The opinion
UNITED STATES DISTRICT COURT USDC SDNY
SOUTHERN DISTRICT OF NEW YORK DOCUMENT
----------------------------------------------------------- X ELECTRONICALLY FILED
THOMAS ALBERTO ROBLES, : DOC #:
: DATE FILED: 1/28/ 22
Plaintiff, :
:
-against- : 20-CV-2106 (VEC)
:
: ORDER
HOLY SEE (STATE OF VATICAN CITY; :
THE VATICAN); OUR LADY OF MOUNT :
CARMEL PARISH; CHURCH OF OUR LADY :
OF MT. CARMEL; OUR LADY OF MT. :
CARMEL DEVELOPMENT CORPORATION; :
ARCHDIOCESE OF NEW YORK a/k/a :
ROMAN CATHOLIC ARCHDIOCESE OF :
NEW YORK; ARCHBISHOP OF NEW YORK; :
and THE SOCIETY OF THE CATHOLIC :
APOSTOLATE a/k/a PALLOTTINES; :
:
Defendants. :
----------------------------------------------------------- X
VALERIE CAPRONI, United States District Judge:
WHEREAS on March 9, 2020, Plaintiff filed this lawsuit against numerous Defendants
including Defendant Holy See, alleging he was sexually abused as a minor by Barry Bossa, a
priest, over a period of several years, see Dkt. 1; see generally Compl., Dkt. 3;1
WHEREAS the Court has only supplemental jurisdiction over the Defendants other than
the Holy See, Compl. ¶ 48;
WHEREAS in an opinion dated December 20, 2021 (“the Opinion”), the Court granted
Defendant Holy See’s motion to dismiss for lack of subject-matter jurisdiction over the Holy See
under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1330 et seq., without
1 The Court directs readers to its explanation of the facts and procedural history of this case in its December
Opinion for further context. See Opinion and Order, Dkt. 96 at 1–3.
prejudice to Plaintiff seeking leave to amend as to his vicarious liability negligence claim, see
Opinion and Order, Dkt. 96 at 1–2;
WHEREAS the Court directed Plaintiff to seek leave to file an amended complaint not
later than January 20, 2022, see id. at 31;
WHEREAS the Court clearly stated in the Opinion that, “[s]hould Plaintiff seek leave to
file an amended complaint, in order to establish subject-matter jurisdiction that amended
complaint must plead sufficient facts from which the Court can reasonably infer that (i) clergy at
the Pallottines, Mt. Carmel Church, or the Archdiocese, or the Archbishop himself, were on
notice of sexual abuse by Bossa as a priest, thereby implicating the secrecy element of the 1962
Policy; (ii) the clergy who had such knowledge maintained secrecy in the form of failing to warn
parents, Plaintiff, or appropriate authorities because of their need to comply with the 1962
Policy; and (iii) the clergy who had such knowledge had no discretion to take other steps to warn
relevant non-clergy, such as parents, Plaintiff himself, or authorities”, see id. at 27–28 (emphasis
in original); and
WHEREAS Plaintiff timely filed a motion for leave to file a First Amended Complaint
(“FAC”) on January 20, 2022, see Dkt. 101;
IT IS HEREBY ORDERED that Plaintiff’s motion for leave to file a FAC is DENIED.
Whether to grant leave to amend is within the discretion of the Court, although a court may not
refuse to grant leave “without any justifying reason.” Foman v. Davis, 371 U.S. 178, 182
(1962). A court should “freely give leave” to amend a complaint “when justice so requires.”
Fed. R. Civ. P. 15(a)(2). Among the acceptable reasons to deny leave to amend are that the
amendment fails to cure previously-identified deficiencies and that the amendment is futile.
Foman, 371 U.S. at 182. Futility of amendment is generally found where “the proposed
amended complaint would be subject to ‘immediate dismissal’ for failure to state a claim or on
some other ground.” A.V. by Versace, Inc. v. Gianni Versace S.p.A., 87 F. Supp. 2d 281, 298
(S.D.N.Y. 2000) (quoting Jones v. New York State Div. of Military & Naval Affairs, 166 F.3d 45,
55 (2d Cir. 1999)).
The Opinion, in brief, held that in order for the Court to exercise subject-matter
jurisdiction over the Holy See under the Tortious Act Exception to the FSIA, Plaintiff would
have to re-plead his claims so as to avoid falling within the Discretionary Function Exclusion to
the Exception, which applies if the allegedly tortious activity involved the exercise or
performance of a discretionary function. Opinion at 23–28.2 The Opinion made abundantly
clear that Plaintiff would have to demonstrate that the Holy See’s employees were engaged in
non-discretionary conduct controlled by the Holy See’s 1962 Crimen sollicitationis (the “1962
Policy”). Id. at 27–28. As discussed at length in the Opinion, because the 1962 Policy pertained
only to sexual misconduct committed by a priest after ordination, the Court would have subject-
matter jurisdiction over the Holy See under Plaintiff’s theory of liability3 only if Plaintiff could
allege facts from which the Court could reasonably infer that employees of the Holy See had
knowledge of sexual abuse committed by Bossa after he became a priest. Id. at 26 n.22.
According to Plaintiff’s memorandum in support of his motion to amend, his FAC
conforms to the Court’s Opinion “by (i) removing and/or altering certain causes of action as to
Defendant Holy See and (ii) further detailing the structure of the Roman Catholic Church
(‘Church’) as applicable to each Defendant and Defendant Holy See’s duties and breach thereof
2 The Court directs readers to its lengthy description of the applicability of the FSIA and its various exceptions
and exclusions, which led to this conclusion, in the Opinion for further context. See Opinion at 7–28.
3 In a nutshell, Plaintiff’s theory is that the Holy See is liable for his abuse under respondeat superior and
that his claim does not fall within the Discretionary Function Exclusion because the 1962 Policy eliminated all
discretion from Catholic clergy in dealing with sexual abuse of children by compelling secrecy regarding any
allegation that a priest had sexually abused a child. See, e.g., Compl. ¶¶ 69–71, 74–75.
as to Plaintiff’s childhood sexually abuse.” Pl. Mem. of Law, Dkt. 101-1 at 1. Those changes do
not conform the new pleadings to the Court’s Opinion. See Opinion at 27–28. The proposed
FAC does not even allege in a conclusory way (let alone allege facts from which the Court could
infer that the allegation is plausible) that Catholic clergy had knowledge that, as a priest, Bossa
had sexually abused a child. See generally Ex. B, Dkt. 101-3. Although Plaintiff re-pleads that
Bossa was accused of sexually abusing two boys while he was training for the priesthood in the
mid-1970s, see Ex. A, Dkt. 101-2 ¶ 81, those allegations were included in Plaintiff’s original
Complaint. See id. ¶ 93. Plaintiff does not allege that any clergy knew at the time that Plaintiff
or any other child had been abused by Bossa after Bossa became a priest, and therefore does not
plead any information that renders the 1962 Policy relevant to the clergy’s action or inaction vis-
à-vis the abuse of Plaintiff.
Because the FAC does not cure the deficiencies the Court identified in the Opinion, the
proposed FAC would “be subject to ‘immediate dismissal’” for failure to allege facts from which
the Court can infer that it has subject-matter jurisdiction. A.V. by Versace, Inc., 87 F. Supp. 2d at
298 (quoting Jones, 166 F.3d at 55). As a result, granting leave to amend would be futile.
Plaintiff’s motion for leave to amend is therefore DENIED. This, in turn, necessitates dismissal
of the case, because the Court has only supplemental jurisdiction over the remaining Defendants.
IT IS FURTHER ORDERED that, because the Court has denied Plaintiff’s motion for
leave to amend, Defendant Holy See’s motion for reconsideration, see Not. of Mot., Dkt. 97, is
DENIED as moot.
IT IS FURTHER ORDERED that the Clerk of Court is respectfully directed to terminate
all open motions and close this case.
SO ORDERED. .
Date: January 28, 2022 VALERIE CAPRDNI
New York, NY United States District Judge