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Shovah v Mercure

Shovah v Mercure

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Published by Howard Friedman
District court opinion.
District court opinion.

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Categories:Types, Business/Law
Published by: Howard Friedman on Sep 04, 2013
Copyright:Attribution Non-commercial

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10/04/2013

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UNITED STATES DISTRICT COURTFOR THEDISTRICT OF VERMONT
 Michael Shovah, ::Plaintiff, :: Case No. 2:11-cv-201v. ::Gary Mercure, The Roman :Catholic Diocese of Albany, :New York, Inc. ::Defendants. ::
Opinion and Order
Michael Shovah alleges that Gary Mercure, a former priestfromthe Roman Catholic Diocese of Albany New York, Inc. (the“Diocese”), engaged in sexual exploitation and abuse of childrenin violation of 18 U.S.C. §§ 2422 and 2423. Shovah claims thatthe Diocese breached its fiduciary duty to Shovah by permittingMercure to hold himself out as a Roman Catholic Priest andnegligently supervised Mercure, which facilitated Shovahsabuse. Shovah also claims that the Diocese’s conduct wasoutrageous and caused Shovah to suffer extreme emotionaldistress. The Diocese moves to dismiss the claims against itfor want of personal jurisdiction. Mot. Dismiss, ECF No. 90.For the reasons explained below, that motion is denied.
Case 2:11-cv-00201-wks Document 105 Filed 09/03/13 Page 1 of 14
 
2
Background 
Gary Mercure served as a priest for the Diocese. Compl.8, ECF No. 1. Shovah alleges that Mercure transported himfromNew York to Vermont with the intent to engage in criminalsexual activity with the Plaintiff.
Id 
. 15-17. The Diocesedid not sanction, sponsor, or authorize Mercures trip toVermont. Farano Aff. 23, ECF No. 90-1. The Diocese of Albany (Diocese”) is a New York special actcorporation created under the New York Religious CorporationsLaw and maintains its principal office in Albany. Compl. 7;Farrell Aff. (April 26, 2013) 11, ECF No. 90-4. The Dioceseterritory overlaps with fourteen New York State counties.Farrell Aff. 11. The Diocese does not own any real property,maintain an office, or possess any financial accounts inVermont.
Id 
. 4-6.
The Evangelist
serves as the weekly newspaper of theDiocese and maintained an average weekly circulation of over46,000 copies between 2002 and 2012. Blain Aff. 3, ECF No.90-5. A total of 40 Vermonters received
The Evangelist
duringthe same period.
Id.
4. Between 2002 and 2012, 235Vermonters gave philanthropic gifts totaling $56,305.00, whichrepresents 0.080 percent of all monies received by the Dioceseduring that period. Prindle Aff. 5-6.; List of Gifts fromVermont Residents, ECF No. 92-4. In the same ten years, the
Case 2:11-cv-00201-wks Document 105 Filed 09/03/13 Page 2 of 14
 
3Diocese utilized at least six Vermont vendors,
see
Vendor Lists,ECF No. 92-3, and twelve Vermont students were enrolled inDiocesan schools.
See
List of Vermont Children Enrolled inDiocese Schools, ECF No. 92-6.Priests incardinated to the Diocese of Albany conducted anumber of services in Vermont between 2002 and 2012.
1
Doyle Aff.5-6, ECF No. 90-2. FromJuly 2002 to February 2009, theDiocese permitted Father Zelker, a priest at St. Marys Parishin Granville, New York, to celebrate a Sunday morning Mass atthe St. Frances Cabrini Church in West Pawlet, Vermont. ZelkerAff. (June 12, 2013) 8, ECF No. 93-2. When he announced thearrangement, Kenneth Angell, the Bishop of Burlington, explainedthat Father Zelkers role had been authorized by Howard Hubbard,the Bishop of Albany. Letter fromKenneth Angell, the Bishop oBurlington, to the St. Frances Cabrini Parish (June 27, 2002),ECF No. 103-1. At the end of 2008, Bishop Hubbard wrote toSalatore Matano, Angells successor as Bishop of Burlington, toexplain that the Albany Diocese’s pastoral planning process hadrecommended “that [the Albany Diocese] not continue to staff St.Frances Cabrini Parish in West Pawlet of the Burlington
1
 
Incardination creates a bond between a cleric and a canonicalinstitution. Aff. Francis Morrisey, 2-3, ECF No. 93-1.“Incardination determines to whoma cleric is accountable.
Id 
.5. A priest can only be incardinated into one canonicalinstitution at a time, which means that a priest must beexcardinated at one Diocese before he is incardinated atanother. Dep. Msgr. John McDermott, 49:15-49:25, ECF No. 92-14.
Case 2:11-cv-00201-wks Document 105 Filed 09/03/13 Page 3 of 14

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