Villafana, Ann Marie C. (USAFLS) From: Vi°Mena. Ann Mane C. (USAFLS) Sent: Tuesday. July 31, 2007 1:37 PM To: Sloman, Jeff (USAFLS); Menchel, Matthew (USAFLS); Lourie. Andrew (USAFLS) Subject: Emailing: Conf Plea Negotiations.wpd Attachments: Conf Plea Negotiations.wpd Hi all -- I fixed some typos. Here is the final. We will be headed upstairs in a minute. The message is ready to be sent with the following file or link attachments: Conf Plea Negotiations.wpd Note: To protect against computer viruses, e-mail programs may prevent sending or receiving certain types of file attachments. Check your e-mail security settings to determine how attachments are handled. 41 Exhibit 38 EFTA00226209

Page 2 of 2 Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2006 WL 335237 (N.D.Cal.) (Cite as: 2006 WL 335237 (N.D.Cal.)) plaintiffs." This stipulation, and plaintiffs' counsel's failure to secure the signature of counsel for all defendants, led to further litigation. •2 In sum, while the Court was not persuaded by White's attempts to get out of his agreement, the Court does not find that his conduct warrants sanctions under the Court's inherent authority. IT IS SO ORDERED. Not Reported in F.Supp.2d, 2006 WL 335237 (N.D.Cal.) END OF DOCUMENT O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Page 2 EFTA00226210

Page 1 of 2 Westiaw. Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2006 Wl. 335237 (N.D.Cal.) (Cite as: 2006 WL 335237 (N.D.Cal.)) H Only the Westlaw citation is currently available. United States District Court, N.D. California. Jose ROE 1, et al., Plaintiffs, V. Thomas F. WHITE, et al., Defendants. No. C 03-04035 CRB. Feb. 13, 2006. David Replogle, Law Offices of David Replogle, PC, San Francisco, CA, John E. Hill, Law Offices of John E. Hill, Oakland, CA, for Plaintiffs. Nanci Lynne Clarence, Kate Dyer, Clarence & Dyer LLP, Jan Nielsen Little, Keker & Van Nest, LLP, San Francisco, CA, William S. Berland, Ferguson & Berland, Berkeley, CA, for Defendants. ORDER CHARLES R. BREYER, J. *1 Now pending before the Court is plaintiffs motion for attorneys' fees incurred in enforcing its settlement with defendant Thomas White. After carefully considering the papers filed by the parties, the Court concludes that oral argument is unnecessary, see Local Rule 7-1(b), and DENIES plaintiffs' motion. Plaintiffs are not entitled to attorneys' fees under 18 U.S.C. section 2255. Plaintiffs settled their claims under that statute, and the settlement expressly ti provides that each party shall bear i wn costs and fees. Plaintiffs' reliance on Maher Gagne, 488 U.S. U.S. , 129 (1980) and Texas ate Teachers Assn Garland Independent School Dist., 489 U.S. 7 , 792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989) is specious. The settlement in neither case included a section explicitly providing that the Page I panics shall bear their own costs and attorneys fees. Plaintiffs did prevail on their summary judgment claim that the settlement agreement, that is, the contract between the parties, is enforceable. Unlike nearly every settlement • agreement this Court has ever seen, however, the settlement agreement did not include a section providing that the prevailing party is entitled to fees and costs arising from any dispute under the agreement. Plaintiffs do not cite any law that remotely suggests that when a party successfully enforces a settlement agreement that does not include an attorneys' fee provision, that party is entitled to attorneys' fees pursuant to the substantive law of the settled case. Nor do they cite any case that suggests that a party who successfully enforces a settlement agreement is entitled to attorneys' fees incurred in enforcing the agreement when the agreement itself does not have an attorneys' fees provision. To award plaintiffs fees here would require the Court to rewrite the parties agreement. This the Court will not do. The Court also declines to sanction defendant White for his alleged "bad faith" conduct. While the Court found that White's arguments were motivated by his change of heart, the Court dots not believe that his arguments were so frivolous as to warrant sanctions. This is especially so given that White was able to attack the enforceability of the settlement because of plaintiffs' counsels' omissions. For example, because plaintiffs' counsel failed to move for appointment of the guardian ad litem prior to the guardian's execution of the agreement on behalf of the three minor plaintiffs, and indeed, even before this Court initially approved the settlement, White was able to challenge the agreement on that ground. Similarly, because plaintiffs' counsel negotiated a global settlement that included two plaintiffs with whom counsel had not communicated in nearly a year, counsel had to seek a stipulation to modify the settlement when they could not locate the "missing 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226211

Page 7 of 7 485 F.3d 1226 485 F.3d 1226 (Cite as: 485 F.3d 1226) In her opening brief, however, she failed to offer any substantive arguments explaining why the district court erred in denying the motion. uii Conseq tly, we consider the issue waived. See Wilburn Mid-South Health Dev., Inc., 343 F.3d 1274, 1 1 (10th Cir.2003) ("We ... will not ( consider issues that are raised n appeal but not adequately addressed"); Adler Wal-Mart Stores, Inc., 144 F.3d 664, 679 0th Cir.1998) "Arguments inadequately briefed in the opening brief are waived."). III. CONCLUSION We AFFIRM the district court's order dismissing Ms. Cisneros's ATS claims for lack of jurisdiction. We also AFFIRM the district court's giant of summary judgment on the § 2255 claims for failure to produce evidence of an essential element of the claims. Finally, we AFFIRM the dismissal of Ms. Cisneros's state-law claims and the denial of her joint motion for new trial and for reconsideration. 485 F.3d 1226 END OF DOCUMENT C) 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Page 7 EFTA00226212

Page 6 of 7 485 F.3d 1226 485 F.3d 1226 (Cite as: 485 F.3d 1226) include lalny lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof...." 131 FN4. The current version of 18 U.S.C. § 2242(2) is: Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the Attorney General, knowingly-- (2) engages in a sexual act with another person if that other person is-- (A) incapable of appraising the nature of the conduct; or (B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act; or attempts to do so, shall be fined under this title and imprisoned for any term of years or for life. The amendments since enactment are irrelevant to our analysis. FN 5. The current version of § 2243(a) is: Sexual abuse ... (a) Of a minor.--Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the Attorney General, knowingly engages in a sexual act with another person who-- (1 ) has attained the age of 12 years but has not attained the age of 16 years; and (2) is a least four years younger than the person so engaging; or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both. The amendments since enactment are irrelevant to our analysis. Ms. Cisneros has claimed that two of Mr. Page 6 Aragon's acts came within the statutes because they occurred on federally owned land within the Medicine Bow National Forest. We agree with the district court, however, that she failed to offer sufficient evidence to support this claim. Most importantly, as pointed out by the district court, although Ms. Cisneros "include[d] latitude and longitude information in her [summary judgment response]," Aplt.App. at 127, she failed to provide any "documentary evidence showing that these locations were in fact on federally owned land and not on privately owned land within the Medicine Bow National Forest," id. at 138, On appeal her sole contention is that her evidence was adequate to show that the alleged acts occurred on federal land. In her summary-judgment response, she asserted that "[m]aps made/created by Plaintiff when retracing her 'steps' " were attached to her response, id at 89; but there are no maps attached to the copy of the response in the record on appeal. Accordingly, we affirm the district court's ruling that Ms. Cisneros failed to establish an essential clement of her § 2255 claims. Although failure to prove this element is not a jurisdictional *1233 flaw all the complaint all es the elements of the federal claims, see Bell Hood, 327 U.S. 678, 681-82, 66 S.Ct. 773, 9 L.Ed. 939 (1946), this failure nevertheless justified dismissal of the claims. C. State-Law Claims and Supplemental Jurisdiction [41 Ms. Cisneros's amended complaint also pleaded claims under state law for intentional infliction of emotional distress and assault and battery. She alleged that the district court could exercise supplemental jurisdiction over these claims under 28 U.S.C. § 1367. But because the district court correctly dismissed the federal claims, it could properly dismiss the state-law claims as well. See id. § 1367(c)(3). D. Motion for New Trial and for Reconsideration [5] Ms. Cisneros's notice of appeal stated that she is also appealing the district-court order denying her joint motion for a new trial and for reconsideration. C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226213

Page 5 of 7 485 F.3d 1226 485 F.3d 1226 (Cite as: 485 F.3d 1226) engage in any unlawful sexual activity; (b) The exploitive use of children in prostitution or other unlawful sexual practices; (c) The exploitive use of children in pornographic performances and materials. This language hardly describes sexual misconduct "with a specificity comparable to the features of the 18th-century paradigms [that the Supreme Court has] recognized." Sosa, 542 U.S. at 725, 124 S.Ct. 2739. The two articles are simply aspirational goals stated in imprecise language. [FN2] EN?. We note that this is typical of many of the articles in the United Nations Convention. For example, section one of Article 12 provides that "States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child." Moreover, the law of nations, particularly the subset of that law enforceable under the ATS, does not include a nonn simply because the norm is enshrined in the domestic law of all civilized societies. Auto theft is not a violation of international law. As the Supreme Court said in Sosa, the drafters of the ATS probably had in mind only rules of international law regulating the conduct of individuals that "overlapped with the norms of state relationships," 542 U.S. at 715, 124 S.Ct. 2739, that is, a "narrow set of violations of the law of nations[ ] admitting of a judicial remedy and at the same time threatening serious consequences in international affairs," id. The Court's requirement that the law-of-nations norm be defined with precision is not a substitute for the requirement that the violation be of a type that can substantially impact international affairs, but is an additional requirement. A pre-Sosa circuit-court opinion reflected this limitation when it recognized ATS causes of action for war crimes and genocide but not "torture and summary execution— when not perpetrated in r course of genocide or war crimes." Kadic Karadzlc. 70 F.3d 232, 243 (2d Cir.1995). There can be no doubt that the alleged Page 5 misconduct of Mr. Aragon was not of the sort that comes close to "threatening serious consequences in international affairs." Sosa at 715, 124 S.Ct. 2739 We therefore affirm the district court's rejection of Ms. Cisneros's ATS claims. B. Claims Under 18 U.S.C. § 2255(a) Section 2255(a) states: Any minor who is a victim of a violation of section 2241(c), 2242, 2243, 2251, 225IA, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal injury as a result of such violation, may sue in any appropriate United States District Court and shall recover the actual damages such minor sustains and the cost of the suit, including a reasonable attorney's fee. Any minor as described in the preceding sentence shall be deemed to have sustained damages of no less than 550,000 in value. [FN3) FN3. We quote the version of the statute in effect from 1998 through 2005. An amendment enacted in 2006 would not affect our analysis. We note, however, that the version in effect from enactment in October 1986 until the 1998 amendment referred only to violations of §§ 2251 and 2252, so Ms. Cisneros could have a claim based on a violation of § 2255 only if the 1998 amendment applied retroactively to conduct preceding the amendment. We also note that on appeal Mr. Aragon has not raised a statute-of-limitations argument under § 2255(b). *1232 We will assume that a criminal conviction is not necessary for a defendant tlace civil liability under the statute. See Smith Husband, 376 F.Supp.2d 603, 613 (E.D.Va.2005). The predicate offenses alleged by Ms. Cisneros are violations of 18 U.S.C. §§ 2242(2) [FN4] and 2243(a). [FN5) The dispositive feature of both statutes is that they require prohibited acts to be committed within the "special maritime and territorial jurisdiction of the United States." That jurisdiction is defined by 18 U.S.C. § 7(3) to O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226214

Page 4 of 7 485 F.3d 1226 485 F.3d 1226 (Cite as: 485 F.3d 1226) Applying this standard, the Court held that "a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy [under § 1350)." Id. at 738, 124 S.Ct. 2739. Ms. Cisneros asserts two types of sexual abuse. First, she alleges that Mr. Aragon violated the federal statutory-rape statute, 18 U.S.C. § 2243(a), because he had sexual relations with her when she was only 15 years old and he was 19. Second, she alleges that he violated 18 U.S.C. § 2242(2XA) and (B) because he had sexual relations with her at a time when she was (I) incapable of appraising the nature of the conduct and (2) physically incapable of refusing to participate in the conduct. According to Ms. Cisneros, these statutory provisions are "a 'law of nation (sic] providing this Court with enough to find jurisdiction under the A15." Aplt. Br. at 9. In the alternative, she contends that "there is plenty of common everyday evidence subject to judicial notice to show the 'law of nations' requirement is met." Id. at 8. We reject both contentions. To begin with, criminalization of conduct by the United States does not mean that the conduct violates the law of nations. Such criminalization may be relevant evidence, but the controlling consideration is whether the claimed wrongdoing "rest[s) on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms [that the Supreme Court has) recognized." Sosa, 542 U.S. at 725, 124 S.Ct. 2739. A United States statute may or may not express "a norm of international character." Consequently, jurisdiction under § 1350 cannot be based solely on a violation of our criminal code. For her second contention Ms. Cisneros relies on an Interpol website titled "Legislation of Interpol member states on sexual offences against children," see http://www.interpol.int/Public/Ch ildreniSexualAbuse/NationalLaws, and on Articles Page 4 16 and 34 of the United Nations Convention on the Rights of the Child, see http://www.unhchr.clt/html/me nu2/6/crc/treaties/crc.htm. But neither source states norms of international law that satisfy the "requirement of clear definition" set forth in Sosa. See Sow, 542 U.S. at 733 n. 21, 124 S.Ct. 2739. The Interpol website simply summarizes pertinent statutes provided by member states. It does not purport to express any consensus among nations. And Ms. Cisneros makes no effort to extract or identify from the site any data that would support her view. We have not attempted to do that work for her but there is reason to doubt her conclusion. For example, as Mr. Aragon points out, it is hardly clear that his alleged acts would even be criminal in her native Mexico. [FN I) FNI. See Aplee. Supp.App. at 88-89 (setting forth English-language translation of Article 262 of the Mexican Penal Code, which provides that "[w]hoever has copulation with a person older than twelve years and younger than eighteen, obtaining his consent through means of deceit, shall be subject to a sentence of three months to four years in prison"). Ms. Cisneros has not alleged the deceit required by Mexican law. Articles 16 and 34 of the United Nations Convention on the Rights of the Child likewise provide Ms. Cisneros with no support. Article 16 states: I. No child shall be subjected to arbitrary or unlawful interference with *1231 his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honor and reputation. 2. The child has the right to the protection of the law against such interference or attacks. And Article 34 provides: States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226215

Page 3 of 7 485 F.3d 1226 485 F.3d 1226 (Cite as: 485 F.3d 1226) (2004). [2] The plaintiff in Sosa was a Mexican national who had been unlawfully abducted in Mexico, held overnight, and then transported to the United States where he was arrested by federal officers on charges of the murder and torture of an agent of the federal Drug Enforcement Administration. See id. at 697-98, 124 S.Ct. 2739. Defendant *1229 Son was a Mexican national who had participated in the abduction. After being acquitted on the charges against him, the plaintiff brought an action against Sosa in a United States district court under the ATS. See id. at 698-99, 124 Set. 2739. The issue before the Supreme Court was whether the law of nations included "a general prohibition of 'arbitrary' detention defined as officially sanctioned action exceeding positive authorization to detain under the domestic law of some government, regardless of the circumstances." Id. at 736, 124 S.Ct. 2739. The Court concluded that it did not, holding that the plaintiff had no claim under the ATS. See id. at 738, 124 S.Ct. 2739. Although the Court did not articulate "the ultimate criteria for accepting a cause of action subject to jurisdiction under § 1350," id. at 732, 124 S.O. 2739, it did delineate the principal considerations. The Court rust concluded that the ATS, which was originally enacted as part of the Judiciary Act of 1789, is "only jurisdictional," id. at 712, 124 S.Ct. 2739, and does not create a statutory cause of action, see id. at 713, 124 S.Ct. 2739. But it rejected the notion that "the ATS was stillborn because there could be no claim for relief without a further statute expressly authorizing adoption of causes of action." Id. at 714, 124 S.Ct. 2739. Instead, according to the Court, the statute expressed Congress's intent "that federal courts could entertain claims once the jurisdictional grant was on the books, because torts in violation of the law of nations would have been recognized within the common law of the time." Id. One component of this law was "a body of judge-made law regulating the conduct of individuals situated outside domestic boundaries and consequently carrying an international savor." Id. at 715, 124 S.Ct. 2739. Within this law was Page 3 a sphere in which these rules binding individuals for the benefit of other individuals overlapped with the norms of state relationships. Blackstone referred to it when he mentioned three specific offenses against the law of nations addressed by the criminal law of England: violation of safe conducts, infringement of the rights of ambassadors, and piracy. An assault against an ambassador, for example, impinged upon the sovereignty of the foreign nation and if not adequately redressed could rise to an issue of war. It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs, that was probably on minds of the men who drafted the ATS with its reference to tort. Id. (emphasis added) (citation omitted). The Court concluded: [A]lthough the ATS is a jurisdictional statute creating no new causes of action, the reasonable inference from the historical materials is that the statute was intended to have practical effect the moment it became law. The jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time. Id. at 724, 124 S.Ct. 2739. The Court next addressed whether § 1350 empowered the federal courts to recognize under the law of nations new claims, in addition to the well-established traditional causes of action for "violation of safe conducts, infringement of the rights of ambassadors, and piracy." Id. Although the Court accepted the possibility of new causes of action, it cautioned that "there are good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action of this kind." Id. at 725, 124 S.Ct. 2739. It continued: "%Vie think courts *1230 should require any claim based on the present•day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized." Id. C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226216

Pap 2 of 7 485 F.3d 1226 485 F.3d 1226 (Cite as: 485 F.3d 1226) FN• After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(aX2); 10th Cir. It 34.1(G). The case is therefore ordered submitted without oral argument. Guy P. Cleveland, Cleveland Law Office, Cheyenne, Wyoming, for Plaintiff-Appellant. Mary Elizabeth Galvan, Laramie, Wyoming, for Defendant-Appellee. Before KELLY, LUCERO, and HARTZ, Circuit Judges. HARTZ, Circuit Judge. This appeal arises under two rarely invoked statutes. The Alien Tort Statute •1228 (ATS), 28 U.S.C. § 1350, grants federal district courts jurisdiction to hear civil suits by aliens alleging torts committed in violation of the law of nations. Section 2255(a) of Title 18 creates a civil cause of action for victims of certain sexual offenses under federal law. Plaintiff Carmen T. Cisneros, a native and citizen of Mexico, relied on both statutes in suing Defendant Michael J. Aragon for alleged sexual offenses committed in this country while she was under 16. The district court granted Mr. Aragon summary judgment on the ground that it lacked subject-matter jurisdiction over either claim. It held that (I) it did not have subject-matter jurisdiction over the ATS claims because "the particular sex offenses asserted by ... [Ms. Cisneros] ... do not qualify as torts in violation of the law of nations," Aplt.App. at 133; and (2) it did not have subject-matter jurisdiction over the § 2255(a) claims because Ms. Cisneros had "failed to offer sufficient evidence to [prove that] the alleged sex acts ... occur[red] within the special maritime or territorial jurisdiction of the United States," id. at 134 (internal quotation marks omitted). We affirm the dismissal of the § 1350 claims for lack of jurisdiction. We also affirm the dismissal of the § 2255(a) claims but for failure to establish an element of the cause of action rather than for lack of Page 2 jurisdiction. I. BACKGROUND Ms. Cisneros alleges that she was born in Mexico on October 22, 1971, was brought to Wyoming by her parents in 1979, and married Mr. Aragon in Wyoming on April 29, 1987, while she was 15. Their marriage was dissolved 13 years later. According to her amended complaint, Mr. Aragon's sexual offenses-- statutory rape and sexual assault by having sexual relations with one incapable of appraising the nature of the conduct or physically incapable of refusing to participate in the conduct--occurred in Wyoming during the year before she turned 16. Two of the offenses allegedly occurred in the Medicine Bow National Forest on federal land. II. ANALYSIS [I] We have jurisdiction under 28 U.S.C. § 1291. We review the district court's summary judgment de novo, "apply[ing] the same legal standard to be i used by the istrict court" under Fed.R.Civ.P. 56(c). Carpenter Boeing Co., 456 F.3d 1183, 1192 (10th Cir. 06). Under Rule 56(c) summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A. Claims Under the Alien Tort Statute The ATS provides that "[Ole district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. Ms. Cisneros is not alleging that Mr. Aragon's conduct violated a treaty of the United States. Our inquiry thus focuses exclusively on whether Ms. Cisneros has sufficiently alleged a violation of the law of nations, as that term is used in § 1350. For guidance we turn to the Supreme 91 Court's recent decision in Sosa Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 273 , 159 L.Ed.2d 718 C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226217

Page 1 of 7 VAS t)aw. 485 F.3d 1226 485 F.3d 1226 (Cite as: 485 F.3d 1226) C United States Court of Appeals, Tenth Circuit. Carmen T. CISNEROS, Plaintiff-Appellant, l• Michael J. ARAGON, Defendant-Appellee. No. 06-8029. May 21, 2007. Background: Plaintiff, a citizen of Mexico, brought action against her former husband, alleging that sexual offenses he committed against her in a National Forest violated federal and Wyoming law. The United States District Court for the District of Wyoming, Clarence A. Brimmer, l., granted former husbands motion for summary judgment, and appeal was taken. Holdings: The Court of Appeals, Hartz, Circuit Judge, held that: (1) alien's ex-husband's alleged sexual conduct toward alien did not violate law of nations, as required for Alien Tort Statute (A1S) to grant district court jurisdiction over alien's suit, and (2) no evidence showed that locations in Medicine Bow National Forest where alien was allegedly subjected to statutory rape and sexual assault were on federally owned land. Affirmed. West Headnotes DI Federal Courts O=776 170Bk776 Most Cited Cases Court of Appeals reviews the district court's grant of summary judgment de novo, applying the same legal standard used by the district court. Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.CA. 121 Aliens, Immigration, and Citizenship C=763 241O63 Most Cited Cases Alien's ex-husband's alleged sexual conduct toward Page 1 alien did not violate law of nations, as required for Alien Tort Statute (ATS) to grant federal district court jurisdiction over alien's suit, even though conduct alleged violated federal statutes prohibiting statutory rape and sexual assault; claimed wrongdoing did not rest on a norm of international character, and in any case the forms of sexual conduct alleged were not of a type that could substantially impact international affairs. 18 U.S.C.A. §§ 2242(2XA, B), 2243(a); 28 U.S.C.A. § 1350. 131 Rape €=;'66 321k66 Most Cited Cases There was no evidence showing that locations in Medicine Bow National Forest where alien was allegedly subjected to statutory rape and sexual assault were on federally owned land, within meaning of statute establishing federal cause of action for sexual abuse of a minor within the territorial jurisdiction of the United States. 18 U.S.C.A. §§ 2242(2XA, B), 2243(a), 2255(a). 141 Federal Courts C='18 170Bk18 Most Cited Cases District court properly declined to exercise supplemental jurisdiction and dismissed former wife's claims, under Wyoming law, for intentional infliction of emotional distress and assault and battery, arising out of actions by her former husband, where the court correctly dismissed federal claims arising out of the same conduct. 28 U.S.C.A. § 1367(cX3). 151 Federal Courts 0=1915 170B1c9I5 Most Cited Cases Plaintiff who failed, in her opening brief on appeal, to offer any substantive arguments explaining why the district court erred in denying her motion for a new trial and for reconsideration, would be considered to have waived such issue. *1227 Submitted on the briefs: ITN1 C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226218

Page 7 of 7 Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2005 WL 2088418 (M.D.Fla.), 18 Fla. L. Weekly Fed. D 862 (Cite as: 2005 WL 2088418 (M.D.Fla.)) Not Reported in F.Supp.2d, 2005 WL 2088418 (M.D.Fla.), 18 Fla. L. Weekly Fed. D 862 END OF DOCUMENT O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Page 7 EFTA00226219

Page 6 of 7 Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2005 WL 2088418 (M.D.Fla.), 18 Fla. L. Weekly Fed. D 862 (Cite as: 2005 Wl. 2088418 (M.D.Fla.)) claims brought pursuant to both 18 U.S.C. §§ 2255 and 2252A(f) since Plaintiffs are claiming that they are entitled to relief under Count iV as victims of a violation of Sections 2251, 2252, and 2252A. See 18 US.C. § 2255(a) and § 2252A(f (I). The only cognizable claim of a violation of either 18 U.S.C. § § 2251(a), 2252(a) or 2252A is against Defendant Playboy Enterprises for distributing the programs of the Contests on the Playboy Channel for one month after teaming of the Plaintiffs' ages. Accordingly, Count IV should be dismissed as to all the other Defendants, except Defendant Playboy Enterprises. D. Count! Plaintiffs' allegation' relate to their claim of negligence in Count against Anheuser-Busch and Daytona Beverages survives a motion to dismiss. Plaintiff has alleged sufficient facts to support a claim that these defendants were co-sponsors of the Contests along with Defendant Deslin Hotels and co-defendant Goldrush Disk Jockeys, and. "through their joint venture" persuaded, induced and enticed Plaintiffs to perform sexually explicit acts. This language withstands a motion to dismiss, but may not survive a motion for summary judgment if the facts in the record do not show that these Defendants were responsible for checking the ages of the contestants. If Goldrush is an independent contractor responsible for the screening of the contestants and staging the contests, these Defendants would have no liability under the negligence count. Defendants' motions to dismiss this claim are denied. IV. Analysis of Motions to Strike The Motions to Strike filed by the Playboy Defendants and Deslin Hotel are well taken. Fed.R.Civ.P. 8(a) requires a complaint to contain a "short and plain statement" of the facts and legal grounds entitling the plaintiff to relief. Plaintiffs' Amended Complaint is a gross violation of the rules of civil procedure in federal court. Plaintiffs' counsel are instructed to strictly adhere to the Federal Rules of Civil Procedure and Local Rules for the United States District Court for the Middle District of Florida for all future filings. Page 6 *6 The facts relevant to this action are straightforward and do not warrant a particularly lengthy pleading. Plaintiffs counsel are directed to omit from any subsequent filings any pictures, as well as any facts that are not required to be identified pursuant to Rule 8. Such facts include but are not limited to the following: facts related to the success, failure, or any other aspect of the Defendants' businesses not directly related to the events leading to the Plaintiffs' alleged injuries; facts related to songs that were allegedly played during the Contests; allegations of conduct or behavior of other participants in the Contests besides Plaintiffs; allegations of compliance or noncompliance with the federal record-keeping laws and regulations; facts related to other contests or events in which Plaintiffs did not participate; and facts related to the personal lives of any of the Defendants or their agents or employees. Plaintiffs also are instructed not to incorporate by reference paragraphs contained in one section of the complaint that are irrelevant to any other section of the complaint. I . Conclusion For the reasons stated herein, it is therefore ORDERED AND ADJUDGED that: 1. Defendant Anheuser-Busch's Motion to Dismiss (Dkt.# 18); Defendant Deslin Hotel's Motion to Dismiss and Alternative Motion to Strike (Dkt.# 20); Playboy Defendants' Motion to Sate (Dkt.# 29); Playboy Defendants' Motion to Dismiss (Dkt.# 30); Defendants Directv and Time Warner Cable's Motion to Dismiss (Dkt. # 32); Defendant Cox Communication's Motion to Dismiss (Dkt.# 37); Defendant Daytona Beverage's Motion to Dismiss (Dkt.# 39); Defendant BV & BK Production's Motion to Dismiss (Dkt.# 42); Defendant Comcast Cable Communication's Motion to Dismiss (Dkt.# 44) are GRANTED in part and DENIED in part. 2. Plaintiffs shall have thirty (30) days from the date of this Order in which to file a Second Amended Complaint. DONE and ORDERED. C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226220

Page 5 of 7 Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2005 WL 2088418 (M.D.Fla.), 18 Fla. L. Weekly Fed. D 862 (Cite as: 2005 WL 2088418 (M.D.F1a.)) genitals, pubic areas, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party." Fla. Stat. § 827.071(I)(g) (emphasis supplied). Plaintiff l3rcitfeller was not alleged to have engaged in this type of conduct. Plaintiff Gautreaux is alleged to have exposed her vagina. While this allegation asserts a violation of the Florida statute, it is insufficient to support a RICO claim because it does not constitute "a pattern of criminal activity." For these reasons, Defendants are entitled to a dismissal of Count I of Plaintiffs' Amended Complaint. B. Count II Plaintiffs' Count Il fails because Plaintiffs have not alleged facts to support their contention that the Defendants were participating in a RICO enterprise and that they participated in the enterprise through a pattern of criminal activity based on violations of 18 U.S.C. §§ 2251(a), 2252(a) and 2252A, and Fla. Stat. 827.071(3)-(5). Plaintiffs' allegation that the Playboy Defendants, the TV Broadcasting Defendants, and the remaining co-defendants operating retail outlets were involved in an "enterprise" is based solely on what appear to be the normal business operations of these entities. Moreover, as with Defendant Anheuser-Busch in Count I, Plaintiffs have failed to allege that any of these Defendants even attended the events at the Desert Inn. In fact, there is no allegation that these Defendants even knew of these events in advance. 1FN9] Thus, Plaintiffs' allegation that these Defendants participated in criminal activities by violating 18 U.S.C. § 2251(a) is of no assistance to their RICO claim in Count II. Plaintiffs' reliance on IS U.S.C. § 2252(a) and 2252A, and Fla. Stat. 827.071(3)-(5) is misplaced for the same reasons as in Count I: Plaintiffs have failed to allege that any of these Defendants knew of their ages and they failed to demonstrate that they engaged in "sexual conduct" as defined by Florida law. (FNI0) Count II, therefore, is subject to dismissal. FN9. In one paragraph of the Amended Complaint, Plaintiffs allege that Defendant Prewitt "might have been" dispatched to Page 5 Daytona Beach by "Thomas W. Mescrvey, Andrew Barney, Dave McNulty, or Joe Francis." Plaintiffs proceed to allege that "in the case of Tom Meservey and/or Andrew Barney, Prewitt may have been dispatched ... on the true behalf of Playboy." Such deliberately ambiguous terms are insufficient to allege a relationship between Defendant Prewitt and any other Playboy Defendant in this action. If Plaintiffs have a basis for believing that Defendant Prewitt was operating as an agent for one of the Playboy Defendants, they must allege this fact in their complaint. FN10. Plaintiffs do contend that Playboy Enterprises distributed the programs of the Contests on the "Playboy Channel" after learning that they were minors at the time the video-recordings were made. The continued distribution of these programs by one member of an alleged enterprise during the last month of a purported RICO enterprise scheme is insufficient to establish "a pattern of criminal activity." C. Count IV *5 Defendants contend that Plaintiffs' Count IV (Count III is missing in the Complaint) brought pursuant to 18 U.S.C. §§ 2255 and 2252A(f) should be dismissed because Plaintiffs have failed to allege that they suffered any "personal injuries" as a result of their alleged criminal conduct. Failure to plead facts establishing "personal injuries" appears fatal to a Section 2255 claim since relief under this section is limited to a minor who "suffers personal injuries." See 18 U.S.C. §§ 2255(a). Section 2252A(f), however, provides civil remedy relief for any "aggrieved person." Plaintiffs omission of allegations of "personal injuries," therefore, would not warrant dismissal of Count IV for claims brought pursuant to Section 2252A(f). More fundamentally, however, this Court's findings with regard to establishing violations of 18 U.S.C. § § 2251(a), 2252(a) and 2252A for purposes of the RICO counts would apply equally to Plaintiffs' 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226221

Page 4 of 7 Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2005 WI. 2088418 (M.D.Fla.), 18 Fla. L. Weekly Fed. D 862 (Cite as: 2005 Wt. 2088418 (M.D.Fla.)) approximately six months "was accomplished in too short a period of time ... to qualify it as a pattern of racketeering activity"); see also Cofacredit, S.A. v. Windsor Plumbing Supply Co.. 187 F.3d 229, 242 (2d Cir.1999) (noting that the Second Circuit "has never held a period of less than two years to constitute a substantial period of time"). Second, the criminal activities allegedly committed by Defendants in this RICO enterprise were violations of 18 U.S.C. §§ 2251(a), 2252(a) and 2252A, and Fla. Star. 827.071. Plaintiffs, however, have failed to allege facts demonstrating that Defendants committed these criminal activities. Plaintiffs allege that Defendants Playboy.Com, Anheuser-Busch, and Daytona Beverages "engaged in an enterprise ... for the production and distribution of sexually explicit images of minors for profit," but these conclusory allegations arc simply not substantiated by the facts alleged. 18 U.S.C. §§ 225I(a) prohibits persons from influencing minors to engage in "sexually explicit conduct for the purpose of producing any visual depiction of such conduct." The Amended Complaint is devoid of any facts demonstrating that Defendant Playboy.Com was even aware of the events taking place at the Desert Inn, let alone influenced the Plaintiffs' to perform the acts that occurred during the Contests for the purpose of obtaining video-recordings. Plaintiffs allegations against Defendants Anheuser-Busch and Daytona Beverages are almost as baseless. At most, Plaintiffs claim that Defendants Anheuser-Busch and Daytona Beverages exploited a marketing opportunity that offered the potential for free advertising. As Defendant Anheuser-Busch notes, there is no allegation that their employee identified in the Amended Complaint even attended the Contests. Plaintiffs have alleged that Daytona Beverages's employee was present during the Contests and handed out gift prizes to some of the contestants, but there is no allegation that he influenced the Plaintiffs to participate in the Contests or to reveal the private areas of the bodies. Moreover, hanging up banners in advance of the Contests and Page 4 providing temporary tattoos and contest prizes with Anheuser-Busch logos may support an allegation that these Defendants were joint sponsors of the Contests, but such allegations do not demonstrate participation in an enterprise to produce sexually explicit images of the two Plaintiffs and other minors. fFN7f FN7. The Complaint does not allege that an employee of these Defendants knowingly enticed minors to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct. •4 Knowledge of a minor's age is necessary for a party to have violated 18 U.S.C. §§ 2252(a) and 2252A. See e.g.. United States X-Citement Video, Inc., a al., 513 U.S. 64, 78, 15 S.Ct 464, 130 L.Ed.2d 372 (1994) (concluding that the Section 2252's use of the term 'knowingly' "extends both to the sexually explicit nature of the material and to the age of the performers"). Plaintiffs, however, have failed to allege that any of the Defendants involved in this RICO enterprise knew of Plaintiffs' ages. (FN8) Defendants, therefore, could not have participated in a pattern of criminal activities by violating these statutes. FN8. This Court specifically addressed this very issue in its order of February 17, 2005, when it granted Plaintiffs' request for severance. Plaintiffs' counsel, however, appear to have ignored this Court's admonition that they must "prove that these Defendants knew Plaintiffs were minors." Plaintiffs are unable to rely on Fla. Slat 827.071(2)-(5) to meet their burden of alleging a pattern of criminal conduct because they would have to have been engaged in "sexual conduct? This term is defined in a rather limited fashion to mean " "actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or unclothed C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226222

Pagc 3 of 7 Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2005 WL 2088418 (M.D.Fla.), 18 Fla. L. Weekly Fed. D 862 (Cite as: 2005 WL 2088418 (M.D.Fla.)) the Contests at the Desert inn. Plaintiffs allege that Defendants Anheuser-Busch, Daytona Beverages, Goldrush Disc Jockeys, Paul Prewitt, Playboy.com, Watchcams, BVBK, and Deslin Hotels "engaged in an enterprise ... for the production and distribution of sexually explicit images of minors for profit," in violation of Fla. Stat. § 772.103 (the "Florida RICO statute"). Count II of the Amended Complaint arises out of the events that took place after co-defendant Paul Prewitt sold his photographs and video-recordings to Lincolnwood and New City. The alleged basis of liability in Count II is identical to that in Count I. To wit: Plaintiffs allege that the Playboy Defendants, the TV Broadcasting Defendants, Defendants BVBK and Musicland, and co-defendant Watchcams "engaged in an enterprise ... for the production and distribution of sexually explicit images of minors for profit," in violation of the Florida RICO statute. Count IV (there is no Count III) was brought against Defendants Deslin Hotels, Daytona Beverages, Anheuser-Busch, BVBK, the Playboy Defendants and the TV Broadcasting Defendants, pursuant to 18 U.S.C. §§ 2255 and 2252A(f). [FN6] These statutes create civil remedies for minors who are victims of various criminal acts of sexual exploitation, including 18 U.S.C. §§ 2251, 2252, and 2252A. FN6. Plaintiffs actually use the disjunctive "and/or" when identifying the basis of liability under Count IV. This Court assumes for purposes of this Order that Plaintiffs are relying on both provisions under Count iV. Plaintiffs are directed not to use this ambiguous phrase in their second amended complaint. Count is a state law claim of negligence. Plainti s A allege that Defendants Deslin Hotels, Anheuser-Busch, and Daytona Beverages failed to use reasonable care in conducting the Contests at the Descrt Inn, failed to warn Plaintiffs that they were being recorded, and failed to prevent Plaintiffs from participating in the Contests. Pagc 3 II. Motion to Dismiss Legal Standard At the motion to dismiss stage, the court must view the complaint in a light most favorable to the 1 plaintiff and construe II allegations in the complaint as true. Hishon King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 22 , 81 L.Ed.2d 59 (1984). A court may, however, dismiss a complaint on a ( disposi ' e issue of law, see Marshall Cry. Bd. of Educ. Marshall Cry. Gas Dist., 992 F.2d 1171 (11th ir.I993), and "conclusory allegations, unwarranted deductions of facts, or legal conclusions masquerading as fact will not prevent dismissal." Jackson ■ BellSouth Telecommunications, 372 F.3d 50, 1262- 1263 (11th Cir.2004) (citations omitted). 'To survive a motion to dismiss, plaintiffs must do more than merely state legal conclusions: they are required to allege some factual bases for those conclusions or face dismissal of their claims. Id. at 1263. III. Analysis of Motions to Dismiss *3 Applying this legal standard to Plaintiffs' Amended Complaint, this Court finds that Count I and Count II should be dismissed as to Defendants and Count IV should be dismissed against all Defendants except Defendant Playboy Enterprises. Plaintiffs have alleged sufficient facts against Defendant Playboy Enterprises under Count iV and against Defendants Deslin Hotels, Inc., Anheuir-Busch, and Daytona Beverages under Count to survive Defendants' motion to dismiss. A. Count I Count I brought pursuant to Florida's RICO statute fails as a matter of law for multiple reasons. First, this RICO enterprise arises out of the events at the Desert Inn and occurred "over the course of several months." This period of time is insufficient to establish "a pattern of criminal activity" necessa to support a RICO claim. See e.g., H.J. Inc. Northwestern Bell Tel. Co., 492 U.S. 229, 242, 1 S.O. 2893, 106 L.Ed.2d 195 (1989)(holding that predicate acts "extending over a few weeks or months and threatening no future criminal conduct do not satisfy this [plm of criminal activity] requirement); Aldridge Lily-Tulip, Inc. Salary Ret. Plan Benefits Comm., 953 F.2d 587, 593 (I lth Cir.1992) (holding that criminal conduct lasting C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226223

Page 2 of 7 Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2005 WL 2088418 (M.D.Fla.), 18 Fla. L. Weekly Fed. D 862 (Cite as: 2005 WL 2088418 (M.D.Fla.)) repetitive and inconsistent language and wholly irrelevant matters that disrupted the synthesis of the underlying facts. To the extent any of the facts identified herein have been misunderstood by this Court, Plaintiffs are directed to clarify these facts in their second amended complaint. Plaintiffs participated in "Wet T-Shirt Contests" in Daytona Beach, Florida in the early part of March 2001 (the "Contests"). The Contests were held on an outdoor pool deck at the Desert Inn Resort (the "Desert Inn"), a hotel establishment owned and operated by Defendant Deslin Hotels. Both Plaintiffs were seventeen years-old at the time of the Contest. Before their participation in the Contests, Plaintiffs consumed alcohol in a conference room in the Desert Inn located behind the stage where the Contests were performed. They also affixed temporary tattoos that contained the "Bud Light" insignia to their arms, breasts, and backs. Plaintiffs were intoxicated during the Contests, danced "erotically" and "provocatively" on stage, and exposed private parts of their bodies. Plaintiff Breitfeller exposed her uncovered breasts, arcolae, buttocks and pubic area during her participation, while Plaintiff Gautreaux exposed her uncovered breasts, areolae, buttocks, pubic area, anus, and vagina. Plaintiffs received cash and gift prizes for their participation in the Contests, including a swimsuit containing the "Budweiser" insignia and other gifts containing other trademark insignias of Defendant Anheuser-Busch. The cash prizes were provided by co-defendant Watchcams and the gift prizes were provided by Defendant Anheuser-Busch. The Contests were photographed and video-recorded by employees or agents of Defendant BV & BK Productions ("Defendant BVBK"), co-defendant Watchcams, and co-defendant Paul Prewitt. The photographs and video-recordings accumulated by Defendant BVBK and co-defendant Watchcams were made available on their various internet websites. Co-defendant Prewitt sold his materials to Defendants Lincolnwood Motion Pictures ("Lincolnwood") and Page 2 New City Releasing ("New City"), two of the Playboy Defendants, in and around September 2001. Thereafter, agents for Lincolnwood, New City, and various entities affiliated with Defendant Playboy Enterprises edited the videotapes into programs and sold rights to those programs to Defendant in-Demand ("In-Demand"). Beginning in 2002, In-Demand sold the rights to broadcast the programs to cable and satellite television companies (hereafter the "TV Broadcasting Defendants"). (FNS) The TV Broadcasting Defendants, in turn, broadcasted the programs electronically to their customers. The Playboy Defendants also broadcasted the programs on their own websites, distributed "hard-copies" of the programs in the form of "VHS" cassettes and "DVDs" to retail outlets for sale to the public, and advertised the programs on their respective websites and in other products sold by various "Playboy" entities. FNS. The "TV Broadcasting Defendants" consist of Defendants Directs, Time Warner Cable, Cox Communications, Comcast Cable Communications, and other satellite and cable television operators named as co-defendants in this case. *2 In July of 2002, the Playboy Defendants were informed that their video-programs contained images of a sixteen year-old girl engaging in "sexuallS, explicit conduct." On or about June 26, 2003, the Playboy Defendants were informed by Plaintiffs counsel that their programs contained unlawful images of Plaintiffs who were seventeen years-old at the time the video-recordings were made. Defendant Playboy Enterprises broadcasted the programs of the Contests on the "Playboy Channel" the following month, notwithstanding the reports that these programs contained images of the Plaintiffs. Plaintiffs filed their Amended Complaint (Dkt.# 5) under seal on March 28, 2005. The Amended Complaint consists of four counts. Count I is based on the events that occurred leading up to and during C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226224

Page 1 of 7 Wegtlaw. Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2005 WL 2088418 (M.D.Fla.), 18 Fla. L. Weekly Fed. D 862 (Cite as: 2005 WL 2088418 (M.D.Fla.)) United States District Court, M.D. Florida. Nicole BREITFELLER, et al., Plaintiffs, v. PLAYBOY ENTERTAINMENT GROUP, INC., et al., Defendants. No. 8:05CV405T30TGW. Aug. 30, 2005. David R. Cassetty, Restani, McAllister & Cassetty, P.A., Coral Gables, FL, Kevin P. O'Connor, Law Offices of Kevin P. O'Connor, Miami, FL, Richard Stuart Shankman, Litigation Concepts, L.C., Plant City, FL, for Plaintiffs. D. Patricia Wallace, Jamie Lynn Zysk, Thomas R. Julia, Hunton & Williams LLP, Miami, FL, Brian A. Howie, Brian D. Wallach, Peter E. Moll, Howrey, Simon, Arnold & White, LLP, Washington, DC, Edward F. Gagain, Marshall, Dennehey, Warner, Coleman & Goggin, Mark E. Pena, Law Office of Mark E. Pena, Michael A. Gold, Todd Alan Foster, Cohen, Jayson & Foster, Tampa, FL, G. Mark Thompson, Marshall, Dennehey, Warner, Coleman & Goggin, Orlando, FL, Kimble Clark Bouchillon, Frost Tamayo Sessums & Aranda, P.A., Bartow, FL, Mime A. Hanna, Cobb & Cole, Daytona Beach, FL, Michael Charles Huddleston, Huddleston & Teal, P.A., DeLand, FL, for Defendants. Paul Prewitt, Daytona Beach, FL, pro se. ORDER MOODY, J. •1 THIS CAUSE comes before the Court upon the following: Defendant Anheuser-Busch's Motion to Dismiss (Dkt.# 18); Defendant Deslin Hotel's Motion to Dismiss and Alternative Motion to Strike (Dkt.# 20); Playboy Defendants' (FNI] Motion to Page 1 Strike (Dkt.# 29); Playboy Defendants' Motion to Dismiss (Dkt.# 30); Defendants Directv and Time Warner Cable's Motion to Dismiss (Dkt 32); Defendant Cox Communication's Motion to Dismiss (Dkt.# 37); Defendant Daytona Beverage's Motion to Dismiss (Dkt.# 39); Defendant BV & BK Production's Motion to Dismiss (Dkt.# 42); Defendant Comcast Cable Communication's Motion to Dismiss (Dkt.# 44); and Plaintiffs' Memoranda in Opposition thereto. (F142) FN I. The "Playboy Defendants" are comprised of the following twelve entities: Best Buy Company, Image Entertainment, In-Demand, Lincolnwood Motion Pictures, New City Releasing, Playboy Entertainment Group, Playboy Enterprises, Playboy Enterprises International, Playboy.com, Playboy TV International, Sun Capital Partners, and Trans World Entertainment. FN2. For simplification and convenience, this Court has omitted the entity classification of each Defendant when identifying each by name. After consideration, this Court fads that Defendants' Motions should be GRANTED in part and DENIED in part. ]FN3] FN3. All of the defendants whose Motions are before the Court will be referred to as "Defendants" for purposes of this Order. 1. Background ffiN41 FN4. The underlying facts set forth in this section are derived from Plaintiffs' Amended Complaint, as Plaintiffs' allegations are assumed to be true at this stage of the proceedings. The Amended Complaint, however, includes ambiguous, O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226225

Page 10 of 10 Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2005 WI. 1831967 (N.D.Tex.) (Cite as: 2005 WL 1831967 (N.D.Tex.)) the date of judgment), making available for the Thailand court proceedings all relevant documents and witnesses within his control, and agreeing that any final judgment rendered by the court of Thailand is entitled to full faith and credit in the courts of the United States. See Saris, 932 F.2d at 1551 (holding that district court may determine the conditions of dismissal). Booluna may move this court to reinstate this action in the event Bredimus seeks to evade the jurisdiction of the Thailand courts or to interpose a limitations defense. • • • •11 Defendant's May 9, 2005 motion to dismiss on grounds of forum non conveniens is granted. SO ORDERED. Not Reported in F.Supp.2d, 2005 WL 1831967 (N.D.Tex.) END OF DOCUMENT ID 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Page 10 EFTA00226226

Page 9 of 10 Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2005 WL 1831967 (N.D.Tex.) (Cite as: 2005 WL 1831967 (N.D.Tex.)) jurisdiction. Boonma asserts that the Protection of Children from Sexual Predators Act of 1998, Pub.L. No. 105-314, 112 Stat. 2974 (1998), which expanded the number of sex crimes for which victims could seek a civil remedy, and the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act, Pub.L. No. 108-21, 117 Stat 650 (2003), which strengthened criminal penalties against offenders, as well as comments by the President and Secretary of State, evidence increased public concern to defeat the international sexual exploitation of children and hold sexual predators accountable. Boonma maintains that dismissing this case would clearly disregard United States public policy expressed by Congress and the Executive Branch. •10 Although the court recognizes that Congressional enactments and Administration policy evidence the intent to combat sex crimes against minors, it is not clear that dismissing this case in deference to a Thailand forum will thwart that intent. Dismissal on forum non conveniens grounds is conditioned on the existence of an adequate and available alternative forum. See supra § B. Where, as here, there is such a forum, the policy of deterring sexual exploitation of minors by holding them financially accountable will be served, regardless whether the court retains jurisdiction over this case. The court therefore fords unpersuasive Boonma's argument that dismissal of this case would contravene public policy. VIII Having considered both the private and public interest factors, the court holds that Bredimus has made the strong showing necessary to justify dismissing this case on grounds of forum non conveniens, because the balance of convenience tilts strongly in favor of litigating the case in Thailand. Thailand is an available and adequate forum. The private interest factors, particularly the location of evidence and the cost of obtaining attendance of witnesses, indicate that Thailand is clearly the more convenient forum. In addition, the public interest factors favor litigating this dispute in Pagc 9 Thailand. Although there is no evidence of a relatively greater administrative burden in this court than in Thailand, there is strong evidence that the nexus of the case is in Thailand. Booruna is Thai, all the conduct that gives rise to the case occurred in Thailand, the people of Thailand have a considerably stronger interest in the outcome of the case than do those of Texas, and Thailand law would apply at least to one of Boonma's claims, even if this court retained jurisdiction. The only connection to Texas is that the defendant, who is now incarcerated in Kentucky, was a Texas resident at the time he was traveling abroad in Thailand. Additionally, to deny defendant's motion to dismiss based on forum non conveniens, this court would be required to disagree explicitly with Chief Judge Fish's assessment in Punyee of the factors that apply in very similar circumstances. The court is quite hesitant to do so under the circumstances presented here, where the availability and adequacy of an alternative forum, as well as the relevant public and private interest factors, are essentially identical in each case. Were the court to deny the motion to dismiss, the plaintiff in this case would be allowed to litigate in her chosen forum whereas the plaintiffs in Punyee would be required to litigate in Thailand, despite the essentially-identical factual scenarios presented by the two cases. lx Because the court has decided in favor of dismissal, it must include a return jurisdiction clause in its dismissal order to ensure that the "plaintiff can reinstate [her] suit in the alternative forum without undue inconvenience or prejudice and that if the defendant obstructs such reinstatement in the alternative forum that the plaintiff may return to the American forum." Air Crash, 821 1166; see Baris, 932 F.2d at 1551-52. judgment of dismissal is conditioned on redimuss timely submitting to service of process and jurisdiction in the appropriate Thailand forum upon Boonma's filing suit, waiving any statute of limitations defense that did not exist before Boonma filed this lawsuit on April 5, 2005 (provided Boonma files suit in an appropriate Thailand forum within 120 days from C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226227

Page 8 of 10 Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2005 WL 1831967 (N.D.Tex.) (Cite as: 2005 WL 1831967 (N.D.Tex.)) dismissal of this case on the grounds of forum non conveniens would frustrate Congress' intent to provide foreign victims of illicit sexual conduct a civil remedy in United States district courts. Boonma correctly points out that Congress is ofi presumed to be aware existing law when it enacts legislation. See Miles Apex Marine Corp., 498 U.S. 19, 32, Ill S.Ct. 7, 112 L.Ed.2d 275 (1990) . She argues that, because Congress intended to provide sex crime victims, such as her son, with a civil remedy, and because Congress is presumed to have been aware of the doctrine of forum non conveniens, it must have intended to abolish the doctrine in this context. The court disagrees. Absent a clear Congressional manifestation of contrary intent, when a court construes a newly-enacted or revised statute, it presumes that Is the law is Monona with existing law. See Midlantic Na;'! Bank NJ. Dept of Envtl. Prot., 474 U.S. 494, 501, I S.Ct. 755, 88 L.Ed.2d 859 (1986) ("The normal rule of statutory construction is that if Congress intends for legislation to change the interpretation of a judicially created concept, it makes that i ic." (citation omitted)); United States 62 F.3d 602, 605 (4th Cir.1995). Boonma pout to no clear Congressional intent to abolish the doctrine of forum non conveniens in the present context. Neither would dismissal of this case on forum non conveniens grounds implicitly violate Congressional intent by rendering § 2255 a nullity. Boonma selectively quotes passages from 18 U.S.C. § 2423 that prohibit travel in foreign commerce for the purpose of engaging in illicit sexual conduct to argue that § 2255, which provides a civil remedy for violations of § 2423, would be meaningless if the cases of foreign plaintiffs could be dismissed based on forum non conveniens. This assertion depends on the faulty assumptions that many, if not all, plaintiffs who sue under § 2255 are foreign and that many, if not all, cases brought by foreign plaintiffs will be dismissed on forum non conveniens grounds. *9 Boot= begins by asserting that, by definition, the sexual abuse covered by § 2255, and Page 8 specifically by § 2423, occurs overseas, and that the victims it is meant to protect are "without exception foreign children." P. Br. at I. The court disagrees. Section 2255 provides a civil remedy for victims of a number of different sexual offenses, under statutes that prohibit a wide array of conduct by those traveling in interstate or foreign commerce or located in areas of federal jurisdiction, such as those within maritime or territorial jurisdiction or within a federal prison. See 18 U.S.C. §§ 2255, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421 , 2422, and 2423. Further, § 2423, the statute upon which Boonma relies, prohibits not only United States citizens traveling in foreign commerce, but also persons traveling in interstate commerce or traveling into the United States, from engaging in illicit sexual conduct. See 18 U.S.C. § 2423(b). Boonma does not support her contention that victims of offenses for whi § 2255 provides a civilremedy are necessaril all, or even mostly, foreign children. Nor does it follow that the suits of all foreign plaintiffs who sue under § 2255 will be subject to dismissal based on the doctrine of forum non conveniens. For instance, a foreign plaintiffs home forum might not provide a cause of action for the conduct alleged, or the available remedy might be so inadequate that it could not be considered a remedy at all, in which case the plaintiffs case would not be dismissed. See supra § II. Indeed, dismissal on forum non conveniens grounds is conditioned upon the existence of an adequate and available alternative forum, see id., so there is nothing inconsistent about Congress' intending to ensure that juvenile victims of sex crimes, including foreign victims, have a private cause of action, while preserving the doctrine of forum non conveniens in this context. The court therefore declines to accept the argument that Congress intended to abolish the doctrine of forum non conveniens in this context by providing a cause of action under § 2255. VII The court now considers Boonma's contention that public policy dictates that the court retain O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226228

Page 7 of 10 Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2005 WL 1831967 (N.D.Tex.) (Cite as: 2005 WL 1831967 (N.D.Tex.)) federal question cases)). *7 Were this case tried in Texas, Thailand law would likely apply to the claim for intentional infliction of emotional distress. To resolve choice-of-law questions, Texas courts apply the "most significant relationship" test set out in Restatement Restatement (Secon Conflict of Laws §§ 6 and 145. See Duncan Cessna Aircraft Co., 665 S.W.2d 414, 420-21 ex.I984) ("[f]n all choice of law cases, except those contract cases in which the parties have agreed to a valid choice of law clause, the law of the state with the most significant relationship to the particular substantive issue will be applied to resolve that issue."). The factors the court considers include (I) the needs of the interstate and international systems, (2) the relevant policies of the forum, (3) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (4) the protection of justified expectations, (5) the basic policies underlying the particular field of law, (6) certainty, predictability, and uniformity of result, and (7) ease in the determination and application of the law to be applied. Restatement (Second) Conflict of Laws § 6(2) (1971). The contacts to be considered in applying these principles include (1) the place where the injury occurred, (2) the place where the conduct causing the injury occurred, (3) the domicile, residence, nationality, place of incorporation, and place of business of the parties, and (4) the place where the relationship, if any, between the parties is centered. Id. § 145(2). Applying this test, Thailand clearly has the most significant relationship to this case. Cf. Punyee, 2004 WL 2511144, at .8. Of the relevant contacts, the injury and conduct occurred in Thailand, and the relationship between the parties is centered there. The residence of the parties does not favor either Texas or Thailand because one party resides in each forum. Looking to the principles that the court's choice of law should further, it is clear that Thailand has a stronger policy interest in the case: that of protecting its children from sex crimes. In Punyee Chief Judge Fish noted the incentive that these victims have to sue in Texas due to the Page 7 availability of punitive damages awards under Texas law. Id. at '9. He also pointed out, however, that "[w]ere the court to apply Texas law as a means of righting any perceived inequities of Thai law, it would be treading upon the policy choices the Thai government has made in the competing objectives and costs of tort law." Id.; see also Vasquez, 325 F.3d at 675 & n. 14 (holding that application of Texas law, where there was little justification for doing so to right any perceived inequities in Mexico's disparate provision of wrongful death damages, would undercut policy decision made by the Mexican people through their duly-elected lawmakers). Punyee held that applying Thailand law would promote "(u]niformity and accommodation of the competing policies of the two nations." Punyee, 2004 WL 2511144, at *9; see also Vasquez. 325 F.3d at 675 ("Uniformity, predictability, and accommodation of the competing policies of the two nations favor applying Mexican law."). *8 Without deciding whether the determination of damages and fees under the federal statutory claims would be governed by Thailand or federal common law, the court can conclude that this public interest factor favors litigating this case in Thailand. If Thailand law applies, the court will be applying foreign law to all the claims. The need to apply foreign law points toward dismissal. Piper, 454 U.S. at 260 & n. 29 (citing decisions holding that need to apply foreign law, although not conclusive, favors dismissal). If federal common law applies, and if it does not dictate that the court follow Thailand law, then two different sets of substantive law would apply in the same case, a problem that Piper recognized. See id. at 260 (holding that district court properly considered that trial involving two sets of laws would be confusing to jury). If the case were tried in Thailand, the Thailand court would apply its own law under its conflict of law rules. The court therefore holds that this factor favors litigating the case in Thailand. VI The court now addresses Boonma's argument that @ 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226229

Page 6 of 10 Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2005 WL 1831967 (N.D.Tex.) (Cite as: 2005 WL 1831967 (N.D.Tex.)) Cir.1998) (holding that this factor favored neither British nor American forum where there was no indication in record that British courts are more or less congested than American courts). Because Bredimus has the burden of showing that this factor favors dismissal, the court holds that it supports litigating the case in Texas. B *6 The court next evaluates the burden of jury duty. "Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation." Gulf Oil, 330 U.S. at 508-09. Texas jurors have little connection with the case because the plaintiff is Thai and all the condu occurred in Thailand. See Vasquez F Bridgestone/Firestone. Inc., 325 d 665, 673 i. 10 (5th Cir.2003) (citing Kernel Hill-Ram Co.. 108 F.3d 799, 804-05 (7th Cir.I 7) (noting that Indiana residents have 'a mere passing interest" where a foreign plaintiff is injured in a foreign land)). Because it involves criminal conduct by a Texas resident, Texas jurors have some interest in the case, but it is no more than the "little" public interest to which Air Crash refers. See Air Crash. 821 F.2d at 1166. This factor therefore favors litigating the case in Thailand. The court turns next to the interest of holding the trial within the view and reach of those persons whose affairs it touches. The case touches the affairs of many Thailand citizens, including the other victims and their parents, the Thailand national and local authorities who investigated the incident, and the employees of the hotel where the conduct occurred. By contrast, this incident marginally touches the affairs of persons in the United States except the defendant. This factor therefore heavily favors litigating the case in Thailand. D The court next addresses the interest in having localized controversies decided at home. There is a strong connection between the case and Thailand because the victim is Thai and all the conduct occurred in that country. Predatory sexual behavior directed at Thailand children is obviously a problem Page 6 that Thailand has a strong interest in combating. See Vasquez, 325 F.3d at 673 & n. 10 (holding that country where plaintiff hails from and suffered injury has obvious interest in protecting rights and welfare of its citizens). The only connection between the case and Texas is that the defendant is a Texas resident (although he is currently incarcerated in Kentucky). Although Texas has an interest in deterring its citizens from committing sex crimes abroad, Thailand's interest in this case is considerably stronger. See Punyee, 2004 WL 2511144 at *8 ("(w)here aircraft accident occurred in a foreign country and victims were all citizens of that country, and only the aircraft manufacturer and propeller manufacturer were American citizens, foreign forum had a 'very strong interest' in the case" (citing Piper, 454 U.S. at 260)). This factor therefore favors litigating the case in Thailand. E The court finally considers the avoidance of unnecessary problems in conflicts of law and the application of foreign law. Because Boonma asserts both federal statutory and state-law claims, this court would be required to apply two different sets of choice-of-law provisions to determine the law that applies. Were the court's jurisdiction based solely on diversity of citizenship, it would apply the ci choice-of-law rules o Texas, the state in which it sits. See Klaxon Co. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. . 1020, 85 L.Ed. 1477 (1941) . In federal question cases such as this one, however, the court must apply federal common law choice-of-law rules to determine what substantive law applies to the claims arising under federal l iitutes. See Corporation Venezolana de Foment() Vintero Sales Corp., 629 F.2d 786, 795 (2d r.1980). The Erie and Klaxon principles still apply to pendent state-law claims in cases in which federal jurisdiction is premised on a federal statute, so the court must apply the choice-of-law rules of the state in which it sits to determine the substantive law that applies to Boonma's claim for intentional it infli 'on of emotional distress. See Amoco Chem. Co. Tex Tin Corp., 925 F. p. 1192, 1202 n. 9 (S.D. ex.1996) (citing Doty Sewall. 908 F.2d 1053, 1063 (1st Cir.1990) (noting "it is well settled" that Erie applies to pendent claims asserted in C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226230

Page 5 of 10 Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2005 WL 1831967 (N.D.Tex.) (Cite as: 2005 W141831967 (N.D.Tex.)) factor favors litigating the case there. B The court next considers the availability of compulsory process for ensuring attendance of unwilling witnesses and the cost of obtaining attendance of willing witnesses. Neither party has briefed this issue thoroughly. As to unwilling witnesses, neither party has identified any witnesses who would be within subpoena range of this court. See Fed.R.Civ.P. 45(hX2), (cX3XA)(ii), and (cX3)(B)(iii). The possible witnesses mentioned besides the parties include the other victims, Thailand national and local authorities, medical providers, and hotel employees, all of whom are located in Thailand. The affidavit of Professor Chaninat Leeds does not mention the power of Thailand courts to subpoena unwilling witnesses located in Thailand, and neither party discusses whether these witnesses would be willing to testify. *5 The cost of obtaining attendance of willing witnesses points strongly in favor of litigating this case in Thailand. Neither party refers to any possible witnesses who reside in the United States, other than the defendant. Bredimus asserts that it would be extremely expensive to litigate this dispute in Texas because all the potential witnesses are in Thailand. Although Bredimus does not identify any of the potential witnesses already mentioned by name, there is good reason to believe they all residc in Thailand, so the cost of obtaining the attendance of these parties should be far lower in Thailand than in Texas. Further, Thailand law does not specifically authorize depositions, so it could be difficult to obtain deposition testimony for use in this court should it retain jurisdiction here. Boonma does not address this issue in her brief. Because of this court's inability to compel attendance of unwilling witnesses and the high cost of obtaining attendance of willing witnesses, this factor favors litigating this dispute in Thailand. Because the factor that considers probability of view of the premises is not relevant to this case, the court need not consider it. Page 5 The court next evaluates all practical considerations of efficiency and expense. Bredimus asserts that this factor favors the Thailand forum because any documentary evidence, including reports from the Thailand police authorities, medical providers, or hotel employees, would have to be translated into English for trial in Texas. Boonma does not address this issue in her brief. Because most of the documentary evidence is written in Thai, and all witnesses except the defendant are Thai, this factor favors litigating the case in Thailand. E The court bolds that the private interest factors, viewed together, weigh heavily in favor of litigating the case in Thailand. I When the private interest factors do not weigh in favor of dismissal, the court must consider the public interest factors. Robinson. 117 F.3d at 908. Although the court is not obligated to consider the public interest factors when the balance of private interest facto favors dismissal, the court will do so. See Boris Sulpicio Lines, Inc., 932 F.2d 1540, 1550-51 (5th Cir.1991) (holding that if private interest factors weigh in favor of dismissal, no further inquiry need be made). "[E]ven when the private conveniences of the litigants are nearly in balance, a trial court has discretion to grant forum non conveniens dismissal upon finding that retention of jurisdiction would be unduly burdensome to the community, that there is little or no public interest in the dispute or that foreign law I will predominate if jurisdiction is retai d." Air Crash, 821 F.2d at 1165-66 (quoting Pain United Techs. Corp., 637 F.2d 775, 792 (D.C.Cir.I 0)). A The court first considers administrative difficulties arising from congested courts. Neither party addresses this issue in the briefs, and there is no indication in the record that this court is more congested than is the Thailand court that wiuld hear this case. See Capital Currency Exch., N. I Nat'l Westminster Sank PLC, 155 F.3d 603, 6 1 (2d C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226231

Page 4 of 10 Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2005 WL 1831967 (N.D.Tex.) (Cite as: 2005 WI. 1831967 (N.D.Tex.)) Thailand law does not, however, provide for punitive damages for the type of conduct that Boonma alleges. Boonma d not appear to address the availability i s or adequa of Thailand as a forum. Instead, she argues on y that dismissal of this action would violate Congress' intent in enacting 18 U.S.C. § 2255, which was to create a civil remedy in United States courts for foreign victims of child sex tourism, such as Doe. Although a Thailand forum may not be as favorable to Boonma as is this court, she will not be deprived of all remedies, nor is there reason to think she will be treated unfairly. Because 'ihailand can exercise jurisdiction over both Bredimus and Boonma, and since neither will be deprived of all remedies or treated unfairly, the court holds that Thailand is an available and adequate forum. [FNS) FNS. Bredimus is presently incarcerated in a federal prison in Kentucky, which neither party mentions in questioning the availability of an alternative forum in Thailand. His projected release date is within the next 18 months, at which point it appears he would be able to appear in court in Thailand. There does not appear to be a problem concerning his ability to submit to Thailand jurisdiction. Nor should there be a statute of limitations problem if trial cannot proceed until Bredimus is released, because Doe can sue any time within one year of reaching the age of majority, which will not occur until long after Bredimus is released. iv *4 The court now examines the private interest factors. A Bredimus contends that a Thailand forum would be more convenient because of greater ease of access to the sources of proof. lie asserts that all the relevant conduct in this case occurred in Thailand, all witnesses, including the other alleged victims, Page 4 hotel employees, and medical providers, are in Thailand, and all physical evidence and evidence of medical reports and expenses is in Thailand. This is the extent of his argument that a Thailand forum would be more convenient duc to easier access to sources of proof. Boonma does not appear to address the location of the sources of proof. Chief Judge Fish recently dismissed on the basis of forum non conveniens another lawsuit brought by Bredimus' other alleged victims, which arises out of l e same set of events. See Punyee ex rel. Doe # I Bredimus, 2004 WL 2511144 (N.D.Tex. Nov.5, 004) (Fish, C.J.). In addition to the witnesses already mentioned, Chief Judge Fish noted that other critical witnesses were also located in Thailand, such as "the Thai national and local authorities who investigated the incident [ [land) the alleged procurers who 'lured' the children into Bredimus's hotel room." Id. at *6. He also pointed out, however, that not every source of proof supported Thailand as the more convenient forum. Id. Apparently, some tangible and documentary evidence relevant to the present case was transferred to the United States for use in prosecuting Bredimus criminally. See id. According to the Punyee plaintiffs, this evidence includes (1) a videotape that Bredimus filmed while he engaged in sexually-explicit acts with the victims, (2) the video camera and the digital camera Bredimus used while he engaged in the sexually-explicit acts, (3) digital images and color copies of the images from the digital camera, (4) fmgerprint analysis results, (5) documents relating to Bredimus' travel in Thailand, and (6) documents relating to the Thailand police investigation and court proceedings. Id. Although some evidence was more readily available in the United States than in Thailand, Chief Judge Fish held that the factor considering access to sources of proof weighed in favor of dismissal, because "most of the relevant information and key players, with the exception of Bredimus, [were) located in Thailand." Id. Given that Boonma, all the non-party witnesses, and much of the relevant physical and documentary evidence—particularly the critical evidence relating to Doe's damages—are located in Thailand, this O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226232

Page 3 of 10 Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2005 WL 1831967 (N.D.Tex.) (Cite as: 2005 WI. 1831967 (N.D.Tex.)) 510 U.S. at 448-49 (quoting Gulf O(1, 330 U.S. at 508-09). This court must follow a controlling procedural framework in applying the principles of forum non conveniens so that it exercises structured discretion. See Air Crash, 821 F.2d at 1165. The court first decides whether an available and adequate forum exists. Id. A foreign forum is available if "the entire case and all parties can come within the jurisdiction of that forum." Id. A defendant's submission to the jurisdiction of an alternative forum renders that forum available for the purposes of fo n conveniens analysis. Veba-Cherie A.G. Gaga, 711 F.2d 1243, 1245 (5th Cir.I 3). foreign forum is adequate if "the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy the same benefits as they might receive in an American court? Air Crash, 821 F.2d at 1165 (citations omitted). if the available remedy is "so clearly inadequate or unsatisfactory such that it is no remedy at all," however, this can be given "substantial weight" by the court. Id. at 1164 n. 27 (citing Piper, 454 U.S. at 254). If the court concludes the foreign forum is both available and adequate, it must then address the relevant factors of private interest, giving appropriate deference to plaintiffs initial choice of forum Id. at 1165. The strong presumption in favor of plaintiffs choice of forum applies with less force, and is given less deference, when the plaintiff is foreign. Piper, 454 U.S. at 255-56 ("When the home forum has been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption however, is much less reasonable. Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiffs choice deserves less deference."). If the court determines that the private interests do not weigh in favor of dismissal, it must then consider the public interest factors. Air Crash. 821 F.2d at 1165. *3 Bredimus has the burden of establishing that the doctrine of forum non conveniens applies. See Robinson, 117 F.3d at 907. His "burden of persuasion runs to all the elements of the forum non conveniens analysis." Air Crash, 821 F.2d at 1164. Page 3 While the burden is on the movant to establish that an alternative form would be clearly more convenient, he need not submit overly-detailed affidavits, such as those that identify all the witnesses he would call and the testimony he would offer. See Piper, 454 U.S. at 258. The forum non conveniens motion is made "precisely because many crucial witnesses are located beyond the reach of compulsory process, and thus are difficult to identify or interview," such that "(lequiring extensive investigation would defeat the purpose of Ethel motion." Id. Of course, the movant must provide "enough information to enable the District Court to balance the parties' interests." Id. The court must review the motion in light of the status of the case at the time the motion was filed. See Air Crash, 821 F.2d at 1166. Bredimus contends this case involves conduct that occurred exclusively in Thailand, that an adequate alternative forum is available in Thailand, and that the private interest factors, particularly ease of access to evidence and availability of witnesses, and public interest factors, including the interest of a Thailand GOUTS in hearing localized controversies and the problem of an American court applying unfamiliar Thailand law, make Thailand a more convenient forum. Boonma responds that dismissal of this case would thwart Congress' intent in enacting 18 US.C. § 2255, which provides a civil remedy to victims of child sex tourism and other sexual offenses. She also argues that dismissal would frustrate the public policy of holding sex offenders accountable and deterring similar conduct by others. ill The court first considers whether Thailand is an available and adequate forum. Bredimus contends the forum is available because he has stipulated to the jurisdiction of Thailand courts and Boonma resides there. The case and all parties involved can thus come within the jurisdiction of the Thailand forum. Bredimus posits that the forum is adequate because Thailand law recognizes causes of action for injuries to one's life, body, health, or rights, and the right to sue for intangibles, such as emotional distress, loss of consortium, and pain and suffering. O 2007 ThornsontWest. No Claim to Orig. U.S. Govt. Works. EFTA00226233

Page 2 of 10 Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2005 WL 1831967 (N.D.Tex.) (Cite as: 2005 WL 1831967 (N.D.Tex.)) assist any other person to engage in, any sexually explicit conduct outside of the United States, its territories or possessions, for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (e). (2) The circumstance referred to in paragraph (I) is that(A) the person intends such visual depiction to be transported to the United States, its territories or possessions, by any means, including by computer or mail; or (8) the person transports such visual depiction to the United States, its territories or possessions, by any means, including by computer or mail. FN4. 18 U.S.C. § 2423(b): A person who travels in interstate commerce or travels into the United States, or a United States citizen or ... who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another shall be fined under this title or imprisoned not more than 30 years, or both. 18 U.S.C. § 2423(c): Any United States citizen ... who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both. II Under the federal doctrine of forum non conveniens, when an alternative forum has jurisdiction to hear [a) case, and when trial in the chosen forum would establish ... oppressiveness and vexation to a defendant ... out of all proportion to plaintiffs convenience, or when the chosen forum [is) inappropriate because of considerations affecting the court's own administrative and legal problems, the court may, in the exercise of its sound discretion, dismiss the case, even if jurisdiction and proper venue are established. Am. Dredging Co. p d510 U.S. 443, 447.48, 114 S.Ct. 981 . • .2d 285 (1994) Page 2 A (internal q tations omitted) (quoting Piper Aircraft Co. Reyno 454 U.S. 235, 241, 102 S.Ct. 252, 70 L.E d 419 (1981)). The doctrine of forum non conveniens applies "in all cases regardless of their jurisdictional bases or subject matter." In re Air O-ash Disaster Near New Orleans, La., 821 F.2d 1147, 1163 (5th Cir.1987) (en bane) (emphasis omitted), vacated on othe sub nom. Pan Am. World Airways, Inc. 490 U.S. 1032, 109 S.Q. 1928, 104 L. .2 (1989), opinion reinstated in pan on other grounds, 883 F.2d 17 (5th Cir.1989) (en bane) (per curiam). The court exercises its discretion based on consideration of II private and pu .c factors that trace their origin to Gulf Oil Corp. Gilbert, 330 U.S. 501, 508-09, 67 S.Q. 839, 91 .Ed. 1055 (1947). Showing some deference to the plaintiffs choice of forum, the court must consider the following private interest factors: *2 (I] the relative ease of access to sources of proof; [2] availability of compulsory process for attendance of unwilling, and the costs of obtaining attendance of willing, witnesses; [3] probability of view of premises, if view would be appropriate to the action; and [4] all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforc[ea)bility of a judgment t if one is incd. Robinson TCl/US W. Communications, Inc., 117 F.34 , 908 (5th Cir.1997) (quoting Air Crash, 821 F.2d at 1162); see also Am. Dredging, 510 U.S. at 448. The public interest factors include (I) the administrative difficulties courts face when litigation is piled up in congested centers instead of being handled at its origin; (2) the burden of jury duty imposed upon the people of a community that has no relation to the litigation; (3) in cases that touch the affairs of many persons, the interest in holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only; (4) the local interest in having localized controversies decided at home; and (5) the appropriateness of having the trial of a diversity case in a forum that is at home with the state law that must govern the cast, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself. Am. Dredging, C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226234

Page 1 of 10 Westlaw Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2005 WL 1831967 (N.D.Tex.) (Cite as: 2005 WL 1831967 (N.D.Tex.)) C Only the Westlaw citation is currently available. United States District Court, N.D. Texas, Dallas Division. Dee BOONMA, as Next Friend of John Doe, a Minor, Plaintiff, Nicholas BREDIMUS, Defendant. No. Civ.A.3:05-CV-0684-D. July 29, 2005. Jon-Bernard Schwartz, La Weisbrod, Morgan & Weisbrod, Dallas, TX, David Replogle, Law Offices of David Replogle, San Francisco, CA, for Plaintiff John M. Phalen, Jr., Daniel J. Sheehan, Jr., Daniel Sheehan & Associates, Dallas, TX, for Defendant. MEMORANDUM OPINION AND ORDER FITZWATER, J. *1 A Thailand citizen sues an American citizen in this forum to recover under 18 U.S.C. § 2255 for sexually-predatory conduct that the American citizen allegedly committed in Thailand. Defendant moves to dismiss based on the doctrine of forum non conveniens. Concluding that the private and public interest factors strongly demonstrate that the case should be litigated in Thailand, the court grants the motion. In doing so, the court emphasizes that the Thailand court is an available and adequate forum. This decision does not unduly benefit a defendant who has been accused of heinous sexually-predatory conduct. Plaintiff Dee Boonma ("Boonma"), a Thailand citizen, as next friend of John Doe ("Doe"), a minor, sues defendant Nicholas Bredimus Page I ("Bredimus"), a Texas resident incarcerated in Kentucky, under 18 U.S.C. § 2255(a), IFNI) alleging that Bredimus is liable for injuring Doe in 2001 at a Thailand hotel by engaging with him in non-consensual sexual acts, which Bredimus videotaped. Boonma asserts that Bredimus violated 18 U.S.C. § 2241, [FN2) which prohibits crossing a state line with intent to engage in a sexual act with a person under age 12; 18 U.S.C. § 2251, [FN31 which prohibits production or distribution of child pornography; and 18 U.S.C. § 2423, [P44] which prohibits traveling in interstate or foreign commerce for the purpose of engaging in illicit sexual conduct; and that he is liable for intentional infliction of emotional distress. Bredimus moves to dismiss this action based on forum non conveniens. FN1. 18 U.S.C. § 2255(a): Any minor who is a victim of a violation of section 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal injury as a result of such violation may sue in any appropriate United States District Court and shall recover the actual damages such minor sustains and the cost of the suit, including a reasonable attorney's fee. Any minor as described in the preceding sentence shall be deemed to have sustained damages of no less than 550,000 in value. FN2. 18 U.S.C. § 2241(c): Whoever crosses a State line with intent to engage in a sexual act with a person who has not attained the age of 12 years ... shall be fined under this title, imprisoned for any term of years or life, or both. FN3. 18 U.S.C. § 2251(c): (1) Any person who, in a circumstance described in paragraph (2), employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor CD 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226235

AMERICAN CIVIL LIBERTIES UNION v. GONZALES Cue a. 475 F.Supp.24 775 (E.D.N. 2007) Plaintiff claims negligent supervi- sion and retention; (D) DENIED as to Counts VI and VIII of Plaintiffs Complaint; (E) DENIED as to Plaintiffs claim (or punitive damages. (2) Defendant Brother Antonio F. Anto- nucci's Motion for Summary Judgment (Doc. 76) is: (A) GRANTED as to Counts IV, VII and VIII of Plaintiffs Complaint; (B) DENIED as to Count VI of Plain- tiffs Complaint (3) This case shall be placed on the June, 2007 trial list of this Court. AMERICAN CIVIL LIBERTIES UNION, et al. t. Alberto R. GONZALES in his official capacity as Attorney General of the United States. Civil Action No. 98 5591. United States District Court, E.D. Pennsylvania. March 22, 2007. Background: Civil liberties organizations and others, including Internet content pro- viders, brought action alleging that Child Online Protection Act (COPA) violated the First and Fifth Amendments. Following affirmance, 217 F.3d 162, of initial grant, 31 F.Supp2d 473, of a preliminary injunc- tion against enforcement of COPA, the Supreme Court, 535 U.S. 564, 122 S.Ct. 1700, 152 L.Ed.2d 771, vacated judgment of the Court of Appeals, and remanded. On remand, the Court of Appeals, 322 F.3d 240, again affirmed. On appeal the Su- preme Court, 124 S.Ct. 2783, affirmed the 775 decision which granted the preliminary in- junction, and remanded for trial. Holdings: On remand, the United States District Court for the Eastern District of Pennsylvania, Lowell A. Reed, Jr., Senior District Judge, held that: (1) plaintiffs had standing; (2) statute criminalizing transmission, over the World Wide Web (Web), of sexual- ly explicit materials and communica- tions which were available to and harmful to minors, was not narrowly tailored to Congress's compelling inter- est of protecting minors; (3) statute was unconstitutionally vague; and (4) statute was unconstitutionally over- broad. Permanent injunction ordered. L Federal Civil Procedure e=103.2 In order to maintain standing to bring suit, plaintiffs must show, inter alia, that they have sustained or are immediately in danger of sustaining some direct injury that is not abstract, conjectural or hypo- thetical. U.S.C.A. Const. Art. 3, § 2. 2. Constitutional Law ea699 In a pre-enforcement challenge to a statute carrying criminal penalties, stand- ing exists when the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional in- terest, but proscribed by a statute, and there exists a credible threat of prosecu- tion. U.S.C.A. Const. Art. 3, § 2. 3. Telecommunications e=l314 Internet content providers were sub- ject to a credible threat of prosecution under the Child Online Protection Act (COPA), and therefore had standing to bring challenge to COPA's constitutionali- ty; providers engaged in Internet commu- EFTA00226236

774 478 FEDERAL SUPPLEMENT, 2d SERIES appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk. Id Stated another way, punitive damages will be imposed where the defendant knew or had reason to know of facts which create a high degree of risk of physical harm to another, and deliberately proceeded to act, or failed to act, in conscious disregard of, or indifference to, that risk Id. at 771 n. 7. 1271 Viewing the summary judgment record in the light most favorable to Plain- tiff, there is sufficient evidence to allow a reasonable jury to award punitive dam- ages. The Diocesan Defendants and Brother Antonucci knew that Plaintiff was routinely sleeping in Liberatore's bedroom and that Liberatore had taken Plaintiff on several overnight trips. The Diocesan De- fendants also knew about Liberatore's past involvement with Roe. Brother Antonucci had been told by Plaintiff that Liberatore had touched him in a sexual manner. A reasonable jury could conclude that a mi- nor's sleeping in a priest's bedroom and a priest's taking a minor alone on overnight trips are facts which create a high degree of risk of physical harm to the minor. The failure to end this conduct, with its high degree of risk of physical harm to Plaintiff, could reasonably be viewed by a jury as reckless. As such, the Court will deny the Diocesan Defendants' motion for summary judgment as to Plaintiffs claim for puni- tive damages. CONCLUSION For the above stated reasons, the Court will: (1) grant the Diocesan Defendants' motion for summary judgment as to Count I (18 U.S.C. § 2255) of Plaintiffs Com- plaint; (2) grant the Diocese, Sacred Heart and Bishop Timlin's motion for sum- mary judgment as to Count III (vicarious liability) of Plaintiffs Complaint; (3) grant Brother Antonucci's motion for summary judgment as to Count IV (aiding and abet- ting) of Plaintiffs Complaint; (4) grant the Diocese, Sacred Heart and Bishop Timlin's ( otion for summary judgment as to Count (negligent hiring, supervision and reten- tion) of Plaintiffs Complaint to the extent that it claims negligent hiring; (5) deny the Diocese, Sacred Heart and Bishop Timlin's 'on for summary judgment as to Countni l(negligent hiring, supervision and retention) of Plaintiffs Complaint to the extent that it claims negligent supervi- sion and retention; (6) deny Defendants' motion for summary judgment as to Count VI (negligence per se) of Plaintiffs Com- plaint; (7) grant Defendants' motion for summary judgment as to Count VII (inten- tional infliction of emotional distress) of Plaintiffs Complaint; (8) deny the Dioce- san Defendants' motion for summary judg- ment as to Count VIII (breach of fiduciary duty) of Plaintiffs Complaint; (9) grant Brother Antonucci's motion for summary judgment as to Count VIII (breach of fidu- ciary duty) of Plaintiffs Complaint; and (10) deny the Diocesan Defendants' motion for summary judgment as to Plaintiffs claim for punitive damages. An appropriate Order follows. ORDER NOW, this 19th day of March, 2007, IT IS HEREBY ORDERED that: (1) Defendants Diocese of Scranton, Sa- cred Heart of Jesus Church, Bishop James C. Timlin, and Rev. Joseph B. Kopacz's Motion for Summary Judgment (Doc. 75- 1) is: (A) GRANTED as to Counts I, III and VII of Plaintiffs Complaint; (B) GRANTED as to Count, of Plain- tiffs Complaint to the extent that Plaintiff claims negligent hiring; (C) DENIED as to Count l of Plain- tiffs Complaint to the extent that EFTA00226237

DOE v. LIBERATORE CH, ••478 F.Supp.2d 712 (M.D.Fa. 3007) plaintiffs theory of liability in Podolin- ski—that the diocesan officials violated church canons—would "necessarily involve an inquiry into the propriety of the deci- sions of church authorities on matters of discipline, internal organization, ecclesias- tical rule, custom, and law." Id. at 411; 1995 WL 610296, at •15. Consequently, the Court finds Podolinski inapposite. Accordingly, the Court concludes that the Supreme Court of Pennsylvania would recognize Plaintiff's breach of fiduciary duty claims against Liberatore and the Diocesan Defendants, and that such claims do not offend the First Amendment. Therefore, the Court will deny the Dioce- san Defendants' motion for summary judg- ment as to Count VIII of Plaintiff's Com- plaint. 1241 However, the Court will grant Brother Antonucci's motion for summary judgment as to Count VIII of Plaintiffs Complaint. Plaintiff stated in his deposi- tion that he informed Brother Antonucci of Liberatore's sexual abuse. Rather than encourage Plaintiff to contact the police or tell his mother, Brother Antonucci in- structed Plaintiff "to forgive [Liberatore), to keep the issue private, and to not let other people know because it would ruin [Plaintiffs) life and [the lives of) others." In essence, Plaintiff claims that this was bad advice and that, by giving this advice to Plaintiff, Brother Antonucci became ble to Plaintiff for breach of fiduciary dut However, Plaintiffs claim is only a restate. ment of the claim of clergy malpractice, a professional negligence claim which is barred by the First Amendment and not recognized in Pennsylvania. See Podolin- ski, 23 Pa. D. & C. 4th at 399-400, 1995 WL 610296, at •8. As such, the Court will grant Brother Antonucci's motion for sum- mary judgment as to Count VIII of Plain- tiffs Complaint. 773 IV. Plaintiffs Punitive Damages Claim In his Complaint. Plaintiff seeks that punitive damages be imposed against the Diocesan Defendants and Brother Anto- nucci. The Diocesan Defendants move this Court to grant summary judgment in their favor as to this claim. (251 Under Pennsylvania law, "(pluni- tive damages may be awarded for conduct that is outrageous, because of the defen- dant's evil motive or his reckless indiffer- ence to the rights of others." Feld v. Merriam, 506 Pt 383, 485 A2d 742, 747 (1984). "As the name suggests, punitive damages are penal in nature and are prop- er only in cases where the defendant's actions are so outrageous as to demon- strate willful, wanton or reckless conduct." Hutchison ex rel. Hutchison v. Luddy, 582 Pa. 114, 870 A.2d 766, 770 (2005). In determining whether punitive damages are warranted in a particular case, "(Ole state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious." Id. at 771. An appreciation of the risk is a necessary element of the mental state required for the imposition of punitive damages. Id. at 772. As such, a showing of mere negli- gence, or even gross negligence, will not suffice to establish that punitive damages should be imposed. Phillips u Cricket Lighters, 584 Pa. 179, 883 A-2d 439, 445 (2005). However, notwithstanding this heightened standard, punitive damages may be awarded based on a cause of action sounding in negligence if the plaintiff is able to show that "the defendant's conduct not only was negligent but that the con- duct was also outrageous." Hutchison, 870 A2d at 772. 126) Accordingly, under Pennsylvania law, a punitive damages claim must be supported by evidence sufficient to estab- lish that (1) the defendant had a subjective EFTA00226238

772 478 FEDERAL SUPPLEMENT, 2d SERIES recognition of a breach of fiduciary duty claim is necessary to protect a beholden parishioner from a self-serving priest. Moreover, the Pennsylvania Courts of Common Pleas have, in all three cases in which it was faced with the issue, recog- nized a breach of fiduciary duty claim against a priest accused of sexual miscon- duct See Morrison, 68 Pa. D. & C. 4th 473, 2004 WL 3141330; Nardella, 36 Pa. D. & C. 4th 364, 1997 WL 1066878; Podo- linski, 23 Pa. D. & C. 4th 385, 1995 WL 610296. As to a diocese and its officials, a dio- cese exerts an overmastering influence over a plaintiff, or a plaintiff exhibits weakness, dependence on or justifiable trust in the diocese and its officials when, as here, the plaintiff is a minor and is involved in the church beyond that of a mere parishioner, whether by virtue of his serving the church, participating in church-sponsored activities, or receiving counseling from a priest. When the plain- tiff is a minor, the power differential be- tween the plaintiff and priest is magnified. This power differential makes it difficult for a minor who is involved in the church to refuse the unwelcome sexual advances of a priest or report such an advance to his parents or the authorities. See Schneider v. Plymouth State College, 144 N.H. 458 744 A.2d 101 0999) (holding that college owed a fiduciary duty to student, and that this duty was breached by sexual harass- ment of the student by a professor; noting that students are in a vulnerable situation because the power differential between faculty and students makes it difficult for students to refuse unwelcome sexual ad- vances, thus necessitating college's duty to create a safe learning environment). Mi- nors participating in church activities are therefore dependent on the diocese for protection, and the diocese is responsible to provide it. This vulnerability requires the diocese to be vigilant so that minors who are serving the church, participating in church activities, or receiving counseling from a diocesan priest are doing so in an environment free from the threat of sexual abuse. See Nardella, 36 Pa. D. & C. at 381, 1997 WL 1056878, at '10 (allowing plaintiffs breach of fiduciary duty claim to go forward against diocese and its officials on the ground that these defendants placed the priest "in a position to serve as (the plaintiff's] counselor, knowing of her vulnerability and [the priest's) past sexual misconduct"). 123) The recognition of Plaintiffs breach of fiduciary duty claim against Li- beratore and the Diocesan Defendants does not offend the First Amendment. Plaintiffs breach of fiduciary duty claim only raises the issues of whether the par- ties did not deal on equal terms, but, rather, on the one side there was an over- mastering influence, or, on the other, weakness, dependence, or trust, justifiably reposed; in both an unfair advantage is possible, whether that unfair advantage was exploited by Liberatore, and whether the Diocesan Defendants failed to provide and maintain a safe environment for Plaintiff to participate in church activities. See Moses, 863 P2d at 321 n. 13; Lee- dom, 117 A. at 411; Schneider, 744 A2d at 105-06. No inquiry need be made into church doctrine or other ecclesiastical matters. No professional standard of care need be set for clergy. There is no risk of excessive governmental entangle- ment with religion. The Podofitiski case is not to the con- trary. There, the Court of Common Pleas dismissed the plaintiff-parishioner's breach of fiduciary duty claim based upon the diocesan officials failure to adhere to church canons when dealing with the plain- tiffs complaint of a priest's sexual miscon- duct, as precluded by the First Amend- ment 23 Pa. D. & C. 4th at 408-11, 1995 WL 610296, at •13-15. As is obvious, the EFTA00226239

DOE v. LIDEFUTORE Clie as 47/1 F.Sup0.24 742 (M.D.Pa. 2007) the defendant-priest has breached that standard, one of the inquiries that several courts have held to result in the govern- ment's excessive entanglement with reli- gion. Moses, 863 P.24 at 321 n. 13. As such, these courts conclude that the recog- nition of a breach of fiduciary duty claim in the presence of a special relationship does not offend the First Amendment. See Martinelli, 196 F.3d at 430-32 ("(tjlle First Amendment does not prevent courts from deciding secular civil disputes involv- ing religious institutions when and for the reason that they require reference to reli- gious matters"). Moreover, as the Florida Supreme Court recently explained, to hold that the First Amendment effectively im- munizes church defendants from suit "could risk placing religious institutions in a preferred position over secular institu- tions, a concept both foreign and hostile to the First Amendment." Malicki v. Doe, 814 So.241 347, 365 (Fla.2002). 4. Prediction 1221 In light of the Supreme Court of Pennsylvania's definition of what consti- tutes a fiduciary relationship, see Leedom, 117 A. at 411 (a fiduciary relationship will be found to exist "when the circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence, or, on the oth- er, weakness, dependence, or trust, justifi- ably reposed; in both an unfair advantage is possible"), the Court is of the opinion that the Supreme Court of Pennsylvania would recognize Plaintiff's breach of fidu- ciary duty claim against Liberatore and the Diocesan Defendants. Viewing the ev- idence in the light most favorable to Plain- tiff, a reasonable jury could conclude that Plaintiff was more than a mere parishio- ner and that Liberatore and the Diocesan Defendants exerted an overmastering in- fluence over Plaintiff, or that Plaintiff ex- hibited weakness, dependence on or justi- fiable trust in Liberatore and the Diocesan 771 Defendants. Additionally, the Court is of the opinion that the Supreme Court of Pennsylvania would hold that Plaintiffs breach of fiduciary duty claims do not offend the First Amendment. Conse- quently, the Court will deny the Diocesan Defendants' motion for summary judg- ment as to Count VIII of Plaintiffs Com- plaint. As previously stated, under Pennsylva- nia law, a fiduciary relationship exists "when the circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence, or, on the other, weakness, de- pendence, or trust, justifiably reposed; in both an unfair advantage is possible." Leedom, 117 A. at 411; see also Estate of Clark, 359 Aid at 781 (a fiduciary rela- tionship exists "whenever one person has reposed a special confidence in another to the extent that the parties do not deal with each other on equal terms, either because of an overmastering dominance on one side, or weakness, dependence or justifi- able trust, on the other"). This definition fits the relationship of a priest and a parishioner once the priest "accepts the parishioner's trust and ac- cepts the role of counselor." Males. 863 P2d at 322-23. In such a case, the parish- ioner has justifiably placed his trust in the priest. In order to receive and make use of a priest's advice and counsel, a parishio- ner must necessarily depend upon the priest's knowledge and expertise, resulting in the priest's superiority and influence over the parishioner. Thus, once a coun- seling relationship has commenced, the pa- rishioner and priest no longer deal on equal terms. This unequal relationship af- fords the priest opportunity to abuse the trust and confidence reposed in him or prey on a weak and dependent parishioner to his own benefit. The relationship there- fore becomes fiduciary in nature and the EFTA00226240

770 478 FEDERAL SUPPLEMENT, 2d SERIES cause "defining the scope of fiduciary duty owed persons by their clergy ... would require courts to define and express the standard of care followed by reasonable clergy of the particular faith involved, which in turn" would result in the court's excessive entanglement with religion); Schleifer v. Catholic Archdiocese of Oma- ha, 244 Neb. 715, 508 N.W.2d 907, 911 (1993) (refusing to recognize the plaintiffs breach of fiduciary duty cause of action against a member of the clergy, arising from the priest's alleged sexual miscon- duct, on First Amendment grounds, rea- soning that, if it were to recognize such an action, the court would be confronted with the task of articulating the generalized standard of care for a clergyman required by the law of negligence). These courts reject a breach of fiduciary duty claim on First Amendment grounds for one of two reasons. First, some courts hold that it is impossible for a plaintiff- parishioner to establish the existence of a fiduciary relationship with a priest or dio- cese without impermissibly resorting to re- ligious understandings to demonstrate the necessary disparity in position and influ- ence or explain why he reposed trust and confidence in the priest and diocese. See e.g., Teadt, 603 N.W2d at 823; see also Ira C. Lupu & Robert W. Tuttle, Sexual Mis- conduct and Ecclesiastical Immunity, 2004 B.Y.U. L.REv. 1789, 1827-28 (2004) ("To determine whether a religious rela- tionship should give rise to a fiduciary obligation, a court would limpermissbly) need to examine the religious understand- ings of parishioner and priest"). Other courts reason that, if a breach of fiduciary duty claim were recognized, it would be necessary to define a reasonable duty stan- dard and then evaluate a defendant- priest's conduct against that standard, Dausch, 52 F.3d at 1438 (claim for "clergy malpractice" is not recognized under Illi- nois law), resulting in excessive govern- ment entanglement with religion in viola- tion of the First Amendment. Franco v. The Church of Jesus Christ of Latter-day Saints, 21 P.3d 198, 205 (Utah 2001); Hawkins v. Trinity Baptist Church. 30 S.W.3d 446, 453 (Tex. App2000). However, as mentioned above, an equal, if not greater, number of courts allow a breach of fiduciary duty claim when there exists a special relationship between the priest and parishioner, notwithstanding the First Amendment. See e.g., Maims v. St. James Episcopal Chunk 884 Sold 747, 757, 760-61 (Miss.2004) (affirming tri- al court's finding that plaintiff-parishio- ner's claim for breach of fiduciary duty is not prohibited by the First Amendment, but that a priest may not be held to be in a fiduciary relationship merely based upon his status as a priest, as recognizing such a duty on the basis of a position held within the church would require the court to de- fine a reasonable standard of care and evaluate a priest's conduct compared to that standard, in violation of the First Amendment). These courts reason that, when a breach of fiduciary duty claim arises from the priest's allegedly having used a parishio- ner's trust in him to his own advantage, rather than to the parishioner's benefit, all a court need ask is whether there is deal- ing on unequal terms based on the parish- ioner's trust, justifiably reposed, and whether that trust has been breached. See Moses v. Diocese of Colorado, 863 P2d 310, 321 n. 13 (Colo.1993) ("the relevant facts are that the defendants ... occupied a position of superiority, assumed a duty to act in good faith, and then breached their duty"). Such inquiries are religion- neutral as they "involve) I purely secular conduct that is analogous to an intentional tort and does not hinge on ecclesiastical matters." Gaines, 354 F.Supp2d at 583. A court also need not define a reasonable standard of care or inquire as to whether EFTA00226241

DOE v. 1,1DERATORE cue as 473 F.Suppad 742 (M.D.P. 2107) an action against the diocese alleging that a priest in his parish used his position of trust to induce members of a church youth group, including the plaintiff, to engage in sexual relations with him. Id. at 414. Af- ter a jury found that a fiduciary relation- ship existed between the plaintiff and the diocese, the United States Court of Ap- peals for the Second Circuit upheld this verdict on appeal, finding that the relation- ship between the plaintiff and the diocese was fiduciary in nature. /d. at 429. The court supported its conclusion that a fidu- ciary relationship existed on the grounds that the diocese sponsored and encouraged the abusive priest's contact with the youth of the parish, the plaintiff attended a Cath- olic school within the diocese, participated in church activities, and had been taught throughout grade school catechism classes to trust and respect the bishop of the diocese. Id In Fortin v. The Roman Catholic Bish- op of Portland, 871 A2d 1208 (Me.2005). the Supreme Judicial Court of Maine held that a victim of child sexual abuse perpe- trated by a priest could pursue a breach of fiduciary duty claim against the diocese, finding that the plaintiff had a fiduciary• relationship with the diocese based upon his "prolonged and extensive involvement with the church as a student and altar boy" which distinguished him from a plain- tiff "who asserts nothing more than gener- al membership in a religious organization:. Id. at 1220. The court continued, "[a) child who is both a student and an altar boy is subject to the supervision, control and authority of the Diocese on a daily basis. At its very core, this is a relation- ship marked by the 'great disparity of position and influence between the parties' that is a hallmark of a fiduciary relation- ship." Id; see F.G. v. MacDonell, 150 N.J. 550, 696 A.2d 697, 704 (1997) (holding that plaintiff-parishioner stated cause of action for breach of fiduciary duty against a church rector based on the inappropriate 769 sexual relationship that developed between them while the rector was counseling the parishioner); Destefano v. Grabrian, 763 P.2d 275 (Colo.1988) (holding that the plaintiff, who had engaged in a sexual rela- tionship with the Catholic priest who was counseling her, stated a cause of action for breach of fiduciary duty); Erickson v. Christenson, 99 Or.App. 104, 781 P2d 383, 386 (1989) (recognizing plaintiffs breach of fiduciary duty claim against pastor who seduced her through counseling relation- ship). As noted above, several courts have re- fused to recognize breach of fiduciary duty claims brought against priests or dioceses because such claims offend the First Amendment- See Gaines, 354 F.Supp2d at 583 (citing Dausch v. Rykse, 52 F.3d 1426, 1438 (7th Cir.1994)); Teadt v. St. John's Evangelical Church. of Burr Oak Mick, 237 Mich.App. 567, 603 N.W.2d 816, 823 (1999) (refusing to recognize the plain- tiffs breach of fiduciary duty cause of action against a member of the clergy, arising from her sexual relationship with her minister, on First Amendment grounds, reasoning that the plaintiff could not establish any imbalance of power in the relationship or explain why she would repose trust in the minister without resort- ing to religious facts); Langford v. Roman Catholic Diocese of Brooklyn, 177 Misc2d 897, 677 N.Y.S2d 436 (N.Y.Sup.Ct.1998) (refusing to recognize the plaintiff's breach of fiduciary duty cause of action against a member of the clergy, arising from a priest's alleged sexual misconduct, on First Amendment grounds, reasoning that it would be impossible to show the existence of a fiduciary relationship, based on the plaintiff's repose of trust in the priest, without resort to religious facts); H.K.B. v. 913 S.W.2d 92, 98 (Mo.CIAPP 1995) (refusing to recognize the plaintiff's breach of fiduciary duty action against church for clergy sexual misconduct be- EFTA00226242

768 478 FEDERAL SUPPLEMENT, 2d SERIES However, in Podolinski v. Episcopal Di- ocese of Pittsburgh, the court held that, while the plaintiff-parishioner's breach of fiduciary duty claim could go forward against the priest based on the sexual relationship that arose between them dur- ing marriage counseling sessions, the plaintiff-parishioner's breach of fiduciary duty claim against the diocese and its offi- cials, arising from the improper manner, under church canons, in which the plain- tiffs accusation against the priest was han- dled by these defendants, as well as the outcome of the diocese's investigatory and disciplinary procedures, was precluded by the First Amendment. 23 Pa. D. & C. 4th at 408-11, 1995 WL 610296, at '13-15. The court reasoned that an adjudication on this claim would require it to inquire into the decision of church authorities on mat- ters of "discipline, faith, internal organiza- tion or ecclesiastical rule, custom or law." hi, 1995 WL 610296, at '13-15. 3. Federal Courts and Supreme Courts of Other States "ITlhe federal and state supreme courts that have considered a breach of fiduciary• duty claim ... uniformly have rejected attempts to found the cause of action merely on the relationship between parish- ioners and members of the clergy." Gaines, 354 F.Supp.2d at 582, 584 ("it has consistently been recognized that the mere existence of a pastor-parishioner relation- ship does not in itself give rise to a fiducia- ry duty"). Moreover, several courts have refused to recognize breach of fiduciary duty claims brought against priests or dioceses on the ground that such claims offend the First Amendment. Id. at 583. However, some courts have been more willing to recognize breach of fiduciary duty claims in cases in which there is a special relationship between the plaintiff- parishioner and the defendant priest or diocese, such as when the plaintiff-parish- ioner received counseling from a diocesan priest or participated in church-sponsored activities. See id. at 583-85. In Gaines v. Krawczyk, the United States District Court for the Western Dis- trict of Pennsylvania held that the Su- preme Court of Pennsylvania would not recognize a breach of fiduciary duty claim in a case in which a priest furnished alco- hol to a minor college student, who subse- quently fell to his death from a crawlspace in the church. 354 F.Supp.2d at 58245. The court reasoned that, because there was no counseling relationship, nor any special relationship for that matter, be- tween the priest and minor student, there was no fiduciary relationship that could be breached. ki. at 584-85. The court ex- plained that "the mere existence of a pas- tor-parishioner relationship does not in it- self give rise to a fiduciary duty." IS at 584. Rather, something more, such as a counseling relationship or other additional or special relationship which causes the parishioner to repose trust and confidence in the priest, is required to create a fidu- ciary relationship. hi; see Doe v. Hartz, 52 F.Supp.2d 1027, 1065 (N.D.lowa 1999) (interpreting Iowa law, dismissed breach of fiduciary duty claim because the plain- tiff merely alleged a priest-parishioner re- lationship, and not a counseling relation- ship); Sanders v. Casa View Baptist Church, 134 F.3d 331, 337 (5th Cir.1998) (interpreting Texas law, permitted breach of fiduciary duty claim against minister because claim arose out of a counseling relationship, not merely a priest-parishio- ner relationship). A fiduciary relationship was found to exist by the United States Court of Ap- peals for the Second Circuit in Martinelli r. Bridgeport Roman Catholic Diocesan Corp.. 196 FM 409 (2d Cir.1999) (inter- preting Connecticut law). In Martinelli, the plaintiff, who was fourteen (14) at the time of the alleged sexual abuse, brought EFTA00226243

DOE' LIBERATORE 767 Cite 44 478 F.Suppld 742 INI.D.Ps. 2007) the plaintiffs' contentions, holding that the plaintiffs' relationships with their dioceses, that of mere parishioners, did not consti- tute fiduciary relationships. Meehan, 870 Aid at 922 n. 9; Baselice, 879 Aid at 279 n. 4. The court reasoned that the plaintiffs' relationships with their dioceses were too general in nature, and, thus, did not rise to the higher level associations involved in fiduciary relationships such as attorn and client, doctor and patient, or cler and penitent. Meehan, 870 Aid at 922 n. 9; Boselice, 879 Aid at 279 n. 4. As a counseling relationship is substantially similar to the priest-penitent relationship, the Superior Court's comparison of the plaintiff-parishioners' general—parishioner qua parishioner—relationship with their dioceses to the "specific, legally recognized higher level association" that characterizes a priest-penitent relationship suggests that the Superior Court would recognize a breach of fiduciary duty claim brought by a plaintiff against a priest and diocese when there existed a counseling or other special relationship above that of simply a parishioner. The Pennsylvania Courts of Common Pleas have on three occasions recognized a claim against a priest or diocese for breach of fiduciary duty. See Morrison v. Diocese of Alloona-Johnstown, 68 Pa. D. & C. 4th 473, 2004 WI. 3141330 (Pa.Com.Pl. Oct. 20, 2004); Nardella v. Dauilo, 36 Pa. D. & C. 4th 364, 1997 WI- 1056878 (Pa.Com.Pl. Mar. 21, 1997) (en bane); Podolinski v. Episcopal Diocese of Pillsburgh, 23 Pa. D. & C. 4th 385, 1995 WI. 610296 (Pa.Com.Pl. Mar. 22, 1995). In Morrison v. Diocese of Altoona- Johnstown, the court held that the plain- tiff-parishioner had stated a claim for breach of fiduciary duty against the dio- cese and its officials in two respects. 68 Pa. D. & C. 4th at 491, 2004 WL 3141330. First, the plaintiff, who had reported to diocesan officials that a priest had sexually abused him while the plaintiff was a minor, had stated a claim for breach of fiduciary duty stemming from the diocesan officials failure to uphold their promise that the priest would be denied future opportuni- ties to come into contact with children. id. The court reasoned that the diocesan officials' representations could have result- ed in the creation of a fiduciary duty to plaintiff because a reasonable fact-finder could conclude that the officials' represen- tations were intended to placate the plain- tiff in order to gain his trust and thereby lessen the likelihood that he would bring legal action against them. Id The court also recognized the plaintiffs claim for breach of fiduciary duty that arose from the diocesan officials failure to uphold their unconditional promise to pay for the plaintiffs psychological counseling. Id. at 491-92. In Nardella r. Dattilo, the court held that the plaintiff-parishioner, an adult woman, had stated a claim against her priest, the diocese, and diocesan officials for breach of fiduciary duty arising from the sexual relationship that developed be- tween the plaintiff and priest during coun- seling sessions regarding the death of the plaintiffs mother. 36 Pa. D. & C. 4th at 380-82, 1997 WL 1056878, at '10. The court found persuasive the plaintiffs argu- ment that the priest breached his fiduciary duty, a duty that was owed to her as her counselor and priest, by acting in a man- ner not to benefit the plaintiff, but, rather, to satisfy his own sexual needs. Id at 381, 1997 WI, 1056878, at . 10. The court also allowed the plaintiffs claim against the diocese and its officials to go forward on the ground that these defendants breached their fiduciary duty to the plaintiff by plac- ing the priest "in a position to serve as [the plaintiffs) counselor, knowing of her vulnerability and [the priest's) past sexual misconduct." Id. at 381, 1997 WL 1056878, at •10. EFTA00226244

766 478 FEDERAL SUPPLEMENT, 2d SERIES deal on equal terms, but, on the one side there is an overmastering influence, or, on the other, weakness, dependence, or trust, justifiably reposed; in both an unfair ad- vantage is possible." Id; see also In re Estate of Clark 467 Pa. 628, 359 A2d 777, 781 (1976) (a fiduciary relationship exists "as a matter of fact whenever one person has reposed a special confidence in another to the extent that the parties do not deal with each other on equal terms, either because of an overmastering dominance on one side, or weakness, dependence or justi- fiable trust, on the other"); Drob v. Jaffe, 351 Pa. 297, 41 £2d 407, 408 (1945) (a fiduciary relationship "exists wherever one occupies toward another such a position of advisor or counsellor (sic) as reasonably to inspire confidence that he will act in good faith for the other's interest"). One in a fiduciary relationship with another is un- der a duty to act solely in the interest of that person. McCarrell v.. Cumberland County Employee's Retirement Bd., 120 Pa.Cmwlth. 94, 547 A.2d 1293, 1296 (1988); see also Leedom, 117 A. at 411 (a fiduciary relationship "is one wherein a party is bound to act for the benefit of another, and can take no advantage to himself'). Fail- ure to act in the other's interest results in breach of the duty imposed by the fiducia- ry relationship. RESTATEMENT (SECOND) OF Toms § 874 (1979). The Supreme Court of Pennsylvania has not determined whether or not there is a cause of action for breach of fiduciary duty against a priest or diocese. See Gaines v. Krawczyk, 354 F.Supp.2d 573, 582 (W.D.Pa2004). Consequently, the Court "must don the soothsayer's garb and pre- dict how (the Supreme Court of Pennsyl- vania) would rule if it were presented with the question." Official Committee of Unsecured Creditors v. R.F. Lafferty & Ca, 267 F.341 340, 349 (3d Cir.2001). In making this prediction, the Court should consider decisions of the intermediate and trial courts of the state, federal courts interpreting the particular area of the law in question, and other state supreme courts that have addressed the matters raised. Wiley v. State Farm Fire & Casu- alty Co., 995 F.2d 457, 459 (3d Cir.1993). 2. The Courts of Pennsylvania Decisions of the intermediate and trial courts of Pennsylvania provide support for the conclusion that the Supreme Court of Pennsylvania would recognize Plaintiff's breach of fiduciary duty claim against Li- beratore and the Diocesan Defendants. These decisions suggest a rule holding that, when a plaintiff had a special rela- tionship with the defendant priest and dio- cese, such as counseling or participation in church-sponsored activities, a fiduciary re- lationship will be found to exist and the plaintiffs breach of fiduciary duty claim will be recognized. The Superior Court of Pennsylvania has on two occasions refused to fmd a fiduciary relationship between parishioners and the diocese in actions arising from alleged acts of sexual abuse perpetrated by diocesan priests. See Meehan v. Archdiocese of Philadelphia, 870 A.2d 912, 922 n. 9 (PaSuper2005); Baselice v. Franciscan Friars Assumption BVM Province, Inc. 879 A.2d 270, 279 n. 4 (Pa.Super2005). In both Meehan and Baselice, the plaintiffs, victims of alleged sexual abuse by diocesan priests, had waited until long after the statute of limitations had expired to pursue their claims. 870 A.2d at 917-18, 879 A2d at 278-79. The plaintiffs in both cases argued that they had a fiduciary relation- ship with their dioceses, and that, due to this relationship and the dioceses' general and systematic concealment of the offend- ing priests' misconduct, the doctrine of fraudulent concealment tolled the statute of limitations. Meehan, 870 A.2d at 921- 22; Base!ice, 879 A2d at 278-79. The Superior Court on both occasions rejected EFTA00226245

110E LIBEItATORE Cue as drill F. upp.2d 742 (7.1.1).Pa. 2007) against Liberatore, the Diocese, Sacred Heart, Bishop Timlin, Father Kopacz and Brother Antonucci. The Diocesan Defen- dants. as well as Brother Antonucci, now move the Court to grant summary judg- ment as to this claim. (19,201 "To prove a claim of intention- al infliction of emotional distress, the fol- lowing elements must be established: (1) the conduct must be extreme and outra- geous; (2) it must be intentional or reck- less; (3) it must cause emotional distress; (4) that distress must be severe." Hoy v. Angelone, 456 Pa.Super. 596, 691 A2d 476, 482 (1997). Extreme and outrageous con- duct is conduct which is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utter- ly intolerable in a civilized society:" Strickland v. University of Scranton, 700 A.2d 979, 987 (Pa.Super.1997). Generally. "the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, *outrageous'!" Id. In addition, to prevail on an intentional infliction of emotional distress cause of action, a plaintiff must provide competent medical evidence to prove the existence of emotional distress. Kazatsky u King David Memorial Park Inc, 515 Pa. 183, 527 A2d 988, 995 (1987); see Hunger v. Grand Central Sanitation, 447 Pa.Super. 575, 670 A.2d 173 (1996) (holding that, to prevail on intentional in- fliction of emotional distress claim, a plain- tiff must prove that the defendant's con- duct was extreme and outrageous and that the plaintiff suffered a medically confirmed injury). In this case, Plaintiff has failed to pres- ent competent medical evidence to support his claim of severe emotional distress, as required under Pennsylvania law. As such, the Court will grant summary judg- 765 ment as to Count VII of Plaintiff's Com- plaint. F. Breach of Fiduciary Duty (Count VIII) 1. Introduction In Count VIII, Plaintiff alleges that De- fendants Liberatore. the Diocesan Defen- dants and Brother Antonucci breached their respective fiduciary duties to Plain- tiff. Plaintiff argues that the Diocesan Defendants, as well as Brother Antonucci, breached their fiduciary duties that were owed to Plaintiff by placing Liberatore in a position to serve as Plaintiffs priest and counselor, by failing to remove Liberatore from that position, and by failing to report Liberatore to law enforcement authorities after having ample reason to believe Li- beratore had committed acts of sexual abuse. Plaintiff contends that the Dioce- san Defendants and Brother Antonucci, rather than act in his best interest, chose rather to act in their own interests by ignoring and even attempting to conceal Liberatore's sexual abuse of a minor. The Diocesan Defendants have moved for sum- mary judgment as to this count, arguing that Pennsylvania does not recognize a claim for breach of fiduciary duty in a case similar to this one. Brother Antonucci also moves for summary judgment, assert- ing that the facts do not support Plaintiffs claim. (211 Under Pennsylvania law, "(Ube general test for determining the existence of .. a (fiduciary) relationship is whether it is clear that the parties did not deal on equal terms." Irowen v. Blank, 493 Pa. 137, 425 A2d 412, 416 (1981). Indeed, a fiduciary relationship "is not confined to any specific association of the parties." Leedom v. Palmer, 274 Pa. 22, 117 A. 410, 411 (1922) Rather, a fiduciary relationship will be found to exist "when the circum- stances make it certain the parties do not EFTA00226246

764 478 FEDERAL. SUPPLEMENT, 2c1 SERIES Heart, but did not serve in a clerical capac- ity, was a person required to report under section 6311. While Brother Antonucci was not a clergyman within the Diocese, section 6311(b) does not so limit the cler- gymen included within its reach. Indeed, the statute requires "any ... member of the clergy" to report suspected child abuse. The Court does not interpret this provision to include only ordained priests within the Diocese and Brother Antonucci cites no case law so limiting the reach of section 6311. Brother Antonucci not only was a consecrated monk and hermit but, according to Plaintiff, he also held himself out to Plaintiff as a religious and spiritual advisor. In addition, the statute's intent is to require those persons who come into contact with children during the course of their employment to report suspected abuse. Here, there is no question that, during the course of his employment with Sacred Heart, Brother Antonucci did in fact come into contact with children, in- cluding Plaintiff. As such, the Court con- cludes that the Child Protective Services Act clearly applied to Brother Antonucci. Third, a reasonable jury could find that Defendants violated the statute. Viewing the record in the light most favorable to Plaintiff, there is evidence which supports the conclusion that Defendants had "rea- sonable cause to suspect" that Liberatore was sexually abusing Plaintiff. The Dioce- san Defendants were informed of Libera- tore's past incidents involving Roe and Poe. They had also been informed of the fact that Plaintiff was sleeping in Libera- tore's bedroom in the Rectory. In addi- tion, several people had voiced their own concerns and suspicions regarding the re- lationship between Liberatore and Plain- tiff, and supported these suspicions with their own personal observations of Libera- tore's behavior towards Plaintiff. As Plaintiff was a parishioner, alter server and sacristan at Sacred Heart, and the reports concerned a Diocesan priest's abuse, the Diocesan Defendants were in sufficient "contact" with Plaintiff to bring them within the reporting requirements of the Child Protective Services Act As for Brother Antonucci, Plaintiff directly told him of Liberatore's sexual abuse. As such, Plaintiff "came into contact" with Brother Antonucci. Accordingly, there was sufficient evidence within the knowl- edge of Defendants to create "reasonable cause to suspect" that Liberatore was sex- ually abusing Plaintiff. As it is uncontest- ed that Defendants did not report Libera- tore's suspected abuse of Plaintiff to law enforcement authorities, a reasonable jury could conclude that Defendants violated section 6311 of the Child Protective Ser- vices Act. Fourth, when viewing the evidence in the light most favorable to Plaintiff, a rea- sonable jury could find that Defendants' failure to report Liberatore's sexual abuse of Plaintiff, in violation of section 6311, proximately caused the injuries Plaintiff suffered. Liberatore was convicted of sex- ual abuse, indecent assault and corruption of minors based on his May 2002 assaults upon Plaintiff. The Diocesan Defendants knew as early as January of 2001 that Plaintiff was sleeping in Liberatore's bed- room at the Rectory. Plaintiff also stated in his deposition that he told Brother An- tonucci, prior to May of 2002, that Libera- tore was sexually abusing him. As such, a reasonable jury could find that, had Defen- dants reported Liberatore to law enforce- ment authorities, Liberatore would not have had the opportunity to sexually abuse Plaintiff in May of 2002. Summary judg- ment as to Count VI is thus inappropriate and will be denied. E. Intentional Infliction of Emotion- al Distress (Count VII) in Count VII, Plaintiff asserts a claim of intentional infliction of emotional distress EFTA00226247

DOE I LIBERATORE Ow as 471 F uppld 742 (M.D.Pa. 2007) least, grooming this young man, if not already involving him in a sexual relation- ship. Consequently, Count I of Plaintiff's Complaint will survive summer' judgment to the extent that Plaintiff claims that the Diocese, Sacred Heart and Bishop Timlin were negligent in supervising and retain- ing 1 Liberatore. The Court • I grant sum- mary judgment as to Count of Plaintiff's Complaint to the extent at Plaintiff claims that Liberatore was negligently hired. D. Negligence Per Se (Count VI) In Count VI of his Complaint, Plaintiff sets forth a claim of negligence per se arising from Defendants' alleged violation of the Child Protective Services Act, 23 P& CONSSTAT. ANN. § 6311. Specifically, Plaintiff alleges that the Diocesan Defen- dants and Brother Antonucci failed to com- ply with the reporting requirements of sec- tion 6311. The Diocesan Defendants and Brother Antonucci now move this Court for summary judgment as to this count. The Diocesan Defendants argue that they never "came into contact" with Plaintiff and thus were not subject to section 6311. Brother Antonucci asserts that, because he was not employed by the Diocese as a priest, he too was not subject to the re- porting requirement imposed by section 6311. Section 6311 provides, in pertinent part: Persons who, in the course of their em- ployment, occupation or practice of their profession, come into contact with chil- dren shall report or cause a report to be made in accordance with section 6313 (relating to reporting procedure) when they have reasonable cause to suspect, on the basis of their medical, profession- al or other training and experience, that a child coming before them in their pro- 763 fessional or official capacity is an abused child. 23 Ps Cons.Sver. ANN. § 6311(a). Under section 6311(b), "persons required to re- port under subsection (a) include, but are not limited to, any ... member of the clergy." 23 Ps CONS.STAT ANN. § 6311(b). As is clear from its language, subsection (b) recites an inclusive, rather than exclu- sive, list of those persons required to re- port. (17, 181 Under Pennsylvania law, the elements of a negligence per se action are: (1) the purpose of the statute must be, at least in part, to protect the interest of the plaintiff, individually, as opposed to the public; (2) the statute must clearly apply to the conduct of the defendant; (3) the defendant must violate the statute; and (4) the violation of the statute must proxi- mately cause the plaintiff injury. Jordan v. City of Philadelphia, 66 F.Supp.2d 638, 644 (E.D.Pa.1999). Alter analyzing these factors, the Court is of the opinion that, when the evidence is viewed in the light most favorable to Plaintiff, a reasonable jury could conclude that the Diocesan De- fendants and Brother Antonucci violated section 6311. The first element of Plaintiff's negli- gence per se action is easily met. Section 6311 was clearly promulgated so as to protect abused children such as Plaintiff. J.E.J. v. Tri-County Big Brothers/Big Sis- ters, Inc, 692 A2d 582, 586 (Pa.Su- per.Ct.1997). Second, clergy are expressly included within the list of individuals who have a duty to report suspected child abuse. 23 PA. CON&STAT. Atm. § 6311(b). As such, the statute dearly applies to the Diocesan Defendants. The Court is also of the opinion that Brother Antonucci, a benedictine monk who was hired by Liberatore to serve as a cantor, custodian and cook at Sacred EFTA00226248

762 478 FEDERAL SUPPLEMENT, 2d SERIES havior between consenting adults does not violate the rules of civil society. It does not follow that a homosexual is more likely than a heterosexual to prey on minors of the same sex. As such, standing alone, Liberatore's homosexual behavior with regard to Roe, an adult, would be irrelevant as to the issue of whether the Diocesan Defendants had notice that Li- beratore had a propensity to sexually abuse a minor male. However, Libera- tore's behavior with regard to Roe be- comes relevant, as to the issue of notice to the Diocesan Defendants, by virtue of the fact that it was strikingly similar to that which he later engaged in with regard to Plaintiff. Liberatore was in Roe's company a great deal, bought Roe expensive gifts. took Roe on overnight trips and had Roe sleep in his room at the Seminary. This behavior was noticed by colleagues, who, in turn, made their observations and con- cerns known to the Diocesan Defendants. While at Sacred Heart, Liberatore coun- seled Plaintiff regarding the death of his father, hired Plaintiff as a sacristan, was in Plaintiff's company an inordinate amount of time, purchased expensive gifts for Plaintiff, took Plaintiff on overnight trips and had Plaintiff sleep in his room at the Rectory. Like his relationship with Roe, Liberatore's relationship with Plaintiff drew comment from people who were in a position to view, on a daily basis, much of what occurred between them. These peo- ple, in turn, informed the Diocese, Sacred Heart and Bishop Timlin of their observa- tions and concerns. Accordingly, Liberatore's homosexual behavior with regard to Roe is legally relevant as to the issue of whether the Diocese, Sacred Heart and Bishop Timlin had notice that Liberatore was, at the very least, grooming Plaintiff for a homosexual relationship, if not already involving him in one. However, even ignoring Liberatore's re- lationship with Roe, a reasonable jury could conclude that there was adequate warning to the Diocese, Sacred Heart and Bishop Timlin that Liberatore was groom- ing Plaintiff for a homosexual relationship, and that it may well have already begun. The notice of Plaintiff's sleepovers in the Rectory, the gifts given to Plaintiff and the overnight trips is sufficient to allow a rea- sonable jury to conclude that the Diocese, Sacred Heart and Bishop Timlin were neg- ligent or reckless in retaining Liberatore as a Diocesan priest. Viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could also conclude that the Diocese, Sa- cred Heart and Bishop Timlin were negli- gent or reckless in permitting, or failing to prevent, Liberatore's tortious conduct upon church premises, given Plaintiffs statement that Liberatore routinely sexu- ally abused him while they slept in Libera- tore's bedroom in the Sacred Heart Recto- ry. Further, the Court cannot conclude as a matter of law that the Diocese, Sacred Heart and Bishop Timlin are not liable under Section 317 of the Restatement (Second) of Torts, as a reasonable jury could conclude that these defendants knew of the necessity and had the opportunity and ability to control Liberatore's actions, but nevertheless failed to exercise reason- able care to prevent Liberatore, acting outside the scope of his employment, from intentionally harming Plaintiff while on church premises. Given the evidence of Bishop Timlin's awareness of Liberatore's relationship with Roe, Plaintiffs sleeping in Liberatore's bedroom at the Rectory and the overnight trips on which Libera- tore had taken Plaintiff, a reasonable jury could conclude that the Diocese, Sacred Heart and Bishop Timlin had reason to believe that Liberatore was, at the very EFTA00226249

DOE I LIBERATORE Cites's47D EStapp.2d 742 (M.D.?. 2007) was or would become a child sex predator when he was lured in 1995. As noted above, under Section 213(b) of the Restatement (Second) of Agency, a principal is liable for harm resulting from his conduct if he is negligent or reckless in the employment of improper persons in work involving risk of harm to others. RESTATEMENT (SECOND) OF AGENCY § 213(b). Additionally, under Section 213(d) of the Restatement (Second) of Agency, a principal is liable for harm re- sulting from his conduct if he is negligent or reckless in permitting, or failing to pre- vent, negligent or other tortious conduct by persons upon his premises. RESTATE. MF.NT (SECOND) OF AGENCY § 213(d). Here, viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could find that the Diocese, Sacred Heart and Bishop Timlin were negligent or reckless in retaining Liberatore because the jury could conclude that Liberatore was an improper person who posed a risk of sexual abuse to minor males. A reason- able jury could also find that the Diocese, Sacred Heart and Bishop Timlin were neg- ligent or reckless in permitting, or failing to prevent, negligent or other tortious con- duct by persons on church premises based on Liberatore's sexual abuse of Plaintiff in the Sacred Heart Rectory. There is evidence that Bishop Timlin was informed that Plaintiff was sleeping in Liberatore's bedroom at the Rectory and that Liberatore had taken Plaintiff on sev- eral overnight trips (O'Neill Letter). Bishop Timlin acknowledged that he would characterize such activity as grooming be- havior. (Timlin Dep. 36:8-37:9.) Bishop Timlin was informed of Liberatore's inap- propriate behavior with Roe and Poe. (Bohr Dep. 42:8-43:11; Summary at 2.) Shortly thereafter, Bishop Timlin removed Liberatore from the Seminary. However, rather than dismiss Liberatore as a Dioce- san priest, Bishop Timlin assigned him to 761 another parish within the Diocese. Based on this evidence, a reasonable jury could infer that this provided Liberatore the op- portunity to befriend Plaintiff and then sexually abuse him. Further, the awareness of the potential Liberatore posed as a pedophile raises the question of the relevance of the Diocese's and Bishop Timlin's awareness of Libera- tore's behavior with Roe. The Court finds it relevant for the following reasons. A Roman Catholic priest takes a vow of celibacy at his ordination and, therefore, is called to refrain from any and all sexual activity. Wikipedia, supra. "Clerical Celi- bacy", httmlien.wikipedia.org/wiki/ Celibacy#ClericaLcelibacy. While any sexual act outside the sacrament of mar- riage is forbidden by the Church, Wikipe- dia, supra, "Roman Catholic Church", http://en.wilcipedia.orghvikillioman_ Catholic_Church#Sexuality, homosexual acts are considered to be "intrinsically im- moral" and "contrary to the natural law." Wikipedia, supra, "Instruction Concerning the Criteria for the Discernment of Voca- tions with regard to Persons with Homo- sexual Tendencies in view of their Admis- sion to the Seminary and to Holy Orders", http://en.wilcipedia.orgAvilciiinstruction_ Concerning_the_Criteria_for_the_ Discernment_oLVocations_with_regard_ to_Persons_svith_Homosexual_ Tendencies.in_view_oLtheir_Admission_ to_the_Seminary_and_to_floly_Orders. Indeed, the Church forbids the ordination of men to the priesthood who have "deeply rooted homosexual tendencies." Wikipedia, supra, "List of Christian denominational positions on homosexuality", httpi/en. wikipediaorghviki/List_of_Christian_ denominational_positions on_ homosexuality#Roman_Catholic_Church. Nevertheless, in general, homosexual be- EFTA00226250

760 478 FEDERAL SUPPLEMENT, 2d SERIES C. Negligent Hiring, Supervision and Retention (Count V) Plaintiff next claims that the Diocese. Sacred Heart and Bishop Timlin are liable for negligence in their hiring, supervision and retention of Liberatore as a Diocesan priest. [14] Under Pennsylvania law, an em- ployer is subject to liability for harm re- sulting from his conduct if he is negligent or reckless "in the employment of improp- er persons or instrumentalities in work involving risk of harm to others; ... in the supervision of the activity; or ... 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." H.A. ex rel. N.A., 748 A2d at 697 (citing RESTATEMENT (SECOND) OF AGENCY § 213(b), (d) (1958)). Moreover, a master has a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if (a) the servant is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or is using a chattel of the master. and (b) the master knows or has reason to know that he has the ability to control his servant, and knows or should know of the necessity and opportunity for exercising such control. RA. ex reL N.A., 748 A2d at 697 (citing RESTATEMENT (SECOND) OF Toms § 317(a), (b) (1965)). Accordingly, an employer owes a duty "to exercise reasonable care in selecting, supervising and controlling employees." Id The Supreme Court of Pennsylvania has held that, "We fasten liability on an employer-L) ... it must he shown that the employer knew or, in the exercise of ordi- nary care, should have known of the neces- sity for exercising control of his employ- ee." Dempsey v. Was° Bureau, Inc, 431 Pa. 562, 246 A2d 418, 422 (1968) (stating that, in a case in which an employee com- mitted an assault, the employer may be liable for the failure to exercise reasonable care in determining the employee's pro- pensity for violence). In the instant case, the Diocese, Sacred Heart and Bishop Timlin may be liable if they knew or should have known that Li- beratore had a propensity for committing sexual abuse and his employment as Pas- tor at Sacred Heart might create a situa- tion where his propensity would harm a third person, such as Plaintiff. See CocaIt v. Jones, 277 Pa.Super. 479, 419 A2d 1249, 1250—52 (1980) (holding, in a case in which a former employee of the defendant-em- ployer raped the plaintiff after having gained entry to her home by representing that he was there on the defendant's busi- ness, first, that the defendant could be found liable if the perpetrator was known to have the inclination to assault women or if the defendant should have known that, and, second, that "if it were foreseeable by the defendant that [the perpetratorl" could attack a customer because he had, on a previous occasion, been admitted to her home on the employer's business, then there would exist a special relationship between defendant and the customer and a duty on the employer to give a reasonable warning to the customer). [15,161 When viewing the evidence in the light most favorable to Plaintiff, a rea- sonable jury could conclude that the Dio- cese, Sacred Heart and Bishop Timlin were negligent or reckless in supervising and retaining Liberatore. However, the Court concludes that a reasonable jury could not find that the Diocese, Sacred Heart and Bishop Timlin were negligent or reckless in hiring Liberatore because there is no evidence suggesting that Liberatore EFTA00226251

110E v. LIBERATORE Cite u471 FSuppld 742 (M.D.Pa. 2007) tiously aiding and abetting Liberatore in his sexual abuse of Plaintiff. Under this theorl of liability, based upon section 876 of the Restatement (Second) of Torts, "one is subject to liability for harm to a third person arising from the tortious conduct of another if he (a) does a tortious act in concert with the other or pursuant to a common design with him: (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself; or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately con- sidered, constitutes a breach of duty to the third person." Koken r. Steinberg, 825 A.2d 7t3, 731 (Pa.Cmwlth.2003). Plaintiff neither avers, nor has present- ed evidence, that Brother Antonucci acted with Liberatore in a common scheme or plan. Subsection (a) is thus inapplicable. 112) To determine whether Brother Antonucci provided "substantial assis- tance" to Liberatore, the comments to sec- tion 876 of the Restatement provide a list of five factors: (I) the nature of the act encouraged; (2) the amount of assistance given by the defendant; (3) the defen- dant's presence or absence at the time of the tort; (4) the defendant's relation to the tortfeasor; and (5) the defendant's state of mind. Hurley v. Atlantic City Police Dept 174 F.34 95, 127 n. 27 (3d Cir.1999). A sixth factor—the duration of the assis- tance provided—is also considered. la (citing IlaTherstam v. Welch, 705 F2d 472, 484 (D.C.Cir.1983). (13) Here, Plaintiff has failed to offer sufficient evidence to allow a reasonable jury to conclude that Brother Antonucci gave substantial assistance or encourage- ment to Liberatore. Plaintiff has offered evidence that Brother Antonucci dissuaded Plaintiff and his mother from reporting Liberatore's abuse to the authorities, in- stead suggesting that Plaintiff forgive Li- 759 beratore for his misdeeds. Under Penn- sylvania case law, "substantial assistance" requires that the putative aider or abetter take some affirmative action which causes the tortious actor to conduct himself inap- propriately. Welt v. Porter, 450 Pa.Super. 112, 675 A.2d 334, 338-39 (1996) (holding that the plaintiff, who was injured in a motor vehicle accident with a drunk driver, could not recover from the drunk driver's passenger, as an aider or abetter under section 876(b) of the Restatement, because the plaintiff did not aver that the passen- ger "engaged in any conduct that substan- tially assisted or encouraged (the driver) to consume alcohol and operate his vehicle in a Ts reckless manner"); see Cruz No. CI-04-01947, 2005 la 1349615, at '1235-36 (PaCom.Pl. Jan. 26, 2005) (Plaintiff's complaint, arising out of allegations of child sexual abuse by em- ployee of day care center, failed to state claim against the day care center and its owners for tortious aiding and abetting because it "faille()) to contain any allega- tions that the defendants affirmatively act- ed in any way to assist (the employee) in committing his alleged misdeeds"). Here, there is simply no evidence that Brother Antonucci aided the efforts of Li- beratore or encouraged or incited him to commit his abusive acts. There is no evi- dence that Brother Antonucci was present during the commission of the abuse. Moreover, despite Brother Antonucci's ad- vice, Plaintiff and his mother were entirely free to ignore him and contact the authori- ties on their own accord. As such, Broth- er Antonucci's efforts to dissuade Plaintiff and his mother from contacting the au- thorities cannot be viewed as "substantial assistance." Accordingly, the Court will grant Brother Antonucci's motion for sum- mary judgment as to Count IV of Plain- tiff's Complaint_ EFTA00226252

758 478 FEDERAL SUPPLEMENT, 2d SERIES are vicariously liable for Liberatore's sexu- al molestation of Plaintiff, and that these acts were performed during the course of and within the scope of Liberatore's em- ployment as a priest. The Diocese, Sacred Heart and Bishop Timlin now move for summary judgment as to this count, argu- ing that Liberatore's acts were committed outside the scope of his employment. 17, 81 Under Pennsylvania law, "an em- ployer is held vicariously liable for the negligent acts of his employee which cause injuries to a third party, provided that such acts were committed during the course of and within the scope of the em- ployment." Fitzgerald v. McCutcheou, 270 Pa.Super. 102, 410 Aid 1270, 1271 (1979). "In certain circumstances, liability of the employer may also extend to intentional or criminal acts committed by the employee." hL "The conduct of an employee is consid- ered 'within the scope of employment' for purposes of vicarious liability if: (I) it is of a kind and nature that the employee is employed to perform; (2) it occurs sub- stantially within the authorized time and space limits; (3) it is actuated, at least in part, by a purpose to serve the employer; and (4) if force is intentionally used by the employee against another, the use of force is not unexpected by the employer." R.A. cx rel. N.A. v. First Church of Christ, 748 Aid 692, 699 (Pa.Super2000). "Where, however, the employee commits an act en- compassing the use of force which is exces- sive and so dangerous as to be totally without responsibility or reason, the em- ployer is not responsible as a matter of law." Fitzgerald, 410 Aid at 1272. In- deed, "a master is not liable for the willful misconduct of his servant, and that such willful misconduct, while it may be within the course of the employment, is not with- in the scope thereof." McMaster v. Reale, 177 Pa.Super. 429, 110 Aid 831, 832 (1955). (91 In addition, Pennsylvania courts have held that "an assault committed by an employee upon another for personal reasons or in an outrageous manner is not actuated by an intent to perform the busi- ness of the employer and, as such, is not within the scope of employment" Fitzger- ald, 410 Aid at 1272. For example, in Sanchez by Rivera v. Montanez, 165 Pa. Cmwlth. 381, 645 Aid 383 (1994), a child and his parents sued a community action agency, alleging that the agency was vicar- iously liable for an employee's sexual mo- lestation of the plaintiff child. The Com- monwealth Court of Pennsylvania affirmed the trial court's entry of summary judg- ment in the defendant agency's favor, holding that the employee's actions were clearly outrageous and motivated purely by personal reasons. at 391, 645 A.2d 383. 110) Here, it is clear that Liberatore's sexual molestation of Plaintiff was not within the scope or nature of his employ- ment as a priest. Indeed, "(t)he activity of which (Plaintiff] now complains is wholly inconsistent with the role of one who is received into the Holy Orders as an or- dained priest of the Roman Catholic Church." Hutchison by Hutchison v. Luddy, 453 Pa.Super. 420, 683 Aid 1254, 1256 (1996). Moreover, the acts of sexual abuse perpetrated by Liberatore were both outrageous and certainly not actuated by any purpose of serving the Diocese, Sacred Heart or Bishop Timlin. As such, no reasonable jury could find in favor of Plaintiff on his vicarious liability claim. Therefore, the Court will grant summary judgment in favor of the Diocese, Sacred Heart and Bishop Timlin as to Count III of Plaintiff's Complaint. B. Aiding and Abetting (Count IV) MI In Count IV, Plaintiff sets forth a claim against Brother Antonucci for tor- EFTA00226253

DOE I LIBEItATORE 757 Cite a 476 F.Supp,20 742 (M.D.P*. 2007) 1989) (upholding district court's use of the so-called "ostrich instruction," which al- lows the inference of knowledge if it is found that the putative eider or abettor had a strong suspicion yet shut his eyes for fear of what he would learn), there still remains no evidence even remotely sug- gesting that the Diocesan Defendants shared Liberatore's specific intent to com- mit the sexual offenses. While the Dioce- san Defendants may have avoided learning of Liberatore's offenses, there is no evi- dence that the Diocesan Defendants de- sired that his crimes be accomplished. Also absent from the record is any evi- dence showing that the Diocesan Defen- dants actively participated in some manner to assist Liberatore in the commission of his offenses. As such, the Diocesan De- fendants' motion for summary judgement will be granted as to Count I of Plaintiff's Complaint. II. Subject Matter jurisdiction 151 Under 28 U.S.C. 6 1367(a), "the district court shall have supplemental ju- risdiction over all of the claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy un- der Article III of the United States Con- stitution. Such supplemental jurisdiction shall include claims that include joinder or intervention of additional parties." Thus, section 1367(a) provides for pen- dent-party jurisdiction in federal question cases. Exxon Mobil Corp. v. Allapattah Services. Inc., 545 U.S. 546, 558, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) ("[tlhe last sentence of 1367(a) makes it clear that the grant of supplemental jurisdic- tion extends to claims involving joinder or intervention of additional parties"). Con- sequently, this Court may exercise sup- plemental jurisdiction over Plaintiff's state law claims against the Diocesan De- fendants and Brother Antonucci so long as these claims share a common nucleus of operative fact with Plaintiffs federal law claim against Liberatore such that Plaintiff "would ordinarily be expected to try them all in one judicial proceeding." United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). 161 Under Third Circuit jurisprudence, "mere tangential overlap of facts is insuffi- cient [to constitute a common nucleus of operative fact], but total congruity i be- tween the operati facts ... is unneces- sary." Nanavati Burdette Tomlin Me- morial Hospital, 7 F.2d 96, 105 (3d Cir. 1988). Plaintiffs state law claims against the Diocesan Defendants and Brother An- tonucci satisfy this standard. Plaintiffs federal claim against Libera- tore arose from sexual abuse that was perpetrated by Liberatore while he was a priest within the Diocese. Plaintiff's state claims against the Diocesan Defendants and Brother Antonucci are based on these same facts, with the caveat that Plaintiff's state claims require proof of additional facts beyond merely Liberatore's acts of abuse. Thus, while not totally congruous, Plaintiffs federal and state claims share more than a mere tangential overlap. As such, Plaintiffs state law claims against the Diocesan Defendants and Brother An- tonucci share a common nucleus of opera- tive fact with his federal law claims against Liberatore. Therefore, the Court has ju- risdiction over all of Plaintiff's federal and state claims. The Court will now address Plaintiffs state law claims against the Diocesan De- fendants and Brother Antonucci. III. Plaintiff's State Law Claims against the Diocesan Defendants and [tither Antonucci (Counts III, IV„ VI, VII and VIII) A. Vicarious Liability (Count Ill) In Count III, Plaintiff alleges that the Diocese, Sacred Heart and Bishop Timlin EFTA00226254

756 478 FEDERAL SUPPLEMENT, 2d SERIES ingly transported Plaintiff, while a minor, to New York and Europe, in interstate and foreign commerce, with the intent of en- gaging in illegal sexual activity with Plain- tiff, in violation of 18 U.S.C. §§ 2421, 2422 and 2423. However, the Diocesan Defen- dants argue that they did not take part in Liberatore's criminal activities. As such, they contend they cannot be liable under section 2255. [2] Under 18 U.S.C. § 2(a), "[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is pun- ishable as a principal" (emphasis added). As such, one who criminally aids or abets a listed offense is punishable as though he himself committed the offense. United States v. Private Sanitation Industry As- sociation of Nassau/Suffolk, Inc., 793 F.Supp. 1114, 1134 (E.D.N.Y.I992). Con- sequently, if one has aided or abetted an- other in violating one of the statutes listed in section 2255, then he himself has com- mitted an act indictable under that listed statute. As the aider or abettor has him- self committed an indictable act, he is lia- ble to the plaintiff under section 2255. See 132 Cong. Rec. E1983-01 (daily ed. June 5, 1986) (statement of Rep. Siljander dur- ing extension of remarks). Accordingly, if the Diocesan Defendants criminally aided or abetted Liberatore in the commission of his sexual offenses, they may be held liable under section 2255. [3] In order to establish the offense of criminal aiding and abetting, it must be shown that: (1) the substantive offense has been committed; (2) the defendant knew the offense was being committed; and (3) the defendant acted with the intent to facilitate it. United States v. Cartwright, 359 F.3d 281, 287 (3d Cir.2004) (citations omitted); see also United Stales' New- man, 490 1"2d 139, 143 (3d Cir.I974) (in order to be liable as an aider or abettor, the defendant must have participated in the substantive crime with the desire that the crime be accomplished; unknowing participation is not sufficient to constitute an offense under the aiding and abetting statute). "[Akting with intent to facilitate the substantive offense requires that one acted with the intent to help those in- volved with a certain crime.— United States v. Salmon, 944 F2d 1106, 1113 (3d Cir.1991) (quoting United Stales v. Wexler, 838 F2d 88, 92 (3d Cir.1988)). Indeed, "[t]he state of mind required for conviction as an aider and abettor is the same state of mind as required for the principal of- fense." United States v. Centner, 116 F.3d 473 (Table), 1997 WI. 328766, at *2 (4th Cir.1997); United States v. Leder, 23 F.3d 586, 591 (1st Cir.1994); United Stales v. Valencia, 907 F.2d 671, 680 (7th Cir. 1990); United States v. Gallishcaa 428 F2d 760 (2d Cir.I970). [4] As noted, there is sufficient evi- dence to allow a reasonable jury to con- clude that multiple listed offenses were committed by Liberatore. As such, the first element of criminal aiding and abet- ting is satisfied. However, even viewing the evidence in the light most favorable to Plaintiff, the Court concludes that no rea- sonable jury could find that the second and third elements of the aiding and abetting offense are satisfied. While Plaintiff's evi- dence demonstrates that the Diocesan De- fendants had reason to suspect that Liber- atore was sexually abusing Plaintiff, there is nothing in the record demonstrating that the Diocesan Defendants consciously shared Liberatore's knowledge of the un- derlying substantive offenses, as well as the specific criminal intent to commit them. See Loder, 23 F.3d at 591. Indeed, "[a] general suspicion that an unlawful act may occur is not enough." United States v. Lobed, 905 F.2d 18, 23 (2d Cir.1990). While it is possible to infer knowledge from a combination of suspicion and indif- ference to the truth, see United States v. Talkington, 875 F.2d 591, 595 (7th Cir. EFTA00226255

DOE I LIBERAT0RE 755 Clue as 478 F.Supp.1J 743 (M.D.Ps. 1007) Act of 1986 on October 18, 1986. Id at 611; see Pub.L. No. 99-500, 100 Stat. 1783-39 (1986). This enactment expanded the scope of the Protection of Children Against Sexual Exploitation Act of 1977, Pub.L. 95-225, 92 Stat. 7 (1978), "to pro- vide a civil remedy for personal injuries suffered by victims of child sexual exploita- tion." Id. Initially, this civil remedy was to be included in the civil Racketeer Influ- enced and Corrupt Organizations ("RICO") statutes, which already provided remedies for victims of crime. Id. (citing l32 Cong. Rec. H3362-O'2 (daily ed. June 5, 1986) (statement of Rep. Young) ("The Child Abuse Victims(') Rights Act of 1986 is a crucial piece of legislation. This bill would at last add the sexual exploitation of children part to the Racketeer') Influ- enceld) and Corrupt Organizations stat- ute' I")). Later drafts of the bill were also proposed to be contained within the RICO statutes. Id. (citing 132 Cong. Rec. E1983-01 (daily ed. June 5, 1986) (state- ment of Rep. Siljander during extension of remarks)). "The intent in proposing to include the statute within RICO was to allow for increased criminal penalties as well as expanded investigatory powers to arrest perpetrators of the offenses." Id. (citing 132 Cong. Rec. H3362-O2 (daily ed. June 5, 1986) (statement of Rep. Young)). Child pornography, transportation of mi- nors for illegal sexual activity and related offenses, sections 2251, 2251A, 2252, 2260, 2421, 2422 and 2423, were, in fact, added to the definition of racketeering activities un- der the RICO statutes. Id; see 18 U.S.C. § 1961(1XB) (including within the defini- tion of "racketeering activity" any act which is indictable under sections 2251, 2251A, 2252, 2260, 2421, 2422 and 2423). At first, the proposed civil remedy would have given the Government or the victim the right to sue the offender in order to receive treble damages and attorney fees, but not until after the "offender [was) con- victed under Civil RICO." 132 Cong. Rec. E290-02 (Feb. 5, 1986) (statement of Rep. Siljander) ("If an offender is convicted un- der Civil RICO, the Government or the victim is given the right to sue the offend- er in order to receive treble damages and attorney fees"). In later debates, a bill was proposed that provided a cause of action to any person injured personally from an act indictable under certain child sexual exploitation statutes. Smith, 876 F.Supp2d at 611 (citing 132 Cong. Rec. E1983—01 (daily ed. June 5, 1986) (state- ment of Rep. Siljander during extension of remarks)). During later congressional proceedings, one of the congressional rep- resentatives who introduced the bill stated "[nor purposes of (section 2255), violations are to be determined by a preponderance of the evidence. Successful plaintiffs are entitled to recover the cost of the suit, including a reasonable attorney's fee, from those found guilty of a violation." 132 Cong. Rec. E3242-02 (daily ed. Septem- ber 23, 1986) (statement of Rep. Green during extension of remarks) (emphasis added); see id. Based on this legislative history, the Smith court concluded that Congress' in- tent was "to make the civil remedies provi- sion available to any victim able to show by a preponderance of the evidence that the defendant committed the acts descnbed in any of the listed offenses." Id. at 613 (emphasis added). (11 This Court concludes that, based upon Smith and the legislative history of section 2255, in order to be subject to liability under section 2255, a defendant must be proven to have violated at least one of the criminal statutes listed in sec- tion 2255 by a preponderance of the evi- dence. Here, there is sufficient evidence that would allow a reasonable jury to conclude that such violations occurred, as Plaintiff has offered evidence that Liberatore know- EFTA00226256

754 478 FEDERAL SUPPLEMENT, 2d SERIES den of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case." Celotex Corp. v. Cat rett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed2d 265 (1986). All doubts as to the existence of a genu- ine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. See White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir.1988). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence sup- porting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. See Anderson, 477 U.S. at 256-257, 106 S.Ct. 2505. The Court need not accept mere conclu- sory allegations, whether they are made in the complaint or a sworn statement. Lu. jun v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, Ill L.Ed2d 695 (1990). In deciding a motion for summary• judgment, "the judge's function is not him- self to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505. DISCUSSION The Diocesan Defendants now move the Court to grant summary ju ent in their favor as to Counts I, III, VI, VII and VIII of Plaintiffs Complaint. Also, Broth- er Antonucci moves the Court to grant summary judgment in his favor as to Counts IV, VI, VII and VIII of Plaintiff's Complaint. The Diocesan Defendants also seek summary judgment as to Plaintiff's claim for punitive damages. I. Plaintiff's Federal Law Claim (Count I) Under 18 U.S.C. § 2255, "IalnY person who, while a minor, was a victim of a violation of section 2241(e), 2242, 2243, 2251, 22.51A, 2252, 2252A, 2260, 2421, 2422 or 2423 of this title[, sections which prohib- it, inter alia, child molestation, exploitation and pornography,) and who suffers person- al injury as a result of such violation, regardless of whether the injury occurred while such a person was a minor, may sue in any appropriate United States District Court and shall recover the actual dam- ages such person sustains and the costs of the suit, including a reasonable attorney's fee." Section 2255 thus provides child vic- tims of sexual abuse, molestation and ex- ploitation with a federal cause of action for money damages. The issue here is against whom may that federal P2 IICO of action be brought. The Diocesan Defendants argue that section 7255 only subjects Liberatore, the one who has violated statutes listed in section 2255, to civil liability. Conversely, Plaintiff argues that the Diocesan Defen- dants can be held liable for the offenses committed by Liberatore under the doc- trine of agency. Neither the United States Supreme Court nor the United States Court of Ap- peals for the Third Circuit has had any cases concerning section 2255. Indeed, there is only a single reported case involv- ing section 2255. In Smith v. Husband, 376 F.Supp2d 603, 613 (E.D.Va.2005), the United States District Court for the Eastern District of Virginia, held, after analyzing the legisla- tive history of section 2255 to determine Congress' intent, that a criminal conviction under one of the listed statutes was not a prerequisite to the institution of a civil action under section 2255. The court first noted that section 2255 was enacted as part of The Child Abuse Victims' Rights EFTA00226257

DOE LIBERATORE Cu. 476 F pp.241 742 IM.D.Pa. 20011 that, sometime during Liberatore's tenure as a priest in the Diocese, he had been sent to Southdown Institute, a non-profit clinic and psychological treatment facility for clergy located in Ontario. Canada, http://www.southdown.on.caJ# . (See Bish- op Martino Dep. 39:23-40:2.) Bishop Mar- tino spoke with Liberatore in late Novem- ber of 2003 about the concerns raised by Liberatore's file. (Bishop Martino Dep. 41:5-20.) In January of 2004, Plaintiff and another young man came forward and alleged that Liberatore had sexually abused them. (See Bishop Martino Dep. 108:16-18.) La- ter that month, Bishop Martino hired an investigator, James Seidel ("Seidel"), to investigate these allegations. (Bishop Martino Dep. 108:8-11; see James Seidel Investigative Insert, Doc. 89-5 pp. 16-17.) In May of 200E Liberatore was arrested and charged with sexual abuse in the State of New York, as well as multiple counts of indecent assault and corruption of minors in the Commonwealth of Pennsylvania (Doc. 89-3 pp. 34-44; Doc. 41-2 p. 24.) Liberatore pleaded guilty to those of- fenses. (Id.) On July 23, 2001, Bishop Martino dismissed Liberatore from the clerical state, having concluded that "the delict of sexual abuse of a minor was com- mitted by the Reverend Albert M. Libera- tore." (Votum at 1.) II. Procedural History On November 5, 2004, Plaintiff filed a Complaint in this Court. (Doc. 1-1.) Therein, Plaintiff asserted a claim pursu- ant to 18 U.S.C. § 2255, a section of The Child Abuse Victims' Rights Act of 1986. (Doc. 1-1 11 48-51.) Plaintiff also raised state law claims of assault and battery (Doc. 1-1 1152-55), vicarious liability (Doc. 1-1 11 5642), aiding and abetting (Doc. 1-1 1163-68), negligent hiring, su- pervision and retention (Doc. 1-1 1169- 75), negligence per se (Doc. 1-I 1176-81), 753 intentional infliction of emotional distress (Doe. 1-1 11 82-88), and breach of fiducia- ry duty (Doc. 1-1 1189-95). On Novem- ber 3, 2006, both the Diocesan Defendants and Brother Antonucci filed motions for summary judgment (Docs.75, 76.) These motions are fully briefed and ripe for dis- position. LEGAL STANDARD Summary judgment is appropriate if "the pleadings, depositions, answers to in- terrogatories, and admissions on file, to- gether with the affidavits, if any, show that there is no genuine issue as to any materi- al fact and that the moving party is enti- tled to a judgment as a matter of law." Fso.R.Civ P. 56(c). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505. 91 L.Ed2d 202 (1986). Where there is no material fact in dis- pute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disput- ed issue of material fact, summary judg- ment is appropriate only if the factual dispute is not a genuine one. See id. at 248, 106 S.Ct. 2505. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id. Where there is a material fact in dis- pute, the moving party has the initial bur- den of proving that: (1) there is no genu- ine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See 10A CHARLES ALAN WRIGHT. ARTHUR R. MILLER & MARY KAY KANE. FEDERAL PRACTICE AND PROCEDURE: Cn•u 2D § 2727 (2d ed.1983). The moving party may present its own evidence or, where the nonmoving party has the bur- EFTA00226258

752 478 FEDERAL SUPPLEMENT, 2d SERIES As noted above, Bishop Timlin was in- formed of Liberatore's behavior, with re- gard to both Roe and Plaintiff, and the suspicions raised by it. With regard to Roe, Bishop Tilt received the Barnbera Memo informing him of Father Baml3era's "grave concern's)" regarding the relation- ship between Liberatore and Roe, includ- ing the fact that Roe was often in Libera- tore's room until late at night. (Bambera Memo.) Bishop Timlin was also notified of the incident that occurred late at night at the Seminary involving Liberatore and Roe. (Bohr Dep. 42:8-43:11.) In addition, Bishop Timlin was informed of Poe giving Liberatore a back massage while Libera- tore lay on Poe's bed. (Summary at 2.) With regard to Plaintiff, in January of 2001, Bishop Timlin received the O'Neill Letter informing him that Plaintiff often- times slept overnight in Liberatore's bed- room at the Rectory and that Liberatore had taken Plaintiff on several overnight trips. (O'Neill Letter.) D. Brother Antonio F. Antonucci Brother Antonio Antonucci, a Benedic- tine monk who moved to Scranton in the Fall of 2000 to attend the University of Scranton (Brother Antonio Antonucci Dep. 12:7-13:14-15; 14:12-13, Sept. 18, 2006, Doc. 90-2), was also informed of Libera- tore's sexual abuse of Plaintiff. (Pl.'s Dep. 65:1-66:19). Specifically, Plaintiff told Brother Antonucci, who worked as a can- tor, custodian and cook at Sacred Heart (Doc. 76 1 5), that he slept in Liberatore's bed in the Rectory (Pl.'s Dep. 64:8-11), and that Liberatore would grope Plaintiff in a sexual manner while they wrestled. (PL's Dep. 65:14-66:5.) Rather than en- courage Plaintiff to contact the police, or, at the least, tell his mother, Brother Anto- nucci instructed Plaintiff "to forgive [Li- beratore), to keep the issue private, and to not let other people know because it would ruin 'Plaintiffs' life and [the lives of) oth- ers." (Pl.'s Dep. 66:12-15.) E. Plaintiff's Relationship with Li- beratore Ends In May of 2002, when Plaintiff was sev- enteen (17) years old, Liberatore touched Plaintiff's genitals while they were in Li- beratore's office at the University of Scranton. (Votum of Bishop Joseph Mar- tino, dated July 23, 2004, Doc. 88-2 pp. 2- 3, "Votum".) Later that month, Libera- tore took Plaintiff on a trip to New York, staying overnight in the same bed at a hotel. (See PL's Dep. 197:23-25; 199:19- 23; Doc. 1-1 137.) Dining the night, Liberatore tried to give Plaintiff oral sex, placing his mouth around Plaintiffs penis. (Pl.'s Dep. 199:19-23.) At this point, it became obvious to Plaintiff that Liberatore had homosexual intentions regarding him. (Id) These were the last incidents of sexu- al abuse perpetrated by Liberatore upon Plaintiff. F. Liberatore's Dismissal from the Clergy and his Criminal Convic- tions In July of 2003, Joseph Martino was named Bishop of Scranton, replacing Bish- op Timlin. (Bishop Joseph Martino Dep. 10:5, July 13, 2006, Doc. 88-3.) Martino officially became Bishop on October 1, 2003. (Bishop Martino Dep. 11:9.) At some point early in his tenure, Bishop Martino became aware of the rumors and incidents involving Liberatore. (Bishop Martino Dep. 14:5-8.) Upon review of Liberatore's personnel file, Bishop Martino became "alarmed" at the history of inap- propriate behavior. (Bishop Martino Dep. 21:12-25.) Bishop Martino was troubled by the incident at the Seminary involving Roe, the back massage involving Peter Poe, and another incident which occurred in December of 2002 while Liberatore was visiting the Catholic University of Louvain in Belgium. (See Bishop Martino Dep. 32:12-33:25.) Bishop Martino discovered EFTA00226259

DOE' LIBERATORE °mu 478 F.Supp.2d 742 (M.D.Pa. 2007) informing him as to what Minora had told him—i.e., that Plaintiff had been sleeping overnight in Liberatore's bedroom at the Rectory and that Liberatore had taken Plaintiff on several overnight trips. (Let- ter from Monsignor Kevin O'Neill to Bish- op Timlin, dated January 29, 2001, Doc. 89-4 p. 34 of 42, "O'Neill Letter".) Additionally, in late 2000 and early 2001, Ann Marie Zongilla ("Zongilla"), a cook and housekeeper at Sacred Heart (Ann Marie Zongilla Dep. 6:24-25, Jan. 30,2006, Doc. 89-4), voiced her suspicion that Li- beratore was sexually abusing Plaintiff to Susan Doxbeck, the Pastoral Assistant at Sacred Heart, Father Emmanuel, a priest at Sacred Heart, Reverend Edward Williams ("Father Williams"), also a priest at Sacred Heart, and Monsignor John. Bendik. (Zongilla Dep. 28:18-21; 36:21- 24; 37:6-8; 442-9; 60:13-15; Reverend Edward Williams Dep. 35:19-23, Jan. 26. 2006, Doc. 80-2.) In the fall of 2001 (see Williams Dep. 35:19-23), Helen Negvesky ("Negvesky"), an employee for the Diocese, informed Monsignor Bendik of her concerns about the relationship between Liberatore and Plaintiff. (Helen Negvesky Dep. 40:5-21, Nov. 17,2005, Doc. 80-4.) Negvesky testi- fied that she told Monsignor Bendik that Plaintiff was "around the Rectory more than [she] thought he should be, and the way Father [Liberatore] looked at him, that they went places together, and just that it didn't seem right, . .. [and] it didn't look good." (Negvesky Dep. 41:22-42:3.) Negvesky also told Monsignor Bendik of an incident in which Plaintiff "put his hand down Liberatore's pants." (Negvesky Dep. 42:14-17.) Negvesky also stated that there were empty bottles of alcohol lit- tered around Liberatore's room in the Rectory, and, consequently, she suspected that Liberatore was plying Plaintiff with alcohol. (Negvesky Dep. 43:14-22.) 751 Also in the fall of 2001, after receiving reports from Negvesky and Zongilla con- cerning suspicious behavior engaged in by Liberatore and Plaintiff, Father Williams spoke with Monsignor Bendik about the relationship between Liberatore and Plain- tiff. (Williams Dep. 35:19-36:25.) Father Williams informed Monsignor Bendik that he thought Liberatore was obsessed with Plaintiff and that Liberatore spent an inor- dinate amount of time with Plaintiff, in- cluding wrestling with Plaintiff and taking Plaintiff on overnight trips. (Williams Dep. 35:19-36:25.) Father Williams also told Monsignor Bendik that the Sacred Heart staff suspected that Liberatore was sexually abusing Plaintiff. (Williams Dep. 37:7-9.) Monsignor John Bendik acknowledged that he had received calls from Negvesky and Zongilla, each of whom voiced a suspi- cion that Liberatore was sexually abusing Plaintiff. (Monsignor John Bendik Dep. 38:18-19; 41:1; 41:20; 47:1-2, Doc. 89-1.) Monsignor Bendik also stated that he had spoken with Father Williams, who ex- pressed his own concerns regarding the impropriety of the relationship between Liberatore and Plaintiff. (Bendik Dep. 52:15-17.) After his conversation with Fa- ther Williams, Monsignor Bendik contact- ed Father Kopacz and "told him there was a concern expressed to me from the Parish of Sacred Heart about [the] relationship [between Liberatore and Plaintiff]." (Ben- dik Dep. 38:18-22.) Specifically, Monsi- gnor Bendik told Father Kopacz that Li- beratore had "a relationship with a young man (at Sacred Heart] parish that could be going beyond the barriers, beyond the pa- rameters, and he better check it out." (Bendik Dep. 65:18-20.) Monsignor Ben- dik also told Father Kopacz that "some- thing had better be done for the sake of [Plaintiff)." (Bendik Dep. 61:11-12.) EFTA00226260

750 478 FEDERAL SUPPLEMENT, 2d SERIES Dep. 166:4-7, Oct. 17, 2006, Doc. 89-8 p. 13)—that is, Liberatore undertook to es- tablish an intimate friendship with Plaintiff in preparation to the eventual introduction of sexual activity. Wftdpedia, The Free Encyclopedia, "Child Grooming", httpi/en. wikipedia.orgAvild/Child_grooming (last visited March 15, 2007). During this time, Liberatore took Plaintiff to movies and restaurants (Pl.'s Dep. 153:3-5), and gave him expensive gifts, such as a Movado watch, a cellular phone and fencing equip- ment. (Minora Dep. 15:4-10; 17:14-16.) The Diocesan Defendants agree that Li- beratore's actions with regard to Plaintiff would be characterized as grooming behav- ior. (Timlin Dep. 36:8-37:9.) Liberatore also provided counseling to Plaintiff and Plaintiff's mother after Plaintiff's father had taken ill and, then, passed away. (Moe Decl. 1122-25.) Liberatore became a father figure to Plaintiff. (Id.; Pl.'s Dep. 18920-190:1.) Eventually, Liberatore began to make sexual overtures toward Plaintiff. (Pl.'s Dep. 166:7-10.) More than two years of sexual abuse ensued, ultimately ending in May of 2002. (See Doc. 1-1 137.) During this period of time, Plaintiff would routine- ly sleep in Liberatore's bed in the Rectory at Sacred Heart. (Pl.'s Dep. 169:24-25.) On nights Plaintiff would sleep over, Li- beratore would oftentimes "spoon" Plain- tiff (Pl.'s Dep. 173:5-10)--that is, Libera- tore and Plaintiff would lie in bed on their sides with Liberatore's front to Plaintiffs back, such that they fit together in a man- ner similar to spoons. Wikipedia, supra. "Spooning", http://enaviltipedia.orgAviki, Spooning. On many nights, Liberatore would masturbate while Plaintiff was lying with him in bed. (Pl.'s Dep. 173:10-14.) Plaintiff also related incidents in which Liberatore would grope Plaintiffs genitals (Pl.'s Dep. 173:21-25), wear Plaintiffs clothes (Pl.'s Dep. 173:21-22), and describe sexual techniques and other graphic sexual behavior (Pl.'s Dep. 179:1-5). Liberatore would also wrestle with Plaintiff, often- times groping him in a sexual manner rather than attempt a wrestling maneuver. (Pl.'s Dep. 65:18-662) Liberatore also admitted to Plaintiff that he was a homo- sexual, and described to Plaintiff sexually explicit acts which he and his homosexual friends would perform. (Pl.'s Dep.179:12- 16.) Liberatore also took Plaintiff on trips to New York, staying overnight in a single hotel room with only one bed. (Pl.'s Dep. 189:5-14.) In addition, Liberatore took Plaintiff to Belgium while he was complet- ing his dissertation. (Pl.'s Dep. 152:12; Minora Dep. 15:6.) While in Belgium, Plaintiff slept in the same bed with Libera- tore, who would masturbate in the bed and grope Plaintiff while he tried to sleep. (Pl.'s Dep. 245:7-13.) C. The Diocesan Defendants On several occasions the Diocesan De- fendants were informed of some of the behavior involving Liberatore and Plain- tiff. In January of 2001, Patricia Minors ("Minors"), a friend of Plaintiffs mother, spoke to two priests with whom she had been long-time friends, Monsignors Kevin O'Neal and Joseph Kelly, about her suspi- cions concerning the relationship between Liberatore and Plaintiff. (Minors Dep. 21:14-31:8.) Minors told them that Plain- tiff slept overnight in the Rectory with Liberatore, and that Liberatore had given Plaintiff extravagant gifts and even taken Plaintiff on overnight trips. (hi) These priests advised Minors to contact Father Kopacz and inform him of her suspicions. (kI.) Minors then called Father Kopacz and told him of the relationship between Liberatore and Plaintiff. (id.) After receiving a phone call from Minors concerning the relationship between Liber- atore and Plaintiff, Monsignor Kevin O'Neill wrote a letter to Bishop Timlin EFTA00226261

DOE I LIBERATORE Clic 44474 F.Suppla 742 (M.D.Pa. 2007) he knew. (Roe Dep 47:14-48:15; 58:2-7.) Roe then "got pretty emotional" and start- ed to cry. (Roe Dep. 58:7-9.) Roe then tried to leave Liberatore's room, but Li- beratore physically blocked his attempt. (Roe Dep. 592-4.) Roe then tried to throw Liberatore out of the way. (Roe Dep. 59:9.) Pushing and shoving ensued, and Liberatore ended up falling on the ground. (Roe Dep. 59:10-11.) This alter- cation awakened many, if not all, of the seminarians and faculty. (Letter from Roe to The Seminarians of St. Pius X Seminary, dated April 5, 1997, Doc. 80-8, "Roe Letter".) One seminarian, Reverend Thomas Muldowney ("Father Muldow- ney"), even came to Liberatore's room to help calm Roe down. (Roe Dep. 59:12-13.) Father Muldowney stated in his deposition that Roe, appearing very upset, yelled, "I'm a twenty-two (22) year old fucking homosexual." (Reverend Thomas Mul- downey Dep. 46:1-4, Dec. 8, 2005, Doc. 88- 8 p. 16 of 26.) Father Muldowney stated that several other seminarians heard the commotion and came to the room. (Mul- downey Dep. 46:5-11.) Father Muldowney reported the incident to Monsignor Bohr, the Rector at the Seminary, who, in turn, contacted Bishop Timlin to inform him of it. (Monsignor David Bohr Dep. 42:8- 43:11, Jan. 3, 2006, Doc. 82-2.) Eventual- ly, Roe was calmed down and then fell asleep in Liberatore's room. (Roe Dep. 60:1-3.) When Roe woke up the next morning, he found that he was in Libera- tore's bed with Liberatore in bed next to him. (Roe Dep. 60:4-6.) Liberatore's hand was down Roe's pants and was touch- ing Roe's penis. (Roe Dep. 60:7.) Libera- tore then attempted to perform oral sex on Roe. (Roe Dep. 61:2-3.) At that point, the bell for morning prayer rang, and Roe was able to extricate himself from the situation. (Roe Dep. 60:12-18.) A few days later, Roe told Monsignor Rupert that he had been sleeping in Liber- atore's bedroom, in Liberatore's bed. 749 (Roe Dep. 62:20-63:3.) Roe also informed Monsignor Rupert that Liberatore had made several attempts to have homosexual contact with Roe. (Roe Dep. 63:12-15.) Roe had many conversations with Monsi- gnor Rupert regarding his relationship with Liberatore. (Roe Dep. 63:9-10.) In March of 1997, Bishop Timlin was informed of an incident involving Libera- tore and one of the male seminarians. (Summary of Concerns Regarding Fr. Li- beratore, dated March 1997, Doc. 88-8, "Summary".) During a tour of the Semi- nary, on February 24, 1997, twenty (20) boys from Bishop Hoban High School "passed by the open door to Peter Poe's room in which Fr. Al (Liberatore] was seen lying on Peter's bed and being given a back massage by Peter." (Summary at 2.) Bishop Timlin was also informed of Liberatore's "close relationships" with sev- eral of the seminarians, including Michael Moe. (Summary at 1.) After the altercation between Liberatore and Roe and the back massage with Poe, Bishop Timlin removed Liberatore from the Seminary and reassigned him to St. Clare's Parish in Dunmore, Pennsylvania. (Bohr Dep. 44:8-9; 68:2149:4; See Roe Letter at 3.) in July of 1997, Liberatore was reassigned again, this time to Sacred Heart, located in Duryea, Pennsylvania. (See Doc. 1-1 111.) Shortly thereafter, Liberatore was named the Pastor of Sa- cred Heart. (See IS) B. Liberatore and Plaintiff Plaintiff was a parishioner and alter ser- ver of Sacred Heart. (Moe Decl. 1 20.) In 1999, Liberatore, as Pastor of Sacred Heart, hired Plaintiff, who was then four- teen (14) years of age, to work at Sacred Heart as a sacristan. (See Doc. 1-1 1 14; Patricia Minora Dep. 13:14, Jan. 26, 2006, Doc. 89-2.) Over the course of the next year, Liberatore "groomed" Plaintiff (Pl.'s EFTA00226262

748 478 FEDERAL SUPPLEMENT, 2d SERIES the night of drinking. (Roe Dep. 19:14-22; 27:2-1&) During the fall of 1996, Liberatore took Roe and another seminarian, Michael Moe ("Moe"), who was then nineteen (19) years of age, to New York City for dinner and drinks. (Roe Dep. 29:19-31:7; Decl. of Michael Moe 915, Sept. 14,2006, Doc. 88- 8.) The three of them then stayed the night in a hotel suite. (Roe Dep. 30:18- 31:1.) While Moe slept on the couch, Li- beratore and Roe slept in the lone bed. (Roe Dep. 31:14-16.) This incident was called to the attention of Bishop Timlin by Father Bambera, who, in November of 1996, wrote a memo to Bishop Timlin expressing "serious con- cerns ... regarding questionable behavior of Father AI Liberatore." (Memo from Father Bambera to Bishop Timlin, dated November 27, 1996, Doe 80-7, "Bambera Memo".) Father Bambera described this incident as one of "grave concern." (Id) Father Bambera also informed Bishop Timlin of the "evolution of (the] relation- ship" between Liberatore and Roe, which he stated had "become very obvious to the seminarians as well." (id) While Father Bambera opined that he did not feel there was anything improper about the relation- ship, he related to Bishop Timlin that Li- beratore and Roe spent "an inordinate amount of time" together, that Roe was "often in [Liberatore's] rooms until late at night", and that Roe "often becomes the focus of [Liberatore's) attention at semi- nary gatherings." (a) Father Bambera also noted that he had informed others in the Diocese, namely Monsignor David Bohr, Bishop Dougherty, Monsignor John Esseff and Monsignor Dale Rupert, of the relationship between Liberatore and Roe. (id) On an evening in the fall of 1996, Liber- atore and Roe were watching a movie in Liberatore's room at the Seminary. (Roe Dep. 39:1-22.) Roe was lying on the couch while Liberatore was lying on the floor near the couch. (Id.) After the movie, Liberatore tried to touch Roe in a sexually explicit manner. (Roe Dep. 46:12-18.) Li- beratore then began to discuss sexuality— homosexuality in particular—with Roe. (Roe Dep. 43:8-12.) During this conversa- tion, Liberatore encouraged Roe to engage in homosexual relations with him. (Roe Dep. 43:11-44:10.1 Liberatore also dis- cussed with Roe the homosexual activity that Liberatore had engaged in with oth- ers, including describing in detail what homosexual acts he had performed. (Roe Dep. 44:17-22.) In fact, Liberatore de- scribed homosexual acts in which he had engaged while living in the Seminary. (Roe Dep. 44:20-22.) In the early part of 1997, Liberatore and Roe took a trip to Philadelphia. (Roe Dep. 50:10-13.) After spending the evening at Dave & Buster's, a bar and arcade, Liber- atore and Roe stayed the night in a hotel room. (Roe Dep. 53:16-n.) During the night, Liberatore "got out of his bed and got into [Roe's] bed and laid down next to [Roe] and put his arm around [Roe], and at some point during the night [Libera- tore] put his hand down (Roe's) pants." (Id-) Roe related other incidents in which Li- beratore made unwanted sexual contact with him, including one instance when Roe awakened to find Liberatore's penis in his hand. (Roe Dep. 69:6-7.) Another incident, occurring during the spring of 1997, began at dinner when Li- beratore maneuvered his foot into Roe's crotch while they were at a restaurant (Roe Dep. 56:20-57:2.) After dinner, Li- beratore invited Roe back to spend the night in his bedroom at the Seminary. (Roe Dep. 57:16-18.) While speaking in the sitting room before heading to bed, Liberatore expressed his displeasure in Roe's attraction to a young woman whom EFTA00226263

DOE I LIBERATORE Ott as 471 F.Supp 2d 742 (MOP. 2007) BACKGROUND I. Factual History A. Defendant Rev. Albert M. Libera- tore and Richard Roe Defendant Rev. Albert M. Liberatore ("Liberatore") was ordained as a priest in the Diocese by Bishop Timlin on August 26, 1989. (Curriculum Vitae of Rev. Al- bert M. Liberatore, Doc. 88-2 p. 6, "Liber- atore CV".) Following several years of study at the Catholic University of Lou- vain, in Leuven, Belgium, towards obtain- ing a Ph.D. in Theology, Liberatore re- turned to Scranton and, in June of 1995, was assigned by Bishop Timlin to serve as Vocations Director of the Diocese. (Bish- op James C. Timlin Dep. 1632-5, Sept 22, 2006, Does. 88-5, 88-6; Liberatore CV at 2.) Liberatore took up residence at St. Pius X Seminary (the "Seminary") in Dalton, Pennsylvania. (Liberatore CV at 2.) Li- beratore also taught classes at the Univer- sity of Scranton as a non-resident faculty member. (Liberatore CV at 2; Richard Roe Dep. 11:18-19, Sept. 5, 2006, Doe. 88- 4.) In the fall of 1995, Liberatore befriend- ed Richard Roe ("Roe"), a twenty-one (21) year old male student in the Sacramental Theology class which he taught at the University of Scranton.' (Roe Dep. 11:17- 14:18.) Later that semester, Liberatore wrote Roe a letter inquiring as to whether Roe was interested in discerning whether he had a calling for the priesthood. (Roe Dep. 12:1-n.) Roe, in fact, was interest- ed, and, thereafter, he and Liberatore be- gan spending a great deal of time togeth- er. (Roe Dep. 15:2-18:22.) Liberatore took Roe out to dinner, purchased gifts for him, and took him to New York City on multiple occasions. (Id) I. Although they were adults, the Court choos- es to refer to Roe and others with whom Liberatore engaged in inappropriate conduct 747 In the spring of 1996, Liberatore en- couraged Roe, then a college senior and near graduation, to pursue a full-time posi- tion as the Director of Youth and Young Adult Retreats for the Diocese. (Roe Dep. 20:9-11.) This position would require Roe to have an office at the Seminary, where Liberatore resided. (Roe Dep. 21:10-12.) Roe was hired for the position, thanks in part to Liberatore's recommendation. (Roe Dep. 21:14-18.) After Roe graduated from the Universi- ty of Scranton, Liberatore took him to Los Angeles, California, as a graduation gift (Roe Dep. 23:1-15.) The night before Li- beratore and Roe were to fly to Los Ange- les they went out to several bars to drink. (Roe Dep. 24:1-6.) On the way home, Liberatore and Roe sat in the back seat of a car driven by one of Liberatore's friends. (Roe Dep. 24:8-17.) During the drive, Li- beratore "leaned on (Roe) and put his hand on (Roe's) thigh." (Roe Dep. 24:20- 22.) Roe construed this as a sexual over- ture. (Roe Dep. 27:17.) Despite the sexual overture on the part of Liberatore, for much of the summer of 1996, Roe stayed in Liberatore's bedroom at the Seminary while he looked for an apartment (Roe Dep. 29:1-6; 33:1.) Af- ter Roe had found an apartment, he often- times stayed overnight in Liberatore's bedroom at the Seminary. (Roe Dep. 32:16-33:1.) This state of affairs was not kept secret from the other seminarians. (Roe Dep. 33:5-S.) Liberatore would also oftentimes fail to return to the Seminary and instead stay overnight at Roe's apart- ment (Roe Dep. 46:1-4.) Near the end of the summer of 1996, Liberatore began having discussions with Roe about sexuali- ty, particularly in regard to what had tran- spired in the car on the way home from by fictitious names because of the delicate nature of the facts in this case. EFTA00226264

746 478 FEDERAL SUPPLEMENT, 2d SERIES raised issues of whether, rather than par- ties dealing on equal terms, there was either overmastering influence on one side, or weakness, dependence, or trust on the other, whether that unfair advantage was exploited by priest, and whether diocesan defendants failed to provide and maintain a safe environment for victim to partici- pate in church activities. U.S.C.A. Const. Amend. 1. 24. Constitutional Law ex)1340(1) Religious Societies c=z30 Claim of clergy malpractice is profes- sional negligence claim which is barred by the First Amendment and not recognized in Pennsylvania. U.S.C.A. Const.Amend. 1. 25. Damages 0291.5(1) Under Pennsylvania law, punitive damages may be awarded for conduct that is outrageous, because of defendant's evil motive or his reckless indifference to the rights of others. 26. Damages ez11.5(1) Under Pennsylvania law, punitive damages claim must be supported by evi- dence sufficient to establish that (1) defen- dant had subjective appreciation of risk of harm to which plaintiff was exposed and that (2) he acted or failed to act in con- scious disregard of that risk; stated anoth- er way, punitive damages will be imposed where defendant knew or had reason to know of facts which create a high degree of risk of physical harm to another, and deliberately proceeded to act, or failed to act, in conscious disregard of, or indiffer- ence to, that risk. 27. Federal Civil Procedure e=2515 Genuine issues of material fact, as to whether diocese, church, bishop, another priest, and benedictine monk were reck- less in failing to end conduct with high degree of risk of physical harm, precluded summary judgment for them on punitive damages claim under Pennsylvania law by parishioner who was sexually abused as teenager by parish priest with history of "inappropriate behavior"; they knew that priest had past involvement with seminari- an and that teenage parishioner was rou- tinely sleeping in priest's bedroom and had accompanied priest on several overnight trips, and he had told monk that priest had touched him in a sexual manner. Daniel T. Brier, Donna A. Walsh, Myers Brier & Kelly, LLP, Scranton, PA, for Plaintiff. J. Moran, Abrahamsen, Mor- an & Conaboy, P.C., Stephanie L. Austria, James E. O'Brien, Jr., Kennedy, O'Brien, McCormack & Mulcahey, Christopher J. Osborne, Powell Law, Scranton, PA, Karo- line Mehalchick, Joseph A. O'Brien. Oliver, Price & Rhodes, Clarks Summit, PA, for Defendants. MEMORANDUM CAPUTO, District Judge. Presently before the Court are Defen- dants Diocese of Scranton (the "Diocese"), Sacred Heart of Jesus Church ("Sacred Heart"), Bishop James C. Timlin ("Bishop Timlin"), Rev. Joseph R. Kopacz ("Father Kopacz") (collectively the "Diocesan De- fendants") and Brother Antonio F. Anto- nucci's ("Brother Antonucci") (collectively "Defendants") motions for summary judg- mentDocs.75-1, 76) as to Counts I, IV, VI, VII and VIII of Plaintiff John Doe's Complaint (Doc. 1). The Diocesan Defendants also seek summary judgment as to Plaintiffs claim for punitive damages. For the reasons stated below, the Court will grant in part and deny in part Defen- dants' motions. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1367(a). EFTA00226265

DOE I LIBERATORE Cite sa475 F.Supp.2t1 742 (M.D.Pa. 20071 agents, upon premises or with instrumen- talities under his control. 15. Federal Civil Procedure 4:=2515 Genuine issue of material fact, as to whether diocese, church, bishop, and an- other priest were negligent or reckless in supervising and retaining priest who sexu- ally abused teenage parishioner, precluded summary judgment for them on those claims. 16. Religious Societies 01=30 Under l'ennsylvania law, diocese, church, bishop, and another priest (dioce- san defendants) were not negligent or reckless in hiring priest who sexually abused teenage parishioner, as there was no evidence when priest was hired which suggested that he was or would become a child sex predator. 17. Negligence e=259, 409 Under Pennsylvania law, elements of a negligence per se action arising out of statute creating duty are (1) purpose of the statute must be, at least in part, to protect the interest of the plaintiff, individ- ually, as opposed to the public, (2) the statute must clearly apply to the conduct of the defendant, (3) the defendant must violate the statute, and (4) the violation of the statute must proximately cause the plaintiff injury. 18. Federal Civil Procedure e=ral5 Genuine issues of material fact, as to whether diocese, church, bishop, another priest, and benedictine monk were negli- gent per se for failing to report their sus- picions of child abuse as required by Pennsylvania statute, precluded summary judgment on claim of negligence per se by parishioner who was sexually abused as teenager by parish priest. 23 Pa.C.S.A. § 6311. 19. Damages e=57.21, 57.22 Under Pennsylvania law, to prove a claim of intentional infliction of emotional 745 distress, the following elements must be established: (1) the conduct must be ex- treme and outrageous, (2) it must be inten- tional or reckless, (3) it must cause emo- tional distress, and (4) that distress must be severe; "extreme and outrageous con- duct" is conduct which is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency. and to be regarded as atrocious, and utter- ly intolerable in a civilized society. Sec publication Words and Phras- es for other judicial constructions and definitions. 20. Damages ea192 Under Pennsylvania law, to prevail on intentional infliction of emotional distress cause of action, plaintiff must provide com- petent medical evidence to prove the exis- tence of emotional distress. 21. Fraud ct.07 Under Pennsylvania law, general test for determining existence of fiduciary rela- tionship is whether it is clear that the parties did not deal on equal terms. 22. Religious Societies en30 Under Pennsylvania law as predicted by federal district court in that state, Su- preme Court of Pennsylvania would recog- nize sexually abused parishioner's breach of fiduciary duty claim against abusive priest and diocesan defendants. 23. Constitutional Law es:01340(4) Religious Societies e=030 Recognition of breach of fiduciary duty claim against diocesan defendants. and Pennsylvania priest who had sexually abused teenage parishioner, did not offend the First Amendment, as no inquiry had to be made into church doctrine or other ecclesiastical matters, no professional stan- dard of care had to be set for clergy, and there was no risk of excessive governmen- tal entanglement with religion; claim only EFTA00226266

744 478 FEDERAL SUPPLEMENT, 2d SERIES 8. Labor and Employment ez-3045. 3046(1) Under Pennsylvania law, conduct of an employee is considered "within the scope of employment" for purposes of vi- carious liability if (1) it is of a kind and nature that the employee is employed to perform, (2) it occurs substantially within the authorized time and space limits, (3) it is actuated, at least in part, by a purpose to serve the employer, and (4) force is intentionally used by the employee against another, the use of force is not unexpected by the employer. Sec publication Words and Phras- es for other judicial constructions and definitions. 9. Labor and Employment .3=3056(1) Under Pennsylvania law, assault com- mitted by an employee upon another for personal reasons or in an outrageous man- ner is not actuated by an intent to perform the business of the employer and, as such, is not within the scope of employment, for purposes of imposing liability on employer based on principles of respondeat superior. 10. Religious Societies €=,30 Under Pennsylvania law, diocese, church, bishop, and another priest (dioce- san defendants) were not vicariously liable for parish priest's sexual molestation of teenage parishioner; molestation was not within the scope or nature of priest's em- ployment, and acts of sexual abuse he perpetrated were outrageous and not actu- ated by any purpose of serving those de- fendants. IL Torts (3=132, 133 Under Pennsylvania law, one is sub- ject to liability for harm to third person arising from the tortious conduct of anoth- er if he (a) does a tortious act in concert with the other or pursuant to a common design with him, (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encourage- ment to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, consti- tutes a breach of duty to the third person. Restatement (Second) of Torts § 876. 12. Torts e=.133 Factors used to determine whether third person accused of tortious aiding and abetting provided substantial assistance to tortfeasor are (I) nature of the act encour- aged, (2) amount of assistance given by defendant, (3) defendant's presence or ab- sence at time of tort, (4) defendant's rela- tion to tortfeasor, and (5) defendant's state of mind; sixth factor, duration of assistance provided, is also considered. Restatement (Second) of Torts § 876. 13. Religious Societies e=30 Under Pennsylvania law, monk who dissuaded teenager and his mother from reporting priest's sexual abuse of teenager to authorities, instead suggesting that he forgive priest for his misdeeds, did not tortiously aid and abet priest in that abuse; substantial assistance required that puta- tive eider or abettor take some affirmative action which caused tortious actor to con- duct himself inappropriately, there was no evidence monk aided priest's efforts, en- couraged or incited priest to commit abu- she acts, or was present during commis- sion of the abuse, and teenager and his mother were entirely free to ignore monk's advice and contact authorities on their own accord. 14. Labor and Employment +$3040, 3043 Under Pennsylvania law, employer is subject to liability for harm resulting from his conduct if he is negligent or reckless in the employment of improper persons or instrumentalities in work involving risk of harm to others, in the supervision of the activity, or in permitting, or failing to pre- vent, negligent or other tortious conduct by persons, whether or not his servants or EFTA00226267

110E I LIBERATORE Clte as 471 F.suppld Al IM.D.Pa. 2007) (8) Supreme Court of Pennsylvania would recognize breach of fiduciary duty claim against abusive priest and dio- cese defendants, and that claim would not offend the First Amendment; and (9) fact issues precluded summary judg- ment on punitive damages claim. Motion granted in part and denied in part. 1. Criminal Law e=1220 In order to be subject to liability un- der Child Abuse Victims' Rights Act (CAVRA), defendant must be proven by a preponderance of the evidence to have vio- lated at least one of the criminal statutes listed in federal statute providing civil remedy to minor victim who suffers per- sonal injury due to violation of statutes prohibiting child molestation, exploitation, and pornography. 18 U.S.C.A. §§ 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2256, 2260, 2421, 2422, 2423. 2. Criminal Law tt=59(5), 1220 One who criminally aids or abets of- fense against the United States is punisha- ble as though he himself committed the offense; consequently, if one has aided or abetted another in violating one of statutes listed in Child Abuse Victims' Rights Act (CAVRA), then he himself has committed an act indictable under listed statute and is liable to victim under CAVRA. 18 U.S.C.A. §§ 2(a), 2255. 3. Criminal Law (3:7.59(5) In order to establish offense of crimi- nal aiding and abetting, it must be shown that (1) the substantive offense has been committed, (2) the defendant knew the of- fense was being committed, and (3) the defendant acted with the intent to facilitate it. 18 U.S.C.A. § 2(a). 4. Religious Societies C=030 Diocese, church, bishop, and another priest (diocesan defendants) did not aid and abet parish priest who sexually abused teenage parishioner in violation of Child 743 Abuse Victims' Rights Act (CAVRA); while that priest committed multiple listed statu- tory offenses, diocesan defendants did not know the offenses were being committed and act with the intent to facilitate them. 18 U.S.C.A. §§ 2(a), 2241(c), 2242, 2243, 2251, 225IA, 2252, 2252A, 2255, 2260, 2421, 2422, 2423. 5. Federal Courts e=.15 District court could exercise supple- mental jurisdiction over claims under Pennsylvania law against diocese, church, bishop, and another priest (diocesan defen- dants) by parishioner who was sexually abused as teenager by priest, as his claims for assault and battery, vicarious liability, aiding and abetting, negligent hiring, su- pervision and retention, negligence per se, intentional infliction of emotional distress, and breach of fiduciary duty shared a com- mon nucleus of operative fact with his federal Child Abuse Victims' Rights Act (CAVRA) claim. 18 U.S.C.A. § 2255; 28 U.S.C.A. § 1367(a). 6. Federal Courts e=14.1 Mere tangential overlap of facts is insufficient to constitute a "common nucle- us of operative fact" needed for supple- mental jurisdiction, but total congruity be- tween the operative facts is unnecessary. 28 U.S.C.A. § 1367(a). See publication Words and Phras• es fur other judicial constructions and definitions. 7. Labor and Employment e=3045, 3055, 3062 Under Pennsylvania law, employer is held vicariously liable for the negligent acts of his employee which cause injuries to a third party, provided that such acts were committed during the course of and within the scope of the employment; in certain circumstances, liability of the em- ployer may also extend to intentional or criminal acts committed by the employee. EFTA00226268

742 47$ FEDERAL SUPPLEMENT, 2d SERIES 355 F.3d at 1336. Therefore, the Court must conclude that one of ordinary skill in the art would not find it obvious to com- bine Bowring and Hooker in this way. V. Conclusion The Court has construed the claims of the '903 Patent and finds that Mars' 5900- series coin changers, when placed within Type 1 and Type 2 vending machines do not infringe claims 1, 2, 3, 4, 6, 11, and 12 of the '903 Patent Alternatively, if the Court had construed the claims in the manner urged by Coinco, all asserted claims would be invalid for lack of an enabling disclosure, claims 1. 2, 3, 4, and 11 would be invalid for anticipation, and claim 6 would be invalid for obviousness. The forgoing shall constitute the Court's Findings of Fact and Conclusions of Law under Fed.R.Civ.P.52. John DOE, Plaintiff, Rev. Allied M. LIBERATORE, Jr., Dio- cese of Scranton, Sacred Heart of Je- sus Church, Bishop James C. Timlin, Rev. Joseph R. Kopacz and Brother Antonio F. Antonucci, Defendants. Civil Action No. 3:04-CV-2427. United States District Court, M.D. Pennsylvania. March 19, 2007. Background: Parishioner who had been sexually abused as teenager by parish Levasseur did not dispute the examiner's find- ings of obviousness as the claims were origi- nally written, but instead resubmitted his ap- plication with additional limitations to the claims. Because the patent examiner of the '903 Patent did not find claim 12 obvious after the changes made by Mr. Levasseur, the priest with history of "inappropriate be- havior" sued abuser as well as diocese, church, bishop, and another priest (dioce- san defendants) and Benedictine monk al- leging federal claim under Child Abuse Victims' Rights Act (CAVRA) and state law claims of assault and battery, vicarious liability, aiding and abetting, negligent hir- ing, supervision and retention, negligence per se, intentional infliction of emotional distress, and breach of fiduciary duty. De- fendants other than the abuser moved for summary judgment. Holdings: The District Court, Caputo, J., held that: (1) diocesan defendants did not aid and abet in federal CAVRA violation; (2) court had supplemental jurisdiction over state law claims; (3) diocesan defendants were not subject to vicarious liability for the sexual mo- lestation; (4) monk did not tortiously aid and abet priest in his sexual abuse; (5) diocesan defendants were not negligent in hiring subject priest, but fact issues existed as to whether they were negli- gent in supervising and retaining him; (6) fact issues existed as to whether dioce- san defendants and monk were negli- gent per se for failing to report their suspicions of child abuse as required by Pennsylvania statute; (7) defendants were not liable for inten- tional infliction of emotional distress, absent competent medical evidence to support claim of severe emotional dis- tress; Coon will follow the holding of Golight and also not rely upon the examiner's original rejection of the '903 Patent as the sole basis for the finding of a motivation, suggestion, or teaching that must accompany a conclusion of obviousness. EFTA00226269

CHOIMBOL I FAIRY Cite as 4 I. Supple) Plaintiff has not provided any evidence that would satisfy any of the predicate statutes of 18 U.S.C. 4 2255. Throughout Plaintiff's deposition, she continuously stated that she is was unaware of evidence that could prove the elements of any of the predicate statutes of 18 U.S.C. 2255 (See Pl's Deposition). Accordingly, the Court finds that there is no genuine issue of material fact and Defendant's Motion for Summary Judgment is GRANTED. IV. CONCLUSION For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED. The Court DIRECTS the Clerk to send copies of this Memorandum Opinion and Order to counsel of record. IT IS SO ORDERED. Enkhbayar CHOIMBOL, et al, Plaintiff, I FAIRFIELD RESORTS. INC., et al., Defendants. No. Civ.A. 2:05CV463. United States District Court. E.D. Virginia, Norfolk Division. March 2, 2006. Background: Immigrant workers for laundry, housekeeping, and grounds main- tenance brought action against property owner and others to recover for unjust enrichment and violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) by failing to pay overtime. Owner moved to dismiss. Holdings: The District Court, Jackson, J.. held that: IUD RESORTS, INC. 437 4)7 (E-D.Va. 20061 (1) workers stated claim of unjust enrich- ment; (2) they adequately pled mail and wire fraud and money laundering as predi- cate acts; (3) they satisfied standing requirement for racketeering claim; and (4) they adequately alleged pattern of racketeering activity. Motion denied. Implied and Constructive Contracts e=.3 By alleging that alleged contractor took deposits from immigrant workers and property owner treated contractor as an agent, workers stated claim of unjust en- richment against owner; workers detailed actions on the part of owner by which the finder of fact could determine that contrac- tor was in fact an employee or otherwise an agent of owner. 2. Implied and Constructive Contracts e=.3 Under Law, to establish a claim for unjust enrichment a plaintiff must allege (1) a benefit conferred on the defendant by the plaintiff; (2) knowledge on the part of the defendant of the confer- ring of the benefit; and (3) acceptance or retention of the benefit by the defendant in circumstances that render it inequitable for the defendant to retain the benefit without paying for its value. 3. Postal Service e=,35(2) Telecommunications c=1014(2) A plaintiff claiming mail or wire fraud as a racketeering predicate act must show that: (I) defendant knowingly participated in a scheme to defraud, and (2) the mails or interstate wire facilities were used in furtherance of the scheme; it is not neces- sary that the use of mails or wire facilities EFTA00226270

436 428 FEDERAL SUPPLEMENT, 2d SERIES such as Embassy Suites in Arizona. (Plis Deposition at 32-35). Additionally, to sat- isfy the statute of limitations, Plaintiff must prove that these acts occurred in December 1997. Plaintiff has failed to sat- isfy the elements of 18 U.S.C. § 2241(c). [31 Title 18, United States Code, Sec- tion 2243 provides for punishment for any person who engages in a sexual act with a person who is "under the custodial, super- visory, or disciplinary authority of the per- son so engaging" in the special maritime and territorial jurisdiction of the United States or in a Federal prison. Defendant was Plaintiffs step-father and could be considered to have "custodial, supervisory, or disciplinary authority" over Plaintiff. However, Plaintiff is still unable to over- come the hurdle that none of the actions occurred in "the special maritime and ter- ritorial jurisdiction of the United States or in a Federal Prison." 18 U.S.C. § 2243. 14] Title 18, United States Code, Sec- tion 2251 provides that "any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such con- duct ..." Defendant was convicted of 18 U.S.C. § 2251 for actions taking place dur- ing the summer of 1995 to the spring of 1996. However, to satisfy the statute of limitations for 18 U.S.C. § 2255, Plaintiff must show that violations of 18 U.S.C. § V.51 took place in December 1997. According to both parties, the video- tapes do not provide any dates or time stamps. (Pi's Deposition at 10-13). Addi- tionally, the Plaintiff continuously stated in her deposition, she "has never watched the video" and doesn't know how old she was at the time of the video. (Pt's Deposition at 12-13). Coles: . Between spring of 1996, • okay, June 21, 1996, the last day of spring, until December 30, 1997 as you sit here today, do you have any recollection of Mr. Husband recording either by visual or audio means any of the episodes of sexual activity that you and he engaged in? Plaintiff To my knowledge, no. Coles: During that same period of time, from June 21 1996 until December 30, 1997, as you sit here today, do you have any recollection of Mr. Husband creating any video or audio recording of you engaged in sexual activity alone? Plaintiff Not to my knowledge. Cates: Same period of time. From June 21, 1996 until December 30, 1997, are you aw@ of Mr. Husband having made a video or audio record- ing of you engaged with sexual or in sexual activity with another? Plaintiff Not to my knowledge. Coles: During the time of June 21, 1996 to December 30, 1997, are you aware of Mr. Husband making any photo- graph or other depiction of you en- gaged in any sort of sexual activity? Plaintiff. Not to my knowledge. (Pt's Deposition at 31-32). The Court be- lieves that Plaintiff has not provided any evidence that there were videotapes made during December 1997 or that she will be able to determine the exact dates of any sessions on the videotape. Accordingly, Plaintiff will not he able to satisfy the statute of limitations with respect to a violation of 18 U.S.C. § 2251. 151 Lastly, Title 18, United States Code, Section 2252 provides for punish- ment when any person ships or receives any visual depiction of sexual exploitation of a minor in interstate commerce. Plain- tiff has not provided any evidence to show Defendant shipped or intended to ship the videotape at any time. Therefore, Plaintiff cannot satisfy the elements of 18 U.S.C. § 2252. EFTA00226271

SMITH v. HUSBAND Cite a 428 F.Supp.2d 432 (E.D.V.. 2006) nonmoving party. Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To defeat summary judgment, the nonmoving party must go beyond the pleadings with affidavits, depositions, in- terrogatories, or other evidence to show that there is in fact a genuine issue for trial. Celotex Corp. v. Catrat 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed2d 265 (1986). Summary judgment will be grant- ed "against a party who fails to make a showing sufficient to establish the exis- tence of an element essential to that par- ty's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. 2548. While courts must take special care when considering a motion for summary judgment in a discrimination case because motive is often the critical issue, "summary judgment disposition re- mains appropriate if the (non-movantl can- not prevail as a matter of law." Evans v. Technologies Applications & Serv. Co., 80 F2d 954, 958-59 (4th Cir.1996); Ennis v. Nat Asa of Bus. and Edna Redick Inc., 53 F.3d, 55, 62 (4th Cir.1995) (requiring the plaintiff point to "any circumstance surrounding .. . discharge that credibly raises an inference of unlawful discrimina- tion"). III. DISCUSSION A. Timeliness Defendant argues that Plaintiffs claim should be dismissed because Plaintiff can- not provide any evidence to satisfy 18 U.S.C. § 2252, the only predicate statute applicable to the case. (Mot. Summ. Judg. at 5). Title 18, United States Code, Sec- tion 2255 provides for civil relief for any violation of 18 U.S.C. §§ 2241(c), 2242, 2243, 2251, 225IA, 2252, 2252A, 2260, 2421, 2. Both panics have agreed that the current claim is not being pursued for any violation of 435 2422, or 2423. The Court clearly ex- pressed that Plaintiff could prevail by showing that a violation of any predicate statute of 18 U.S.C. § 2255 occurred on or after December 1997, while she was a mi- nor. Smith, 376 F.Supp.2d at 616. Plain- tiff has not restricted her relief to only one predicate statute of IS U.S.C. § 2255. 111 Plaintiff argues that because she can prove by preponderance of the evi- dence that a violation of 18 U.S.C. § 2241(a) occurred, she has satisfied the requirements of 18 U.S.C. § 2255. (Reply to Mot. Summ. Judg. at 5). However, 18 U.S.C. § 2241(a) is not a predicate felony of 18 U.S.C. § 2255. See 18 U.S.C. § 2255. Accordingly a violation of 18 U.S.C. § 2241(a) is irrelevant to this analy- sis. Plaintiffs counsel indicated, at Plaintiffs deposition, that the case was being pur- sued for claimed violations of 18 U.S.C. §§ 2241, 2243, 2251, and 2252? (Pl's De- position at 30). The Court will now ana- lyze each of these predicate statutes. (21 Title 18, United States Code, Sec- tion 224I(c) provides for punishment when a person crosses a state line with intent to engage in a sexual act with someone under twelve or engages in a sexual act with a child between the ages of 12-16 in the special maritime and territorial jurisdiction of the United States or in a Federal Pris- on. Plaintiff has not provided any evidence that she can satisfy any of the elements of 18 U.S.C. § 2241(c). At best, Plaintiff pro- vides evidence that Defendant took her on a road trip and molested in June of 1996. (Plis Deposition at 27). However, Plaintiff could not show that it occurred in the special maritime or territorial jurisdiction of the United States. Plaintiff actually believed it occurred in general public hotel 18 U.S.C. §§ 225IA, 2252A. 2260, 2421, 2422. and 2423. (FI's Deposition at 25). EFTA00226272

434 428 FEDERAL SUPPLEMENT, 2d SERIES 1. FACTUAL AND PROCEDURAL HISTORY Plaintiff brings suit pursuant to Title 18, United States Code. Section 2255 for per- sonal injuries she suffered as a result of Defendant, Jimmy Husband's actions. On April 7, 2003, Defendant pleaded guilty to eight counts of sexual exploitation of a minor, in violation of 18 U.S.C. §§ 2251(a) and (d), and 2256(1) and (2). On several occasions in the summer of 1995 and the spring of 1996, Defendant persuaded Plaintiff to engage in sexually explicit con- duct, and did so for the purpose of produc- ing a videotape of such conduct. Defen- dant was sentenced to eighty-seven months as to each count, all to be served consecutively for a total of 696 months, to be followed by three years of supervised release. Plaintiff now invokes the accom- panying civil remedy for these criminal violations, stating that she has sustained and continues to sustain physical and men- tal damages, humiliation, and embarrass- ment as a result of Defendant's criminal acts. Plaintiff first brought suit on December 9, 2003 anonymously alleging the same violations as alleged here. The Defendant moved to dismiss on several grounds in- cluding lack of personal and subject matter jurisdiction. On August 10. 2004, this Court granted Defendant's Motion to Dis- miss based on Plaintiff's failure to obtain authorization to proceed anonymously. The Court did find that jurisdiction over Defendant was proper, however. Plaintiff's instant complaint was filed on August 18, 2004. The Defendant filed a motion to dismiss on March 22, 2005. The I. Defendant also requested summary judg- ment on the grounds that the Court lacks personal and subject matter jurisdiction, De- fendant did not make any supportive argu- ments but instead "adopted the arguments articulated in support of his Motion to Dis- miss." (Mot. Summ. Judg. at 7). The Court previously denied that Motion to Dismiss and Court held a hearing on the Motion to Dismiss on May 5, 2005. The Defendant was represented by a guardian ad litem. On July 7, 2005, the Court denied Defen- dant's Motion to Dismiss finding that the Court had appropriate jurisdiction over the case and that Plaintiff's claims were not time barred. See Smith v. Husband, 376 F.Supp2d 603 (E.D.Va.2005). On January 10, 2006, Defendant filed the instant motion for summary judgment on the basis that Plaintiff has failed to pro- vide any evidence that creates a genuine issue of material fact.' Plaintiff responded on January 13, 2006. The matter is now ripe for determination. II. LEGAL STANDARDS A. Summary Judgment Rule 56(c) provides for summary judg- ment if the Court, viewing the record as a whole, determines "that there is no genu- ine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Haul brook v. Michelin North Amer., Inc., 252 F.3d 696, 700 (4th Cir2001) (citing McKinney v. lid of Trustees of Mayland Only. Colt, 955 F.2d 924, 928 (4th Cir. 1992)) (stating that "summary judgment should be granted only when it is perfectly clear that no issue of material fact exists, and it is not necessary to inquire further into the facts in order to clarify the opera- tion of the law"). In deciding a motion for summary judgment, the Court must view the facts, and inferences to be drawn from the facts, in the light most favorable to the I found it had appropriate personal nd subject matter jurisdiction. (See Smith Husband, 376 F.Supp.2d 603 (E.D.Va.2 )). Since Defendant has failed to make any new argu- ments. Defendant's Motion for Summary judgement as to lack of personal and subject matter jurisdiction is DENIED. EFTA00226273

SMITH HUSBAND 433 Cite as426 F.Supp.2d 432 (E.D.Vii. 2006) (3) even if stepfather was considered to have custodial, supervisory, or disci- plinary authority over victim, she could not establish predicate act, absent evi- dence that stepfather's actions oc- curred in the special maritime and ter- ritorial jurisdiction of the United States or in a federal prison; (4) victim failed to establish that stepfa- ther videotaped her within statute of limitations; and (5) absent any evidence showing stepfa- ther shipped or intended to ship video- tape, victim could not establish predi- cate act. Motion granted. I. Infants .3=72(1) Evidence that stepfather knowingly caused victim to engage in a sexual act by force or threat was not evidence of a predi- cate offense under federal statute provid- ing civil relief to victim of statutes prohib- iting child molestation, exploitation, and pornography. 18 U.S.C.A. §§ 2241(a), 2255. 2. Infants e=a72(1) Evidence that stepfather took victim on a road trip and molested her in general public hotel did not show that stepfather engaged in a sexual act with a child be- tween the ages of 12-16 in the special maritime and territorial jurisdiction of the United States or in a Federal Prison, as was required to establish predicate offense under federal statute providing civil relief to victim of statutes prohibiting child mo- lestation. 18 U.S.C.A. §§ 2241(c), 2255 3. Infants e=)72(1) Even if step-father was considered to have custodial, supervisory, or disciplinary authority over victim, she could not estab- lish predicate act under federal statute providing civil relief to victim of statutes prohibiting child molestation, exploitation, and pornography, absent evidence that stepfather's actions occurred in the special maritime and territorial jurisdiction of the United States or in a federal prison. 18 U.S.C.A. §§ 2243, 2255. 4. Limitation of Actions e=55(4), 70(1) Victim of sexual exploitation failed to establish that she filed action against step- father within six years after he videotaped her or not later than three years after her legal disability, as was required to main- tain action under federal statute providing civil relief to victim of statutes prohibiting child pornography. 18 U.S.C.A. §4 2251, 2255. 5. Commerce e=.80, 82.6 Infants W=72(O Absent any evidence showing stepfa- ther shipped or intended to ship videotape of victim of sexual exploitation at any time, victim could not satisfy the elements of statute providing for punishment against any person who shipped or received any visual depiction of sexual exploitation of a minor in interstate commerce, as predicate offense under federal statute providing civ- il relief to victim of statutes prohibiting child molestation, exploitation, and pornog- raphy. 18 U.S.C.A. §§ 2252, 2255. Richard Ellis Garriott, Jr., Clarke Dolph Rapaport Hardy & Hull Plc, Norfolk, VA. for Plaintiff. MEMORANDUM OPINION AND ORDER JACKSON, District Judge. This matter is before the Court on De- fendant, Jimmy R. Husband's Motion for Summary Judgment. For the reasons stated below, Defendant's Motion for Sum- mary Judgment is GRANTED. EFTA00226274

432 428 FEDERAL SUPPLEMENT, 2d SERIES the investigation she "was stripped of Hied authority to obtain a warrant for any crim- inal offense concerning a law enforcement officer." (Pl.'s Resp. at 10). This argu- ment is unsupported by the facts. Plain- tiff, by her own admission, acknowledges that the investigation resulted in an admin- istrative procedure clarifying the role of ail animal control officers. (Pl. I)ep. At 49:24-50:5) (emphasis added). In fact, since the investigation Plaintiff has been recognized for her superior performance on the job. (Gilbert Aff. II 50). As such, it is clear that there was no adverse actions taken against Plaintiff, and thus she fails to meet the second element needed to state a prima facie case for retaliation. 3. Causal Connection (9, 101 Even assuming Plaintiff were able to establish an adverse employment action, Plaintiff can not show that the ad- verse action was causally connected to Plaintiff's protected activity. To establish a causal link between the protected activi- ty and the adverse employment action, the decision-maker must have knowledge of the employee's protected activity. Dowe v. Total Action Against l'overty in Roanoke Valley, 145 Fld 653, 655 (4th Cir.1998). In this case, it is undisputed that Defen- dant did not initiate the investigation, and that Kaiser, the individual who conducted the investigation, was unaware that Plain- tiff filed an internal grievance about the 2003 promotion process. Accordingly, without knowledge of the grievance, there can be no causal link between the protect- ed activity and any adverse employment action. The Court finds that Plaintiff fails to satisfy the third element. Based on the foregoing, the Court finds that Defendant has shown that no genuine issue of material fact exists on Plaintiff's retaliation claim, and Defendant's Motion for Summary Judgment on Plaintiffs re- taliation claim is GRANTED. IV. CONCLUSION For all the foregoing reasons, Defen- dant's Motion for Summary Judgment on Plaintiff's Title VII gender discrimination and retaliation claims is GRANTED. The Court DIRECTS the Clerk to send a copy of this Order to the parties. IT IS SO ORDERED. SMITH, Plaintiff, Jimmy R. HUSBAND, Defendant. No. 4:04CV101. United States District Court, Newport News Division. Feb. 10, 2006. Background: Victim of sexual exploitation sued stepfather, who had pleaded guilty to eight counts of sexual exploitation of a minor, pursuant to federal statute provid- ing civil remedy for personal injuries re- sulting from such offenses. Stepfather fled motion for summary judgment. Holdings: The District Court, Jackson, J., held that: (I) evidence that stepfather knowingly caused victim to engage in a sexual act by force or threat was not evidence of a predicate offense under federal stat- ute providing civil relief to victim of statutes prohibiting child molestation, exploitation, and pornography; (2) evidence that stepfather took victim on a road trip and molested her in general public hotel was hot evidence of a predicate offense; EFTA00226275

616 376 FEDERAL SUPPLEMENT, 2d SERIES procedural error by the Plaintiff. Plain- tiffs situation is very similar to that in Burnett and other cases where equitable tolling has been found to apply. See Bur- nett, 380 U.S. at 434-35, 85 S.Ct. 1050; Berry v. Pacific Sportfishing, Inc., 372 F2d 213 (9th Cir.1967) (tolling statute of limitations after case improperly filed in state rather than federal court). But see Shofer v. Hack, 970 F.2d 1316, 1319 (4th Cir.1992). In Burnett, the original case was improperly filed in state court and dismissed for lack of venue. The plaintiff then re-filed in federal court after the stat- ute of limitations expired, but the court tolled the limitations period given defen- dant's notice and the mere procedural er- ror. 380 U.S. at 434-35, 85 S.Ct. 1050. In Shofer v. Hack, the court declined to toll the statute of limitations finding that the plaintiff had commenced the action in a "clearly inappropriate forum" because the state clearly lacked jurisdiction over ERISA matters. 970 F.2d at 1319. The court in Shofer distinguished Burnett and Berry finding that in those cases, it was not clearly evident that the original courts were improper. 970 F2d at 1319. Here, Plaintiff initiated suit anonymous- ly, but there is no evidence that her filing was in clear violation of the court's juris- diction as was the case in Shafer. In addition, Defendant has not even alleged that he would be prejudiced by the equita- ble tolling. See Baldwin County Welcome Cir. v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (discussing prejudice to the defendant as a factor the court must consider when determining whether to apply the doctrine of equitable tolling). He had notice of the exact claim in December 2003, before the limitations period had expired. Moreover, Plaintiffs case is exactly the situation contemplated in Irwin where the initial complaint had a procedural defect, but was nevertheless filed within the limitations period. 498 U.S. at 96, 111 S.Ct. 453; Chao v. Va. Depl of Transp., 291 F.3d 276 (4th Cir. 2002) (adopting the Inein rule that allows for tolling absent any misconduct by the defendant). Tolling the statute of limita- tions equitably in this instance does not run counter to the purpose of the statute of limitations, which is to protect defen- dants by preventing surprises and preserv- ing evidence. Burnell, 380 U.S. at 428, 85 S.Ct. 1050. Defendant cannot claim sur- prise by Plaintiffs action as the renewed case was filed mere days after the initial complaint was dismissed. The Court therefore finds the doctrine of equitable tolling applicable to Plaintiffs claim because but for a procedural error in the original complaint, this action would have been timely. Plaintiffs argument that a continuing violation occurred there- fore applies provided that such a violation occurred within six years of the filing of the December 2003 complaint. Plaintiff can maintain a cause of action provided that she can show by a preponderance of the evidence that any violation of 18 U.S.C. §6 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 occurred on or after December 1997, while she was a minor. Accordingly, Defendant's Motion to Dismiss for failure to state a claim pursuant to Rule 12(b)(6) is DENIED. IV. CONCLUSION Defendant's Motion to Dismiss is DE- NIED. The Court DIRECTS the Clerk to send copies of this Memorandum Opinion and Order to counsel of record. IT IS SO ORDERED. EFTA00226276

SMITH I HUSBAND Clic as 376 F.Supp.30 603 (E.D.W. 30051 possession of it constituted a new violation. The interstate transportation of child por- nography, and possession thereof is pro- hibited by Title 18 United States Code, Sections 2252(aX1) and (a)(4), and 2252A(a)(1) and (a)(5)(B).4 As the video- tape was made in New York by I) and seized from Defendant in Plaintiff could arguably attempt to m that a violation of § 2252A or § 2252 oc- curred.$ Nevertheless even if Plaintiff could establish such a by a pre- ponderance of the evidence, Plaintiff would not be able to sue for that violation under § 2255. That section provides that only a minor who is a victim of §§ 2252A or 2252 among other statutes can sue for such a violation. Plaintiffionted that De- fendant moved to in October of 2001. Thus, even if he transported the videotape interstate at that time, Plaintiff was no longer a minor when that most recent violation and injury occurred. Thus, she does not meet the criteria for a plaintiff under § 2255 for any violations subsequent to her eighteenth birthday. Plaintiffs suit was brought more than six years after any of Defendant's conduct for which she can pursue a claim under § 2255. 3. Equitable Tolling 128-31) The Court must also consider whether the doctrine of equitable tolling will allow Plaintiffs claim to go forward despite being in violation of the statute of 4. Tide 18 U.S.C. § 2252A provides that Any person who (I) knowingly mails. or transports or ships in interstate or foreign commerce by any means, including by com- puter, any child pornography; or (500 knowingly possesses any ... videotape. ... or any other material that contains an im- age of child pornography that has been mailed, or shipped or transported in inter- state or foreign commerce by any means, .. or that was produced using materials which have been mailed, or shipped or transported in interstate or foreign com• 615 limitations. The doctrine of equitable toll- ing applies to all federal statutes of limita- tion unless Congress specif ally provides otherwise. See 'Holmberg Annbrechl, L 327 U.S. 392, 397, 66 S.Ct. , 90 L.Ed. 743 (1946). To determine whether to ap- ply the doctrine, "the basic inquiry is whether congressional purpose is effectu- ated by tolling the statute of limitations .. ." Burnett v. N.Y. Central R.R. Ca, 380 U.S. 424, 427, 85 S.Ct. 1050, 13 L.Ed2d 941 (1965). Specifically, federal courts have allowed equitable tolling when the claimant has filed a defective pleading during the statutory period. See Irwin a Dept of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed2d 435 (1990); 51 Ani.Jur.24 § 174 (2000) ("allowing equita- ble tolling when the plaintiff actively pur- sues his or her judicial remedies by filing a defective pleading during the statutory pe- riod ...."). The Court must also consider that application of this equitable doctrine in order to relieve the strict application of a statute of limitations must be "guarded and infrequent, lest circumstances of indi- vidualized hardship supplant the rules of clearly drafted statutes." Harris a Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000); Spencer a Sutton, 239 F.3d 626, 629 (4th Cir2001). As discussed above, Plaintiff commenced suit anonymously in December 2003. At that time, Defendant was served with a complaint alleging the same cause of ac- tion, but the case was dismissed due to a merce by any means, including by comput- er; shall be punished as provided in subsec- tion (b). Title 18 U.S.C. § 2252 contains similar lan- guage but requires that the producing of a visual depiction involve the use of a minor engaging in sexually explicit conduct. 5. It is uncertain whether the mere transporta- tion of a home video across state lines can meet the definition of interstate commerce under the statute. EFTA00226277

614 376 FEDERAL SUPPLEMENT, 2d SERIES of Raleigh, 941 F.2d 1158, 1166 (4th Cir. 1991) (finding that to meet the continuing violations doctrine "the challenged action must be repeated within the statute of limitations period."). (261 At the hearing, Plaintiff repre- sented that although the criminal indict- ment and conviction concerned abusive behavior in 1995 and 1996, the abuse con- tinued until she reached the age of eigh- teen and moved away from Defendant- These allegations are sufficient under the continuing violation doctrine because Plaintiff claims that Defendant engaged in a continuous course of conduct that in- jured her upon each instance of abuse. See Perez v. Laredo Junior Coll., 706 F2d 731, 733 (5th Cir.1983) (noting that if the violation "does not occur at a single moment but in a series of separate acts and if the same alleged violation was com- mitted at the time of each ad, then the limitations period begins anew."). Plain- tiff stated that she moved out in January of 1998, one month after her eighteenth birthday. Plaintiff then argues that be- cause she first filed suit against Defen- dant in December of 2003, the Court should find that this Complaint relates back to that original complaint for the purposes of the statute of limitations. The Plaintiff first brought suit anony- mously, but the case was dismissed for her failure to obtain authorization to make such an anonymous filing. See Doe v. Husband, No. 2:03cv166, slip op. at 10 (E.D.Va. August 10, 2004). Under Plaintiffs theory on relating back, provided that she can establish that any violation of the listed sexual exploita- tion statutes occurred on or later than December 1997, her cause of action would be valid under the continuing violation doc- trine. Plaintiff did not provide specific details regarding the abuse in December 1997, but it is foreseeable that she could prove that such a violation occurred in order to support her claim for damages. The Court must therefore determine if the date of commencement of this action re- lates back to the original December 2003 filing for the purposes of the statute of limitations. The Federal Rules of Civil Procedure provide that an amended pleading relate back to the date of the original pleading under three circumstances: "(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted" if certain conditions are met. Fed.R.Civ.P. 15(c). The statute does not contemplate a relation back to a prior dismissed case. Although Plaintiffs cause of action is the same, and the defendant is the same and was aware of the allegations against him, the situation is different from that of an amended complaint relating back to the original complaint in the same action. Plaintiff has cited no law, nor can the Court find any precedent for relating a subsequent complaint back to a prior com- plaint in a separate, though related, action that was dismissed because of the plain- tiffs error. Plaintiffs argument that the date of filing is December 2003 for the purposes of the statute of limitations therefore fails. (27) Thus, only if Plaintiff can show that Defendant violated any of the listed statutes within six years of the filing of this Complaint in August 2004, is this mat- ter within the statute of limitations. At the hearing, Plaintiff suggested that be- cause the videotape was made in New York, Defendant's interstate transporta- tion of the item to =, and continuing EFTA00226278

SMITH I HUSBAND Chen376 F.Supp2d 603 (E-D.Va. 2005) C.1. A statute of limitations is not provid- ed. Yet, the statute specifies that if a defendant has been convicted in a criminal proceeding for the offenses, that defendant cannot deny the essential allegations of the offense in the civil proceeding. 18 U.S.C. 1964(d). It therefore follows that a criminal conviction is not necessary in or- der for a victim to pursue a civil remedy under that statute. See Sedinia a. Imrex Co., Inc, 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed2d 346 (1985) (finding that private action under § 1964(c) can proceed without a criminal conviction). (221 These statutes provide further support to the Court's finding that Con- gress did not intend to provide a civil remedy for only those crimes where the perpetrator has been convicted criminally. Furthermore, although Plaintiff's proposed interpretation of the statute would allevi- ate her concern regarding the statute of limitations, it would foreclose other victims from pursing the remedy if the defendant had not already been adjudged guilty. Absent definitive evidence indicating such Congressional intent, this Court is not pre- pared to interpret the statute in such a restrictive manner. The Court fords that given the legislative history of 18 U.S.C. 2255, Congressional intent is to make the civil remedies provision available to any victim able to show by a preponder- ance of the evidence that the defendant committed the acts described in any of the listed offenses. 2. Date of first accrual (23) The Court must next consider De- fendant's argument that the statute of lim- itations has expired given the fact that the statute of limitations cannot run from the 2003 conviction. The statute provides that the claim "shall be barred unless the corn- and related offenses were, however, added to the definition of racketeering activities under Chapter 96. Sec 132 Cong. l2ec. S17295-02 613 plaint is filed within six years alter the right of action first accrues." 18 U.S.C. 2955. Under general principles of fed- eral law, a plaintiffs cause of action first accrues when she possesses sufficient facts about the harm done to her that a reason- able inquiry would reveal the cause of action. Nasim v. Warden, Aid House of Corrections, 64 F.3d 951, 955 (4th Cir. 1995); Franks v. Ross 313 F.3d 184, 194 (4th Cir.2002) (a cause of action accrues "when it is sufficiently ripe that one can maintain suit on it."). Defendant argues that Plaintiff was aware of her cause of action at the time the abuse first occurred. With regards to the videotaping, he argues that she was aware of that cause of action when the tape was originally made in 1995/1996, and thus the statute of limita- tions expired six years after those dates. (24, 251 The Plaintiff does not dispute the statement that she was aware of the videotaping at the time it was made. Yet, Plaintiff argues that since the statute does not require a criminal conviction as a pre- requisite, she may rely on other dates of abuse to support her claim. Essentially, Plaintiffs argument is that the statute of limitations runs from the first accrual of the right of action based on any violation of the listed exploitation statutes. More- over, Plaintiff argues that a new violation occurred each time Defendant abused her in violation of the listed statutes. Plaintiff relies on the continuing violation doctrine, which provides that each of a defendant's acts that cause injury to a plaintiff renews the cause of action for purposes of the statute of limitations. See Zenith Radio Corp. v. Hazeltine Research, Inc, 401 U.S. 321, 338, 91 S.Ct._ 795, 28 L.Ed.2d 77 (1971) (applying continuing violation doctrine to anti-trust cases); Nat'! Adler. Co. v. City (daily ed. Oct. IS, 1986) (statement of Sena- tor Grassley). EFTA00226279

612 376 FEDERAL SUPPLEMENT, 2d SERIES applied only to minors. The analysis of that proposed draft indicated that a viola- tion under § 2255 was to be proven only by a preponderance of the evidence. Fur- thermore, the earlier draft discussed in June 1986 provided that a victim could sue "from an act indictable" under the statute. This language again indicates that it was not Congress's intent that a conviction un- der the other sexual exploitation statutes be a prerequisite to the initiation of a civil suit for damages. The Court finds that legislative history indicates that 18 U.S.C. 2255 was intended to provide a remedy for victims without requiring a criminal conviction. The Court's holding is further bolstered by a consideration of other federal statutes providing for civil remedies to victims of criminal acts. Courts considering the proper interpretation of a statute often rely on the use of a particular term in other statutes. See Rowan Cos. v. United Stales, 452 U.S. 247, 101 S.Ct. 2288, 68 L.Ed2d 814 (1981); United Stales a Duke Energy Corp., 411 F.3d 539, 547 (4th Cir. 2005). Title 18 U.S.C. § 1595 provides a civil remedy for the victims of forced labor, the trafficking of individuals with respect to peonage and the sex trafficking of chil- dren. That statute specifies that the civil action is stayed during the pendency of the criminal action, but does not specify a stat- ute of limitations for the civil action. Al- though it is a relatively new law, and there are seemingly no cases invoking the stat- ute, the language itself considers the possi- bility of a civil action being filed prior to the criminal action. See 18 U.S.C. 1595(b)(1). Similarly, 18 U.S.C. § 2520 provides a civil remedy for the victim of an illegal wire tap. The relevant statute of in 1998 to provide for damages in the event of a violation of the other sexual exploitation laws as well as §§ 2251 and 2252. and to allow treble damages. limitations for that offense is "two years after the date upon which the claimant first has a reasonable opportunity to dis- cover the violation." 18 U.S.C. § 2520(e). Several cases considering that statute have been dismissed based on the statute of limitations with no discussion of a criminal conviction as a prerequisite. See Andes v. Knox, 905 F.2d 188 (8th Cir.1990) (victim's claim barred by the statute of limitations though she did not know who had actually done the wiretapping until he pleaded guilty); Brown v. American Broadcasting Co, Inc, 704 F2d 1296 (4th Cir.1983) (is- sue of when the victim knew or should have known of the violation was one for the jury, and failed to grant summary judgment ser on the statute of limitations is- u (211 Other federal statutes have explic- itly provided that a criminal conviction is not necessary for a victim to pursue civil remedies. The Violence Against Women Act, 88 enacted in 1994, provided for civil damages to the victim of a crime of vio- lence motivated by gender, and assigned civil liability "whether or not [the criminal acts) have actually resulted in criminal charges, prosecution, or conviction ..." 42 U.S.C. § 13981(c). See also 42 U.S.C. 13981(0(2). Although, the statute was later held unconstitutional because it was not authorized by the Commerce Clause, United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), the intent of the legislature was nevertheless clear that victims would have a right of recovery regardless of a criminal convic- tion. Finally, 18 U.S.C. § 1964(c), the statute discussed above, provides for a civil remedy for the victim of a racketeering operation' See discussion supra Part III. 3. After discussion, the civil remedy provision for sexual exploitation was not included with- in Chapter 96. the RICO statutes, but instead was merely added to Chapter 110 along with the other provisions regarding the sexual ex- ploitation of children. Child pornography EFTA00226280

SMITH I HUSBAND Chem 376 F.Supp hi 603 (E.D.Va. 2003) of this statute does not provide any con- text as to the meaning of violation. The Court must therefore rely upon other methods of statutory interpretation. The Court must next look to the legisla- tive history of the statute to interpret Congressional motives regarding its enact- ment. Title 18, United States Code, Sec- tion 2255 was enacted as part of The Child Abuse Victims' Rights Act of 1986 on Oc- tober 18, 1986. Pub.L. No. 99-500, 100 Stat. 1783-39 (1986). It expanded the scope of . the Protection of Children Against Sexual Exploitation Act of 1977, Pub.L. 95-225, 92 Stat. 7 (1978), to provide a civil remedy for personal injuries suf- fered by victims of child sexual exploita- tion. In the early drafts of the legislation, the civil remedy was discussed as an amendment to the civil Racketeer Influ- enced and Corrupt Organizations ("RICO") statute that already provided for remedies to crime victims. The intent in proposing to include the statute within RICO was to allow for increased criminal penalties as well as expanded investigato- ry powers to arrest perpetrators of the of- fenses. 132 Cong. Rec. H3362—02 (daily ed. June 5, 1986) (statement of Rep. Young). Initially, the representative in- troducing the bill proposed that "(i)f an offender is convicted under Civil RICO, the Government or the victim is given the right to sue the offender in order to re- ceive treble damages and attorney fees." 132 Cong. Rec. E290-02 (Feb. 5, 1986) (statement of Rep. Siljander). In later debates, a bill was proposed still within the RICO statute that stated: "talny per- son injured(1) personally by reason of a vi- olation of section 1962 of this chapter if such injury results from an ad indictable 2. Thc proposed draft provided that "(silly vic- tim of a violation of §13 2251 or 2252 who suffers physical injury, emotional distress, or property damage as a result of such violation may sue to recover damages in any appropri- 611 under sections 2251 and 2252 of this title (relating to sexual exploitation of children) ... may sue therefor in any appropriate United States district court and shall re- cover threefold the damages he sustains and the cost of the suit, including a rea- sonable attorney's fee." See 132 Cong. Rec. E1983—01 (daily ed. June 5, 1986) (statement of Rep. Siljander during exten- sion of remarks). A later draft of the proposed legislation was entitled the Pornography Victims Pro- tection Act. H.R. 5509. It contained a provision whereby a federal district court could order a perpetrator to divest himself of any profits received by his illegal activi- ties, or to order the dissolution of any business enterprise associated with the ac- tivity. 132 Cong. Rec. E3242—02 (daily ed. September 23, 1986) (statement of Rep. Green during extension of remarks). In his remarks, Representative Green pre- sented an analysis of the text of the bill conducted by the American Law 1)ivision of Congressional Research Services. The analysis discussed the civil remedies and provided that "for purposes of this section, violations are to be determined by a pre- ponderance of the evidence. Successful plaintiffs are entitled to recover the cost of the suit, including a reasonable attorney's fee, from those found guilty of a violation." kL Although that analysis was not binding upon Congress in enacting the statute, no subsequent drafts of the legislation con- tained language contrary to the interpreta- tion provided. The Court finds this discussion of the proposed bill persuasive. The language analyzed by the American Law Division was practically identical: to the final draft except that the final bill specified that it ate federal district court, and shall recover triple damages if a violation is found." 134 Cong. Rec. S372-01 (daily ed. February I. 1988) (statement of Sen. Grassley). The final draft of the statute was subsequently amended EFTA00226281

610 376 FEDERAL SUPPLEMENT, 2d SERIES Plaintiffs complaint was filed after the six year statute of limitations expired. The relevant question is when the right of ac- tion first accrued. Plaintiff argues that her cause of action did not accrue until Defendant was convicted under the crimi- nal statutes; specifically, that a conviction is a pre-requisite to filing suit under 18 U.S.C. § 2255, and therefore the statute of limitations did not begin to run until July 2003, when Defendant was convicted under 18 U.S.C. §§ 2251(a),(d) and 2256(1) and (2). Defendant argues that the right of action accrued at the time of the criminal acts for which he was convicted, which he states was at the latest 1996. 1. Criminal conviction as a prerequi- site to a civil suit 117-201 Neither the Supreme Court nor the United States Court of Appeals for the Fourth Circuit has provided any guid- ance regarding this particular statute. Thus, in order to determine this question of first impression, the Court must use standard methods for interpreting a stat- ute. "When interpreting a statute, la court's] inquiry begins with the text." United States v. Simmons, 247 F.3d 118, 122 (4th Cir.2001); United States v. Ron Pair Enters, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). The Court must look first to the plain meaning of the words, and scrutinize the statute's "language, structure, and pur- pose." United States u Horton, 321 F.3d 476, 479 (4th Cir.2003) (internal quotations omitted); North Dakota v. United States, 460 U.S. 300, 312-13, 103 S.Ct. 1095, 1102- 03, 75 L.Ed.2d 77 (1983). Words in the text of the statute should be accorded "their ordinary meaning." United States v. Sleek, 990 F.2d 150, 152 (4th Cir.1993). If the language of the statute is plain, the Court ends the inquiry; if the language is ambiguous, the Court must consider other factors such as legislative history. The plain text of 18 U.S.C. § 795.5 reads: Any minor who is a victim of a violation of section 2241(c), 2242, 2243, 2251, 2251A, 2252 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers person- al injury as a result of such violation may sue in any appropriate United States District Court and shall recover the actual damages such minor sustains and the cost of the suit, including a reasonable attorney's fee. ... My action commenced under this section shall be barred unless the complaint is filed with- in six years after the right of action first accrues or in the case of a person under a legal disability, not later than three years after the disability. The statute does not specify whether a conviction under one of the listed statutes is necessary for a civil suit, or whether any violation of the listed statutes is sufficient. If a plaintiff must merely show that a violation has occurred, the Court would apply the preponderance of the evidence standard to find that such a violation had occurred, rather than the reasonable doubt standard employed for a criminal convic- tion. In some contexts, the term "viola- tion" has been held not to imply a criminal conviction. Sedinta S.P.ft.L. v. Imrex Co., Inc., 473 U.S. 479, 489, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) (" 'violation' refers only to a failure to adhere to legal require- ments."). In Sedima, however, the Court relied upon the term's "indisputable mean- ing elsewhere in the statute." Id. The instant statute does not provide a clear indication of the term's meaning elsewhere in the statute; nor do related statutes contain the words "chargeable", "indict- able", or "punishable" as did the statute at issue in Sedima. Though illustrative, the findings in Sedima cannot apply to every use of the term "violation" throughout the criminal code. Accordingly, the Court must consider the term in the context of the statute presented here. The language EFTA00226282

SMITH I HUSBAND Cite iu 376 F.Suppld 603 I= ZOOS) and general jurisdiction. Sec Hclicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed2d 404 (1984). If the contacts with the forum are rare or limited but directly related to the cause of action, then the court's specif- ic jurisdiction can be used to subject a defendant to suit in that court. Id. If a nonresident engages in some purposeful activity in the forum state, even a single act may constitute sufficient contact for a court to exercise personal jurisdiction. Darden v. Heck's, Inc., 459 F.Supp. 956 (Y.D.Va.1978). On the other hand, if de- fendant's activities within the forum state are substantial and pervasive, the court may exercise general jurisdiction over the defendant. Helicopteros, 466 U.S. at 415- 16, 104 S.Ct. 1868. At the hearing, the parties presented information regarding where both Plaintiff and Defendant resided during the period in question. Plaintiff was born on Decem- ber 30, 1979, and during most of the rele- vant times she lived with her mother and stepfather, the Defendant. Plaintiff resid- ed with Defendant in various states in- cluding ME Kentucky, and Tennessee prior to 1993. Plaintiff alleges that De- fendant's exploitation of her occurred in all of these residences. From 1993 until 1998, Plaintiff resided in New York with Defendant. It was during this time that Defendant made a videotape of himself engaging in illicit acts with the Plaintiff, a minor. In January 1998, Plaintiff reached the age of eighteen and moved out of the residence to another residence in New York. In 1999, she moved to and has maintained residence inlistate sine ober 2001, Defendant moved to The parties were unsure 1. At the hearing. although Plaintiff was pres• ent. she did not testify under oath as to the facts regarding her residence and Defendant's residence in the state. In addition, Defendant was not present to testify himself, or offer contrasting evidence for his guardian ad litem 609 about the particulars of Defendant's ar- rest, but it seems that he was arrested in February 2002 in Newport News on state charges related to the sexual abuse. He was held in the Newport News jail, and later released. Defendant then apparent- ly moved to Kansas, where he was arrest- ed on the federal charges. 1161 On a motion to dismiss, the Court must construe Plaintiffs allegations as true.' Plaintiff maintains that Defendant's tortious behavior took place in as well as New York and other states. De- fendant did not appear at the hearing and has not contested that specific allegation in any of the pleadings he has submitted. He argues only that the conduct for which he was indicted occurred in New York. Plaintiff also m a i s at at the time he was arrested in Defendant pos- sessed the illicit videotape, which caused a continuing tortious injury to her. Defen- dant's residence in the Commonwealth at the time some of the illegal conduct oc- curred is sufficient for the Court to exer- cise jurisdiction over the Defendant. Moreover, he was a resident at the time he possessed the illegally made videotape, and purposely availed himself of t • leges of conducting activities in These facts are sufficient to establish De- fendant's minimum contacts with the state for the purposes of due process. The Court finds jurisdiction over Defendant to be proper, and his Motion to Dismiss pur- suant to Rule 12(bX2) is DENIED. C. Statute of Limitations The Defendant alleges that all of the relevant conduct occurred from the sum- mer of 1995 to the Spring of 1996, and thus to argue. Thus, since the Court merely heard counsel's arguments and did not take evi- dence regarding the issue of personal jurisdic- tion, the hearing is not considered an eviden- tiary hearing for the purposes of a rule I2(bX2) motion. EFTA00226283

608 376 FEDERAL SUPPLEMENT, 2d SERIES B. Personal Jurisdiction (71 The Defendant argues that the Court lacks personal jurisdiction because he is not a resident of the Commonwealth, and all of the alleged acts took place in New York. The Plaintiff argues that De- fendant did maintain a permanent resi- dence in for some of the relevant time period, that he was arrested on state charges related to this offense in and that Defendant poegnsed and the po- lice confiscated the illicit videotape in Vir- ginia. Plaintiff also argues that some of the acts of exploitation did occur in Virgi- nia, though not the specific acts for which Defendant was convicted criminally. The Defendant raised this same motion on Plaintiff's claim brought anonymously in 2003. At that time, the Court determined that jurisdiction over Defendant was prop- er because he committed a tortious act within the Commonwealth. See Doe v. Husband, No. 03cv166, slip op. at 10 (E.D.Va. August 10, 2004). At the hear- ing, the parties provided more details re- garding both Plaintiffs and Defendant's former residence within the Common- wealth that further support the Court's decision in the former case. 18, 91 The Virginia long arm statute al- lows the Court to exercise specific juris- diction over a cause of action arising from a defendant's "(c)ausing tortious injury by an act or omission in this Commonwealth; Mousing tortious injury in this Common- wealth by an act or omission outside this Commonwealth if he regularly does or sol- icits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth." Va.Code § 2.01-328.1 (2000). More generally, if a defendant transacts any business, or has an interest in, uses, or possesses real property in the Commonwealth, a court can exer- cise personal jurisdiction over such defen- dant. Va.Code § 2,01-328.1. courts consistently hold that theVirginia long-arm statute, Code § 8.01- 328.1, extends personal jurisdiction to the limits of due process. Peanut Corp. of Am. v. Hollywood Brands, Inc., 696 F2d 311, 313 (4th Cir.1982); Danville Plywood Corp. u Plain & Fancy Kitchens, Inc., 218 Va. 533, 238 S.E2d 800 (1977); John G. Kolbe, Inc. v. Chromodern Chair Co.. 211 Va. 736, 180 S.E.2d 664, 667 (1971). Thus, there exists only one issue to be de- termined; that is whether Defendant's ac- tivities in are such that in person- am jurisdiction may be exercised without violating due process. See, e.g., Federal Ins. Co. v. Lake Shore, Inc., 886 F2d 654, 657 n. 2 (4th Cir.1989); Superfos !nos. Ltd v. FirstMiss, 774 F.Supp. 393, 397 (E.D.Va.1991). 110-121 The due process clause of the United States Constitution requires that a defendant have "minimum contacts" with the forum state such that "the mainte- nance of the suit does not offend tradition- al notions of fair play and substantial jus- tice." Intl Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Minimum contacts exist when the "defen- dant's conduct and connection with the forum state are such that he should rea- sonably anticipate being haled into court here." World-Wide Volkswagen Corp v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 659, 62 L.Ed2d 490 (1980). In order for a court's jurisdiction to be proper, "it is es- sential ... that there be some act by which the defendant purposefully avails it- self of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Dan- ville Plywood 238 S.E.2d at 802 (quoting Hanson v. Denekla, 357 U.S. 235, 253, 78 S.Ct. 1228,2 L.Ed.2d 1283 (1958)). 113-15] The United States Supreme Court ("Supreme Court••") has developed a distinction between specific jurisdiction EFTA00226284

SMITH I HUSBAND Clint 376 F.SupPad " 3 (F^Diit Ka) miss based on Plaintiffs failure to obtain authorization to proceed anonymously. The Court did find that jurisdiction over Defendant was proper, however. Plaintiffs instant complaint was filed on August 18, 2004. The Defendant filed a motion to dismiss on March 22, 2005 on the bases that Plaintiffs claims are barred by the statute of limitations, that the Court lacks personal jurisdiction over him, and that the Court lacks subject matter jurisdiction on the basis of a faulty crimi- nal indictment. The Court held a hearing on the Motion to Dismiss on May 5, 2005. The Defendant was represented by a guardian ad litem. II. LEGAL STANDARDS A. Subject Matter Jurisdiction I I-3) Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of ac- tions on the basis of lack of subject matter jurisdiction. A motion to dismiss for lack of subject matter jurisdiction may attack the complaint on its face or the truth of the underlying jurisdictional allegations contained in the complaint. The nonmovant has the burden to allege and prove such jurisdiction. bane v. David P. Jacobson & Co., Ltd, 880 F.Supp. 1091, 1094 (E.D.Va. 1995) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982)). "A court asked to dismiss for lack of jurisdiction may re- solve factual disputes to determine the proper disposition of the motion." Thig- pen v. United States, 800 F.2d 393, 396 (4th Cir.1986). B. Personal Jurisdiction 5] The Plaintiff has the burden of establishing personal jurisdiction by a pre- ponderance of the evidence. Combs v. Bakker, 886 F2d 673 (4th Cir.1989). A two-prong test governs an analysis of in personam jurisdiction. The first prong re- quires that the activiti,te defendant fall within the reach of 's long arm 607 statute. The second prong requires that the defendant have minimum contacts with the state so that the exercise of jurisdic- tion does not offend basic notions of due process. WWI Richmond County Hosp. Aullz, 745 F2d 904, 909 (4th Cir.1984), cert denied, 474 U.S. 826, 106 S.Ct. 83, 88 L.Ed.2d 68 (1985). III. DISCUSSION A. Subject Matter Jurisdiction [61 The Defendant first alleges that the Court lacks subject matter jurisdiction. Plaintiff sues invoking a federal statute, 18 U.S.C. 2255, that specifically authorizes a civil suit for the victim of any of several statutes prohibiting child molestation, ex- ploitation, and pornography. Accordingly, the Court has subject matter jurisdiction based upon the existence of a federal ques- tion. Defendant argues, however, that fa- tal flaws in his criminal indictment violate his rights under the Fifth Amendment and the Federal Rules of Criminal Procedure. He contends that he was denied the right to a grand jury proceeding, and that the indictment does not state all of the essen- tial elements of the offense charged. Yet, even assuming the indictment and criminal conviction were invalid, Plaintiff can main- tain a case based solely on the facts of the abuse. As discussed below, the criminal conviction is not necessary for Defendant to face civil liability for the underlying acts. See discussion infra Part III.C.1. The validity of Defendant's criminal con- viction is therefore irrelevant to the ques- tion of whether the Court has subject mat- ter jurisdiction. In addition, Defendant also fails to provide any specifics regarding his claim that the guilty plea or indictment were invalid. Defendant's motion to dis- miss pursuant to Rule 12(b)(1) of the Fed- eral Rules of Civil Pi cxedure is DENIED. EFTA00226285

606 376 FEDERAL SUPPLEMENT, 2d SERIES minor victim who suffered personal injury due to violation of statutes prohibiting child molestation, exploitation, and pornog- raphy, given that victim's original action, filed within limitations period, was dis- missed due to procedural defect and that stepfather could not claim surprise since renewed case was filed mere days after initial complaint was dismissed, and there- fore action was timely to the extent that victim could show that requisite violation occurred within six years of filing of origi- nal complaint. 18 U.S.C.A. § 2255. 29. Limitation of Actions .2=104.5 Doctrine of equitable tolling applies to all federal statutes of limitation, unless Congress specifically provides otherwise. 30. Limitation of Actions e=104.5 In determining whether to apply the doctrine of equitable tolling, basic inquiry is whether congressional purpose is effect- uated by tolling the statute of limitations. 31. Limitation of Actions e=104.5 Application of equitable tolling doc- trine to relieve the strict application of a statute of limitations must be guarded and infrequent, lest circumstances of individu- alized hardship supplant the rules of clear- ly drafted statutes. West Codenotes Recognized as Unconstitutional Violent Crime Control and Law En- forcement Act of 1994, § 40302. 42 U.S.C.A. § 13981. Richard E. Garriott, Jr., Esquire, Clarke, Dolph, Rapaport, Hardy & Hull, P.L.C., Norfolk, VA, Counsel for Plaintiff. es Cales, Jr., Esquire, Furniss, Rashkind & Saunders, P.C., Nor- folk, VA, Counsel for Defendant. MEMORANDUM OPINION AND ORDER JACKSON, District Judge. This matter is before the Court on De- fendant, Jimmy R. Husband's Motion to Dismiss for lack of subject matter jurisdic- tion, lack of personal jurisdiction, and vio- lation of the statute of limitations. For the reasons stated below, Defendant's Mo- tion to Dismiss is DENIED. 1. FACTUAL AND PROCEDURAL HISTORY Plaintiff brings suit pursuant to Title 18, United States Code, Section 2255 for per- sonal injuries she suffered as a result of Defendant, Jimmy Husband's actions. Plaintiff alleges that Husband was convict- ed of sexual exploitation, in violation of 18 U.S.C. §§ 2251(a) and (d), and 2256(1) and (2). Defendant pleaded guilty to eight counts of sexual exploitation of a minor on April 7, 2003. On several occasions in the summer of 1995 and the spring of 1996, Defendant persuaded Plaintiff to engage in sexually explicit conduct, and did so for the purpose of producing a videotape of such conduct. Defendant was sentenced to eighty-seven months as to each count, all to be served consecutively for a total of 696 months, to be followed by three years of supervised release. Plaintiff now in- vokes the accompanying civil remedy for these criminal violations, stating that she has sustained and continues to sustain physical and mental damages, humiliation, and embarrassment as a result of Defen- dant's criminal acts. Plaintiff fast brought suit on December 9, 2003 anonymously alleging the same violations as alleged here. The Defendant moved to dismiss on several grounds in- cluding lack of personal and subject matter jurisdiction. On August 10, 2004, this Court granted Defendant's Motion to Dis- EFTA00226286

SMITH I HUSBAND 605 Clic ea 376 F.SuppId 603 (E.D.Va. 2005) 20. Statutes om•188, 217.4 If the language of a statute being interpreted is plain, court ends the inquiry, but if the language is ambiguous, court must consider other factors, such as legis- lative history. 21. Racketeer Influenced and Corrupt Organizations c=67 Criminal conviction is not necessary for a victim to pursue a civil remedy under Racketeer Influenced and Corrupt Organi- zations Act (RICO). 18 U.S.C.A- § 1964(c, d). 22. Infants €=.72(2) Conviction is not prerequisite to initi- ation of action for damages under federal statute providing civil remedy to minor victim who suffers personal injury due to violation of statutes prohibiting child mo- lestation, exploitation, and pornography; rather, statute makes civil remedies avail- able to any victim able to show by a pre- ponderance of the evidence that defendant committed acts described in any of listed offenses. 18 U.S.C.A. § 2255. 23. Limitation of Actions e=95(1) Under general principles of federal law, plaintiffs cause of action first accrues when she possesses sufficient facts about the harm done to her that a reasonable inquiry would reveal the cause of action. 24. Limitation of Actions e=,58(1) "Continuing violation doctrine" pro- vides that each of defendant's acts that cause injury to plaintiff renews the cause of action for purposes of the statute of limitations. See publication Words and Phras- es for other judicial constructions and definitions. 25. Limitation of Actions e=58(I) Allegations that stepfather's sexual exploitation of victim continued after time period underlying stepfather's criminal conviction, until victim reached age of 18 and moved away from stepfather, sup- ported application of continuing violation doctrine to victim's claims under federal statute providing civil remedy to minor victim who suffered personal injury due to violation of statutes prohibiting child mo- lestation, exploitation, and pornography, given victim's assertion that stepfather en- gaged in continuous course of conduct that injured her upon each instance of abuse. 18 U.S.C.A. § 2255. 26. Limitation of Actions ¢=58(I) Action in which victim sued stepfather pursuant to statute providing civil remedy to minor victim who suffered personal inju- ry due to violation of statutes prohibiting child molestation, exploitation, and pornog- raphy did not relate back to victim's prior action under statute, which was dismissed due to victim's failure to obtain authoriza- tion to file action anonymously, so as to make action timely under continuing viola- tion doctrine. 18 U.S.C.A. § 2255; Fed. Rules Civ.Proc.Rule 15(c), 28 U.S.C.A. 27. Limitation of Actions e::>58(1) Victim was no longer minor at the time stepfather allegedly transported be- tween states videotape which he had made of himself engaging in illicit acts with vic- tim while she was minor, and thus, even if such conduct violated statutes prohibiting interstate transportation of child pornogra- phy and possession thereof, victim could not sue based on such violation under fed- eral statute providing civil remedy to mi- nors who suffered personal injury due to violation of statutes prohibiting child mo- lestation, exploitation, and pornography, and therefore such act did not establish violation within six-year statute of limita- tions. 18 U.S.C.A. §§ 2252(a)(1, 4), 2252A(aX (a)(5)(B), 2255. 28. Limitation of Actions c?;=>104.5 Doctrine of equitable tolling applied to victim's action against stepfather under federal statute providing civil remedy to EFTA00226287

604 376 FEDERAL SUPPLEMENT, 2d SERIES during which he sexually exploited victim and allegations that. at the time stepfather was arrested in =, he possessed vid- eotape which he had made of himself en- gaging in illicit acts with victim while she was a minor established personal jurisdic- tion over stepfather, pursuant to long-arm statute and due process princi- ples, in victim's action under federal stat- ute to recover for personal injuries caused by stepfather's sexual exploitation. U.S.C.A. Const.Amend. 14; 18 U.S.C.A. § 2255; Fed.Rules Civ.Proc.Rule 12(b)(2), 28 U.S.C.A.; West's V.C.A. § 8.01-328.1. 8. Courts e=12(2.1, 2.15) If defendant transacts any business or has an interest in, uses, or possesses real lib in the Commonwealth of court can exercise personal juris- diction over such defendant under Virgi- nia's long-arm statute. West's V.C.A. § 8.01-328.1. 9. Courts <=12(2.1) long-arm statute extends per- sonal jurisdiction to the limits of due pro- U.S.C.A. Const.Amend. 14; West's § 8.01-328.1. 10. Constitutional Law e=305(5) Due process clause of the United States Constitution requires, for exercise of personal jurisdiction over defendant, that defendant have minimum contacts with the forum state such that the mainte- nance of the suit does not offend tradition- al notions of fair play and substantial jus- tice. 1.1.S.C.A. Const.Amend. 14. 11. Federal Courts €=.76.5 Minimum contacts exist to support personal jurisdiction when defendant's con- duct and connection with the forum state are such that he should reasonably antici- pate being haled into court there. U.S.C.A. Const.Amend. 14. 12. Constitutional Law e=P305(5) For court's personal jurisdiction to be proper under due process principles, it is essential that there be some act by which defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Coact. Amend. 14. 13. Federal Courts e576.10 If defendant's contacts with the forum state are rare or limited but directly relat- ed to the cause of action, court's specific jurisdiction can be used to subject defen- dant to suit in that court. 14. Federal Courts <1=76.10 If a nonresident engages in some pur- poseful activity in the forum state, even a single act may constitute sufficient contact for a court to exercise personal jurisdiction over nonresident. 15. Federal Courts 4=76.5 If defendant's activities within the fo- rum state are substantial and pervasive, court may exercise general jurisdiction over defendant. 16. Federal Courts e=96 On a motion to dismiss for lack of personal jurisdiction, court must construe plaintiffs allegations as true. Fed.Rules Civ.Proc.Rule 12(bX2), 28 U.S.C.A. 17. Statutes e=3188 When interpreting a statute, court's inquiry begins with the statute's text. 18. Statutes e=.184, 188 Court must look first to the plain meaning of the words of a statute being construed and scrutinize the statute's lan- guage, structure, and purpose. 19. Statutes e=188 Words in the text of a statute should be accorded their ordinary meaning. EFTA00226288

SMITH I HUSBAND Clitas376 F.Supp.2d 603 (E.O.M.. 2005) Victoria SMITH, Plaintiff, I Jimmy R. HUSBAND, Defendant. No. CIV.A. 4:04CV 101. United States District Court, E.U. Virginia, Newport News Division. July 7, 2005. Background: Victim of sexual exploitation sued stepfather, who had pleaded guilty to eight counts of sexual exploitation of a minor, pursuant to federal statute provid- ing civil remedy for personal injuries re- sulting from such offenses. Stepfather moved to dismiss. Holdings: The District Court, Jackson, J., held that (1) subject matter jurisdiction existed over action; (2) personal jurisdiction existed over step- father; (3) as a matter of first impression, convic- tion is not prerequisite to civil action under federal statute providing remedy to minor victim who suffers personal injury due to violation of statutes pro- hibiting child molestation, exploitation, and pornography; (4) action did not relate back to victim's prior, anonymously filed, lawsuit; (5) victim did not establish violation occur- ring within six-year statute of limita- tions; and (6) doctrine of equitable tolling applied to action. Motion denied. I. Federal Courts et=29.1, 32 Motion to dismiss for lack of subject matter jurisdiction may attack the com- plaint on its face or the truth of the under- lying jurisdictional allegations contained in the complaint. Fed.Rules Civ.Proc.Rule 12(b)(1), 28 U.S.C.A. 603 2. Federal Courts e=,34 On motion to dismiss for lack of sub- ject matter jurisdiction, nonmovant has the burden to allege and prove such jurisdic- tion. Fed.Rules Civ.Proc.Rule 12(b)(1), 28 U.S.C.A. 3. Federal Courts e..30 Court asked to dismiss for lack of subject matter jurisdiction may resolve factual disputes to determine the proper disposition of the motion. Fed.Rules Civ. Proc.Rule 12(b)(1), 28 U.S.C.A. 4. Federal Courts ee>96 Plaintiff has the burden of establish- ing personal jurisdiction by a preponder- ance of the evidence. 5. Constitutional Law ea305(5) Federal Courts er=76.1 A two-prong test governs an analysis of in personam jurisdiction: the first prong requires that defendant's activity fall with- in the reach of state's long-arm statute, while the second prong requires that de- fendant have minimum contacts with the state so that the exercise of jurisdiction does not offend basic notions of due pro- cess. U.S.C.A. ConstAmend. 14. 6. Infants C:=.73 District court had subject matter ju- risdiction over action brought under feder- al statute specifically authorizing civil suit by victim of statutes prohibiting child mo- lestation, exploitation, and pornography, notwithstanding alleged flaws in perpetra- tor's criminal indictment and conviction; conviction was not necessary for perpetra- tor to face civil liability for underlying acts. 18 U.S.C.A. § 2255; Fed.Rules Civ.Proc. Rule 12(bX1), 28 U.S.C.A. 7. Constitutional Law da305(5) Courts e=i15 Uncontested allegation that stepfather resided in during portion of time EFTA00226289

BRADLEY v. U.S 197 au/m.299 KM 197 (3rdar. 2002) district court found, giving the plaintiffs the benefit of every passible inference, no reasonable juror could find that the de- piction of Jane Doe (4) converted the de- piction of the two other Does into a lascivi- ous exhibition of their genitalia or pubic areas. 191 The district court similarly ana- lyzed the studio photos under the criteria supplied by governing law. As the court concluded, all but three of the photos failed to meet the threshold requirement of exhibiting the genital or pubic areas of a minor. In the three that conceivably met the threshold, not only is there no naked display of the forbidden zones, no such zone serves as the focal point. The setting is not sexually suggestive—a white paper background typical of studio photography. The poses are not unnatural; the attire is of the kind used in artistic or theatrical shows. There is no hint of sexual coyness or readiness on the part of the plaintiffs to have sex. There is no incitement to lust. No reasonable juror could find any of the studio photos to qualify as criminal under the Protection of Children Against Sexual Exploitation Act. (101 Finally, the district court consid- ered two kinds of photos not in the record, but referenced in affidavits by the Does. According to Jane Doe (1) she was photo- graphed by Lesoine wearing only tuxedo pants and a jacket. As the district court observed, this photo would not meet the statutory threshold. Jane Doe (1) also swore that she was photographed in "a very thin, see-through piece of material" at all times with the front of her body includ- ing the pubic area before the camera. Jane Doe (1) had never seen negatives or prints of these pictures. Jane Doe (2) swore to a similar affidavit. The district court followed Villard in holding that a lascivious exhibition could be established by testimony, Villard, 885 F.2d at 126, but also took note of Villani's admonition that detail was important and that imagination was no substitute for facts. The district court held that it could not determine from the affidavit whether the pubic areas were visible under the transparent material; it was necessary to know the lighting, the pose, and the focus of the camera to deter- mine whether there was an exhibition. Lacking this information, the district court correctly held that no reasonable juror could find the referenced photos to be a lascivious exhibition. As an author who was himself once the victim of overzealous censorship has writ- ten: genuine pornography "is almost al- ways under-world; it doesn't come into the open .... Mou can recognize it by the insult it offers, invariably and to the human spirit." D.H. Phoe- nix, 175 (1936). The photographs at issue in this case offer no insult to sex or to the human spirit. No jury could find them to fall within the federal statute's definition of sexually explicit conduct. As the case against Lesoine fails, a forti- ori the case against her husband, a by- stander, fails. For the reasons stated, the judgment of the district court is AFFIRMED. Yvette BRADLEY, Appellant The UNITED STATES of America; United States Customs Service; Ray- mond W. Kelly, Commissioner of the United States Customs Service, in his official capacity; Samuel H. Banks, EFTA00226290

196 299 FEDERAL REPORTER. 3d SERIES "I or more books, magazines, periodicals, films, video tapes, or other matter" show- ing the prohibited conduct and produced by using materials transported in inter- state commerce. Photos fall within the term "film," and we assume they were produced by materials shipped in inter- state commerce. Under this section, the plaintiffs could prevail if they showed the other requirements of the statutory of- fense were met. 151 Sexually Explicit Conduct. Every• part of the human person from hair on the head to toes on the feet emits erotic sig- nals depending on the customs and con- ventions and clothing of the country and the complex psychological makeup of the observer. Congress has chosen to crimi- nalize only photos of the genitalia or pubic areas and of these parts only when they are the subject of "lascivious exhibition." Only then do they qualify as "sexually explicit conduct." 18 U.S.C. § 2256(2XE). [61 Case law has given an expansive reading to "exhibition" so that it includes not only the naked or visible showing of the forbidden areas but making them focal. United States v. Knox, 32 F.3d 733, 751 (3d Cir.1994). As the district court found, seven of the shower photos at the beach and one taken at the beach do not show these areas or make them a focal point, so there is no need to address the question of lasciviousness. These photos fall short of the threshold set by the statute. Ill In ten other beach photos the pubic area of one plaintiff is slightly discernable. Reviewing these photos, the district court applied the criteria set by United States lA Bost, 636 F.Supp. 828, 832 (S.D.Ca1.1986), which we have held should be used as a guide to whether an exhibition of genitalia or the pubic area is lascivious. United Stales v. lard, 885 F.2d 117, 122 (3d Cir.1989). The first factor under Dost is whether a forbidden area is the focus. The second is whether the setting of the depiction is sexually suggestive or general- ly associated with sexual activity. The third is whether the pose or attire of the minor is unnatural or inappropriate given her age. The fourth is whether the child is naked. The fifth is whether the child shows sexual coyness or willingness to en- gage in sex. The sixth is whether the photo is intended or designed to elicit a sexual response in the viewer. Dost, 636 F.Supp. at 832. As the district court ob- served, the list is not exhaustive and no single factor is dispositive. Knox, 32 F.3d at 746, n. 10, but more than one factor must be present to prove lasciviousness. Vi F.2d at 122. 181 Applying these criteria, the district court found that, apart from the girls in the shower being unclothed, no reasonable juror could find a Dost factor present. The pubic areas were far from being focal. An open shower near a beach was not a place associated with sexual activity. It was natural to be nude when washing off from the sand. Neither Doe showed any sexual coyness. The final Dost factor sim- ply puts again the underlying question: Is the exhibition lascivious? Villard, 885 F2d at 125. The district court found that no lascivious design or intent could reason- ably be found. Reviewing these findings and viewing the photos, we agree that no reasonable juror could find the beach pho- tos lascivious—"that is, so presented by the photographer as to arouse or satisfy the sexual cravings of a voyeur." United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir.1987). Plaintiffs repeat a not very convincing argument that the pose of another girl, Jane Doe (4), in one beach photo shows sexual coyness because her right knee is bent, her right heel is slightly raised, and she holds one finger to her mouth. As the EFTA00226291

DOE' CHAMBERLIN Cite as 294. F.3d 192 Ord Cir. 2002) Ligation into the photos. The District At- torney searched the Chamberlin home and Lesoine's studio and seized many of the photos and determined that they did not justify prosecution. PROCEEDINGS On December 10, 1997, the parents of Jane Doe (1) and Jane Doe (2) filed their amended complaint in this case in the Mid- dle District of Pennsylvania. The mother of a third girl, Jane Doe (3), also joined in this complaint. Jane Doe (3) was an adult at the time the complaint was filed and subsequently filed a motion stat- ing that the lawsuit had been filed without her knowledge and consent and noting that the photos in which she appeared had been taken at her request The court granted her motion for dismissal. Her mother then amended her complaint to allege that she, the mother, was entitled to damages under 18 U.S.C. § 29-55(a). Holding that § 2255(a) gave no right of action to a parent, the district court granted summary judgment against her on both her federal and state claims. That judgment is not appealed. On April 12, 2001, after a meticulous consideration of the evidence, the district court granted summary judgment on the federal claims of the parents of Does (1) and (2) and declined to exercise supple- mentary jurisdiction over their state claims. The parents of the two Does appeal. ANALYSIS Jurisdiction. The plaintiffs' suit is predi- cated on a violation of certain sections of Chapter 110, Sexual Exploitation And Oth- er Abuse Of Children, 18 U.S.C. §§ 2251- 2260. Beginning in 1978, Congress has acted to bar the channels of interstate commerce to the makers and purveyors of 195 child pornography. United States v. Ra- dio, 194 F.3d 465, 477-75 (3d Cir.1999), and to do so has constitutionally extended the ban to the possessors of intrastate pornography. IS at 477. 11, 2) Before we can apply this formi- dable federal engine, we still must deter- mine if we have jurisdiction under it. Jur- isdiction cannot be conferred on us by the will or the waiver of the parties. Dela- ware v. Van Arsdall, 475 U.S. 673, 692, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). If jur- isdiction does not exist, we are bound to dismiss the suit however long it has been maintained or how far it has traveled. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed2d 760 (1999). 131 Federal jurisdiction here was pleaded in terms of transport of the photos in interstate commerce, which we find un- proved. Lesoine knew that the Martha's Vineyard photos would be brought home by her to Pennsylvania, but such transpor- tation, by whatever means it took place, was not transportation in commerce. As to the studio photos, there is no evidence to show that Lesoine knew they would be transported anywhere. However, inter- rogatories tendered to Lesoine by the plaintiffs and answered by her established that she had used Nikon cameras and Forte and T-max film, and no doubt she used chemicals. We assume, as did this court in United States v. Rodia, 194 F.3d at 473, that these materials had traveled in interstate commerce. They, therefore, supply the needed jurisdictional hook, even though, as Rodia held, they would be in- sufficient to sustain the constitutionality of the statute, id, which, on other grounds, we upheld in that case. 14) The Defendant's Possession. The plaintiffs also rely on § 22.52(a)(4)(B), which criminalizes knowing possession of EFTA00226292

194 299 FEDERAL REPORTER, 3d SERIES and minors did not display any sexual coyness. 18 U.S.CA. ii 2252(aX4XB), 2256(2)(E). 9. Infants e=13 Nude or partially-clothed photographs of minors, taken in photographer's studio, were not lascivious and therefore did not qualify as sexually explicit conduct in viola- tion of statute prohibiting knowing posses- sion of films showing sexual exploitation of minors; all but three of photos did not exhibit minors' genital or pubic areas at all, and for those three such forbidden zones were not nakedly displayed and did not serve as focal point, setting was not sexually suggestive, poses were not unnat- ural, and there W2S no hint of sexual coy- ness. 18 U.S.C.A. 66 2252(a)(4liB), 2256(2XE). 10. Infanta e=,13 Photographs of minors, taken in pho- tographer's studio, which were not in the record but were referenced in affidavits of minors, could not be determined to be a lascivious exhibition, as would constitute sexually explicit conduct in violation of statute prohibiting knowing possession of films showing sexual exploitation of mi- nors; affidavits did not allow district court to determine whether the pubic areas of the minors were visible under the trans- parent material. 18 U.S.C.A. 66 2252(a)(4XB), 2266(2XE). Vincent S. Cimini (Argued), Foley, Cog- netti, Comerford & Cimini, Scranton, PA, Counsel for Appellants. Michael D. Collins (Argued), Strouds- burg, PA, Counsel for Appellees. I. Honorable John T. Noonan. Jr.. Circuit Judge of the United States Court of Appeals Before: SCIRICA, RENDELL and NOONAN,' Circuit Judges. OPINION OF THE COURT NOONAN, Circuit Judge. This civil suit was brought for damages for violation of 18 U.S.C. 66 2251-2259 (the Protection of Children Against Sexual Exploitation Act), as well as violation of state law. The district judge gave sum- mary judgment for the defendants on the federal claim and declined to exercise jur- isdiction over the state claims. We affirm the judgment of the district court. FACTS Kathryn Lesoine (Lesoine) is the wife of William Lawson Chamberlin; his daughter is Lesoine's stepdaughter. In August 1995, Lesoine took photographs of her stepdaughter and three of her stepdaugh- ter's friends at the beach near the Cham- berlins' home on Martha's Vineyard. One friend was Jane Doe (1), then 15, and another was Jane Doe (2), then 16. In March 1996, she took photos of the same two plaintiffs in her studio at the Cham- berlin home in Waverly, Pennsylvania. In the beach photographs the girls were pho- tographed naked, taking a shower. In the studio photographs they were partially clothed. Another amateur photographer saw the photos Lesoine had taken and informed the mother of Jane Doe (2), who in turn informed her own husband and the parents of Jane Doe (I), of the photos' existence. The parents were upset that the photos had been taken without their consent. They asked the Lackawanna County Dis- trict Attorney to conduct a criminal inves- for the Ninth Circuit, sitting by designation. EFTA00226293

DOE I CHAMBERLIN 193 Clteas2119 KM )92 (irdClr. 2002) Sexual Exploitation Act (PCASEA) against photographer who took pictures of the mi- nors. The United States District Court for the Middle District of Pennsylvania, 139 F.Supp.2d 637. A. Richard Caputo, J., granted defendants' motion for summary judgment, and plaintiffs appealed. The Court of Appeals, Noonan, Circuit Judge, sitting by designation, held that (1) Court had jurisdiction, and (2) photographs were not lascivious. Affirmed. 1. Federal Courts ai=31 Jurisdiction cannot be conferred on the court by the will or the waiver of the parties. 2. Federal Courts c=,30 If jurisdiction does not exist, court is bound to dismiss the suit however long it has been maintained or how far it has traveled. 3. Infants 6=13 Court of Appeals had jurisdiction to hear appeal of case, brought against pho- tographer who took nude and semi-nude pictures of minors, under Protection of Children Against Sexual Exploitation Act (PCASEA); photographer used cameras, film, and chemicals that had traveled in interstate commerce. 18 U.S.C.A. §§ 2251-2259. .1. Infants e=.13 Nude and semi-nude photographs of minors taken by photographer fell within term "film" for purposes of statute crimi- nalizing knowing possession of films and other materials, shipped in interstate com- merce, showing sexual exploitation of mi- nors. 18 U.S.CA § 2252(aX4)(E). 5. Infants c:=13 Photographs which qualify as "sexual- ly explicit conduct," as would violate stat- ute prohibiting depictions of sexual exploi- tation of minors, are those which depict minors' genitalia or pubic areas, and only when they are the subject of "lascivious exhibition." 18 U.S.C.A. § 2256(2)(E). 6. Infants e=.13 Term "exhibition," for purposes of statute criminalizing photographs depict- ing sexual exploitation of minors, by de- piction of minors' genitalia or pubic areas, and making them the subject of lascivious exhibition, includes not only the naked or visible showing of the forbidden areas but making them focal. 18 U.S.C.A. § 2256(2XE). See publication Words and Phras- es (or other judicial constructions and definitions. 7. Infants 4=13 Criteria used in determining whether an exhibition of a minor's genitalia or pu- bic area is lascivious include whether a forbidden area is the focus, whether set- ting of depiction is sexually suggestive or generally associated with sexual activity, whether pose or attire of minor is unnatu- ral or inappropriate given her age, wheth- er the child is naked, whether child shows sexual coyness or willingness to engage in sex, and whether photo is intended or de- signed to elicit a sexual response in the viewer; list is not exhaustive and no single factor is dispositive. 8. Infants 0.13 Nude photographs of minors, taken in a shower on a beach, were not lascivious and therefore did not qualify as sexually explicit conduct, as required for violation of statute prohibiting knowing possession of films and other materials, shipped in interstate commerce, showing sexual ex- ploitation of minors; photos depicted natu- ral activity of washing off sand, pubic ar- eas of minors were not focal, shower was not a place associated with sexual activity, EFTA00226294

192 299 FEDERAL REPORTER, 3d SERIES and allow the Court to set the sentence. Ebel was insisting on a range that would result in a 36 month sentence. He eventu- ally accepted a plea with a range of 37 to 46 months on the understanding that he would receive a 37 month sentence. He was induced to do nothing beyond what he had already stated he would agree to do. Moreover, if we examine the types of plea agreements provided for in Rule 11. we can see that the District Judge's com- mitment to the 37 month sentence in effect transformed the plea agreement here to a Rule 11(e)(1)(C) plea. Under Rule 11(e)(1XC), the defendant and the govern- ment agree to a specific sentence. When an 1 I(e)(1)(C) plea is negotiated, it is bind- ing on the District Court if the court ac- cepts it. Under Rule 11(e)(3), the court then is required to infonn the defendant that the court will impose the specific. negotiated sentence. Because that com- mitment is dearly not considered coercive, see United States v. Andrade-Lanios, 39 F.34 986, 990 (9th Cir.1994), we conclude that it is similarly not coercive under the circumstances here where the length of the sentence was one that the prosecution and the defendant had already found to be acceptable. Other parts of the record support our conclusion that Ebel was not coerced. From arraignment through sentencing, Ebel displayed a clear understanding of the plea and sentencing process. He stat- ed in his plea colloquy that no threats or promises "whatsoever" had been made to induce him to plead guilty. The District Judge also mentioned several times that Rule II limited the judge's involvement and admonished Ebel that, "I'm not offer- ing you the 37 months. I'm telling you I'll go along with it, if that's what you people agree to." The timing of Ebel's request to with- draw his guilty plea also indicated that he changed his mind after seeing two co- defendants acquitted. Moreover, he did not mention coercion by the District Court as a reason to withdraw his plea until after his initial request to withdraw his plea had been denied. We are therefore convinced from our examination of the record as a whole that Ebel's guilty plea was voluntary and was not coerced by the District Court. His rights were not substantial/ affected by the remarks of the judge. T erefore, un- der Rule 11(h), any error is harmless. Conclusion For the reasons stated above, we will affirm the judgment of the District Court. John DOE # 1; Kelly Doe # 1, Parents of Jane Doe # 1, Individually and as Guardians on behalf of Minor Jane Doe # 1; John Doe # 2; Kelly Doe # 2, Parents of Jane Doe # 2, as Guardians on behalf of Minor Jane Doe # 2 I William Lawson CHAMBERLIN, Jr.; Kathryn Lawson Chamberlin, his wife John Doe # 1, Kelly Doe # 1, John Doe # 2, and Kelly Doe # 2, Appel- lants No. 01-2170. United States Court of Appeals, Third Circuit. Argued April 22, 2002. Filed: June 19, 1w2. Minors and their parents brought ac- tion under Protection of Children Against EFTA00226295

Page 77 of 129 F.Supp.2d Page 7 F.Supp.2d ----, 2007 WL 1813773 (N.D.Cal.) (Cite as: — F.Supp.2d venue "in any appropriate United States District Court." IS § 2255(a). As is explained above, in the unique circumstances of these related lawsuits, and in light of this Court's experience with the earlier lawsuit filed by plaintiffs counsel against defendant White, this is not an appropriate forum. CONCLUSION For the foregoing reasons, and on the condition that defendant comply with his executed and filed stipulation, these related actions are DISMISSED without prejudice based on forum non conveniens. The dismissal will be stayed for 30 days to give plaintiffs the opportunity to file suit in Mexico. IT IS SO ORDERED. N.D.CaI.,2007. Martinez White F.Supp.2d ----, 2007 WL 1813773 (N.D.Cal.) END OF DOCUMENT O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. s wows air m• • 19. IS s EFTA00226296

Page 76 of 129 F.Supp.2d F.Supp.2d ----, 2007 WL 1813773 (N.D.Cal.) ((:ite as: — F.Supp.2d —) and prejudicial to him; he will be unable to attend a trial here and will have difficulty assisting in his defense. While he may not be able to attend trial in Mexico, he will be better able to assist in his defense because he will at least be in the same country. Moreover, this Court has no control over the Mexican jails and therefore cannot do anything to ensure that White has access to his attorneys or that plaintiffs are able to take discovery of White. All of the evidence is in Mexico. And defendant has offered evidence that if the case is tried here defendant may not be able to obtain key evidence in Mexico because this Court has no subpoena power in Mexico. Discovery will all take place in Mexico and involve parties and witnesses that, for the most part, will not speak English. Independent medical exams will have to be conducted in Mexico. Every trial witness will have to be flown to San Francisco from Mexico, assuming the United States government will even allow such witnesses into the United States. The Court is faced with the specter of many, if not most, witnesses, including defendant, having to testify by video or videotaped deposition. Plaintiffs have made no effort to show that any witnesses or even parties will actually be present in this Court for trial. As for the sixth factor, the enforceability of the judgment, White has stipulated that he will satisfy any judgment entered against him in Mexico " pursuant to any lawsuit filed against him there by any of the plaintiffs herein for any of the same claims alleged in the Complaint filed herein on February 23, 2006." The final factor is "other practical considerations." The Court has already heard one lawsuit brought by the same lawyer, similar foreign plaintiffs, and against the same defendant under the same laws. During that lawsuit plaintiffs continuously made allegations about conduct in Mexico that this Court has no ability to evaluate or address. The Court expects that the same types of allegations will be again made if these lawsuits are allowed to continue here. This concern, coupled with the undisputed fact that most witnesses and parties will be unavailable to travel to the United States, and that nearly all Page 6 documents and testimony will have to be translated, makes this Court an especially inconvenient forum. In sum, the private interest factors all weigh in favor of dismissal. 2. The public interest factors Courts must also consider the following public interest factors: (1) local interest of lawsuit; (2) the court's familiarity with governing law; (3) the burden on local courts and juries; (4) congestion in the court; and *6 (5) the costs of resolving a dispute unrelated to this forum. Lueck, 236 F.3d at 1147. These factors all weigh in favor of dismissing this action in favor of an action in Mexico. None of the parties currently resides in this District or even this country; while White once resided here, he had not lived here for several years since before these lawsuits were filed. While the people of this forum have an interest in ensuring that one of their former residents compensates the foreign victims of his travel to Mexico, an interest that is demonstrated by the enactment of section 2423 and the criminal indictment in this District against defendant White, the interest in Mexico regarding this case is extremely high. See Piper Aircraft, 454 U.S. at 260, 102 S.Ct. 252 (considering foreign state's interest in subject matter of the lawsuit and stating that "there is a local interest in having localized controversies decided at home"). Mexico extradited White from Thailand to Mexico to stand trial on criminal charges that are directly related to the allegations of this lawsuit, and White was convicted of at least some of those charges. All of the plaintiffs are from Mexico and currently reside there and defendant himself is currently int erated in Mexico. In the related cast of Roe White, the parties have submitted newspaper articles that demonstrate that the Mexican public has shown great interest in the accusations against White. The only factor that weighs in favor of hearing this lawsuit in this forum is that Congress provided for @ 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. IS Iowa IN IN, EFTA00226297

Pagc 75 of 129 F.Supp.2d F.Supp.2d 2007 WL 1813773 (N.D.CaI.) (Cite as: — F.Supp.2d —) Plaintiffs do not point to anything else in the statute that would suggest that Congress intended to reject the application of the doctrine to suits under section 2255 that are brought for violations of section 2423. Indeed, the language of section 2255(a)-"may sue in any appropriate United States District Court" -suggests that Congress specifically delegated to the courts the decision whether a particular venue is appropriate. B. Adequate Alternative Forum *4 [4][5][6] "The defendant bears the burden of proving the existence of an adequate altemati forum." Luecic 236 F.3d at 1143 (quoting Cheng Boeing Co., 708 F.2d 1406, 1411 (9th Cir.1983)). [Ain alternative forum ordinarily exists when the defendant is amenable to service of process in the foreign forum." Id. A foreign country is not an inadequate forum merely because its laws offer( ] the plaintiff a lesser remedy than he could expect to receive in the United States court system. Id. at 1143-45. [7] White offers evidence that these plaintiffs have an alternative remedy in Mexico, the country where they reside, where he currently resides, and where the incidents at issue occurred. First, he offers evidence that he is subject to service of process in Mexico. Moreover, he has stipulated to accept service of any summons and complaint these plaintiffs file against him in Mexico arising from the same claims asserted in this lawsuit. Second, he offers evidence in the form of a declaration from White's Mexican criminal defense attorney that plaintiffs have a right to file an action for "moral damages" under the Civil Code of Jalicso. Plaintiffs do not dispute this evidence or otherwise contend that they do not have an adequate alternative forum in Mexico. C. The Balance of Public and Private Factors [8][9] Ordinarily there is a strong presumption in favor of a plaintiffs choice of forum "which may be overcome only when the private and public interest factors clearly point towards trial in the alternative Page 5 forum." Piper Aircraft Reyna, 454 U.S. 235, 255, 102 S.Ct. 252, 70 .Ed.2d 419 (1981). That presumption applies with less force, however, when the plaintiffs are foreign. Id. at 255-56. The Supreme Court has reasoned that when a plaintiff chooses his home forum, "it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable. Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiffs choice deserves less deference." Id. at 256. 1. Private interest factors The Court must consider the following private interest factors: (1) the residence of the parties and witnesses; (2) the forum's convenience to the litigants; (3) access to physical evidence and other sources of proof; (4) whether unwilling witnesses can be compelled to testify; (5) the cost of bringing witnesses to trial; (6) the enforceability of the judgment; and (7) all other practical problems that make trial of a case easy, expeditious and inexpensive. Lueck, 236 F.3d at 1145. The first five factors all weigh in favor of proceeding in Mexico. All of the parties, including White, are located in Mexico. While White has or at least had, a residence in this District, he has not resided here for several years and it appears will not reside here for at least several more as he is currently serving a sentence in Mexico. Although White is under indictment in this District, there is no evidence in the record from which the Court could fmd that White will be returned to the United States in the near future, or even ever. *5 A Mexican forum is more convenient for all of the parties. There is no evidence in the record that any of the plaintiffs has ever been to the United States or even would be permitted to travel to the United States for trial. White's incarceration in Mexico makes trial here extremely inconvenient (12007 Thomsontest. No Claim to Orig. U.S. Govt. Works. • V a EFTA00226298

Page 74 of 129 F.Supp.2d F.Supp.2d ----, 2007 WL 1813773 (N.D.Cal.) (Cite as: — F.Supp.2d Congress was well aware of the doctrine of forum non conveniens and therefore it must have intended for the doctrine not to apply. No court appears to have addressed this question; indeed, the Court has only located one section 2255 case, and that case involved parties in the United States. The Court is not persuaded by plaintiffs' argument. The argument assumes that if the Court were to hold that the doctrine of forum non conveniens applies, it will always operate to dismiss the claims of the foreign plaintiffs. This assumption is wrong. First, the doctrine applies only if the defendant shows that an alternative forum exists. Second, the court must then balance private and public factors. In many cases, that balance may lead to leaving the case in the United States, especially because in most cases the defendant or defendants will be located in the . distri where the action is brought. For example, in Roe White, 03-4035 CRB, a case before this Court involving the same defendant (and the same counsel), the Court denied the forum non conveniens motion because two defendants were located in the United States and the moving defendant (the defendant here), was not residing in the country where he was arguing the case should be brought (Mexico); rather, he was in Thailand resisting extradition to Mexico. Moreover, plaintiffs' argument that Congress was aware of the doctrine of forum non conveniens when it added section 2423 to the private right of action cuts the other way; if Congress had intended to abrogate the doctrine for such cases it could have said so. Plaintiffs point to nothing in the statute or the legislative history that suggests that Congress had such an intent. They also do not point to a single case in which a court has held that the doctrine does not apply as a matter of law to certain types of cases. *3 While plaintiffs do not cite any case in which a court has held that the doctrine does not apply, the Court's own research reveals that the Ninth Circuit has held that the doctrine of forum non conveniens is inapplicable to Jones Act and FELA cases j because each Act contains a mandato venue provision. See Creative Technology, Ltd. Aztech System Pie, Ltd., 61 F.3d 696, 700 (9th m1995). Page 4 The inapplicability of forum non conveniens in these cases "is based on a privilege of venue, granted by the legislative body which created this right of action." Id. at 700. The "court must ascertain if there is anything about the specific federal statute which indicates that Congress implicitly spoke to, and rejected, the application of forum non conveniens doctrine to a suit thereunder." Id. (internal quotation marks and citation omitted). The Jones Act provides that jurisdiction "shall be under the court of the district in which the defendant employers resides or in which his principal office is located." Id. at 700 n. 1 (citing 46 U.S.C.App. § 688(a) (1988)). FELA also has a specific venue provision: an action may be brought in "the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action." Id. at 700 n. 2 (citing 45 U.S.C. § 56 (1988)). No such specific venue provision is present here. The Act merely provides a cause of action for damages in "any appropriate United States District Court." 18 U.S.C. § 2255(a). It does not mandate venue in any particular district, as do the Jones Act and FELA. In Creative Technology, for example, the plaintiff argued that forum non conveniens does not apply to actions under the Copyright Act because the Act provides for exclusive jurisdiction in the federal courts over the state courts. The Ninth Circuit held that forum non conveniens still applied because the Copyright Act merely states that the United States district courts shall have exclusive jurisdiction, it does not mandate venue in any particular district. 61 F.3d at 700. The district court reached a similar conclusion in In re Air Crash Over Taiwan Straits on May 25, 2002, 331 F.Supp.2d 1176 (C.D.Ca1.2004). The foreign plaintiffs brought suit in the United States under the Death on the High Seas Act ("DOIISA"). DOHSA, unlike the Jones Act and FELA, does not contain a mandatory venue provision; instead it merely provides that a plaintiff may maintain a suit for damages in the district courts. The court held that it could therefore apply the doctrine of forum non conveniens. Id. at 1207. 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. EFTA00226299

Page 73 of 129 F.Supp.2d F.Supp.2d 2007 WL 1813773 (N.D.Cal.) (Cite as: — F.Supp.2d —) and residents of Mexico and defendant Thomas White, a United States citizen, is currently incarcerated in Mexico after a conviction for conduct similar to the allegations in these lawsuits. Now pending before the Court is defendant's motion to dismiss the claims against him in these related actions on the ground of forum non conveniens. After carefully considering the parties' papers, and defendant's unobjected to November 2006 stipulation, the Court concludes that this action should be brought in Mexico, where all the relevant conduct occurred and where all the parties and witnesses reside. BACKGROUND Plaintiffs allege that defendant traveled to Mexico, where he owned a home, and engaged in unlawful sexual activity with minors. Plaintiffs, who contend that they are victims of defendant's sexual conduct, are Mexican citizens and reside in Mexico; indeed, there is no evidence they have ever visited the United States. While defendant is a United States citizen who used to reside in this District, he has not been in the United States for some time. For a couple of years he was incarcerated in Thailand while he challenged Mexico's attempts to extradite him to Mexico to face criminal charges arising from his alleged sexual conduct with Mexican children. He was subsequently extradited to Mexico, tried, convicted, and sentenced. He is currently incarcerated in a Mexican jail. DISCUSSION [1112) "A district court has discretion to decline to exercise jurisdiction in a case where litigation in a foreign fonun w ld be more it convenient for the parties." Lueck Sundstrand Corp.. 236 F.3d 1137, 1142 (9th ir.2001). In deciding whether to dismiss for forum non conveniens, the court must consider "(1) whether an adequate alternative forum exists, and (2) whether the balance of private and public interest factors favor dismissal." Id. A. The Application of Forum Non Conveniens Page 3 [3) The initial issue is one of first impression: does the doctrine of forum non conveniens apply to cases brought under 18 U.S.C. section 2255? Plaintiffs argue that because Congress gave foreign victims of child abuse in foreign countries a right of action in a United States federal court, this Court, as a matter of law, cannot dismiss for forum non conveniens. 18 U.S.C. section 2423(b) makes it a federal crime for a person to travel in interstate commerce, to travel into the United States, or for a United States citizen or permanent resident to travel in foreign commerce, for the purpose of engaging in illicit sexual conduct. Section 2423(c) makes it a federal crime for a United States citizen or permanent resident to travel in foreign commerce and engage in illicit sexual conduct; there is no requirement that the illicit sex be the purpose of the travel. Section (c) was enacted in 2003. Pub.L. No. 108-21, Section 105. *2 18 U.S.C. section 2255 gives victims of sexual conduct who are minors a private right of action. Specifically minor victims of violations of sections 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 who suffer a personal injury as a result of the violation may sue in "any appropriate United States District Court." 18 U.S.C. § 2255(a). Thus, the private right of action applies primarily to actions brought by victims who reside in the United States. Only section 2423, and then only a part of section 2423, gives a private right of action to foreign minors injured in foreign countries; the remaining actions address injuries sustained in the United States or its territories. Congress added section 2423 to section 2255 in 1998. Pub.L. No. 105-14 (1998). Plaintiffs argue that because Congress created a private right of action for foreign victims of illicit sexual conduct in foreign countries, the equitable doctrine of forum non conveniens does not apply. They contend that if it were to apply, no foreign victims would ever be able to pursue their claims in federal court because, by definition, the bulk, if not all of the witnesses and evidence, will be in the foreign country where the abuse occurred. They argue further that when Congress added section 2423 to section 2255's private right of action C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. a In EFTA00226300

Page 72 of 129 F.Supp.2d F.Supp.2d ----, 2007 WI. 1813773 (N.D.Cal.) (Cite as: -- F.Supp.2d —) 170Bk45 k. Forum Non Conveniens. Most Cited Cases For purposes of the doctrine of forum non conveniens, the defendant bears the burden of proving the existence of an adequate alternative forum. 151 Federal Courts 170B 4E='45 17013 Federal Courts 170131 Jurisdiction and Powers in General 17081(3) Right to Decline Jurisdiction; Abstention Doctrine 170Bk45 k. Forum Non Conveniens. Most Cited Cases For purposes of the doctrine of forum non conveniens, an alternative forum ordinarily exists when the defendant is amenable to service of process in the foreign forum. 161 Federal Courts 170B C=45 170B Federal Courts 170B1 Jurisdiction and Powers in General 170B1(13) Right to Decline Jurisdiction; Abstention Doctrine 17013k45 k. Forum Non Conveniens. Most Cited Cases For purposes of the doctrine of forum non conveniens, a foreign country is not an inadequate forum merely because its laws offer the plaintiff a lesser remedy than he could expect to receive in the United States court system. (7I Federal Courts 170B €='45 17013 Federal Courts 170B1 Jurisdiction and Powers in General 17081(13) Right to Decline Jurisdiction; Abstention Doctrine 170Bk45 k. Forum Non Conveniens. Most Cited Cases Action brought by scx offender's alleged victims, all Mexican citizens, against the offender under the Protection of Children Against Sexual Exploitation Act and the White Slave Traffic Act, would be dismissed without prejudice based on forum non conveniens, even though Congress had provided for venue "in any appropriate United States District * 2007 Thomson/West Page 2 Court"; there was an adequate alternative forum in Mexico, all of the parties, including the offender, were located in Mexico, a Mexican forum was more convenient for all of the panics, all of the evidence was in Mexico, most witnesses and parties would be unavailable to travel to the United States, and nearly all documents and testimony would have to be translated. 18 U.S.C.A. §§ 2255(a), 2423(6). BSI Federal Courts 170B f:=4S 17013 Federal Courts 17081 Jurisdiction and Powers in General 170B1(B) Right to Decline Jurisdiction; Abstention Doctrine 170Bk45 k. Forum Non Conveniens. Most Cited Cases For purposes of the doctrine of forum non conveniens, ordinarily there is a strong presumption in favor of a plaintiffs choice of forum, which may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum. PI Federal Courts 1708 C=45 170B Federal Courts 170B1 Jurisdiction and Powers in General 170B1(13) Right to Decline Jurisdiction; Abstention Doctrine 170Bk45 k. Forum Non Conveniens. Most Cited Cases For purposes of the doctrine of forum non conveniens, the presumption in favor of a plaintiffs choice of forum applies with less force when the plaintiffs are foreign. David Replogle, Law Offices Of David Replogle, Apc, San Francisco, CA, for Plaintiffs. Geoffrey Rotwein, Esq., Geoffrey Rotwein, Attorney at Law, San Francisco, CA, for Defendant. MEMORANDUM AND ORDER BREYER, District Judge. *1 This action arises under the Protection of Children Against Sexual Exploitation Act of 1977, 18 U.S.C. section 2251 and the White Slave Traffic Act, 18 U.S.C. section 2421. Plaintiffs are citizens No Claim to Orig. U.S. Govt. Works. • • a a • •••••• • • V, a norronnevl EFTA00226301

z2-55 coz .4.40114ad forbutv? cv),7iferik Westlaw. F.Supp.2d F.Supp.2d 2007 WL 1813773 (N.D.Cal.) (Cite as: -- F.Supp.2d H . Martinez'. White N.D.Cal.,2007. Only the Westlaw citation is currently available. United States District Court,N.D. California. Gabriel Hilario Alcaraz MARTINEZ, et al., Plaintiffs, V. Thomas F. WHITE, Defendant. Jose Luis Luna Trujillo, et al., Plaintiffs v. Thomas F. White, Defendant. Nos. C 06-1595 CRB, C 06-2322 CRB. June 22, 2007. Background: Sex offender's alleged victims, all Mexican citizens, brought actions against the offender under the Protection of Children Against Sexual Exploitation Act and the White Slave Traffic Act. The offender moved to dismiss all actions against him. Holdings: The District Court, Breyer, J., held that: (1) in a matter of first impression, the doctrine of forum non conveniens applied, and (2) the action would be dismissed without prejudice based on forum non conveniens. Ordered accordingly. Federal Courts 170B C=45 1708 Federal Courts 170B1 Jurisdiction and Powers in General 170BI(B) Right to Decline Jurisdiction; Abstention Doctrine 170Bk45 k. Forum Non Conveniens. Most Cited Cases Page 71 of 129 Page I District court has discretion under forum non conveniens to decline to exercise jurisdiction in a case where litigation in a foreign forum would be more convenient for the parties. (2! Federal Courts 170B €=45 170B Federal Courts 17081 Jurisdiction and Powers in General 170BI(B) Right to Decline Jurisdiction; Abstention Doctrine 170Bk45 k. Forum Non Conveniens. Most Cited Cases In deciding whether to dismiss for forum non conveniens, the court must consider: (1) whether an adequate alternative forum exists, and (2) whether the balance of private and public interest factors favor dismissal. PI Federal Courts 170B C=45 170B Federal Courts 17081 Jurisdiction and Powers in General 170B1(B) Right to Decline Jurisdiction; Abstention Doctrine 170Bk45 k. Forum Non Conveniens. Most Cited Cases Doctrine of forum non conveniens applied to a case brought under the statute giving a private right of action to minor victims of sexual conduct, despite claim that, because Congress gave foreign victims of child abuse in foreign countries a right of action in a United States federal court, the district court could not dismiss for forum non conveniens; if Congress had intended to abrogate the doctrine for such cases it could have said so. 18 U.S.C.A. §§ 2255(a), 2423(b). 141 Federal Courts 1708 C=45 170B Federal Courts 170B1 Jurisdiction and Powers in General 170BI(B) Right to Decline Jurisdiction; Abstention Doctrine S> 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. • • •• e, • ..... •-• IN In 1,1%/N, EFTA00226302

Exhibit 37 EFTA00226303