the ends of justice require that other parties
residing in any other district be brought before the
court, the court may cause such parties to be
summoned, and process for that purpose may be served
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in any judicial district of the United States by the
marshal thereof.
(c) In any civil or criminal action or proceeding
instituted by the United States under [RICO] in the
district court of the United States for any judicial
district, subpenas issued by such court to compel the
attendance of witnesses may be served in any other
judicial district, except that in any civil action or
proceeding no such subpena shall be issued for service
upon any individual who resides in another district at
a place more than one hundred miles from the place at
which such court is held without approval given by a
judge of such court upon a showing of good cause.
(d) All other process in any action or proceeding
under [RICO] may be served on any person in any
judicial district in which such person resides, is
found, has an agent, or transacts his affairs.
18 U.S.C. § 1965. The majority of courts to have interpreted
the statute—including the Second, Seventh, Ninth, and Tenth
Circuits—have found that Section 1965(b) is the controlling
provision for jurisdictional purposes in civil RICO actions.
See PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 71
(2nd Cir. 1998); Lisak v. Mercantile Bancorp., Inc., 834 F.2d
668, 671 (7th Cir. 1987); Butcher's Union Local No. 498 v. SDC
Inv., Inc., 788 F.2d 535, 539 (9th Cir. 1986); Cory v. Aztec
Steel Bldg., Inc., 468 F.3d 1226, 1229 (10th Cir. 2006). These
courts have found that, under Section 1965(b), a federal court
may exercise personal jurisdiction over a civil RICO defendant
otherwise lacking traditional minimum contacts with the forum
state, so long as both (i) personal jurisdiction over another
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26
civil RICO defendant otherwise exists in the forum, and (ii)
“the ends of justice require” that the court exercise personal
jurisdiction over the civil RICO codefendant lacking the
requisite contacts. See Cory, 468 F.3d at 1229; PT United, 138
F.3d at 71; Lisak, 834 F.2d at 671; Butcher's Union, 788 F.2d at
539.
A minority of courts—including the Fourth and Eleventh
Circuits—have found, without significant analysis, that the
controlling jurisdictional provision of the statute is instead
Section 1965(d). See Republic of Panama v. BCCI Holdings
(Luxembourg) S.A., 119 F.3d 935, 942 (11th Cir. 1997); ESAB
Group, Inc. v. Centricut, Inc., 126 F.3d 617, 626 (4th Cir.
1997). These courts interpret Section 1965(d) as conferring
personal jurisdiction over any RICO defendant—including in civil
RICO actions—so long as personal jurisdiction exists over
another RICO codefendant in the forum, without need for inquiry
into the ends of justice. See Panama, 119 F.3d at 942; ESAB
Group, 126 F.3d at 626.
At least one district court of the First Circuit has
followed the majority approach of the Second, Seventh, Ninth,
and Tenth Circuits, see Kalika, LLC v. Bos. & Maine Corp., Case
No. CV 15-14043-GAO, 2019 WL 1276099, at *1, 7 (D. Mass. Mar.
20, 2019), and at least one has followed the minority approach
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of the Fourth and Eleventh Circuits, see Bridge v. Invest Am.,
Inc., 748 F. Supp. 948, 952 (D.R.I. 1990). The First Circuit
has not yet weighed in on the question. For the same reasons
stated by the Second Circuit in PT United, 138 F.3d at 71-72,
the court finds that the majority approach reflects a sound
construction of the statute as a whole, one which is consistent
with both its plain language and its evident purpose.
Accordingly, the court adopts the majority approach and holds
that Section 1965(b) permits the exercise of personal
jurisdiction over a civil RICO defendant otherwise lacking the
requisite contacts with the forum state, so long as both (i)
personal jurisdiction exists in the forum over another civil
RICO codefendant, and (ii) “the ends of justice require” that
the court exercise personal jurisdiction over the RICO
defendants lacking the traditionally requisite contacts.7
There are, in addition, differences among the circuits as
to when “the ends of justice require” the exercise of personal
jurisdiction over defendants lacking traditional minimum
7Where a federal statute provides for such potentially
nationwide personal jurisdiction, the outer limits of the
court’s jurisdictional power are bounded by the due process
clause of the Fifth Amendment, under which “a plaintiff need
only show that the defendant has adequate contacts with the
United States as a whole, rather than with a particular state.”
Swiss Am. Bank, 274 F.3d at 618. Here, there does not appear to
be any serious question as to whether any moving defendant is
“at home” in the United States.
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28
contacts with the forum. On one end of the spectrum, the Ninth
Circuit has held that to establish the requisite ends of
justice, “the plaintiff must show that there is no other
district in which a court will have personal jurisdiction over
all the alleged co-conspirators.” Butcher’s Union, 788 F. 2d at
539 (emphasis supplied). On the other end, the Tenth Circuit
has held that “the ‘ends of justice’ is a flexible concept
uniquely tailored to the facts of each case.” Cory, 468 F.3d at
1232. The court for the District of Massachusetts has followed
the Tenth Circuit’s approach. See Kalika, 2019 WL 1276099 at
*7.
This court likewise follows the Tenth Circuit’s flexible
approach to determining what the ends of justice may require for
purposes of Section 1965(b). To be sure, as virtually all
courts to have considered the question have noted, even under
the flexible approach, the existence of an alternative forum
will be a significant and often dispositive factor in making
that determination. See, e.g., Cory, 468 F.3d at 1229; Lisak,
834 F.2d at 671; Brown v. Kerkhoff, 504 F. Supp. 2d 464, 496-497
(S.D. Iowa 2007); United Power Assn., Inc. v. L.K. Comstock &
Co., Case No. 3-89 CIV 766, 1992 WL 402906, at *3 (D. Minn. Oct.
27, 1992).
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29
Having determined the appropriate standard for determining
whether personal jurisdiction exists over a civil RICO defendant
lacking traditional contacts with a forum, the court turns to
the facts of this action. For the reasons discussed above,
Dispensa has not met his burden to establish that personal
jurisdiction exists under traditional standards as to any RICO
defendant in this action. The court acknowledges that Dispensa
has alleged sufficient facts to support personal jurisdiction
over Fr. Martin, in that he has alleged that Fr. Martin is
currently a resident of New Hampshire. Doc. no. 1 at ¶ 6.
However, he has not asserted either of his RICO claims against
Fr. Martin; those claims are asserted only against the
Conference, the Archdiocese, and Cardinal O’Malley. Because
Dispensa has not named Fr. Martin as a RICO defendant in this
action, and because traditional personal jurisdiction is lacking
as to each of the named RICO codefendants, Section 1965(b)
personal jurisdiction is unavailable over the RICO defendants in
this action. See Cory, 468 F.3d at 1229; PT United, 138 F.3d at
71; Lisak, 834 F.2d at 671; Butcher's Union, 788 F.2d at 539;
Kalika, 2019 WL 1276099 at *7.
Even if the court were to construe Dispensa’s RICO claims
as though pled against Fr. Martin, he has not met his burden to
establish that the ends of justice require that the Conference,
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30
the Archdiocese, or Cardinal O’Malley be haled into court in
this forum. This is largely because there exists an alternative
forum in which (assuming the truth of Dispensa’s allegations)
personal jurisdiction would be available over the RICO
defendants and which has a far closer relationship than New
Hampshire to the parties’ dispute. That forum is the District
of Massachusetts.
Two of the RICO defendants—the Archdiocese and Cardinal
O’Malley—are at home in Massachusetts and consequently subject
to general jurisdiction there. Moreover, the alleged sexual
abuse and assaults underlying all of Dispensa’s claims took
place in Massachusetts. Assuming the truth of Dispensa’s
allegation that the Conference took affirmative steps to conceal
Fr. Martin’s abuse in Massachusetts, it appears likely that
specific personal jurisdiction would be available over the
Conference in connection with Dispensa’s RICO claims. In
addition, evidence and witnesses material to Dispensa’s RICO
claims are far more likely to be located in Massachusetts than
New Hampshire.
Because the ends of justice would be satisfied by
litigation of Dispensa’s claims in Massachusetts, they do not
require that the Conference, the Archdiocese, or Cardinal
O’Malley be haled into court in New Hampshire. It follows that
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31
this court may not properly exercise personal jurisdiction over
those defendants pursuant to Section 1965(b). Dispensa’s claims
are therefore dismissed without prejudice to the extent pled
against the Conference, the Archdiocese, and Cardinal O’Malley.8
III. Subject-Matter Jurisdiction Over Dispensa’s Claims Against
Fr. Martin
As noted, Dispensa asserts claims against Fr. Martin for
sexual abuse of a minor, assault, breach of fiduciary duty,
fiduciary fraud and conspiracy to commit fiduciary fraud, and
intentional infliction of emotional distress. All of Dispensa’s
claims against Fr. Martin arise under New Hampshire law.
The federal courts are courts of limited jurisdiction.
See, e.g., Exxon Mobil Copp. v. Allapattah Servs., 545 U.S. 546,
552 (2005) (citing Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 375, 377 (1994)). As such, the courts presume
that causes of action "lie[] outside this limited jurisdiction,
and the burden of establishing the contrary rests upon the party
asserting jurisdiction." Kokkonen, 511 U.S. at 377; see also,
e.g., Klimowicz v. Deutsche Bank Nat'l Tr. Co., 907 F.3d 61, 64
8Because all of Dispensa’s claims against the moving
defendants are subject to dismissal on grounds of insufficient
service and/or lack of personal jurisdiction, the court need not
address the moving defendants’ arguments regarding venue or
subject-matter jurisdiction.
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(1st Cir. 2018). If a federal court “determines at any time
that it lacks subject-matter jurisdiction, the court must
dismiss the action.” Fed. R. Civ. P. 12(h)(3); see also In re
Olympic Mills Corp., 477 F.3d 1, 6 (1st Cir. 2007); Doyle v.
Huntress, Inc., 419 F.3d 3, 6 (1st Cir. 2005).
Absent circumstances not present here, federal subject-
matter jurisdiction must be based either on the presence of
complete diversity between the parties, see 28 U.S.C. § 1332(a),
or on the presence of an action arising under federal law, see
28 U.S.C. § 1331. Here, diversity jurisdiction over Dispensa’s
state-law claims is unavailable, because Dispensa has alleged
that both he and Fr. Martin are residents of New Hampshire. See
28 U.S.C. § 1332(a). Federal question jurisdiction is likewise
unavailable over Dispensa’s state-law claims, which are
creatures of New Hampshire law. See, e.g., Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987) (citing Gully v. First Nat'l
Bank, 299 U.S. 109, 112-113 (1936)).
Where a plaintiff alleges both federal and state-law
claims, and the federal and state-law claims are sufficiently
closely related to form part of the same case or controversy,
federal courts may properly exercise supplemental jurisdiction
over the state-law claims. See 28 U.S.C. § 1367(a). Where, as
here, all federal claims are dismissed before an action reaches
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33
trial, it is generally appropriate for a federal court to
decline to exercise supplemental jurisdiction over any remaining
state-law claims. See 28 U.S.C. § 1367(c)(3) ("[t]he district
courts may decline to exercise supplemental jurisdiction over a
[state-law] claim ... if... the district court has dismissed all
claims over which it has original jurisdiction"); Carnegie-
Mellon Univ. v Cohill, 484 U.S. 343, 350 n.7 (1988) ("in the
usual case in which all federal-law claims are eliminated before
trial, the balance of the factors to be considered under the
pendent jurisdiction doctrine—judicial economy, convenience,
fairness, and comity—will point toward declining to exercise
jurisdiction over the remaining state-law claims"). Nothing
about this case provides good cause for deviating from the
general rule set forth in Carnegie-Mellon.
For these reasons, the court dismisses sua sponte
Dispensa’s state-law claims against Fr. Martin without prejudice
for lack of subject-matter jurisdiction.
CONCLUSION
For the above reasons, Cardinal DiNardo’s motion to dismiss
(doc. no. 13), the Conference defendants’ motion to dismiss (doc.
no. 14), and the Archdiocesan defendants’ motion to dismiss (doc.
no. 15) are granted. Dispensa’s claims are therefore dismissed
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without prejudice to the extent alleged against the Conference,
Cardinal DiNardo, the Archdiocese, and Cardinal O’Malley. In
addition, the court dismisses sua sponte Dispensa’s claims
against Fr. Martin without prejudice for lack of subject-matter
jurisdiction. The court’s disposition of Dispensa’s claims shall
not bar him from raising them in any other appropriate forum.
The clerk’s office is directed to enter judgment and close the
case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
May 21, 2020
cc: Counsel of Record
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