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Emmanuel Ellul, et al v. Congregation of Christian Brothers

March 23, 2011


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:



The Congregation of Christian Brothers ("CCB") and Order of the Sisters of Mercy ("OSM"; collectively, "Defendants")*fn1 move to dismiss the class action complaint of Emmanuel Ellul, Valerie Carmack, and Hazel Goulding (collectively, "Plaintiffs"), which alleges violations of the Alien Tort Statute, 28 U.S.C. § 1350 ("ATS").*fn2 Starting in the 1940s and continuing for decades thereafter, children were taken from the United Kingdom and Malta to orphanages and work camps in Australia. While the program was created by the Australian government, the children were treated shamelessly, abused, and neglected, subjected to forced labor, and denied education. Based on this conduct, Plaintiffs allege (1) breaches of customary international law, including child trafficking, slavery, involuntary servitude, forced child labor, and cruel, inhuman, and degrading treatment or punishment; and (2) common law claims for conversion, unjust enrichment, constructive trust, accounting, and breach of fiduciary and/or special duty. (Compl. ¶ 4).

CCB moves under Fed. R. Civ. P. 12(b) to dismiss because (1) the Court lacks subject matter jurisdiction; (2) the Court lacks personal jurisdiction over CCB; (3) CCB is not a proper defendant and has not been properly served with the summons and complaint; and (4) all of the Plaintiffs' purported claims are barred by the applicable statutes of limitation. (CCB, Mem. in Supp. 2). OSM brings a motion to dismiss or for summary judgment on the grounds that (1) OSM is not a legal entity and lacks capacity to be sued; (2) the claims are barred by the statute of limitations; (3) Goulding, the only plaintiff suing OSM, fails to state claim under the ATS; and (4) even if she did state a claim, it should be dismissed for forum non conveniens. Finally, Plaintiffs cross-move for alternative service of process, for discovery under Fed. R. Civ. P. 56(f), and to strike the Local Civil Rule 56.1 Statement and declaration submitted by OSM.

The Court GRANTS Defendants' motions to dismiss. OSM is not a legal entity. CCB was improperly served; is outside the Court's personal jurisdiction; and is not the same entity alleged to have committed the acts alleged in the complaint. In addition, the claims are barred by the statute of limitations. In light of this disposition, the Court does not consider whether there has been a violation of customary international law; or whether the claims would survive a forum non conveniens analysis.


Emmanuel Ellul, Valerie M. Carmack, and Hazel Goulding each claim that as young children they were removed from their native lands and transported halfway around the world to Australia, where they were badly mistreated. The conduct occurred pursuant to the plan set forth in the Immigration (Guardianship of Children) Act of 1946, enacted by Australia's Commonwealth Government as part of the Government's "White Australia Policy" officially adopted in 1901. (Compl. ¶¶ 56, 60). In 2001, the Australian Senate investigated the abuse which occurred and published its findings in a report entitled "Lost Innocents-Righting the Record" ("2001 Report"). On November 15, 2009, the Australian Prime Minister formally apologized for his government's role. (Id. ¶ 3).

II.Procedural History

Plaintiffs contend that the Court has jurisdiction under the Alien Tort Statute, 28 U.S.C. § 1350 because they are aliens or nonresidents of the United States who allege grave violations of the specific, universal, and obligatory norms of customary international law. Plaintiffs maintain that the Court has personal jurisdiction over CCB because it resides or does business in New York State; has purposely availed itself of New York law; and owns property in this judicial district. (Id. ¶¶ 6, 7). They contend that OSM is a "single 'pontifical' entity" unified by the common mission of charity. (Mem. in Opp. 18). Finally, they argue that it was not until 2001 when they had the information to reasonably discover their injury and causes of action against these Defendants.

CCB denies any participation in the alleged child trafficking and forced labor scheme, as well as any minimum contacts with New York State. OSM argues that it is not a legal entity and cannot be sued. Both maintain that the alleged claims are untimely; have no nexus to the United States; and did not violate international law when they occurred. If they are to be tried anywhere, they contend, Australia should be the trial site.


a.Wrong Defendants Named

i.Failure to Serve CCB and Lack of Personal Jurisdiction

Plaintiffs named the wrong association of Christian Brothers, and then served an entirely different association of Christian Brothers. Their mistake is more than "semantic," as they argue. (Mem. in Opp. 14). CCB is an unincorporated association based in Rome, Italy, one of several separate juridic entities serving different provinces around the world, each one legally distinct from the others. (CCB, Mem. in Supp. 3; Reply Mem. 4-5). Plaintiffs did not make service in Rome. Rather service was made on the "Congregation of Christian Brothers -- North American Province" in Elizabeth, New Jersey and New Rochelle, New York. The Congregation of Christian Brothers of North America is a separate entity, and distinct from the Congregation of Christian Brothers of Rome. Plaintiffs do not refute CCB's argument that it does not maintain offices or conduct business in New Jersey or New York; and that it is not affiliated with any schools in New York or associated with the New Jersey. In any event, the Complaint's allegations deal with a separate juridical entity located in Australia, called "Christian Brothers Oceania." (CCB, Mem. in Supp. 4 (citing the Code of Canon Law)). That entity is separate and apart from the entities in Rome and North America. While Plaintiffs maintain that CCB controls all Christian Brothers communities, there is no evidence or allegation that the Australian ...

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