Doe v. Roman Catholic Diocese of Greensburg ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOHN DOE,
Plaintiff,
v. Civ. Action No. 20-1750 (EGS)
THE ROMAN CATHOLIC DIOCESE
OF GREENSBURG, et al.,
Defendants.
MEMORANDUM OPINION
I. Introduction
Plaintiff John Doe (“Plaintiff” or “Mr. Doe”) brings this
case against Defendants Roman Catholic Diocese of Greensburg;
Edward C. Malesic, Bishop of the Diocese of Greensburg; St. John
the Baptist and St. Joseph parish, successor entity to St.
Joseph’s Roman Catholic Church in Everson, Pennsylvania
(collectively, hereinafter “Greensburg Defendants”); and Donald
Wuerl (“Mr. Wuerl”), the former Bishop of the Diocese of
Pittsburgh and former Archbishop of the Roman Catholic
Archdiocese of Washington, D.C., based on alleged sexual abuse
Mr. Doe suffered as a minor. 1 See Ex. A Notice of Removal
(“Compl.”), ECF No. 1-1; Mot. Proceed via Pseudonym, ECF No. 5-
1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
1
1. The Greensburg Defendants and Mr. Wuerl both seek to have
this case dismissed. See Motion to Dismiss (“Greensburg Defs.’
Mot.”), ECF No. 36; Defendant Donald W. Wuerl’s Motion to
Dismiss (“Def. Wuerl’s Mot.”), ECF No. 37. Mr. Doe opposes both
motions. See Mem. in Opp’n to Greensburg Defendants’ Motion to
Dismiss (“Pl.’s Opp’n to Greensburg Defs.”), ECF No. 39; Mem. in
Opp’n to Donald Wuerl’s Motion to Dismiss (“Pl.’s Opp’n to Def.
Wuerl”), ECF No. 40.
Upon consideration of the motions, responses, and the
replies thereto, the applicable law and regulations, the entire
record and the materials cited therein, the Court GRANTS IN PART
and DENIES IN PART the Greensburg Defendants’ Motion to Dismiss,
ECF No. 36; and DENIES Mr. Wuerl’s Motion to Dismiss, ECF No.
37.
II. Factual and Procedural Background
On June 5, 2020, Mr. Doe brought suit in the Superior Court
of the District of Columbia (“Superior Court”) against
Defendants alleging the following causes of action: (1) Count I—
Negligence, see Compl., ECF No. 1-1 ¶¶ 52-60; (2) Count II—
Negligent Supervision, Monitoring, Training, and Retention, see
id. ¶¶ 61-70; (3) Count III—Breach of Special Duty, see id. ¶¶
71-78; (4) Count IV—Constructive Fraud, see id. ¶¶ 79- 85; and
(5) Count V—Civil Conspiracy to Commit Fraud, see id. ¶¶ 86-93.
The Diocese and Parish are named as defendants on all counts.
2
Bishop Malesic and Cardinal Wuerl are named only in Count V of
the Complaint. 2
Mr. Doe seeks compensatory and punitive damages on his
claims, each of which arise from the alleged sexual abuse he
suffered as a minor from approximately 1991 to 1997—or from when
he was between 11 and 17 years old—largely at the hands of
Joseph L. Sredzinski, the now-deceased priest of Saint Joseph’s
Roman Catholic Church (“the Parish”). Compl., ECF No. 1-1 ¶¶ 3,
34. At the time, Mr. Doe resided in Westmoreland County,
Pennsylvania, and attended the Parish, located within the
Diocese of Greensburg (the “Greensburg Diocese”). Id. ¶¶ 4, 6,
8, 29. During this time, Mr. Sredzinski served as priest of the
Parish, and Mr. Wuerl served as bishop of the Diocese of
Pittsburgh, before beginning his service as Archbishop of
Washington in 2006. Id. ¶ 9.
Mr. Doe asserts that he was groomed by Mr. Sredzinski
starting at the age of 9. See Compl., ECF No. 1-1 at ¶ 29–30.
Mr. Doe details an escalating pattern of alleged sexual abuse
over the course of his childhood. In the second half of 1991,
when he was 11 years old, he alleges that Mr. Sredzinski took
him to the Parish’s rectory, stripped him naked, and kissed him
2 Bishop Malesic is no longer the Bishop of the Diocese of
Greensburg and was installed as the new Bishop of the Diocese of
Cleveland on September 14, 2020. See Greensburg Defs.’ Mot., ECF
No. 36 at 12-13.
3
all over his body, including on Mr. Doe’s anal area. Id. ¶ 31.
Mr. Doe contends that on an occasion soon thereafter, Mr.
Sredzinski anally penetrated him. Id. ¶ 32. Mr. Doe alleges that
this continued for several years, with Mr. Sredinzki repeatedly
raping him violently and forcing him to perform fellatio,
“claiming Plaintiff was Sredzinski’s servant through God and
needed to internalize Sredzinski’s seed.” Id. ¶¶ 32–34, 40. Mr.
Doe alleges that on multiple occasions, Mr. Sredinzski invited
other priests to the Rectory, who then purportedly took turns
raping him. Id. ¶ 35.
As per the Complaint, the sexual abuse allegedly occurred
at the Parish rectory in Pennsylvania and on approximately
thirty trips to Washington, D.C., during which Mr. Sredzinski
shared a hotel room with Mr. Doe and raped him on every
occasion. Id. ¶¶ 36, 39-40. On a few of these trips, Mr. Doe
alleges that Defendant Cardinal Wuerl was present in the hotel
room and witnessed Mr. Doe being abused by Mr. Sredzinski;
rather than stopping the abuse, Mr. Wuerl allegedly proceeded to
masturbate. See id. ¶ 42. Mr. Doe asserts that many of these
trips were church-sponsored, and coordinated by the Greensburg
Diocese, Bishops of that Diocese, and the Parish, including an
annual trip to a pro-life rally, sports competitions, and other
political or religious events. Id. ¶¶ 31, 35–38. Others trips to
D.C. were vacations. Id. ¶ 36.
4
Mr. Doe asserts that he reported the sexual abuse, to no
avail, at several points. Id. ¶¶ 44-46. At age 13, Mr. Doe
states that he reported the abuse to the Diocese in the form of
two messages left with the office of the Bishop of the Diocese,
but his messages were never returned. Id. ¶ 44. He states that
he also reported the abuse to two different officials at his
Catholic high school, which is under the Diocese’s control. Id.
¶ 46. He adds that at age 15, he allegedly confronted Mr. Wuerl,
who denied ever witnessing the abuse and stated that Mr. Doe
must be lying or hallucinating. Id. ¶ 45.
In addition to his own purported reports of the alleged
sexual abuse, Mr. Doe points to evidence that the Diocese and
Parish had actual or constructive knowledge that Mr. Sredzinski
had inappropriate relationships with minor boys since at least
as early as 1991. See generally Office of the Pennsylvania
Attorney General, Pennsylvania Diocese Victims Report (“Grand
Jury Report”), available at
https://www.attorneygeneral.gov/report/ (last accessed January
5, 2022). The Court takes judicial notice of the evidence to
which Mr. Doe refers, a multi-year Pennsylvania Grand Jury
Investigative Report on child sexual abuse in the Catholic
Church in Pennsylvania, published in 2018. See Pharm. Rsch. &
Manufacturers of Am. v. United States Dep't of Health & Hum.
Servs., 43 F. Supp. 3d 28, 33 (D.D.C. 2014) (stating that
5
“[c]ourts in this jurisdiction have frequently taken judicial
notice of information posted on official public websites of
government agencies,” and collecting cases). According to the
Grand Jury Report, Tim Shoemaker, then the Mayor of Everson,
contacted Father Roger Statnick, then a priest of the Diocese,
as far back as 1991, to inform him of his concerns about Mr.
Sredizski’s inappropriate relationships with multiple local
boys, including an incident where he was found in a parked car
with a young boy in a cemetery late at night. See Office of the
Pennsylvania Attorney General, Grand Jury Report at 506,
available at https://www.attorneygeneral.gov/report/. As per the
Grand Jury Report, on January 14, 1994, the Bishop of the
Diocese himself wrote a letter to Mr. Sredzinski’s sister
acknowledging the Mayor’s outreach and the dangers posed by Mr.
Sredzinski’s actions in terms of criminal and civil liability.
Id. at 509. The Grand Jury Report concluded that the
Pennsylvania dioceses (including the Diocese of Greensburg) were
far more complicit in covering up abuse by priests than was
previously known by the public. The Report stated as follows:
While each church district had its
idiosyncrasies, the pattern was pretty much
the same. The main thing was not to help
children, but to avoid ‘scandal.’ That is not
our word, but theirs; it appears over and over
again in the documents we recovered. Abuse
complaints were kept locked up in a ‘secret
archive.’ That is not our word, but theirs;
the church’s Code of Canon Law specifically
6
requires the diocese to maintain such an
archive. Only the bishop can have the key.
Id. at 2. The Grand Jury Report also made findings of
circumstantial evidence that were suggestive of a conspiracy to
conceal abuse amongst different dioceses and leaders. Id. at 297(noting that the dioceses had such commonalities in their plans
to fraudulently conceal sexual abuse from law enforcement, the
public, and potential victims that “[i]t seemed as if there was
a script”).
Mr. Doe contends that none of the information as to Mr.
Sredinzki’s alleged child abuse was ever communicated to him,
his family, or anyone else who could have protected him from the
ensuing events. See Pl.’s Opp’n to Greensburg Defs., ECF No. 39
at 11. Instead, he states that he and his family “reasonably
relied on the Diocese and Parish’s omission of these facts,
and/or statements in sermons, catechism classes, and other
teachings that Catholic priests were trustworthy authority
figures.” Compl., ECF No. 1-1 ¶ 20, 73. Mr. Doe alleges that the
abuse left him with serious and permanent physical and emotional
injuries, including depression, post-traumatic stress disorder,
hypertension, panic attacks, difficulties with trust and human
interactions, and a loss of faith, educational and employment
opportunities. See Compl., ECF No. 1-1 at 10-11.
7
Mr. Doe brought suit against the Defendants on June 5,
2020. 3 See Compl., ECF No. 1-1. Mr. Wuerl then removed the action
from Superior Court to this Court pursuant to 28 U.S.C. §§ 1332,
1441, and 1446 on June 27, 2020. See Notice of Removal, ECF No.
1. The Greensburg defendants and Mr. Wuerl both subsequently
moved to have the case dismissed. See Greensburg Defs.’ Mot.,
ECF No. 36; Def. Wuerl’s Mot., ECF No. 37. Mr. Doe, who has been
granted leave by the Court to proceed under a pseudonym, see
Memorandum Opinion, ECF No. 43; opposes both motions. See Pl.’s
Opp’n to Greensburg Defs., ECF No. 39; Pl.’s Opp’n to Def.
Wuerl, ECF No. 40. The motions are ripe and ready for
adjudication.
3 The Greensburg Defendants mention a “nearly identical” action
commenced by Mr. Doe on August 7, 2020. See Greensburg Defs.
Mot., ECF No. 36. at 6, 39. Mr. Doe explains that the action
“was apparently the result of a misunderstanding between
Plaintiff and a different law firm that is not involved in the
instant action.” Pl.’s Opp’n to Greensburg Defs., ECF No. 39.
Since the action was voluntarily discontinued, the Court finds
that it has no relevance to the present proceedings. See
generally Docket for MR v. Roman Catholic Diocese of Greensburg,
et. al., No. 2783 of 2020 (Court of Common Pleas of Westmoreland
County, Pennsylvania).
8
III. Standards of Review
A. Rule 12(b)(2) Motion to Dismiss
Under Rule 12(b)(2), a defendant may move to dismiss an
action when the court lacks personal jurisdiction. Fed. R. Civ.
P. 12(b)(2). On such a motion, the plaintiff bears the burden of
establishing a factual basis for the exercise of personal
jurisdiction over each defendant. Crane v. N.Y. Zoological
Soc’y., 894 F.2d 454, 456 (D.C. Cir. 1990). To meet this burden,
the plaintiff must allege specific facts that connect each
defendant with the forum. Second Amendment Found. v. U.S.
Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001). The
plaintiff cannot rely merely on conclusory allegations.
Atlantigas Corp. v. Nisource, Inc., 290 F. Supp. 2d 34, 42
(D.D.C. 2003). The court may consider, receive, and weigh
affidavits and other relevant materials outside of the pleadings
to assist it in determining the pertinent jurisdictional facts.
U.S. v. Philip Morris Inc., 116 F. Supp. 2d 116, 120 n.4 (D.D.C.
2000).
B. Rule 12(b)(6) Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A
complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to give
9
the defendant fair notice of what the ... claim is and the
grounds upon which it rests.” Bell At. Corp. v. Twombly, 550
U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). While
detailed factual allegations are not required, a complaint must
contain “sufficient factual matter ... to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
When ruling on a Rule 12(b)(6) motion, the Court “may
consider only the facts alleged in the complaint, any documents
either attached to or incorporated in the complaint and matters
of which we may take judicial notice.” EEOC v. St. Francis
Xavier Parochial Sch., 117 F. 3d 621, 624 (D.C. Cir. 1997). In
so doing, the court must give the plaintiff the “benefit of all
inferences that can be derived from the facts alleged.” Kowal v.
MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements” are not sufficient to
state a claim. Iqbal, 556 U.S. at 678. The plaintiff must “give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89,
93 (2007) (quoting Twombly, 550 U.S. at 555) (internal quotation
marks omitted).
10
C. Fraud Claims
“In alleging fraud,” “a party must state with particularity
the circumstances constituting fraud[.]” Fed. R. Civ. P. 9(b);
see also FTC v. Cantkier, 767 F. Supp. 2d 147, 151 (D.D.C. 2011)
(“Rule 9(b) imposes a heightened pleading standard for fraud
claims.”). To meet this “enhanced pleading standard,” a
plaintiff must “provide a defendant with notice of the ‘who,
what, when, where, and how’ with respect to the circumstances of
the fraud.” Id. (quoting Stevens v. InPhonic, Inc., 662 F. Supp.
2d 105, 114 (D.D.C. 2009)). In other words, “[t]he plaintiff
must ‘state the time, place, and content of the false
representations, the fact misrepresented . . . and identify
individuals allegedly involved in the fraud.’” Id. (internal
citation omitted).
Rule 9(b) also governs constructive fraud claims, which
apply to innocent or negligent (rather than intentional)
misrepresentation. See Jacobson v. Hofgard, 168 F. Supp. 3d 187,
206 (D.D.C. 2016) (“Like claims for fraudulent
misrepresentation, Rule 9(b)’s particularity requirements apply
to claims for negligent misrepresentation.”). Rule 9(b) further
governs claims of conspiracy to commit fraud. See, e.g., Geier
v. Conway, Homer & Chin-Caplan, P.C., 983 F. Supp. 2d 22, 42
(D.D.C. 2013) (“The Geiers’ civil conspiracy allegations are
threadbare accusations that fail to state a claim, let alone
11
meet the heightened pleading standard required by Rule 9(b).”)
(internal citation omitted); Silvercreek Mgmt., Inc. v.
Citigroup, Inc., 248 F. Supp. 3d 428, 447 (S.D.N.Y. 2017) (“A
claim for conspiracy to commit fraud is also subject to Rule
9(b)’s heightened pleading standard.”).
D. Rule 12(b)(7) Motion to Dismiss
Under Rule 12(b)(7), a defendant may seek dismissal of a
complaint for failure to join a required party under Rule 19.
Fed. R. Civ. P. 12(b)(7). The burden is on the defendant seeking
dismissal for failure to name an absent party to show the nature
of the interest possessed by an absent party and that the
protection of that interest will be impaired by the absence.
Citadel Inv. Grp., L.L.C. v. Citadel Capital Co., 699 F. Supp.
2d 303, 317 (D.D.C. 2010). In evaluating the need for the absent
person under Rule 12(b)(7), the court must accept as true the
allegations in the complaint but may also consider affidavits
and other extrinsic evidence outside of the pleadings submitted
by the parties. 16th & K Hotel, LP v. Commonwealth Land Title
Ins. Co., 276 F.R.D. 8, 12-13 (D.D.C. 2011).
IV. Analysis
The Greensburg Defendants present nine legal arguments in
their Motion to Dismiss. See Greensburg Defs.’ Mot., ECF No. 37
at 9. They argue that the first two arguments, lack of personal
jurisdiction and a failure to join required parties, warrant a
12
dismissal of the Complaint in its entirety. See id. at 10. The
Greensburg Defendants allege that the seven remaining arguments
“warrant, at a minimum, the dismissal of some or most of the
parties named and the claims asserted.” Id. Mr. Wuerl argues
that Mr. Doe’s “conspiracy claim fails to meet the Rule 12(b)(6)
and 9(b) pleading standards on multiple levels.” Def. Wuerl’s
Mot., ECF No. 37 at 9. Since several arguments presented by the
Greensburg Defendants and Mr. Wuerl are overlapping, the Court
considers all the arguments together.
A. The Court Has Personal Jurisdiction Over the
Greensburg Defendants
1. The Court Has Personal Jurisdiction Over the
Diocese and Parish Under D.C.
Code § 13-423(a)(3)
First, the Greensburg Defendants argue that the Court lacks
personal jurisdiction, because the Complaint “alleges no
cognizable connection between the Greensburg Defendants and the
District of Columbia sufficient to confer either general or
specific personal jurisdiction over them in this Court.”
Greensburg Defs.’ Mot., ECF No. 37 at 9. Mr. Doe does not
dispute the lack of general jurisdiction but argues instead that
this Court has specific jurisdiction. 4 Specifically, he responds
that many of the trips to the District of Columbia (“D.C.”) were
“church-sponsored events: an annual Catholic pro-life rally,
4 The Court therefore does not reach the Greensburg Defendants’
arguments as to a lack of general jurisdiction.
13
basketball and bowling competitions in D.C., and other events in
Washington” that the Greensburg defendants have been
coordinating “for decades.” Pl.’s Opp’n to Greensburg Defs.’
Mot., ECF No. 39 at 7, 15. He contends that specific
jurisdiction attaches to the Diocese and Parish because the
Parish officials supervising these trips were acting as agents
under D.C.’s long arm statute. See id.; D.C. Code § 13-
423(a)(3). Drawing all inferences in the Plaintiff’s favor, the
Court agrees with Mr. Doe as to the allegations pertaining to
Church-sponsored trips.
D.C.’s long arm statute provides that this Court has
personal jurisdiction over a party “who acts directly or by an
agent” as to claims arising from the party’s “causing tortious
injury in the District of Columbia by an act or omission in the
District of Columbia.” D.C. Code § 13-423(a)(3). Where one acts
as an official of a defendant and on such defendant’s behalf, an
agency relationship can exist for the purposes of specific
personal jurisdiction. See Daughtry v. Arlington County, Va.,
490 F. Supp. 307, 313 (D.D.C. 1980). To establish personal
jurisdiction, the defendant must have “minimum contacts” with
D.C. IMAPizza, LLC v. At Pizza Ltd., 334 F. Supp. 3d 95, 113
(D.D.C. 2018). “It is essential that there be some act by which
the defendant purposefully avails itself of the privilege of
conducting activities within the forum state, thus invoking the
14
benefit and protection of its laws.” Heller v. Nicholas
Applegate Capital Mgmt., LLC, 498 F. Supp. 2d 100, 109 (D.D.C.
2007).
When responding to a motion to dismiss based on personal
jurisdiction, without an evidentiary hearing, a plaintiff need
only make a prima facie showing that the court has personal
jurisdiction over the defendant. Edmond v. U.S. Postal Service
General Counsel, 949 F.2d 415, 424 (D.C. Cir. 1991). To meet
this burden, the plaintiff must allege specific facts that
connect each defendant with the forum. Second Amendment Found.,
274 F.3d at 524. Any “factual discrepancies appearing in the
record must be resolved in favor of the plaintiff.” Crane, 894
F.2d at 456 (citing Reuber v. United States, 750 F.2d 1039, 1052
(D.C. Cir. 1984)).
Here, Mr. Doe alleges that he “was abused many times on
approximately thirty trips to Washington D.C., both church-
sponsored trips and otherwise, including vacations.” Compl., ECF
No. 1-1 ¶ 36. He alleges that these trips to D.C. included “an
annual Catholic pro-life rally as well as other political
events,” and “basketball and bowling competitions with other
churches.” Id. ¶¶ 37-38. Mr. Doe alleges that these trips were
coordinated by Mr. Sredzinski "in conjunction with the DIOCESE,
bishops of the DIOCESE, and/or the PARISH.” Id. On every trip to
D.C., Mr. Doe alleges that he “shared a hotel room and slept in
15
the same bed” as Mr. Sredzinski, and on every trip, “[Mr.]
Sredzinski violently raped [Mr. Doe] and forced him to perform
fellatio.” Id. ¶¶ 39-40. Mr. Doe also refers to evidence
indicating that the Diocese and Parish were organizing an
overnight March for Life trip as recently as 2020. See January
12, 2020 Parish Newsletter, Exhibit 1, ECF No. 39-1 at 6
(stating that “[y]oung people in grades 8-12 and their adult
chaperones are invited to journey to the March for Life in
Washington, D.C., Jan. 23-24.”).
The Greensburg Defendants respond that “even assuming that
these overnight trips and vacations occurred, none of the
Greensburg Defendants would have sanctioned, coordinated, or
approved of them during the relevant time period, especially not
Bishop Malesic.” Greensburg Defs.’ Mot., ECF No. 36 at 19; see
also Exhibit C, Affidavit of Monsignor Larry J. Kulick (“Kulick
Affidavit”), ECF No. 39 ¶¶ 9-14 (stating that during the time
period of 1991-1997, neither the Diocese, nor its Parishes,
would have “sanctioned, coordinated, sponsored, or approved” of
“personal vacations,” “basketball and bowling competitions,” or
“overnight trips” to the District of Columbia “involving
parishioners and clerics staying together in the same private
hotel room,” and adding that the Diocese and its Parishes
organized at most once a year day trips for the annual Catholic
pro-life rally). The Greensburg Defendants add that they had no
16
duty to oversee these “alleged unsanctioned overnight trips and
personal vacations” to the District of Columbia and therefore
did not purposefully avail themselves of the privileges of the
District of Columbia. Greensburg Defs.’ Mot., ECF No. 36 at 19.
The Court finds that Mr. Doe has made a prima facie showing
that the court has personal jurisdiction over the Diocese and
Parish. See Edmond, 949 F.2d at 424. Mr. Doe has alleged that
several trips to D.C. were Church sponsored and organized in
conjunction with the Diocese and Parish, such that Mr.
Sredzinski was acting as an agent of the Diocese and Parish. See
Compl., ECF No. 1-1 ¶¶ 36-38. Although the Greensburg Defendants
respond that the Diocese and its Parishes would not have
organized any such trips, see Greensburg Defs.’ Mot., ECF No. 36
at 19; Mr. Doe provides evidence that the Church has organized
overnight trips as recently as 2020. See January 12, 2020 Parish
Newsletter, Exhibit 1, ECF No. 39-1 at 6. There is a discrepancy
between the Greensburg Defendants’ insistence that none of the
trips during 1991-1997 would have been overnight trips, and Mr.
Doe’s allegations, supported by the later Parish Newsletter that
invites “Young people in grades 8-12 and their adult chaperones”
to the March for Life Rally from “Jan 23-24,” a period of two
days, with events spread across both days. Compare Kulick Aff.,
Exhibit C, ECF No. 36-2 ¶ 11 with January 12, 2020 Parish
Newsletter, Exhibit 1, ECF No. 39-1 at 6. The Greensburg
17
Defendants do not explain why they organize such trips now, but
allegedly only had day trips previously. There is also a
discrepancy between the assertion that the Greensburg Defendants
have no specific acts directed toward D.C., and the March for
Life trips advertised by the Diocese to D.C., as well as the
other trips Mr. Doe asserts that the Church organized. 5 Compare
Kulick Aff., Exhibit C, ECF No. 36-2 ¶ 11; January 12, 2020
Parish Newsletter, Exhibit 1, ECF No. 39-1 at 6 with Greensburg
Defs.’ Mot., ECF No. 36 at 22.
At this juncture, the Court must draw all factual
discrepancies in favor of the Plaintiff. See Crane, 894 F.2d at
456. Doing so here, the Court concludes that it can exercise
personal jurisdiction over the Diocese and Parish since Mr.
Doe’s allegations adequately establish their “minimum contacts”
5 The Kulick affidavit falls far short of stating that the church
trips Mr. Doe alleges took place, including sporting
competitions, did not happen. See generally Kulick Aff., Exhibit
C, ECF No. 36-2. The affidavit merely states that the Greensburg
Defendants “would” not have approved any “overnight trips to the
District of Columbia involving parishioners and clerics staying
together in the same private hotel rooms” whether for “personal
vacations” or “basketball and bowling competitions.” Id. at 45-
46. However, Mr. Doe is not alleging the church approved of Mr.
Sredzinski staying in the same room as him; he is alleging that
negligence by the Greensburg Defendants allowed him to be abused
at church-sponsored trips. To that end, the affidavit does not
establish that the Church “did not” organize any overnight trips
of the sort Mr. Doe alleges. It does not even state the Church
“would” not have organized any basketball or bowling trips to
D.C.
18
to D.C. as a party “who acts directly or by an agent” as to
claims arising from the party’s “causing tortious injury in the
District of Columbia by an act or omission in the District of
Columbia.” D.C. Code § 13-423(a)(3). Mr. Doe’s allegations are
sufficient at this juncture to show that the Greensburg
Defendants purposefully availed themselves of the privileges of
D.C. and created a “substantial connection with the forum.”
Walden, 134 S. Ct. 1115.
In addition, this case, to the extent it involves church-
sponsored and organized events, is easily distinguished from Doe
v. Archdiocese of Philadelphia, No. CV 19-20934(FLW), 2020 WL
3410917, at *4 (D.N.J. June 22, 2020), which held that a
priest’s conduct in transporting plaintiff to another state for
purposes of sexual abuse did not subject the Archdiocese of
Philadelphia to the personal jurisdiction of the New Jersey
courts. By virtue of the alleged abuse occurring at church-
sponsored or organized events, there is no conflict here with
the legal standard that “unilateral activity of a third party
cannot satisfy the requirement that Defendant have minimum
contacts with the forum state.” 6 Id. The exception is for trips
6For similar reasons, the Court need not address at this stage
whether the Greensburg Defendants had any duty as a matter of
law to oversee “unsanctioned” trips. See Greensburg Defs.’ Mot.,
ECF No. 36 at 21.
19
that were not church-sponsored or were vacations. See Compl.,
ECF No. 1-1 ¶ 36. Where Mr. Sredzinski was acting on his own
behalf, rather than as an agent of the church, his behavior was
the “unilateral activity of a third party” that cannot be held
to provide specific jurisdiction over the Greensburg Defendants.
Finally, even if the Diocese and Parish would never have
approved trips to D.C. that involved “parishioners and clerics
staying together in the same private hotel rooms,” Kulick Aff.,
Exhibit C, ECF No. 36-2 ¶ 13; that does not preclude the
possibility that their agent deviated from the expected standard
and was not adequately supervised. Moreover, the Greensburg
Defendants emphasis on the fact that most of the alleged
negligence took place in Pennsylvania, see Greensburg Defs.’
Mot., ECF No. 36 at 21; is a question unrelated to specific
jurisdiction, which asks simply whether the Greensburg
Defendants had minimum contacts with D.C. For these reasons, the
Court concludes that it has specific personal jurisdiction over
the Diocese and Parish under D.C. Code § 13-423(a)(3) with
regard to Mr. Doe’s claims arising out of the church-sponsored
trips to D.C.
20
2. The Court Also Has Personal Jurisdiction Over
the Greensburg Defendants Under D.C. Code § 13-
423(a)(4)
The Greensburg defendants argue that even if the
“unsanctioned” trips to the District of Columbia (“D.C.”) and
“personal vacations taken by Plaintiff and Father Sredzinski”
are enough to confer specific jurisdiction, the Court must limit
its exercise of jurisdiction “only to those alleged acts or
omissions that occurred in the District of Columbia, and not
Pennsylvania.” Greensburg Defs.’ Mot., ECF No. 36 at 9-10. Mr.
Doe responds that the Court does have jurisdiction over the
Greensburg Defendants’ conduct outside D.C., because they had a
“persistent course of conduct” in D.C. that caused tortious
injury [the alleged repeated rape of a minor] by an act [the
Diocese and Parish’s failure to supervise, monitor, and train
Mr. Sredzinski] that occurred both within and outside D.C. The
Court agrees with Mr. Doe, insofar that it has personal
jurisdiction over acts and omissions leading to injury in D.C.
The District of Columbia’s long-arm statute provides, in
relevant part:
“A District of Columbia court may exercise
personal jurisdiction over a person, who acts
directly or by an agent, as to a claim for
relief arising from the person's . . . causing
tortious injury in the District of Columbia by
an act or omission outside the District of
Columbia if he . . . engages in any other
21
persistent course of conduct . . . in the
District of Columbia.
D.C. Code § 13-423(a). The “persistent course of conduct”
provision “is satisfied by connections considerably less
substantial than those it takes to establish general . . .
jurisdiction,” and the connections can “be unrelated to the
claim in suit.” Crane v. Carr, 814 F.2d 758, 763 (D.C. Cir.
1987) (Ginsburg, J.) (citing cases). Furthermore, such
persistent course of conduct establishes the “minimum contacts”
between the defendant and D.C. “such that the maintenance of the
suit does not offend traditional notions of fair play and
substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S.
310, 316 (1945). In addition, § 13-423(b) provides that when
jurisdiction over a person is based on the long arm-statute,
“only a claim for relief arising from acts enumerated in this
section may be asserted against him.” D.C. Code § 13-423(b).
Because of § 13-423(b), the Greensburg Defendants interpret
the long-arm statute to mean that this Court’s jurisdiction is
limited to “to those acts or omissions that occurred in the
District of Columbia.” Greensburg Defs.’ Mot., ECF No. 36 at 24.
However, this interpretation confuses §13-423(a) and (b).
Section 13-423(a) plainly covers “an act or omission outside the
District of Columbia,” so long as it leads to “tortious injury
in the District of Columbia.” The question is not whether the
22
act or omission occurred in D.C., but whether it led to injury
in D.C. The limitation in §13-423(b) to “a claim for relief
arising from acts enumerated in this section” includes acts
outside D.C. that cause tortious injury in D.C., so long as the
person “(i)regularly does or solicits business, (ii) engages in
any other persistent course of conduct, or (iii) derives
substantial revenue from goods used or consumed, or services
rendered, in the District of Columbia.” D.C. Code § 13-
423(a)(4).
Nor is Mr. Doe’s interpretation of § 13-423(a) entirely
correct. Mr. Doe maintains that “[i]f Greensburg Defendants
engaged in a persistent course of conduct in the District, then,
this rule would thus provide a basis for jurisdiction not just
for the Diocese and Parish’s misconduct with respect to church-
sponsored trips, but also for any of the Greensburg Defendants’
wrongdoing anywhere that caused injury in the District of
Columbia, even on vacations.” Pl.’s Opp’n to Greensburg Defs.,
ECF No. 39 at 18. However, §13-423(a) provides for personal
jurisdiction only over a person “who acts directly or by an
agent.” Although the Church may have organized trips to D.C. at
which its direct actions (alleged negligence) caused tortious
injury to Mr. Doe, and Mr. Sredinzki may have been acting as an
agent of the church on church-sanctioned trips, it does not
follow that Mr. Sredzinski was acting as an agent of the
23
Greensburg Defendants when he was on vacation. Personal
jurisdiction over acts or omissions outside D.C. is limited to
those that caused injury, directly or when Mr. Sredzinski was
acting as an agent on church-sponsored trips, so long as there
was a “persistent course of conduct.”
Here, all the Greensburg Defendants engage in a consistent
course of conduct in D.C. One example is the March for Life. As
Mr. Doe points out, the Diocese’s Office of Faith, Family, and
Discipleship sponsors an annual “March for Life Youth
Pilgrimage,” where the Diocese organizes and coordinates an
overnight “pilgrimage” trip to Washington, D.C. for their youth.
See March for Life Youth Pilgrimage, Roman Catholic Diocese of
Greensburg,
https://www.dioceseofgreensburg.org/youth/Pages/marchforlifeya.a
spx; see also Energy Automation Systems, Inc. v. Saxton, 618 F.
Supp. 2d 807, 810 n. 1 (M.D. Tenn. 2009) (“A court may take
judicial notice of the contents of an Internet
website.”) (Citing City of Monroe Emples. Ret. Sys. v.
Bridgestone Corp., 387 F.3d 468, 472, n. 1 (6th
Cir.2004), amended and superseded on other grounds, 399 F.3d 651(6th Cir.2005)). The Parish has also coordinated bus trips for
these events in the past. See Nature Programs Continue at
Library, Trib Live, https://archive.triblive.com/news/nature-
programs-continue-at-library-2/ (advertising, in 2009, that “St.
24
Joseph’s parish and youth group will take a charter bus to
Washington, D.C., Jan. 22 for the 36th annual ‘March for
Life’”); see also January 12, 2020 Parish Newsletter at 6,
Exhibit 1, ECF No. 39. Mr. Malesic too engages in a persistent
course of conduct in D.C., stating in a press release letter
that one “of the most important things [he] does every year is
show [his] support for the March for Life in Washington, D.C.”
Edward C. Malesic, Bishop Pro-Life Letter 2019,
https://www.dioceseofgreensburg.org/about/Documents/Bishop%20Mal
esic%20Media/Bishop% 20Pro-Life%20Letter%202019.pdf. Although
the Greensburg Defendants allege the letter “does not mention
the coordinating of trips or overnight stays in the District of
Columbia,” it mentions that Bishop Malesic shows his support
“every year” and will do so again by being present at the March,
suggesting he attends on an annual basis. See id.In addition, Mr. Doe points out several other trips the
Greensburg Defendants organize to D.C. for parishioners both old
and young. See June 11, 2017, Parish Newsletter at 6, Exhibit 2,
ECF No. 39-2 at 6; June 25, 2017 Parish Newsletter, Exhibit 3,
ECF No. 39-3 at 6. The organization of these trips demonstrates
a “persistent course of conduct,” D.C. Code § 13-423 (a)(4); and
creates the minimum contacts necessary. Int’l Shoe, 326 U.S. at
316.
25
Accordingly, the Court has personal jurisdiction over all
three Greensburg Defendants under D.C. Code § 13-423(a)(4), for
acts or omissions outside of the District of Columbia that
caused tortious injury within the District.
B. The Vatican and the Diocese of Pittsburgh are Not
Required Parties
The Greensburg Defendants contend that, in light of Fed. R.
Civ. P. 19 and the absence of the Vatican and the Diocese of
Pittsburgh as parties, “the court cannot accord complete relief
among existing parties” and thus the Complaint must be
dismissed. Greensburg Defs.’ Mot., ECF No. 36 at 25. Mr. Doe
responds that “the Vatican and the Diocese of Pittsburgh are not
required to be joined under Rule 19 and that equity and good
conscience does not [sic] warrant dismissal of Plaintiff’s
complaint.” Pl.’s Opp’n to Greensburg Defs., ECF No. 39 at 22.
The Court agrees that Rule 19 does not require the joinder of
the Diocese of Pittsburgh or the Vatican.
Rule 19(a) provides, in relevant part, that “[a] person who
is subject to service of process and whose joinder will not
deprive the court of subject-matter jurisdiction must be joined
as a party if: (A) in that person’s absence, the court cannot
accord complete relief among existing parties[.]” Fed. R. Civ.
P. 19(a)(1)(A). Dismissal under Rule 12(b)(7) is “warranted only
when the defect is serious and cannot be cured.” Direct Supply,
Inc. v. Specialty Hospitals of America, LLC, 878 F. Supp. 2d 13,
26
23 (D.D.C. 2012) (internal citations omitted). For the purposes
of a Rule 12(b)(7) motion, the court must accept the complaint's
allegations as true, and may also consider matters outside the
pleadings when determining whether Rule 19 requires that
a party be joined. Id. Defendant, as the moving party, bears
the burden to demonstrate an absent party is required. Ilan–Gat
Engineers, Ltd. v. Antigua Int'l Bank, 659 F.2d 234, 242 (D.C.
Cir. 1981).
However, “[i]t has long been the rule that it is not
necessary [under Rule 19(a)] for all joint tortfeasors to be
named as defendants in a single lawsuit.” Temple v. Synthes
Corp., Ltd., 498 U.S. 5, 7 (1990). Co-conspirator joint
tortfeasors are “not indispensable parties.” Lawlor v. Nat’l
Screen Serv. Corp., 349 U.S. 322, 329 (1955); see also Cronin v.
Adam A. Weschler & Son, Inc., 904 F. Supp. 2d 37, 41 (D.D.C.
2012) (“Rule 19 does not require the joinder of joint
tortfeasors” because “joint and several liability permits the
plaintiff to recover full relief from any one of the responsible
parties, which party then has the option of suing for
contribution or indemnity”); Krieger v. Trane Co., 765 F. Supp.
756, 763 (D.D.C. 1991) (noting that “it is . . . well-settled
that joint tortfeasors are not indispensable parties” (citing C.
Wright, A. Miller, & M. Kane, Federal Practice and Procedure §
1623, at 342 & n. 2 (2d ed. 1986)).
27
Mr. Doe’s claims here are based in tort, rather than
contract. Even if, as the Greensburg Defendants suggest, “the
Vatican and the Diocese of Pittsburgh would be liable for
contribution and/or indemnification to the Greensburg Defendants
and Cardinal Wuerl for any judgment entered in this case,”
Greensburg Defs.’ Mot., ECF No. 36 at 29; this does not mean
they are required parties. “[J]oint and several liability
permits the plaintiff to recover full relief from any one of the
responsible parties, which party then has the option of suing
for contribution or indemnity.” Cronin, 904 F. Supp. 2d at 41.
Therefore, the Greensburg Defendants “potential right to
contribution or indemnity” from the Vatican or the Diocese of
Pittsburgh does not make the latter two a required party under
Rule 19. Id.
The Court’s analysis is unchanged by the Greensburg
Defendants entirely unsupported assertion that “Rule 19 does
require the joinder of a primary tortfeasor.” Greensburg Defs.’
Mot., ECF No. 36 at 29. It is unclear who the Greensburg
Defendants consider a “primary tortfeasor,” in view of the daily
supervision of Mr. Sredzinski by the Greensburg Defendants
rather than the Vatican. Finally, the Court is unpersuaded by
the Greensburg Defendants’ extensive discussion of the role of
the Vatican in Mr. Doe’s Complaint, or the hypothesized reasons
for the exclusion of the two named parties, without any
28
reference to the legal standard for the joinder of tortfeasors.
See id. at 25-27. Since the Court concludes that neither the
Vatican nor the Diocese of Pittsburgh is a required party, it
need not reach the second half of the joinder test, namely
“determine whether, in equity and good conscience, the action
should proceed among the existing parties or should be
dismissed.” Fed. R. Civ. P. 19(b).
C. St. John The Baptist Parish Is a Proper Party to This
Action
The Greensburg Defendants contend that St. John the Baptist
Parish is not a proper party to this case because it is an
independent entity rather than a “successor entity” to St.
Joseph Parish as Mr. Doe alleges. See Greensburg Defs.’ Mot.,
ECF No. 36 at 31. Mr. Doe responds that he “has not yet received
any discovery from the Greensburg Defendants in this matter and
does not believe this argument is appropriate for a motion to
dismiss.” Pl.’s Opp’n to Greensburg Defs., ECF No. 39 at 26. The
Court agrees with Mr. Doe that it is unable to say at this stage
that the only relevant Parish to this lawsuit is St. Joseph
Parish, where the alleged abuse occurred.
As per Fed. R. Civ. P. 21, “[o]n motion or on its own, the
court may at any time, on just terms, add or drop a party.” The
Greensburg Defendants challenge the relevance of St. John the
Baptist Church, stating that although the two parishes are
partnership parishes that share a pastor and some pastoral
29
resources, they are independent entities. See Greensburg Defs.’
Mot., ECF No. 36 at 31. In response, Mr. Doe directs the
Church’s attention to the website for the two parishes, which is
a shared one, but proves only that they are partner parishes of
the Diocese of Greensburg. See St. John the Baptist and St.
Joseph, https://www.stjohnsandstjosephs.org/pages/default.aspx.
At this juncture, however, it is premature to dismiss St. John
the Baptist Church prior to discovery on the extent to which its
resources have merged with St. Joseph’s.
In Friendship Edison Pub. Charter Sch. Collegiate Campus v.
Murphy, 448 F. Supp. 2d 166, 170 (D.D.C. 2006), a Court in this
District held that the District of Columbia was not a proper
party defendant in an action brought by a public charter
school, because it was not involved in processes giving rise to
the administrative decision at issue, it had no control over the
hearing officer’s decisions, it could not provide any relief
should the charter school prevail in litigation, and it had no
stake in litigation’s outcome. Here, however, depending on the
degree to which the parishes have merged, St. John could provide
relief were Mr. Doe to prevail, and given the shared resources,
may have a stake in the litigation’s outcome. The Court
concludes that St. John shall remain a named party, until
discovery provides more certainty that it is not relevant.
30
D. Mr. Doe Has Sufficiently Pled All Five Claims
1. Mr. Doe Has Stated a Claim of Negligence
The Greensburg Defendants argue that Mr. Doe’s negligence
claim fails as a matter of law because he has not established
the existence of a legal duty owed by the Diocese or Parish with
regard to the “unsanctioned overnight trips in private hotel
rooms and personal vacations that he allegedly took with Father
Sredzinski.” Greensburg Defs.’ Reply, ECF No. 41 at 18. Mr. Doe
counters that “[a] church and a diocese have a duty to members
of their congregation to protect them from an unreasonable risk
of harm during a church-sponsored activity.” Pl.’s Opp’n to
Greensburg Defs., ECF No. 39 at 33. Applying the foreseeability
of harm test, the Court agrees with Mr. Doe.
A claim alleging the tort of negligence must show: (1) that
the defendant owed a duty to the plaintiff; (2) breach of that
duty; and (3) injury to the plaintiff that was proximately
caused by the breach. Poola v. Howard Univ., 147 A.3d 267, 289
(D.C. 2016). The foundation of any negligence claim is the
existence of a duty owed by the defendant to the plaintiff.
Gilbert v. Miodovnik, 990 A.2d 983, 988 (D.C. 2010). Whether the
facts in the record give rise to a legal duty is an issue of law
to be determined by the court as a necessary precondition to the
viability of a cause of action for negligence. Newmyer v.
Sidwell Friends Sch., 128 A.3d 1023, 1034-35 (D.C. 2015).
31
The existence of a duty depends on the “foreseeability of
harm” test. Roe v. Doe, 401 F. Supp. 3d 159, 165 (D.D.C. 2019).
“If the injury that befell the plaintiff was ‘reasonably
foreseeable’ to the defendant, then courts will usually conclude
that the defendant owed the plaintiff a duty to avoid causing
that injury . . . .” Hedgepeth v. Whitman Walker Clinic, 22 A.3d
789, 793 (D.C. 2011). The “test of foreseeability does not
require that the negligent [party] should have been able to
foresee the injury in the precise form in which it in fact
occurred. Rather, it is sufficient if the negligent [party]
might reasonably have foreseen that injury might occur.” Keranen
v. Nat’l R.R. Passenger Corp., 743 A.2d 703, 715 (D.C. 2000).
The “relationship between the plaintiff and the defendant” is
also a large part in making a determination as to
foreseeability. Hedgepeth, 22 A.3d at 794.
As a threshold matter, Mr. Doe has alleged that the trips
to D.C. included Church-sponsored events, which are the extent
of this Court’s personal jurisdiction over the Greensburg
Defendants. Negligence does not turn on the fact that the injury
“occurred at a private hotel in the District of Columbia, not
any property or premises owned or operated by the Diocese or
Parish.” Greensburg Defs.’ Mot., ECF No. 36 at 36. Nor does
negligence turn on the fact that “the alleged trips occurred
while the Plaintiff was in the care and supervision of Father
32
Sredzinski alone.” Id. The relevant question for the purposes of
negligence is that of the foreseeability of harm, taking into
account the relationship between the plaintiff and the
defendant.
Here, Mr. Doe has sufficiently pled that “the Diocese and
Parish knew or should have known of [Mr.] Sredzinski’s sexual
interest in children and his capability of committing sexual
abuse on children entrusted to the care of the Diocese and
Parish on church-sponsored trips.” Pl.’s Opp’n to Greensburg
Defs., ECF No. 39 at 33. Mr. Doe alleges that priests in the
Diocese had actual knowledge of Mr. Srednzinski’s abusive
behavior by at least as early as 1991. Compl., ECF No. 1-1 ¶ 47.
He further alleges that the Bishop of the Diocese referred to
his actual knowledge in a letter to Mr. Sredzinski’s sister by
at least as early as 1994. Id. ¶ 49. Furthermore, Mr. Doe
notified the Bishop’s office of his own abuse during the 1993 to
1994 timeframe and notified teachers at a diocesan institution
by 1995 to 1996. Id. ¶¶ 44, 46. Drawing inferences in Mr. Doe’s
favor at this stage, given the repeated rape of a minor on
Parish premises by a priest, and the information in the Parish
and Diocese’s possession, the risk during trips to D.C. was
something the Diocese and Parish “might reasonably have
foreseen.” Keranen, 743 A.2d at 715.
33
The relationship between the Greensburg Defendants and Mr.
Doe serves only to strengthen the legal duty owed by the
Greensburg Defendants. Mr. Doe was a parishioner of the
Greensburg Defendants, which cannot be called an “arms-length”
relationship of the sort in Roe, where the plaintiff and
defendant had met for the first time on the night at issue. 401
F. Supp. 3d at 166. Contrary to the Greensburg Defendants
assertion, see Greensburg Defs.’ Reply, ECF No. 41 at 18; Mr.
Doe has pleaded a close relationship between himself and the
Greensburg Defendants. Mr. Doe alleges that the “Plaintiff’s
care, welfare, and/or physical custody were entrusted to the
DIOCESE and PARISH at all times he was under their care and
supervision, was on properties and premises operated by them,
and/or was on trips to Washington, D.C. coordinated by them.”
Compl, ECF No. 1-1 ¶ 54. He further alleges that the “DIOCESE
and PARISH voluntarily accepted the entrusted care of
Plaintiff.” Id. ¶ 55. The Court takes judicial notice of the
Parish’s website, which repeatedly describes itself as a “parish
family,” and “an active parish faith community,” which
“encourage parishioner involvement.” St. John the Baptist and
St. Joseph, https://www.stjohnsandstjosephs.org/parish-
life/Pages/Organizations.aspx (last accessed Jan 7, 2022). See
also Energy Automation Systems at 810 n. 1 (“A court may take
judicial notice of the contents of an Internet website.”)
34
(Internal citation omitted). The Court concludes that the Parish
and Diocese had a legal duty to Mr. Doe based on the
foreseeability of harm, which is strengthened by the
relationship between the two parties. For these reasons, the
Court concludes that Mr. Doe has stated a negligence claim
against the Greenburg Defendants.
2. Mr. Doe Has Stated a Claim of Negligent
Supervision
The Greensburg Defendants argue that Mr. Doe’s negligent
supervision claim fails “for the same reason as his negligence
claim – the absence of a legal duty owed by the Diocese or
Parish to supervise Father Sredzinski with regard to
unsanctioned overnight trips.” Greensburg Defs.’ Reply, ECF No.
41 at 19. They further argue that the claim also fails because
“Plaintiff has not pleaded sufficient facts to establish that
the Diocese or Parish failed to adequately supervise Father
Sredzinski.” Id. Mr. Doe responds that “[f]or similar reasons as
those described above [with regard to negligence], the Diocese
and Parish were bound to valid duties as to Count II.”, Pl.’s
Opp’n to Greensburg Defs., ECF No. 39 at 35. The Court agrees.
In the District of Columbia, the tort of negligent
supervision is recognized as formulated in the Second
Restatement of Agency, such that:
“A person conducting an activity through
servants or other agents is subject to
35
liability for harm resulting from his conduct
if he is negligent or reckless:
(a) in giving improper or ambiguous orders or
in failing to make proper regulations; or
(b) in the employment of improper persons or
instrumentalities in work involving risk or
harm to others;
(c) in the supervision of the activity; or
(d) in permitting, or failing to prevent,
negligent or other tortious conduct by
persons, whether or not his servants or
agents, upon premises or with
instrumentalities under his control.”
Tarpeh-Doe v. United States, 28 F.3d 120, 123 (D.C. Cir. 1994).
Relevant here, the Restatement provides that the supervised
person need not be an employee or agent to establish liability
under a theory of negligent supervision if the defendant was
“negligent or reckless ... in permitting, or failing to
prevent, negligent or other tortious conduct by persons, ...
upon premises or with instrumentalities under [the defendant's]
control.” Restatement (Second) of Agency § 213(d).
The Greensburg Defendants first argue that Mr. Doe’s
negligent supervision claim is devoid of any alleged duty owed
by the Diocese or Parish to Mr. Doe on unsanctioned trip. See
Greensburg Defs.’ Mot., ECF No. 36 at 37. However, the Court has
already concluded that its personal jurisdiction over the
Greensburg Defendants extends to the church-sponsored trips See
36
supra § IV(A). 7 The Court has also concluded that the Parish and
Diocese had a duty towards Mr. Doe. See supra § IV(D)(1).
Second, the Greensburg Defendants contend that the
“Plaintiff has not pleaded sufficient facts to establish that
the Diocese or Parish failed to adequately supervise Father
Sredzinski.” Greensburg Defs.’ Mot., ECF No. 36 at 37. However,
and as discussed previously, see supra, Mr. Doe has sufficiently
pled that the Diocese and Parish “knew or should have known of
Sredzinski’s predilection to sexually abuse young boys for the
entire six-year period Sredzinski was continually raping and
sexually abusing Plaintiff.” Pl.’s Opp’n to Greensburg Defs.,
ECF No. 39 at 36.
Third, the Greensburg Defendants contend that Mr. Doe “has
not alleged, and cannot allege, that Father Sredzinski was an
employee of the Parish, which is a requirement of a negligent
supervision claim.” Greensburg Defs.’ Mot., ECF No. 36 at 38.
This argument is flawed because it misunderstands the scope of
the negligent supervision tort. As the District of Columbia
Court of Appeals established in Brown, a case the Greensburg
Defendants themselves cite, although several cases “. . .
7 For this reason, the Greensburg Defendants’ argument that “the
Diocese and Parish could not be responsible as a matter of law
to supervise Father Sredzinski while on personal excursions with
Plaintiff to another state,” Greensburg Defs.’ Mot., ECF No. 36
at 38; fails.
37
discuss negligent supervision in the context of an employer-
employee relationship and frequently use the term “employee,” it
is clear from the Restatement and other authorities that a claim
of negligent supervision does not require proof that the
supervised person was also an employee or agent.” Brown v.
Argenbright Sec., Inc., 782 A.2d 752, 760 (D.C. 2001). Mr. Doe
correctly points out that the question for the Court is “whether
the Parish had the ‘power to control’ Sredzinski’s conduct ‘or
the opportunity to alert someone who did have that power in time
to prevent the harm.’” Pl.’s Opp’n to Greensburg Defs., ECF No.
39 at 36 (citing Brown, 782 A.2d at 760). Mr. Doe has
sufficiently pled that the Parish and Dioecese had both power
and opportunity. Accordingly, Mr. Doe has sufficiently pled his
negligent supervision claim.
3. Mr. Doe Has Not Pled Breach of a Special Duty or
Breach of a Confidential Relationship
The Greensburg Defendants argue that D.C. does not
recognize a breach of special duty claim as an independent cause
of action, and alternately, if the claim is one of breach of
fiduciary or confidential duty, it is subsumed by Mr. Doe’s
constructive fraud claim. See Greensburg Defs.’ Mot., ECF No. 36
at 38. Mr. Doe responds that these duties are “essentially
interchangeable,” Pl.’s Opp’n to Greensburg Defs., ECF No. 39 at
27; and the distinction between them is an “unhelpful, pedantic
exercise in hair-splitting.” Id. at 30. Nonetheless, Mr. Doe
38
argues that even if they are considered separate claims, he has
sufficiently pled any of these three alternatives. Pl.’s Opp’n
to Greensburg Defs., ECF No. 39 at 27. He also asserts that
there is no requirement that he cannot separately bring a claim,
here, breach of special duty, if it is an essential requirement
of another claim, here, constructive fraud. See Pl.’s Opp’n to
Greensburg Defs., ECF No. 39 at 28. The Greensburg Defendants
reply that Mr. Doe has not established the existence of a
generic tort of “breach of special duty,” nor has he established
the existence of a confidential or fiduciary duty owed by the
Diocese and Parish. Greensburg Defs.’ Reply, ECF No. 41 at 20-
22. The Court addresses each of the arguments in turn.
As a threshold matter, the Court recognizes that the
Complaint does plead breach of special duty, as well as the
alternatives of confidential or fiduciary duty. See Compl., ECF
No. 1-1 ¶ 74-77. The Court is also cognizant, as the Greensburg
Defendants should have been per the Federal Rules, that “[a]
party may set out 2 or more statements of a claim or defense
alternatively or hypothetically, either in a single count or
defense or in separate ones. If a party makes alternative
statements, the pleading is sufficient if any one of them is
sufficient.” Fed. R. Civ. P. 8(d)(2). Further, “[a] party may
state as many separate claims or defenses as it has, regardless
of consistency.” Fed. R. Civ. P. 8(d)(3). Consequently, contrary
39
to the Greensburg Defendants’ assertion, Mr. Doe is free to
plead both breach of special duty and constructive fraud, as
well as alternatives to breach of special duty. As Mr. Doe
points out, the very case the Greensburg Defendants cite in
support of their proposition that a breach of special duty claim
is subsumed by constructive fraud allows both causes of action
to proceed. See Cordoba Initiative Corp. v. Deak, 900 F. Supp.
2d 42, 51 (D.D.C. 2012). Having established that Mr. Doe is free
to plead claims in the alternative and to bring claims with
overlapping requirements, the Court turns to the three theories
of breach of duty Mr. Doe puts forward. As the movant for the
motion to dismiss, the Greensburg Defendants have the burden to
show the non-existence of legal relief.
First, as to the alleged breach of special duty, the Court
is unaware of a generic tort for breach of special duty. Mr. Doe
argues that The Restatement (Second) of Torts §§ 323, 324A
(1965) states the elements of a breach of special duty. See
Pl.’s Opp’n to Greensburg Defs., ECF No. 39 at 27. However, and
as the Greensburg Defendants point out, the Restatement sets
forth the requirements for the torts of negligent and
intentional breach of a special duty. See Greensburg Defs.’
Reply, ECF No. 41 at 21. The case Mr. Doe cites in support of
his argument does not describe a general tort of breach of
special duty, but rather discusses “Plaintiffs' claims for
40
negligent and intentional breach of special duty.” Serv. Emps.
Int'l Union Health & Welfare Fund v. Philip Morris, Inc., 83 F.
Supp. 2d 70, 92 (D.D.C. 1999), aff'd in part, rev'd in part, 249
F.3d 1068 (D.C. Cir. 2001). The Court concludes that the
Greensburg Defendants have met their burden of showing the non-
availability of legal relief on Mr. Doe’s claim for breach of
special duty and that claim is DISMISSED.
Second, as to breach of a confidential relationship, the
tort comprises the “unconsented, unprivileged disclosure to a
third party of nonpublic information that the defendant has
learned within a confidential relationship.” Vassiliades v.
Garfinckel’s, Brooks Bros., 492 A.2d 580, 591 (D.C. App. 1985).
Although the complaint alleges breach of a confidential
relationship, as the Greensburg Defendants point out, it does
not allege the disclosures of confidential, nonpublic
information that comprise the tort. See Compl., ECF No. 1-1 at
17-18. The Court concludes that the Greensburg Defendants have
met their burden of showing that Mr. Doe has not sufficiently
pled breach of a confidential relationship and that claim is
DISMISSED.
Third, as to the alleged breach of a fiduciary duty, to
state a valid claim, a complaint “must allege facts sufficient
to show: (1) the existence of a fiduciary relationship; (2) a
breach of the duties associated with the fiduciary relationship;
41
and (3) injuries that were proximately caused by the breach of
fiduciary duties.” Friends Christian High Sch. v. Geneva Fin.
Consultants, 39 F. Supp. 3d 58, 63 (D.D.C. 2014). The Greensburg
Defendants argue that Mr. Doe’s “alleged relationship as a
Church parishioner, altar boy and Catholic school attendee is
insufficient as a matter of law to establish a fiduciary
relationship” because D.C. “does [not] [sic] recognize any type
of diocese/parish- parishioner relationship as triggering
fiduciary duties.” Greensburg Defs.’ Mot., ECF No. 36 at 39. Mr.
Doe responds that there can be a confidential relationship
between parishioners and religious institutions, and that “the
distinction between a fiduciary relationship and a confidential
relationship in this context is an unhelpful, pedantic exercise
in hair-splitting.” Pl.’s Opp’n to Greensburg Defs., ECF No. 39
at 29-30. Mr. Doe also asserts that although under District of
Columbia law, courts may not have considered the issue of a
fiduciary relationship between parishioner and religious
institution, other courts have found that such a relationship
can exist. Id. The Court agrees that it is legally possible for
such a relationship to exist.
As a threshold matter, examining the difference, or lack
thereof, between a confidential relationship and a fiduciary one
is critical to evaluating the claims here. District of Columbia
courts have “deliberately left the definition of a ‘fiduciary
42
relationship’ open-ended, allowing the concept to fit a wide
array of factual circumstances.” Council on American-Islamic
Relations v. Gaubatz (“CAIR 2011”), 793 F. Supp. 2d 311, 341
(D.D.C. 2011); Millennium Square Residential Ass'n v. 2200 M
Street LLC, 952 F. Supp. 2d 234, 248 (D.D.C. 2013) (“District of
Columbia law has deliberately left the definition of ‘fiduciary
relationship’ flexible, so that the relationship may change to
fit new circumstances in which a special relationship of trust
may properly be implied.”). Generally, “[a] fiduciary
relationship is founded upon trust or confidence reposed by one
person in the integrity and fidelity of another.” Xereas v.
Heiss, 987 F.3d 1124, 1131 (D.C. Cir. 2021) (quoting Gov't of
Rwanda v. Rwanda Working Group, 227 F. Supp. 2d 45, 64 (D.D.C.
2002)). This definition is extremely similar to that of a
confidential relationship, which “arises when one party, having
gained the trust and confidence of another, exercises
extraordinary influence over the other party.” Goldman v.
Bequai, 19 F.3d 666, 674 (D.C. Cir. 1994).
The similarity in these two definitions does not mean,
however, that they are strictly interchangeable. It is true that
a court in this District has previously held that a claim for a
breach of the duty of confidentiality is equivalent to a claim
for a breach of a fiduciary duty. See Attias v. CareFirst, Inc.,
365 F. Supp. 3d 1, 10 (D.D.C. 2019), on reconsideration in
43
part, 518 F. Supp. 3d 43 (D.D.C. 2021). However, the Court of
Appeals for the District of Columbia Circuit has treated
fiduciary duties as arising from a “special confidential
relationship.” Xereas, 987 F.3d at 1130; see also Democracy
Partners v. Project Veritas Action Fund, 453 F. Supp. 3d 261,
279 (D.D.C. 2020), reconsideration denied, No. CV 17-1047 (ESH),
2020 WL 5095484 (D.D.C. Aug. 27, 2020) (quoting Ying Qing Lu v.
Lezell, 919 F. Supp. 2d 1, 6 (D.D.C. 2013)). This interpretation
suggests that all fiduciary duties are confidential but that not
all confidential duties are fiduciary. Moreover, treating a
breach of confidential duty as equivalent to a breach of
fiduciary duty would render redundant the D.C. Court of Appeals’
recognition of a distinct tort for the breach of confidential
relationship. This Court therefore considers these two
relationships, and breaches thereof, to be distinct.
Mr. Doe correctly points out that D.C. has recognized a
confidential relationship between parishioners and religious
institutions. See Roberts-Douglas v. Meares, 624 A.2d 405, 421
(D.C. Ct. App. 1992)(internal citation and quotation marks
omitted) (noting that a “person who stands in a relation of
spiritual confidence to another” can create “a relation which
naturally creates influence over the mind,” fostering an
influential relationship even stronger than that of attorney-
client, guardian-ward, or parent-child relationships. “The
44
principal factor leading to a finding of a confidential
relationship . . . was the existence of continuous influential
contacts, generally on a one-to-one basis, between an
unscrupulous spiritual leader and a trusting or otherwise
deferential parishioner.”)
The Greensburg Defendants respond that Meares is not
determinative in this case however because District of Columbia
courts have not yet contemplated whether a religious institution
can owe a fiduciary duty to their parishioners. The Greensburg
Defendants correctly point out that a federal court when
applying D.C. law to a situation not previously addressed by the
D.C. Court of Appeals should be loath to extend the common law
“without some indication that the D.C. Court of Appeals would be
inclined to do the same were it presented with an appropriate
situation.” Tripp v. U.S., 257 F. Supp. 2d 37, 46 (D.D.C. 2003).
That is not the case here, though, since the Court in Meares
held that the term “confidential relationship,” as used in
context of relationship between parishioners and church leaders,
“embraces both technical fiduciary relations and those informal
relations which exist when one man trusts and relies upon
another.” 8 Meares, 624 A.2d at 420 (emphasis added). The Court
8 As Mr. Doe points out, persuasive authority has embraced the
“parishioner-plus rule” which holds that “a fiduciary
relationship does not arise between the church and all
45
concludes that District of Columbia law could support a
conclusion that the Diocese and Parish owed a fiduciary duty to
Mr. Doe, and that the Greensburg Defendants challenge fails
insofar as it argues that no fiduciary duty is possible.
However, “[w]hether a fiduciary relationship exists is a
fact-intensive question,” Millennium Square, 952 F. Supp. 2d at
248–49; so “a claim for breach of fiduciary duty is generally
parishioners generally” but that “a parishioner plaintiff must
submit facts demonstrating that his relationship with the church
differed from other general parishioners’ relationship with the
church.” Doe v. Presiding Bishop of The Church of Jesus Christ
of Latter-Day Saints, No. 1:09-CV-00351-BLW, 2012 WL 3782454, at
*9 (D. Idaho Aug. 31, 2012); see also Martinelli v. Bridgeport
Roman Catholic Diocesan Corp., 196 F.3d 409, 429 (2d Cir. 1999)
(holding that there was a fiduciary relationship between the
plaintiff and a Catholic diocese because the plaintiff had a
“special and privileged relationship” with a particular priest,
because the plaintiff’s mother “entrusted his education, care,
supervision, and safety” to the diocese by having the plaintiff
attend Catholic school from 1st through 12th grade, because the
plaintiff was instructed in catechism classes that the bishop
and diocesan priests were “moral authorities whom he was obliged
to trust and respect,” because plaintiff also engaged in
Catholic youth groups and extracurricular activities established
by the diocese, etc.); Fortin v. The Roman Catholic Bishop of
Portland, 871 A.2d 1208, 1220 (Me. 2005) (noting that the
plaintiff had “prolonged and extensive involvement with the
church as a student and altar boy,” which distinguished him from
a plaintiff “who asserts nothing more than general membership in
a religious organization”); Rice v. Diocese of Altoona-
Johnstown, 212 A.3d 1055, 1071 (Pa. Super. Ct. 2019) (embracing
the parishioner-plus rule and noting that “the trend is
increasingly in favor of allowing plaintiffs to assert
individualized, confidential relationships between themselves
and their religious institutions”), appeal granted, 226 A.3d 560(Pa. 2020).
46
not amenable to dismissal for failure to state a claim when the
claimed ground for dismissal is absence of a fiduciary
relationship.” CAIR 2011, 793 F. Supp. 2d at 341. Accordingly,
the Court concludes that Mr. Doe may proceed on his claim for
breach of fiduciary duty.
4. Mr. Doe Has Pled His Fraud-Based Claims With The
Requisite Particularity
The Greensburg Defendants next argument regards Counts IV
and V of Mr. Doe’s Complaint, in which he alleges constructive
fraud against the Diocese and Parish, and civil conspiracy by
all the Greensburg Defendants, including Bishop Malesic. The
Greensburg Defendants argue that these two fraud-based counts
must be dismissed as a matter of law because they fail to meet
the heightened pleading requirements of Rule 9(b), which governs
fraud claims. Greensburg Defs.’ Mot., ECF No. 36 at 31.
Specifically, the Greensburg Defendants argue that Mr. Doe has
failed to meet any of the particularity requirements of Rule
9(b), including the “who, what, when, where, and how” regarding
his alleged constructive fraud and civil conspiracy to commit
fraud claims. Id. at 32. Mr. Wuerl reiterates the Greensburg
Defendants argument on particularity. See Def. Wuerl’s Mot., ECF
No. 37 at 22-24; Def. Wuerl’s Reply, ECF No. 42 at 6-7.
Mr. Doe responds that given that his fraud counts are based
in part on silence in the face of a duty to disclose, it would
be “illogical to require [him] to allege specific times and
47
places where the Diocese or Parish failed to inform him or his
family of what it knew or should have known about Mr.
Sredzinski’s sexual proclivities and abusive behavior.” Pl.’s
Opp’n to Greensburg Defs., ECF No. 39 at 38-39. In addition,
Mr. Doe argues that he should not be required to plead matters
which are “entirely within the exclusive knowledge of the
Diocese and Parish (and their agents) and have been withheld
from [him] and the public.” Id. at 40. The Greensburg Defendants
reply that absent a fiduciary, confidential, or special duty,
the Diocese and Parish had no duty to speak. Greensburg Defs.’
Reply, ECF No. 41 at 24. Mr. Wuerl also asserts that he had no
duty to speak. Def. Wuerl’s Reply, ECF No. 42 at 27. The Court
finds that Mr. Doe has pled his fraud claims with the requisite
particularity.
“In the District of Columbia, the elements of fraud are:
(1) a false representation or willful omission in reference to a
material fact, (2) made with knowledge of its falsity, and (3)
with intent to induce the party to rely on the representation or
omission, where (4) the party relies upon the representation or
omission (5) to its detriment.” Cadet v. Draper & Goldberg,
PLLC, No. CIV.A. 05-2105 (JDB), 2007 WL 2893418, at *6 (D.D.C.
Sept. 28, 2007) (citing Schiff v. AARP, 697 A.2d 1193, 1198
(D.C. 1997)). The elements of constructive fraud differ only in
that (1) Plaintiff must allege an innocent or negligent
48
misrepresentation rather than an intent to deceive, see Attias,
365 F. Supp. 3d at 10; and (2) Plaintiff must allege the
existence of a confidential relationship between himself and a
defendant, see Cordoba Initiative Corp., 900 F. Supp. 2d at 50.
The first element of fraud, a false representation, “may be
either an affirmative misrepresentation or a failure to disclose
a material fact when a duty to disclose that fact has arisen.”
Rothenberg v. Aero Mayflower Transit Co., 495 F. Supp. 399, 406
(D.D.C. 1980); see also McWilliams Ballard, Inc. v. Broadway
Mgmt. Co., 636 F. Supp. 2d 1, 5 (D.D.C. 2009) (“A claim for
fraud may be founded on a false representation or a willful
omission.”). “There is, of course, no question that mere silence
does not constitute fraud unless there is a duty to speak.”
Kapiloff v. Abington Plaza Corp., 59 A.2d 516, 517 (D.C. 1948).
Such a duty can arise from a confidential, fiduciary, or special
relationship between a plaintiff and defendant that justifies
the imposition of the duty. See Jefferson v. Collins, 905 F.
Supp. 2d 269, 287 (D.D.C. 2012). Alternatively, it can arise
from a situation where a material fact is unobservable or
undiscoverable by “an ordinarily prudent person upon reasonable
inspection.” Cadet, No. CIV.A. 05-2105, 2007 WL 2893418, at *6
(quoting Loughlin v. United States, 230 F. Supp. 2d 26, 50
(D.D.C. 2002)).
49
To satisfy Fed. R. Civ P. 9(b), which governs fraud claims,
a plaintiff must “set forth an adequate factual basis for his
allegations,” including a “detailed description of the specific
falsehoods that are the basis for his suit.” United States ex
rel. Totten v. Bombardier Corp., 286 F.3d 542, 552 (D.C. Cir.
2002). Fraud claims must state “the time, place, and content of
the false misrepresentations, the fact misrepresented, and what
was retained or given up as a consequence of the fraud, as well
as the individuals allegedly involved in the fraud.” See
Intelsat USA Sales Corp. v. Juch-Tech, Inc., 935 F. Supp. 2d
101, 107 (D.D.C. 2013). This includes “notice of the who, what,
when, where, and how with respect to the circumstances of the
fraud[.]” Stevens, 662 F. Supp. 2d at 114.
However, courts outside this district have noted that
“while there is a good deal of caselaw that speaks of a
journalistic-type approach to [Rule 9(b)’s] requirement of
pleading ‘with particularity,’ that locution really does not fit
well in dealing with extended fraudulent schemes involving a
large volume of transactions” and thus “a plaintiff is required
to provide only a ‘general outline’ of the alleged scheme
sufficient to put defendants on notice about their roles in the
fraudulent or false activity.” U.S. ex rel. Salmeron v. Enter.
Recovery Sys., Inc., 464 F. Supp. 2d 766, 768 (N.D. Ill. 2006)
(quoting Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1020 (7th
50
Cir. 1992)). Courts have also observed that “[i]n applying the
first sentence of Rule 9(b) courts must be sensitive to the fact
that its application, prior to discovery, may permit
sophisticated defrauders to successfully conceal the details of
their fraud. Moreover, in applying the rule, focusing
exclusively on its ‘particularity’ language ‘is too narrow an
approach and fails to take account of the general simplicity and
flexibility contemplated by the rules.’” Christidis v. First
Pennsylvania Mortg. Tr., 717 F.2d 96, 99–100 (3d Cir. 1983)
(internal citation omitted); see also Jepson, Inc. v. Makita
Corp., 34 F.3d 1321, 1328 (7th Cir. 1994) (“Specificity
requirements may be relaxed, of course, when the details are
within the defendant’s exclusive knowledge.”); U.S. ex rel.
Willard v. Humana Health Plan of Texas Inc., 336 F.3d 375, 385
(5th Cir. 2003) (“[T]he pleading requirements of Rule 9(b) may
be to some extent relaxed where, as is arguably the case here,
the facts relating to the alleged fraud are peculiarly within
the perpetrator’s knowledge.”).
The Court has already found that the Diocese and Parish had
a legal duty with regard to Mr. Doe, see supra §IV(D); which
would by itself be sufficient to give rise to a duty to speak,
at least as to constructive fraud, see Jefferson, 905 F. Supp.
512d at 287. 9 For the purposes of the conspiracy to commit fraud
claim, the Court also finds that a duty to speak arises as to
all defendants because a material fact, Mr. Sredzinski’s
behavior, was unobservable or undiscoverable by “an ordinarily
prudent person upon reasonable inspection.” Cadet, No. CIV.A.
05-2105 (JDB), 2007 WL 2893418, at *6 (internal quotation
omitted). Mr. Doe and his family could not have discovered the
alleged dangers Mr. Sredzinski posed upon reasonable inspection,
of which all the defendants were allegedly aware. See Cadet, No.
CIV.A. 05-2105 (JDB), 2007 WL 2893418, at *6 (internal quotation
omitted). The Complaint specifically alleges when and how the
defendants ignored Mr. Doe’s own attempts to report sexual abuse
and covered up other incidents of abuse. Id. ¶¶ 43-49. Mr. Doe
also specifically alleges Mr. Malesic and Mr. Wuerl’s knowledge
as to the material fact of Mr. Sredzinski’s behavior. See id. ¶
42, 45, 97-99. Notably, even if Mr. Malesic or Mr. Wuerl did not
have a duty to speak themselves, they could be liable for a
conspiracy to commit fraud based on other defendants’ duty to
speak. See Halberstam v. Welch, 705 F.2d 472, 487 (D.C. Cir.
1983).
9 The Court has not addressed whether a confidential or fiduciary
duty existed between the Diocese / Parish and Mr. Doe, but they
could also give rise to a duty to speak. See Jefferson, 905 F.
Supp. 2d at 28.
52
The Greensburg Defendants’ argument suggesting that Mr.
Sredzinski’s behavior was observable is an astounding one. The
Greensburg Defendants assert that because Mr. Doe was
“personally aware of Father Sredzisnki’s alleged ‘predatory
behaviour’ as early as 1993, when he allegedly ‘first reported
the abuse,’” the “Diocese and Parish could not have been bound
by an alleged duty to disclose any alleged ‘predatory behavior’
on the part of Father Sredzinski that Plaintiff already knew
himself and even allegedly reported to others.” Greensburg
Defs.’ Reply, ECF No. 41 at 24-25. Mr. Wuerl makes a similar
argument that because Mr. Doe was aware of the alleged false
misrepresentations, he cannot now state he has no need to plead
knowledge that was exclusively held by the perpetrators. See
Def. Wuerl’s Reply, ECF No. 42 at 8. In essence, the defendants
suggest that having been sexually abused as a child, Mr. Doe can
claim neither that Mr. Sredzinski’s behavior was unobservable
and that they had a duty to disclose, nor that his pleading
burden is lessened by exclusive knowledge.
This argument fails for several reasons. First and most
obviously, Mr. Doe alleges that he would not have been raped if
he and his family had known not to trust Mr. Sredzinski. See
Compl., ECF No. 1-1 ¶ 107. Accordingly, the duty to speak–at
least as to the Diocese and Parish–predated the injury. Second,
the Court is unaware, and nor do the Greensburg Defendants nor
53
Mr. Wuerl point to, any legal authority for the proposition that
the duty to speak about the material fact of Mr. Sredzinski’s
child sexual abuse is dissipated because Mr. Doe–then a minor–
was himself being abused. Third, the duty to speak is arguably
strengthened by Mr. Doe’s own attempts to report the abuse.
Instead, Mr. Doe was allegedly ignored, told he was “lying or
hallucinating,” or that he must be “mentally disturbed,” Compl.,
ECF No. 1-1 ¶ 9; thereby calling into question his knowledge and
mental capacity and undermining the Greenburg Defendants and Mr.
Wuerl’s own argument that Mr. Doe was “well aware” of the abuse
Def. Wuerl’s Reply, ECF No. 42 at 12. Fourth, the alleged
conspiracy is not just fraudulent omission of Mr. Sredzinski’s
behavior targeted at Mr. Doe, but of Mr. Sredzinski’s child
abuse of others as well, which was kept from Mr. Doe and his
family and could have prevented Mr. Doe being entrusted to Mr.
Sredzinski’s care and being raped. Fifth, the inescapable fact
is that Mr. Doe was a minor; even if Mr. Doe was aware after
being raped, defendants allegedly then concealed Mr. Doe’s abuse
from his family and parishioners, which Mr. Doe alleges was a
proximate cause of his repeated rape. This Court cannot sustain
the conclusion that Mr. Doe’s – then a minor – alleged repeated
54
rape absolved the defendants of any responsibility to speak to
either Mr. Doe or his family thereafter. 10
Having established that there was a duty to speak, the
Court turns to the question of whether the fraud claims have
been pled with particularity. The Greensburg Defendants argue
that in regard to the “who” for his fraud- based claims, Mr. Doe
only vaguely identifies the “Diocese” and the “Parish” without
identifying specific individuals, and also refers to
“Defendants” collectively, without specifying or distinguishing
to which of the four named “Defendants” he may be referring.
Greensburg Defs.’ Mot., ECF No. 36 at 32. As for the “who, what,
when, where, and how” of his fraud-based claims, see InPhonic,
662 F. Supp. 2d at 114; the Greensburg Defendants argue that
“Plaintiff has failed to provide any specifics for these vague
allegations, such as “what” specific allegations of child sexual
abuse were allegedly concealed, “when” they were allegedly
concealed, and “by whom” they were allegedly concealed.
Greensburg Defs.’ Mot., ECF No. 36 at 32-33. Mr. Wuerl makes
similar arguments. See Def. Wuerl’s Mot., ECF No. 37 at 23-24;
Def. Wuerl’s Reply, ECF No. 42 at 13. Mr. Doe responds–and the
Court agrees–that he has pled both fraud counts with
10Mr. Doe’s theory of fraud is based not just on a duty to speak
but also on false representations. See Pl.’s Opp’n to Greensburg
Defs., ECF No. 39 at 34.
55
sufficiently particularly, based on a duty to disclose as well
as false representations. See Pl.’s Opp’n to Greensburg Defs.,
ECF No. 39 at 37, 41. The Court addresses each of the
considerations–who, what, when, where, and how–in turn.
To the extent the Complaint is based on Mr. Doe’s theory of
a failure to speak, the logical conclusion is that “[t]he
Complaint does not identify a precise statement that contained
any alleged misrepresentation.” Def. Wuerl’s Mot., ECF No. 37 at
23. The Complaint does, however, specifically allege what
information was allegedly concealed, when, and by whom, see
Compl., ECF No. 1-1 ¶¶ 47 (alleging Father Roger Statnick knew
that Mr. Sredzinski had sexually abused minors by 1991); id. ¶
49 (alleging that Bishop Bosco (then the leader of the Diocese)
knew of Mr. Sredzinski’s behavior by 1994); id. ¶ 44 (alleging
that Mr. Doe had left messages informing Bishop Bosco of his own
abuse at age 13); and id. ¶ 44-46 (alleging that Mr. Doe
informed a nun and a guidance counselor at his Catholic high
school (as well as Mr. Wuerl) about his own abuse at age 15).
Mr. Doe also alleges “how” the abuse was concealed. See,
e.g., id. ¶ 45 (“[Mr.] Wuerl denied that anything had happened
and told Plaintiff that he must be either lying or
hallucinating”); id. ¶ 46 (“Plaintiff was not taken seriously
and told he must be mentally disturbed and /or hallucinating”);
¶¶ 49, 82-84, 88-95 (alleging all three Greensburg Defendants’
56
policies of covering up and staying silent despite knowledge of
widespread abuse). 11 It would be illogical to ask where and to
whom the alleged misrepresentations were made, since the
underlying argument is the lack of representation. See Def.
Wuerl’s Mot., ECF No. 37 at 24. Nonetheless, Mr. Doe asserts
that the Diocese and Parish in Greensburg kept critical
information from “Plaintiff, his parents, and the public.”
Compl., ECF No. 1-1 ¶ 83. For all these reasons, the Court
concludes that Mr. Doe has pled fraud based on silence in the
face of a duty to speak with sufficient particularity.
To the extent that Mr. Doe’s Complaint is also based on
false representation, he has pled that too with sufficient
particularity. Mr. Doe points out that the statements were made
“in various iterations by the Diocese and Parish 25 to 30 years
ago to a young child.” Pl.’s Opp’n to Greensburg Defs., ECF No.
39 at 41. He states that “[h]e was instructed in catechism
classes and otherwise that the bishop of the DIOCESE and priests
11The Greensburg Defendants point to four allegations in the
Complaint that they allege do not meet the “who, what, when,
where, and how” standard. See Greensburg Defs.’ Reply, ECF No.
41 at 26. However, the sentences they highlight are part of the
larger fraud claim. Fed. R. Civ. P. 9(b) requires that “a party
must state with particularity the circumstances constituting
fraud or mistake.” The sentences referred to are simply
describing the circumstances. They are not required individually
to satisfy “who, what, when, where, and how” (which would lead
to absurd outcomes) but considered a part of the fraud
pleadings, which together must satisfy Rule 9(b).
57
employed by the DIOCESE were moral authorities whom he was
obliged to trust and respect.” Compl., ECF No. 1-1 ¶ 73. He
alleges that it was represented by the Diocese and Parish in
school and church services that their priests were “worthy of
being entrusted with children.” Id. ¶ 20. These allegations
establish the specific misrepresentations, i.e., the “what.”
They also establish “when” and “where” – in catechism classes,
school, and church services in Greensburg when Mr. Doe was a
minor. 12 The “how” is satisfied by the allegations that the
Diocese and Church priests were held out as trustworthy and
moral authorities. The “who” is not explicitly stated but can
reasonably be inferred to mean Parish and Diocese instructors
and agents. Given the passage of time, and Mr. Doe’s age when
the representations were made, the Court does not find it
necessary that the “who” be more specific, especially since the
names of employees from over two decades ago are “peculiarly
within the perpetrator’s knowledge.” U.S. ex rel. Willard., 336
F.3d at 385. Mr. Doe’s allegations have been pled with
12This case is therefore distinguishable from those Mr. Wuerl
mentions in his Notice of Supplemental Authority, see ECF No.
48; where the allegations fall short of Rule 9(b)’s pleading
standard. See, e.g., Fay v. Humane Soc'y of United States, No.
20-CV-1893 (RCL), 2021 WL 184396, at *11 (D.D.C. Jan. 19, 2021)
(stating that “at most, plaintiff alleges that the Humane
Society has “consistently engaged in the use of electronic
radio, television, and print media to fraudulently obtain
charitable donations of money and goods from the public.”).
58
sufficient particularity to put “defendants on notice about
their roles in the fraudulent or false activity.” U.S. ex rel.
Salmeron, 464 F. Supp. 2d at 768.
The Court concludes that Mr. Doe has satisfied the
heightened pleading standard of Rule 9(b), particularly when
considering the duty to speak, the large volume of alleged
interactions, and the extent of the information known only to
the defendants, rather than him. The Court need not, given the
requisite specificity in the Complaint, demand that Mr. Doe
allege precise dates, names or locations. Nor does he need to
identify with even greater precision the times at which the
Defendants withheld information, given their alleged exclusive
knowledge. See Jepson, 34 F.3d at 1328 (7th Cir. 1994). To
demand more detail than what Mr. Doe has already provided on the
“who, what, when, where, and how” would potentially permit
“sophisticated defrauders to successfully conceal the details of
their fraud.” Christidis, 717 F.2d at 99–100.
5. Mr. Doe Has Stated a Claim of Constructive Fraud
The essential elements of a common law fraud claim are: (1)
a false representation; (2) in reference to a material fact; (3)
made with knowledge of its falsity; (4) with the intent to
deceive; and (5) action taken in reliance upon the
representation. Frese v. City Segway Tours of Washington, D.C.,
LLC, 249 F. Supp. 3d 230, 236 (D.D.C. 2017). Constructive fraud
59
includes all the same elements as common law fraud except the
intent to deceive, and, in place of requiring a showing of
actual dishonesty, it requires a plaintiff to demonstrate the
existence of a confidential relationship between the plaintiff
and defendant by which the defendant was able to exercise
extraordinary influence over plaintiff. Dentons US LLP v.
Republic of Guinea, 208 F. Supp. 3d 330, 341 (D.D.C. 2016).
Separate from their particularity argument against both
fraud-based claims, the Greensburg Defendants present several
arguments as to why Mr. Doe has failed to state a claim of
constructive fraud against the Diocese or Parish. The Court
addresses each of these arguments in turn.
First, the Greensburg Defendants argue that Mr. Doe’s
alleged diocese/parish-parishioner relationship is not a legally
recognized fiduciary relationship, which is fatal to Mr. Doe’s
constructive fraud claim. Greensburg Defs.’ Mot., ECF No. 36 at
41. Mr. Doe responds that “D.C. does not require that
constructive fraud be based on a fiduciary, as opposed to
confidential, relationship, to the extent that those two are
distinguishable.” Pl.’s Opp’n to Greensburg Defs., ECF No. 39 at
42 (citing Witherspoon v. Philip Morris Inc., 964 F. Supp. 455,
461 (D.D.C. 1997).
At the outset of its analysis, the Court notes that it has
already distinguished between a confidential relationship, and a
60
fiduciary relationship, which is a “special confidential
relationship.” Xereas, 987 F.3d at 1130. As Mr. Doe asserts,
constructive fraud requires only the former. Whether two parties
are in a confidential relation is a fact-specific inquiry.
Goldman v. Bequai, 19 F.3d 666, 674 (D.C. Cir. 1994). That
factual question cannot be resolved on a motion to dismiss.
Dentons, 208 F. Supp. 3d at 340. Therefore, Mr. Doe’s claim
cannot fail at this stage because of the absence of a
confidential relationship. The Court finds it unnecessary to
address both parties’ arguments as to whether such a
relationship exists.
Second, the Greensburg Defendants argue that Mr. Doe uses
only generalized statements to assert the “false representation”
element of a fraud claim and provides no “particular answers to
material questions.” Greensburg Defs.’ Mot., ECF No. 36 at 42.
This argument is essentially the same as the Greensburg
Defendants particularity argument, which this Court has already
addressed. See supra §IV(D)(4).
Third, and relatedly, the Greensburg Defendants argue that
Mr. Doe does not plead with particularity how any of the
representations were false, or what information the Diocese or
Parish had when the representations were made. Id. at 42-43. The
Complaint clearly states that the representations as to Mr.
Sredzinski were false because the Diocese and Parish were aware
61
of Mr. Sredzinski’s abuse as far back as 1991. See Compl., ECF
No. 1-1 ¶¶ 44-49. The Complaint also alleges what information
they had. Id.
Fourth, the Greensburg Defendants assert that Mr. Doe “has
not alleged that the Diocese or Parish made any particular false
representation about Father Sredzinski,” nor has he alleged any
action he took in reliance thereof. Greensburg Defs.’ Mot., ECF
No. 36 at 43. The Court agrees that Mr. Doe does not single out
a false representation made only as to Mr. Sredzinski. However,
the Greensburg Defendants do not point to caselaw that requires
the false representation to be about just one person. Moreover-
and decisive here-as the Court has already discussed, Mr. Doe’s
claim is not just based on false representation, but also on
misrepresentation through failure to disclose a material fact as
to Mr. Sredzinski of which the Greensburg Defendants were aware.
See supra IV(D)(4). Mr. Doe also specifically alleges reliance.
See Compl., ECF No. 1-1 ¶ 84.
Fifth, the Greensburg Defendants argue that Mr. Doe has not
pleaded a cognizable injury he suffered because of the
Greensburg Defendants’ misrepresentation, as opposed to the
alleged abuse by Father Sredzinski. Greensburg Defs.’ Mot., ECF
No. 36 at 43. The Greensburg Defendants further assert that
“economic harm is an essential element of a fraud claim;
emotional harm is not recoverable.” Id. at 44 (citing Bond v.
62
U.S. Dep’t of Justice, 828 F. Supp. 2d 60, 81 (D.D.C. 2011)).
Mr. Doe responds that his damages are the proximate result of
fraud because he and his family relied on the Greensburg
Defendants’ misrepresentations. Pl.’s Opp’n to Greensburg Defs.,
ECF No. 39 at 44. Mr. Doe also adds that the rule in D.C. is
that “a plaintiff may recover emotional damages that are the
natural and proximate result’ of the defendant’s conduct.” Id.(citing Osbourne v. Capital City Mortg. Corp., 667 A.2d 1321,
1328 (D.C. 1995)).
Before turning to the question of whether Mr. Doe has pled
a cognizable injury for which this Court could provide relief,
the Court considers the relevant legal standard. The Greensburg
Defendants refer incorrectly to a standard that applies to
claims in contract instead of claims in tort. See Bond, 828 F.
Supp. 2d at 81. Mr. Doe, meanwhile, ignores conflicting
authority stating that “the economic torts of fraud and
constructive fraud require some showing of economic harm in
order for the plaintiff to recover emotional damages as well.”
Attias v. CareFirst, Inc., 365 F. Supp. 3d 1, 17 (D.D.C.
2019), on reconsideration in part, 518 F. Supp. 3d 43 (D.D.C.
2021). Since local law is being applied, the Court defers to the
standard articulated by the D.C. Court of Appeals, which
discusses the division of courts on the issue of whether
economic harm must be alleged, before unambiguously deciding
63
that emotional damages are recoverable so long as intentional
misrepresentation can be proven. Osbourne, 667 A.2d at 1328.
Since constructive fraud is based on negligent
misrepresentation, see Attias, 365 F. Supp. 3d at 10; emotional
damages are not recoverable. Mr. Doe, however, also asserts
economic damages, specifically “a loss of earnings and earnings
capacity.” Compl., ECF No. 1-1 ¶ 59.
Turning to Mr. Doe’s alleged injury, the Court is not
persuaded that Mr. Doe “has not established any alleged damages
to support his constructive fraud claim.” Greensburg Defs.’
Reply, ECF No. 41 at 26-27. The legal standard demands that
“[t]o prevail on [a fraud] claim, the plaintiff must also have
suffered some injury as a consequence of his reliance on the
misrepresentation.” Busby v. Capital One, N.A., 772 F. Supp. 2d
268, 275 (D.D.C. 2011). Liability for constructive fraud extends
to damages that are “the natural and proximate consequences, or
the direct consequences of the fraud, and to such damages as can
be clearly defined and ascertained.” Naartex Consulting Corp. v.
Watt, 722 F.2d 779, 793 (D.C. Cir. 1983). Mr. Doe’s alleged
repeated rape as a child can be attributed to Mr. Sredzinski,
but Mr. Doe has also alleged that it was a proximate result of
the fraud because he and his family relied on the Greensburg
Defendants misrepresentations. See Compl., ECF No. 1-1 ¶ 84–85.
There can be more than one cause of an injury, and the
64
Greensburg Defendants do not provide any authority in support of
their assertion that the injury from fraud must be “separate and
distinct” from the injuries from Mr. Sredzinski’s abuse. See
Greensburg Defs.’ Mot., ECF No. 36 at 44. Accordingly, the Court
concludes that Mr. Doe has pled a claim for constructive fraud.
6. Mr. Doe Has Stated A Claim Of Civil Conspiracy
To Commit Fraud
The elements of a civil conspiracy are: (1) an agreement
between two or more persons; (2) to participate in an unlawful
act, or a lawful act in an unlawful manner; (3) an injury caused
by an unlawful overt act performed by one to the parties to the
agreement; (4) which overt act was done pursuant to and in
furtherance of the common scheme. Mensah-Yawson v. Raden, 170 F.
Supp. 3d 222, 230 (D.D.C. 2016). There is no independent action
in the District of Columbia for civil conspiracy; it is a means
for establishing vicarious liability for an underlying tort. See
Geier v. Conway, Homer & Chin-Caplan, P.C., 983 F. Supp. 2d 22,
42 (D.D.C. 2013). Under District of Columbia law, “one who
alleges a conspiracy must allege an event, conversation, or
document showing that there was an agreement among the alleged
conspirators.” Id.As a threshold matter, Mr. Wuerl argues that conspiracy to
commit constructive fraud is a legal impossibility, because a
civil-conspiracy claim requires specific intent, whereas
constructive fraud deploys an innocent or negligent
65
misrepresentation standard. See Def. Wuerl’s Mot., ECF No. 37 at
16. Mr. Doe responds that Count V is not concerned with
constructive fraud, but with “Civil Conspiracy to Commit Fraud.”
Compl., ECF No. 1-1 at 20. Mr. Wuerl replies that because the
standalone tort in Mr. Doe’s Complaint is the lesser claim of
constructive fraud, the inference is that the parties against
whom constructive fraud is alleged did not commit the common law
fraud necessary to sustain his conspiracy allegations. See Def.
Wuerl’s Reply, ECF No. 42 at 10. The Court disagrees.
The Court is not aware why Mr. Doe chose to bring a
constructive fraud claim against the Diocese and Parish, and a
conspiracy to commit fraud claim against a larger group of
defendants. But the Court cannot agree that “the inescapable
conclusion is that Plaintiff was alleging a conspiracy to commit
constructive, rather than common law, fraud.” Def. Wuerl’s
Reply, ECF No. 42 at 10. It is possible, for instance, that Mr.
Doe thought he could prove a conspiracy to commit fraud but not
common law fraud. It is also misleading for Mr. Wuerl to attach
any standalone relevance to Mr. Doe’s reference to his
constructive fraud pleadings in his opposition to the Greensburg
Defendants’ Motion to Dismiss. Set in context, Mr. Doe states
that given the underlying tort for the conspiracy is fraud, the
Court can “ignore Wuerl’s laborious arguments . . . that
constructive fraud was not adequately pled as to Wuerl.” Pl.’s
66
Opp’n to Def. Wuerl, ECF No. 40 at 8-9. Mr. Doe subsequently
refers to where he addresses the question of whether
constructive fraud has been pled as to the Parish and Diocese.
Id. It cannot reasonably be inferred that this reference amounts
to a negation of Mr. Doe’s entire argument on the point, nor is
it appropriate for the Court to draw such an inference. The
Court concludes that Mr. Doe is alleging a conspiracy to commit
fraud, not constructive fraud. 13
Turning to claims challenging conspiracy to commit fraud,
the Greensburg Defendants and Mr. Wuerl both present several
arguments as to why Mr. Doe’s claim is legally insufficient.
First, the Greensburg Defendants and Mr. Wuerl both argue that
Mr. Doe has failed to plead any specific facts establishing an
agreement between persons in the furtherance of a common scheme.
13Consequently, the Court need not address Mr. Wuerl’s arguments
as to constructive fraud, a claim which does not apply to him.
This includes Mr. Wuerl’s argument that he is not legally
capable of committing constructive fraud as well as his
assertion that Mr. Doe has failed to adequately plead
constructive fraud. See Def. Wuerl’s Mot., ECF No. 37 at 19, 2.
The Court also does not reach the Greensburg Defendants argument
that Mr. Doe has failed to state a claim for civil conspiracy
because he “has not established a legally cognizable claim for
constructive fraud.” Greensburg Defs.’ Mot., ECF No. 36 at 45
(emphasis added). Finally, the Court does not reach the
supplemental authority provided by Mr. Wuerl, because it is not
the case that Mr. Doe pled only constructive fraud. See Notice
of Supplemental Authority, ECF No. 49 at 2 (referencing Rice v.
Diocese of Altoona-Johnstown, No. 3 WAP 2020, 2021 WL 3073157(Pa. July 21, 2021)).
67
See Greensburg Defs.’ Mot., ECF No. 36 at 45; Def. Wuerl’s Mot.,
ECF No. 37 at 28; Geier, 983 F. Supp. at 42. The Greensburg
Defendants add that Mr. Doe bears the burden to plead with
particularity but has relied only on general averment. See
Greensburg Defs.’ Reply, ECF No. 41 at 27. Mr. Doe responds that
he is not required to point to events, conversations, or
documents showing an agreement among the co-conspirators. Pl.’s
Opp’n to Greensburg Defs., ECF No. 39 at 44-45. The Court
concludes that Mr. Doe has pled enough circumstantial
allegations to survive a motion to dismiss.
“Because the typical conspiracy is rarely evinced by
explicit agreements,” this Court has found that that a
“plaintiff’s allegations of circumstantial evidence” can survive
a motion to dismiss. City of Moundridge, KS v. Exxon Mobil
Corp., 471 F. Supp. 2d 20, 40 (D.D.C. 2007); see also
Halberstam, 705 F.2d at 477 (“The element of agreement is a key
distinguishing factor for a civil conspiracy action. Proof of a
tacit, as opposed to explicit, understanding is sufficient to
show agreement.”); Weishapl v. Sowers, 771 A.2d 1014, 1024 (D.C.
2001) (“Where there is no direct evidence of an agreement
between the alleged co-conspirators, there must be
circumstantial evidence from which a common intent can be
inferred.”). Mr. Doe sufficiently pleads circumstantial evidence
68
suggesting that there was a common intent to fraudulently
conceal child abuse. See Compl., ECF No. 1-1 ¶¶ 88–99.
Mr. Wuerl argues that Mr. Doe’s allegations are comparable
to those that have failed in other courts. See Def. Wuerl’s
Mot., ECF No. 37 at 29. However, the present case is
distinguishable for several reasons. First, the Complaint here
does not simply allege “failure to take action.” Doe v. Hartford
Roman Catholic Diocesan Corp., No. X10UWYCV105015963, 2014 WL
2581049, at *4 (Conn. Super. Ct. May 9, 2014). It pleads that
the defendants were aware of Mr. Sredzinski’s behavior as far
back as 1991 and sought to cover it up. See, e.g., Compl., ECF
No. 1-1 ¶ 49. Second, two of the three opinions Mr. Wuerl
references are on motions for summary judgment, which employed a
different standard than that applicable to a motion to dismiss.
See Hartford Roman Catholic Diocesan Corp., No.
X10UWYCV105015963, 2014 WL 2581049, at *4; Nelligan v. Norwich
Roman Catholic Diocese, No. X07CV020084287S, 2006 WL 1828532, at
*3 (Conn. Super. Ct. June 15, 2006). That leaves a case from
Rhode Island, where the court held that a claim for conspiracy
could not be stated where “the complaint is devoid of any
specific allegations regarding the existence of such an
agreement.” Smith v. O’Connell, 997 F. Supp. 226, 241 (D.R.I.
1998).
69
This Court, however, is bound by authority holding that
“[p]roof of a tacit, as opposed to explicit, understanding is
sufficient to show agreement.” Halberstam, 705 F.2d at 477.
Moreover, persuasive precedent within this District holds that a
“plaintiff’s allegations of circumstantial evidence” can survive
a motion to dismiss. City of Moundridge, 471 F. Supp. 2d at 40.
The Court accordingly concludes that Mr. Doe has sufficiently
pled circumstantial evidence suggesting that there was a common
intent to fraudulently conceal child abuse. See Compl., ECF No.
1-1 ¶¶ 88–99; see also Compl., ECF No. 1-1 ¶ 49. The Court is
also cognizant that other courts have allowed conspiracy claims
on similar pleadings, including against Mr. Wuerl. See Perfetto
v. Diocese of Pittsburgh, et al., Case No. GD-20-5140 (Ct.
Common Pleas, Allegheny Cty., Pa.). 14
14Mr. Wuerl contends that “the most striking omission in
Plaintiff’s Opposition is its failure to address the numerous
cases that Wuerl cited where district courts have dismissed
virtually identical fraud claims because of virtually identical
deficiencies.” Def. Wuerl’s Reply, ECF No. 42 at 16. However,
these cases were cited as part of Mr. Wuerl’s argument that Mr.
Doe has failed to adequately plead constructive fraud. Since
this is a claim that Mr. Wuerl is not a party to, Mr. Doe did
not address Mr. Wuerl’s arguments. See Pl.’s Opp’n to Def.
Wuerl, ECF No. 40 at 9. Mr. Wuerl’s reply then extends these
cases to his arguments against a claim of fraud. Def. Wuerl’s
Reply, ECF No. 42 at 16.
The Court is mindful that none of the three cases Mr. Wuerl
puts forth are based on a theory of a duty to disclose.
Moreover, in Doe, the Court dismissed the fraud claim not
because of the misrepresentation allegations, but because there
was no evidence that “the defendant knew that such a
representation was false or was reckless as to whether it was
70
Second, Mr. Wuerl asserts that Mr. Doe has failed to
“sufficiently allege that a speaker made any []
misrepresentation with knowledge of its falsity.” Def. Wuerl’s
Mot., ECF No. 37 at 26. However, the complaint specifically
alleges when and how the Greensburg Defendants ignored Mr. Doe’s
own attempts to report sexual abuse and also covered up other
incidents of abuse, of which they had knowledge as early as
1991. Compl., ECF No. 1-1 ¶¶ 43-49. This allegation dispenses
with Mr. Wuerl’s contention that that there was no knowledge of
falsity, see Def. Wuerl’s Mot., ECF No. 37 at 25-26; and allows
the Court to “reasonably infer knowledge or another mental
true or false.”. Doe v. Catholic Soc’y of Religious & Literary
Educ., No. H-09-1059, 2010 WL 345926, at *14 (S.D. Tex. Jan. 22,
2010). In Boy Scouts, the allegations brought by Plaintiff
generally concerned “adult scout leaders” rather than specific
individuals. See Boy 7 v. Boy Scouts of Am., No. CV-10-449-RHW,
2011 WL 2415768, at *4 (E.D. Wash. June 13, 2011). Doe I
provides similar allegations, but less specific ones than
presented herein; unlike Doe I, the present case does not just
allege the impression created by the defendant, but also the
instructions given by the Defendants that the Parish’s priests
were moral authorities. Compare Doe I v. Roman Catholic Diocese
of Galveston-Houston, No. H-05-1047, 2006 WL 8446968, at *11
(S.D. Tex. Mar. 27, 2006) (“Archdiocese Defendants ‘fraudulently
misrepresented material facts’ and provided ‘partial disclosure
that created a false impression’ that [the alleged abuser] ‘was
a celibate, sexually safe, moral cleric who would not be
sexually dangerous to minors”) with Compl., ECF No. 1 ¶ 73 (Mr.
Doe was “instructed in catechism classes and otherwise that the
bishop of the DIOCESE and priests employed by the DIOCESE were
moral authorities whom he was obliged to trust and respect.”)
71
state.” Elemary v. Philipp Holzmann A.G., 533 F. Supp. 2d 116,
132 (D.D.C. 2008). Federal Rule of Civil Procedure 9(b) permits
knowledge to “be alleged generally.” Fed. R. Civ. P. 9(b).
Third, Mr. Wuerl states that Mr. Doe does not specify “how
he took an action in reliance on an alleged misrepresentation
and thereby suffered an injury.” Def. Wuerl’s Mot., ECF No. 37
at 24-26. The Court agrees with Mr. Wuerl that “[t]he question
is whether Plaintiff did detrimentally rely on any alleged
misrepresentations, not whether he could have relied on them.”
Def. Wuerl’s Reply, ECF No. 42 at 15. The Complaint alleges such
reliance, asserting that in trusting Mr. Doe to Mr. Sredzinski’s
care, he and his family “reasonably relied on the Diocese and
Parish’s omission of these facts [as to Mr. Sredzinski’s
behavior], and/or statements in sermons, catechism classes, and
other teachings that Catholic priests were trustworthy authority
figures.” Pl.’s Opp’n to Greensburg Defs., ECF No. 39 at 11; see
also Compl., ECF No. 1-1 ¶ 20, 73, 84.
Mr. Doe also alleges that his repeated rape as a child was
a proximate result of the fraud because he and his family relied
on the Greensburg Defendants misrepresentations. See Compl., ECF
No. 1-1 ¶ 84–85. Mr. Doe has therefore specified “how he took an
action in reliance on an alleged misrepresentation and thereby
suffered an injury.” Def. Wuerl’s Mot., ECF No. 37at 22-26. See
also McManemy v. Roman Catholic Church of Diocese of Worcester,
72
2 F. Supp. 3d 1188, 1197 (D.N.M. 2013) (“A major component of
fraud requires the inducer to make a misrepresentation to the
plaintiff on which the plaintiff detrimentally relies. Without
such targeted misrepresentation, there can be no proximate cause
between the inducer’s act (the misrepresentation) and the injury
to plaintiff.”).
Fourth, the Greensburg Defendants and Mr. Wuerl both argue
that as with constructive fraud, Mr. Doe has not pleaded a
cognizable injury suffered as a direct and proximate result of
conspiracy to commit fraud. See Greensburg Defs.’ Mot., ECF No.
36 at 46; Def. Wuerl’s Mot., ECF No. 37 at 31. The Court has
already concluded that Mr. Doe has sufficiently alleged
constructive fraud was a proximate cause of his alleged abuse.
See supra §IV(D)(5). The same holds true for fraud here. Mr. Doe
is not required to separate the damages from the abuse from the
damages from the conspiracy which led to the abuse, and neither
Mr. Wuerl nor the Greensburg Defendants cite any authority
suggesting otherwise.
Fifth, the Greensburg Defendants argue that “Plaintiff’s
Complaint is entirely devoid of any allegations establishing
that Bishop Malesic was engaged in a conspiracy to conceal
Plaintiff’s allegations specifically, or alleged abuse by Father
Sredzinski generally.” Greensburg Defs.’ Mot., ECF No. 36 at 46.
Mr. Doe “agrees that Bishop Malesic never concealed abuse from
73
Plaintiff or his family while Plaintiff’s abuse by Sredzinski
was ongoing.” Pl.’s Opp’n to Greensburg Defs., ECF No. 39 at 46.
Rather, Mr. Doe asserts that he “pleads circumstantial evidence
that [Bishop] Malesic joined the conspiracy via overt acts that
started well before his tenure but continue to the present day,
including by utilizing various practices to conceal sexual abuse
from the public and deny responsibility for it.” Id. The
Greensburg Defendants respond that Mr. Doe’s position is
untenable because the conspiracy as alleged was “entirely
complete in 1997- some 18 years before Bishop Malesic allegedly
joined the purported conspiracy.” Greensburg Defs.’ Reply, ECF
No. 41 at 28. The Court disagrees.
The question for the Court is whether Mr. Doe has pled that
Mr. Malesic joined the conspiracy to conceal Mr. Sredzinski’s
alleged child abuse, not just of Mr. Doe but of other children
as well. In relevant part, the Court notes at the outset that
contrary to the Greensburg Defendants assertion, the alleged
conspiracy to cover up Mr. Sredzinski’s behavior was not over in
1997, see Greensburg Defs.’ Reply, ECF No. 41 at 28; rather, Mr.
Doe asserts that the conspiracy started “before [he] was abused
and continues to this day.” Compl., ECF No. 1-1 ¶ 87. In other
words, Mr. Doe’s argument is that his abuse at the hands of Mr.
Sredzinski may have ended in 1997, but the cover up of Mr.
Sredzinski’s behavior is allegedly still ongoing. Therefore, it
74
is not the case that “Bishop Malesic could not have joined the
conspiracy actually alleged.” Greensburg Defs.’ Reply, ECF No.
41 at 28. Given the alleged continued nature of the conspiracy,
it is also not significant that Mr. Doe accepts that Bishop
Malesic did not conceal Mr. Sredzinski’s abuse of Mr. Doe while
it was ongoing. See id. The fact that Bishop Malesic agreed to
conceal Mr. Sredzinski’s child sexual abuse at any time after
would suffice. See United States v. Bridgeman, 523 F.2d 1099,
1108 (D.C. Cir. 1975) (“An individual who joins an already
formed conspiracy knowing of its unlawful purpose may be held
responsible for acts done in furtherance of the conspiracy both
prior to and subsequent to his joinder.”) (Internal citation
omitted). 15
In the Complaint, Mr. Doe alleges circumstantial evidence
that Mr. Malesic is withholding information about child abuse,
including abuse by Mr. Sredzinski, who is one of the twenty-one
priests that Bishop Malesic admitted were “credibly” accused of
15Contrary to the Greensburg Defendants’ assertion, the
Complaint also does not suggest that Bishop Malesic “committed
an overt act that caused Plaintiff’s sexual abuse in 1991-1997.”
Greensburg Defs.’ Reply, ECF No. 41 at 27. Nor does the relevant
legal standard require an overt act by Bishop Malesic that
caused the alleged damage; it requires only an agreement between
co-conspirators, and an overt act by one of them. See Raden, 170
F. Supp. 3d at 230.
75
sexual misconduct. See Compl., ECF No. 1-1 ¶¶ 98–99 (listing
pertinent information that Mr. Malesic has but is allegedly
fraudulently concealing). Mr. Doe also alleges that “[e]ach
defendant undertook overt acts in furtherance of the common
scheme.” Id. ¶ 92. The Court concludes that Mr. Doe has
sufficiently pled his claim of conspiracy, including against
Bishop Malesic.
Sixth, Mr. Wuerl argues that “Plaintiff never articulates
how the conspirators entered into the agreement with the
specific intent to participate in an unlawful act, which as
alleged here is constructive fraud.” Def. Wuerl’s Mot., ECF No.
37 at 30. Since the conspiracy does not concern constructive
fraud, the Court does not reach this argument. As for Mr.
Wuerl’s related assertion that Mr. Doe has offered only “brief
allegations regarding the purported object of the agreement,”
the Court is cognizant that the Complaint repeatedly states the
object of the conspiracy is a desire to preserve the reputation
of the Catholic Church. See Compl., ECF No. 1-1 ¶¶ 26, 49, 63–
64.
Seventh, Mr. Wuerl argues that even if Mr. Doe has
adequately pled a conspiracy to commit fraud, he has failed to
adequately plead that Mr. Wuerl joined such a conspiracy. Def.
Wuerl’s Mot., ECF No. 37 at 31. Mr. Doe responds that the
Complaint alleges through circumstantial evidence that Mr. Wuerl
76
joined other institutions and church leaders in an agreement to
cover up child sexual abuse by priests in the Catholic Church.
See Pl.’s Opp’n to Def. Wuerl, ECF No. 40 at 13. The Court
agrees.
The circumstantial evidence includes allegations that: (1)
when Mr. Wuerl personally witnessed a minor being raped by a
priest multiple times in D.C., he did absolutely nothing to stop
it, Compl., ECF No. 1-1 ¶ 42; (2) when Mr. Wuerl was confronted
by Mr. Doe later on, Mr. Wuerl’s position was that Mr. Doe was
“lying or hallucinating,” id. ¶ 45; (3) Mr. Wuerl, through
counsel, used the threat of a defamation suit many years later
in the hopes of silencing Mr. Doe, id. ¶ 97; (4) a Pennsylvania
grand jury found that Mr. Wuerl “allowed numerous priests whom
he knew to be abusive to continue in active ministry or to
remain in good standing when they were transferred to other
dioceses,” id. ¶ 95; and (5) Mr. Wuerl has made statements about
his actions with respect to the abuse scandal that the
Pennsylvania Attorney General has referred to as “not telling
the truth”, id.
Mr. Wuerl responds that: (1) even if the first allegation
were true, it is no plausible basis for inferring agreement to
enter into a conspiracy to commit fraud; (2) Mr. Wuerl’s
response was the “natural” response one would expect from
someone wrongly accused; (3) his “preservation and enforcement
77
of his legal rights do not show that he joined a conspiracy to
defraud Plaintiff”; (4) the Grand Jury Report was fundamentally
deficient and never claims that Mr. Wuerl had anything to do
with Mr. Sredzinski, the Parish or the Greensburg Diocese; and
(5) the Pennsylvania Attorney General disagreeing with Wuerl
does not show that Mr. Wuerl entered into a conspiracy to commit
fraud. Def. Wuerl’s Reply, ECF No. 42 at 23-25.
At this juncture, all factual discrepancies must be drawn
in favor of Mr. Doe. See Crane, 894 F.2d at 456. Applying this
standard, the allegation that Mr. Wuerl stood by and watched
while Mr. Doe was allegedly raped certainly circumstantially
indicates agreement to commit fraud. The Court agrees with Mr.
Wuerl that Mr. Wuerl’s “alleged failure does not establish a
conspiracy to commit fraud,” Def. Wuerl’s Reply, ECF No. 42 at
23; but Mr. Doe need only provide circumstantial evidence at
this stage, see City of Moundridge, 471 F. Supp. 2d at 40.
Similarly, Mr. Wuerl’s alleged response to Mr. Doe, stating that
he was lying or hallucinating, could have been in response to
being wrongly accused, but drawing inferences in Mr. Doe’s
favor, it provides further circumstantial evidence, as does the
Grand Jury Report. 16 Mr. Wuerl is right that “nothing in the
16Mr. Wuerl lays out several reasons the Grand Jury Report is
flawed. However, since this is a motion to dismiss, all
inferences are drawn in favor of the Plaintiff, and the Court
78
Report suggests [Mr.] Wuerl ever agreed to commit fraud against
Plaintiff” specifically, Def. Wuerl’s Reply, ECF No. 42 at 24;
but that is why the Report, along with the Attorney General’s
statement, provide circumstantial evidence of the alleged
conspiracy. The Court’s role at this stage is not to consider
the “obvious alternative explanation,” Def. Wuerl’s Reply, ECF
No. 42 at 25; but to draw inferences in the Plaintiff’s favor,
Kowal, 16 F.3d at 1276.
Mr. Wuerl also argues even if he had joined the conspiracy,
the Complaint does not establish that Mr. Doe suffered an injury
thereafter from an overt act in furtherance of that agreement.
See Def. Wuerl’s Mot., ECF No. 37 at 32. This is easily
addressed – Mr. Doe’s alleged injury is his repeated rape, and
Mr. Wuerl, as alleged in the Complaint, joined the conspiracy at
least as early as 1995, when Mr. Doe confronted him about the
abuse. See Compl., ECF No. 1-1 ¶ 45. The abuse continued until
1997, id. ¶ 3; hence, the Complaint does establish an injury
thereafter. Moreover, as discussed earlier with regard to Bishop
Malesic, the Complaint alleges the conspiracy is ongoing, and
Mr. Wuerl cites no legal authority requiring the injury to Mr.
Doe to have occurred before a new conspirator joined. The
allegation that Cardinal Wuerl allegedly agreed to conceal Mr.
does not address such issues here. See Def. Wuerl’s Reply, ECF
No. 42 at 20-21.
79
Sredzinski’s child sexual abuse while the conspiracy was ongoing
is sufficient. See Bridgeman, 523 F.2d at 1108.
The Court also deems it irrelevant that the “negligence,
breach of special duty, and constructive fraud counts do not
name [Mr.] Wuerl,” or that Mr. Wuerl was not a party to a
similar lawsuit in a different state. Def. Wuerl’s Mot., ECF No.
37at 32. It is Mr. Doe’s prerogative as Plaintiff whom he brings
claims against and for what. The relevant question for this
Court is simply the sufficiency of the pleadings, which are
sufficient here to establish a claim for conspiracy to commit
fraud.
E. Mr. Doe Is Not Required To File A More Definite
Statement Pursuant To Fed. R. Civ. P. 12(E)
Finally, the Greensburg Defendants argue that Mr. Doe
should be required to file a more definite statement because the
Complaint “wholly fails to provide any additional details on
these alleged trips [to D.C.] and, specifically, the Greensburg
Defendants’ alleged role or involvement in these trips, if any.”
Greensburg Defs.’ Mot., ECF No. 36 at 47. Mr. Doe responds that
the trips have already been explained, and that he “has no idea
at this point what individuals at the Diocese or Parish
coordinated any of these trips and would not be able to include
this information in any more definite pleadings.” Pl.’s Opp’n to
Greensburg Defs., ECF No. 39 at 48. The Court agrees that Mr.
Doe is not required to file a more definite statement.
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Fed. R. Civ. P. 12(e) provides that: “[i]f a pleading to
which a responsive pleading is permitted is so vague and
ambiguous that a party cannot reasonably be required to frame a
responsive pleading, the party may move for a more definite
statement before interposing a responsive pleading.” Here, the
Complaint does not state precisely, or even approximately, how
many of the alleged trips to D.C. were church sanctioned.
However, the Complaint is not vague or ambiguous, and it is not
the case that defendants cannot “reasonably be required to frame
a responsive pleading.” Fed. R. Civ. P. 12(e). Mr. Doe alleges
that there were several church-sponsored trips to D.C. on which
he was raped. See Compl., ECF No. 1-1 ¶¶ 37–38 (“Sredzinski
would take Plaintiff to an annual Catholic pro-life rally as
well as other political events in Washington, D.C., trips that
Sredzinski coordinated in conjunction with the DIOCESE, bishops
of the DIOCESE, and/or the PARISH. Sredzinski also took
Plaintiff and other boys to Washington, D.C. for basketball and
bowling competitions with other churches, which Sredzinski
coordinated in conjunction with the DIOCESE, bishops of the
DIOCESE, and/or the PARISH.”).
The Greensburg Defendants argue that their connection to
these overnight trips is “tenuous at best,” but the Court is
unpersuaded. As Mr. Doe emphasizes, “[t]he Diocese of Greensburg
describes its ‘annual pilgrimage’ to the Washington, D.C. March
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for Life event on its own website, and is actively selling
tickets to it right now.” Pl.’s Opp’n to Greensburg Defs., ECF
No. 39 at 48. See March for Life Youth Pilgrimage, Roman
Catholic Diocese of Greensburg,
https://www.dioceseofgreensburg.org/youth/Pages/marchforlifeya.a
spx (“The Office of Faith, Family, and Discipleship sponsors a
youth pilgrimage to the March for Life in Washington, D.C., each
January.”); March for Life, Roman Catholic Diocese of
Greensburg,
https://www.dioceseofgreensburg.org/ministries/Pages/advocacyfor
life.aspx (noting that “[t]he March for Life began as a small
demonstration [in 1974] and rapidly grew to be the largest pro-
life event in the world”). The Parish has also coordinated bus
trips for these events in the past. Nature Programs Continue at
Library, Trib Live, https://archive.triblive.com/news/nature-
programs- continue-at-library-2/ (“St. Joseph’s parish and youth
group will take a charter bus to Washington, D.C., Jan. 22 for
the 36th annual ‘March for Life.’”).
The issues of exactly how many trips took place, for what
purposes, and coordinated by whom, are more appropriate for
discovery. The Diocese and Parish are better suited to answer
these questions than Mr. Doe is through additional statements.
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V. Conclusion
For the foregoing reasons, the Greensburg Defendants’
Motion to Dismiss, ECF No. 36; is GRANTED IN PART and DENIED IN
PART; and Mr. Wuerl’s Motion to Dismiss, ECF No. 37, is DENIED.
An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
January 24, 2022
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