The opinion of the court was delivered by: Siragusa, J.
This diversity employment contract case is before the Court on Defendants' motion (Doc. No. 3) to dismiss for lack of subject matter jurisdiction, or, in the alternative, for failure to state a cause of action. As to subject matter jurisdiction, Defendants claim that the Free Exercise Clause of the First Amendment precludes the Court from adjudicating Plaintiff's claims in this lawsuit. For the reasons stated below, Defendants' application is granted and the lawsuit is dismissed for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).
Plaintiff Marlowe V.N. Washington ("Washington") was a pastor employed by The African Methodist Episcopal ("AME") Church, assigned to an AME Church in Rochester, New York. Plaintiff Elmira Washington is his wife. In the complaint, filed in this Court on February 22, 2011, Plaintiffs allege four causes of action against the AME Church and Defendant Richard Franklin Norris ("Norris"), a Bishop of the AME Church, and Washington's direct supervisor. The causes of action are as follows: (1) breach of contract; (2) intentional infliction of emotional distress; (3) prima facie tort; and (4) loss of consortium. Plaintiffs demand a jury trial and pray for compensatory damages of $2 million, special damages of $123,734.00, as well as punitive damages and attorney fees.
Washington was appointed by Norris in January 2005 as pastor of the Baber AME Church in Rochester, New York. Subsequently, after his first term as pastor expired on May 22, 2005, Washington alleges that he was provided a new one year appointment paper by Norris and AME Church for each of the periods 2005-2006; 2006-2007; 2007-2008, 2008-2009, and 2009-2010. In his complaint, Washington claims that, during 2009-2010, Norris, became openly hostile and malicious without reason toward Rev. Washington and Mrs. Washington. Bishop Norris engaged in a campaign to destroy and harm them, culminating in Rev. Washington being forced out of the church, in breach of their contract and the common law. This was done for reasons that had nothing to do with the Reverend's performance of his duties, since he was by any reasonable measure successful, but was driven solely by malice and a resulting intent to harm him, his family and his career which treatment would have been intolerable to any reasonable person. (Compl. ¶ 22.) Washington further claims in his complaint that during a visit to Baber AME Church, Bishop Norris told the local church leadership that he was upset that Rev. Washington never told him about Baber Church's debt and was "hiding" it from the bishop. This was false since Bishop Norris had specifically sent Rev. Washington to deal with the Baber Church's financial problems and thus knew about those problems well before Rev. Washington was ever involved in Baber Church. (Compl. ¶ 27.) The complaint also alleges that on the morning of June 19, 2010, while attending in Philadelphia 33. ..., Rev. Washington was called to a conference room where Bishop Norris was seated at a table with his cabinet of 17 elders arrayed around him. Bishop Norris informed Rev. Washington that "We all have agreed that you are not going back to Baber today." Bishop Norris explained that "You're gone from Baber because you had your officers threaten to remove your church from the conference." This accusation was false. (Compl. ¶ 33.) On Sunday, June 20, 2010, the day after Rev. Washington was told of his new assignment, Rev. James C. Simmons arrived at Baber AME Church with an appointment as its pastor.
In 2008, Washington's wife had been treated for brain cancer in Rochester and needed on-going care. Thus, when Washington was told he would be moved, he was also concerned for his wife's health. As they traveled back to Rochester from Philadelphia, Washington learned he was being sent to the Carter Community AME Church in Jamacia, Queens, New York. Baber AME Church had, at the time, a congregation of 500 people and an income of about $515,000 annually, whereas Carter Community AME had a congregation of less than 75 and revenue of about $150,000 annually. This, Washington claims, would have caused his weekly salary to drop from $1,200 to $800 and he no longer would have had health insurance or benefits for himself, or his family. Since Mrs. Washington's anti-seizure medication cost more than $500 per month, she had to take a low-paying job to be able to obtain health care coverage.
Federal Rule of Civil Procedure 12(b)(1) provides, in pertinent part, as follows: "a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction.." It is well settled that, [a] case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court ... may refer to evidence outside the pleadings. A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.
Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (citations omitted).
In the context of this case, Washington is clearly a minister working in that capacity for the AME Church. The case law, both in the New York courts and the Federal courts, recognizes a ministerial exception to the application of anti-discrimination laws with respect to a religious institution's employment of a minister. As the Southern District of New York recognized in Kraft v. Rector, Churchwardens & Vestry of Grace Church, No. 93-2157, 2004 U.S. Dist. LEXIS 4234 (S.D.N.Y. Mar. 15, 2004):
Numerous Courts of Appeal have considered whether the Free Exercise Clause precludes ministers from suing church employers for purported violations of federal anti-discrimination statutes. Those courts have held, unanimously, that the Free Exercise Clause bars the application of these statutes to churches' employment decisions concerning ministers. Courts have referred to this bar as being a "ministerial exception" to, or a "ministerial exemption" from, federal anti-discrimination statutes.
Kraft, 2004 U.S. Dist. LEXIS 4234, 12-13 (footnotes, collecting cases, omitted). Also in Kraft, the district court recognized Ninth Circuit precedent holding that, "[j]ust as there is a ministerial exception to Title VII, there must also be a ministerial exception to any state law cause of action that would otherwise impinge on the church's prerogative to choose its ministers or to exercise its religious beliefs in the context of employing its ministers." Bollard v. California Province of the Soc'y of Jesus, 196 F.3d 940, 950 (9th Cir. 1999). The Second Circuit adopted the ministerial exception in Rweyemamu v. Cote, 520 F.3d 198, 207 (2d Cir. 2008). In that case, the Second ...