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Walker v. Lorch

United States District Court, Second Circuit

July 2, 2013

BYRAN WALKER, MICHAEL McDUFFEN, and SEAN McCRAY, Plaintiff
v.
ERNEST H. LORCH, et al, Defendants. BYRAN WALKER, MICHAEL McDUFFEN, and SEAN McCRAY, Plaintiffs,
v.
RIVERSIDE CHURCH, VARIOUS MEMBERS OF THE RIVERSIDE CHURCH BOARD OF TRUSTEES WHOSE NAMES ARE UNKNOWN AND TUHS DESIGNATED AS

Lawrence W. Luttrell, Esq., LAW OFFICE OF LAWRENCE W. LUTTRELL, Holmdel, New Jersey, Attorneys for Plaintiffs BRYAN WALKER, MICHAEL McDUFFEN and SEAN McCRAY.

John Glenn Lipsett, Esq., PATTON, EAKINS, LIPSETT, MARTIN & SAVAGE, New York, NY, Attorneys for Defendants RIVERSIDE CHURCH AND VARIOUS MEMBERS OF RIVERSIDE CHURCH BOARD OF TRUSTEES.

Frederick Harvey Cohn, Esq., Attorneys for Defendant ERNEST H. LORCH, New York, NY, LAW OFFICE OF FREDERICK H. COHN.

OPINION

ROBERT W. SWEET, Sr., District Judge.

Defendants Riverside Church and Defendants identified in the caption as "various members of the Riverside Church board of trustees" (collectively, "Riverside Defendants" or "Riverside"), as well as the estate of Ernest H. Lorch ("Mr. Lorch"), have moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the Complaint filed by Plaintiffs Byron Walker ("Mr. Walker"), Michael McDuffen ("Mr. McDuffen"), and Sean McCray ("Mr. McCray") (collectively, "Plaintiffs"). For the reasons set forth below, Defendants' Motion to Dismiss is granted.

I. PRIOR PROCEEDINGS

The Plaintiffs initiated these actions against Defendants with the filing of the Complaint on December 13, 2012. Plaintiffs' Complaint alleges that (i) Plaintiffs were sexually abused by Mr. Lorch, (ii) that the abuse was an intentional and inhumane abuse of official power, (iii) that this abuse deprived Plaintiffs of their of their liberty interest under the Due Process Clause and 42 U.S.C. 1983 of the Civil Rights Act of 1964, and (iv) that as a direct and proximate result of the aforesaid conduct by Defendant, Plaintiffs suffer damages. (Compl. ¶¶ 18-22.) Plaintiffs' also allege that they were denied full and equal enjoyment of the services, privileges and advantages of Defendants' basketball program in violation of 42 U.S.C. 2000a, in that they were targeted for sexual abuse based upon their race and/or color, and that both Mr. Lorch and the Riverside Defendants violated Title IX by subjecting Plaintiffs to sexual abuse while members of the Riverside Hawks. (Compl. ¶¶ 25-27; ¶¶47-48.) Additionally, Plaintiffs allege that Mr. Lorch breached his fiduciary duty to the Plaintiffs in his capacity as coach, and that the Riverside Defendants had a duty to use reasonable care to protect the Plaintiffs by supervising them or by not retaining persons under their control who they knew, or should have known, had a propensity to sexually abuse children. (Compl. ¶¶ 51-58.) Finally, Plaintiffs contend that Defendants breached their duty to Plaintiffs in engaging in fraudulent concealment of above complained abuse, and in particular that Mr. Lorch made representations to Plaintiffs to prevent them from filing a timely action against Mr. Lorch, entitling Plaintiffs' to bypass the statute of limitations based upon equitable estoppel. (Compl. ¶¶ 65-71.)[1]

On May 1, 2013, Defendants filed a Motion to Dismiss Plaintiffs' Complaint. This motion was heard and marked fully submitted on June 4, 2013.

II. BACKGROUND

This action arises from incidents of alleged sexual abuse by Mr. Lorch occurring during the period of January 1, 1975 through December 31, 1984, when Plaintiffs were members of the youth basketball program known as Riverside Hawks coached by Mr. Lorch and conducted at Riverside Church. ( See Defendants' Memorandum ("Mem.") at 1.) Plaintiffs are all African-American and Mr. Lorch is Caucasian. (Plaintiff's Opposition ("Opp. Mem.") at 1.)

In 2002, Robert Holmes ("Mr. Holmes"), represented at the time by Plaintiffs' current counsel, brought similar allegations against Mr. Lorch. ( Id. ) Mr. Holmes filed a civil lawsuit in the Southern District of New York, and a motion to dismiss alleging statute of limitations (later treated as a motion for summary judgment) was denied based on evidence that Mr. Lorch paid Mr. Holmes over $2 million to stay quiet and thus that the doctrine of equitable estoppel barred Mr. Lorch from enforcing the statute of limitations. (Opp. Mem. at 2.) The case was ultimately settled in January of 2006. ( Id. ) Shortly thereafter, another former player, David Powell ("Mr. Powell") filed the second civil suit against Mr. Lorch alleging sexual abuse while at Riverside Church during the 1980s. ( Id. ) As with Mr. Holmes, Mr. Powell alleged that Mr. Lorch promised to financially provide for him for the rest of his life so long as he kept silent about the abusive relationship. ( Id. )

Plaintiffs in the instant motion bring the third action against Mr. Lorch and similarly allege that he promised them financial stability in exchange for their silence, which Mr. Lorch later fulfilled through various means, including paying parts of college tuition, travel expenses, and direct payments in the form of cash, checks, and wire transfers. ( Id. ) More specifically, Mr. Lorch arranged for shell companies to be formed for the purpose of receiving the money paid to Plaintiffs Mr. McCray and Mr. Walker, and promised Mr. McDuffen and Mr. McCray that he would make a significant bequest of them in his will. ( Id. ) As a result of these representations, none of the Plaintiffs in this action moved forward with a civil suit against Mr. Lorch until the present matter. ( Id. at 2-3.)

In April of 2009, Plaintiffs initiated settlement discussions through Mr. Lorch's counsel, and rejected Mr. Lorch's offer of an $80, 000 settlement. ( Id. at 3.) Mr. Lorch's counsel then sought an injunction barring any civil suit by Plaintiffs. ( Id. ) The injunctive relief was denied by the Court, and was inactive until recent dismissal. ( Id. )

Plaintiffs contend that at this time, they did not file counterclaims against Mr. Lorch based on the injunctive civil suit because they still believed a settlement was possible, and because they did not want to interfere with, or comprise, a criminal investigation of Mr. Lorch in Hampshire County, Massachusetts. ( Id. ) Indeed, in 2010, Hampshire County secured a criminal indictment against Mr. Lorch for attempting to sexually assault Mr. Walker during a Riverside Hawks road trip at the University of Massachusetts. ( Id. ) Mr. Lorch fought extradition from this indictment on the basis of mental and/or physical incompetence. ( Id. at 3-4.) While the indictment ...


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