DOE v. NORWICH ROMAN CATHOLIC DIOCESAN CORPORATION

3:02CV1649(GLG)

309 F.Supp.2d 247 (2004) | Cited 0 times | D. Connecticut | February 17, 2004

Opinion

Pending before the court are defendant Norwich Roman CatholicDiocesan Corporation's and defendant St. Columba Church's [collectively"the defendants"] motions to dismiss the seventh and tenth countsasserted by plaintiff Jane Doe in her second amended complaint filed onAugust 1, 2003. For the reasons stated below, the court DENIESdefendants' motions to dismiss. (Docs. #46 and #49).

I. Procedural History and Facts

Plaintiff Jane Doe, proceeding under fictitious name, initiated thisaction against the Norwich Roman Catholic Diocesan Corporation, St.Columba Church, and Patrick J. Sullivan. Plaintiff, alleges thatdefendant Sullivan, who was a Roman Catholic priest, sexually assaultedand abused her when she when she was a member of St. Columba Church, aparish which is a part of the Norwich Roman Catholic Diocese.Page 2Plaintiff alleges that the sexual assaults commenced in 1968 whenshe was 15 years old and continued until 1969 when she was 16 years ofage, and that the assaults occurred at various locations, including theSt. Columba Church rectory. Plaintiff seeks, interalia, compensatory and punitive damages.

On June 26, 2003, this court issued an opinion granting defendants'motions to dismiss count seven, respondeat superior, without prejudice toplaintiff's filing an amended complaint alleging sufficient facts toindicate that Sullivan's alleged misconduct was in furtherance of Churchbusiness and/or Diocese's business. See Doe v. Norwich RomanCatholic Diocesan Corp., 268 F. Supp.2d 139, 143 (D.Conn. 2003). Thecourt also granted defendants' motions to dismiss count ten, breach offiduciary duty, without prejudice to plaintiff's filing an amendedcomplaint alleging sufficient facts to indicate that a unique degree oftrust and confidence existed between plaintiff and defendants whichcreated a fiduciary relationship. Id. at 150.

On August 1, 2003, plaintiff filed a second amended ten-countcomplaint, alleging additional facts to support her respondeat superiorclaim (Count Seven) and her breach of fiduciary duty claim (Count Ten).On October 31, 2003, St. Columba Church filed its motion to dismissCounts Seven and Ten of the amended complaint and, on November 21, 2003,Norwich Roman Catholic Diocesan Corporation filed its motionPage 3to dismiss Counts Seven and Ten of the amended complaint, adoptingall the arguments asserted by St. Columba Church.

As an initial matter, plaintiff argues that defendants' motions todismiss should be denied as untimely because they were due on August 11,2003. Furthermore, plaintiff contends that defendants did not seek anyextensions of time or relief under Rule 6(b)(2). (Pl.'s Mem. at 5-7).Defendants counter that the motions are timely and rely on the ninety-dayperiod in which to file motions to dismiss contained in the StandingOrder On Scheduling in Civil Cases as set forth in the Local Civil Rulesfor the District of Connecticut.

This court will first address the timeliness of defendants' motions todismiss. Initially, a case is governed by the Standing Order OnScheduling in Civil Cases set forth in the Local Civil Rules for theDistrict of Connecticut. See D.Conn. L. Civ. R. 26(e)(2).However, after the parties confer for the purposes of Fed.R.Civ.P. 26(f), file a 26(f) report and the court issues a written scheduling orderpursuant to Fed.R.Civ.P. 16(b), the deadlines set therein becomeoperative. See D.Conn. L. Civ. R. 26(e). In this case, theparties filed the 26(f) Report on February 4, 2003 and the court endorsedthe deadlines set therein on February 20, 2003. (Doc. #21). As statedearlier, on June 26, 2003, the court granted defendants' motions todismiss counts seven and ten without prejudice to plaintiff's filing anamended complaint. See Doe, 268 F. Supp.2d at 143,150. Accordingly,Page 4plaintiff filed an amended complaint on August 1, 2003, and aresponse was due within 10 days. See Fed.R.Civ.P. 15(a).Therefore, the court concludes that defendants' motions to dismiss werenot timely filed.

While, this court does not countenance the neglect of deadlines nor thefailure to proceed under the applicable rules of civil procedure, in theinterests of justice and judicial economy, the court will considerdefendants' motions to dismiss.

II. Standard of Review

In deciding a motion to dismiss, the court must accept all well-pleadedfactual allegations as true and draw all reasonable inferences in favorof the plaintiff. See Easton v. Sundram, 947 F.2d 1011, 1014-15(2d Cir. 1991), cert. denied, 504 U.S. 911 (1992). Acomplaint should not be dismissed "unless it appears beyond doubt thatthe plaintiff can prove no set of facts in support of his claim whichwould entitle him to relief." Conley v. Gibson, 355 U.S. 41,45-46 (1957)(footnote omitted). The issue on a motion to dismiss "is notwhether the plaintiff will prevail, but whether he is entitled to offerevidence to support his claims." United States v. Yale New HavenHosp., 727 F. Supp. 784, 786 (D. Conn. 1990) (citation omitted).

III. Discussion

A. Respondeat Superior

Defendants argue that the claim fails as a matter of lawPage 5because Sullivan's sexually abusive conduct is beyond the scope ofhis employment as a priest and is not in furtherance of the Church'sbusiness. (Def.'s Mem. at 3). Plaintiff counters that the allegations inher second amended complaint are sufficient to withstand defendants'motions to dismiss. Specifically, plaintiff alleges that Sullivan's actswere within the scope of his employment because his acts were committedduring counseling sessions in attempt to bring plaintiff closer to theChurch and her religious faith, thereby increasing financial donations tothe Church and volunteer time spent by plaintiff and her family, as wellas their overall commitment to the Church and Diocese. (Pl.'s Mem. at13).

In order for an employer to be liable for the intentional torts of itsemployee under respondeat superior, the employee must have been acting"in furtherance of the employer's business." A-G Foods Inc. v.Pepperidge Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69 (1990).Usually, "it is a question of fact as to whether a wilful tort of theservant has occurred within the scope of the servant's employment and wasdone to further his master's business. . . .But there are occasionalcases where a servant's digression from duty is so clear-cut that thedisposition of the case becomes a matter of law." Id. at 207,579 A.2d 69 (internal citations omitted).

"That the servant disobeyed the orders of the master isPage 6never a sufficient defense. It must be shown further that he ceasedto act for the master and in the course of his employment." Son v.Hartford Ice Cream Co., 102 Conn. 696, 701, 129 A. 778 (1925)(citation omitted); see also Pelletier v. Bilbiles,154 Conn. 544, 548, 227 A.2d 251 (1967). When an employee deviates from anemployer's instructions, liability turns on the extent of the deviation,in light of the totality of the circumstances, which is generally aquestion of fact for the jury. Garriepy v. Ballou & Nagle,Inc., 114 Conn. 46, 51, 157 A. 535 (1931).

Cases of sexual abuse often represent such a strong deviation fromfurthering an employer's business. In many cases of alleged sexual abuseby priests, the courts have held that respondeat superior is notapplicable to hold a church or diocese liable, because such acts by thepriests are not in furtherance of the church's business. See Nutt v.Norwich Roman Catholic Diocese, 921 F. Supp. 66, 71 (D.Conn.1995);Dumais v. Hartford Roman Catholic Diocese, No. X07CV010077631S,2002 WL 31015708, at *1 (Conn.Super. July 31, 2002); Doe v. HartfordRoman Catholic Diocesan Corp., 45 Conn. Sup. 388, 395, 716 A.2d 960(Conn.Super.Ct.1998).

Plaintiff urges us to deny the motion because respondeat superior hasbeen applied in some cases of sexual abuse by priests, and that thosecases involved similar circumstances to the present case. SeeMartinelli v. Bridgeport Roman Catholic Diocesan Corp., 989 F. Supp. 110,118 (D.Conn.1997),Page 7aff'd in part and rev'd in part on other grounds aftertrial, 196 F.3d 409 (2d Cir. 1999); Mullen v. Horton,46 Conn. App. 759, 765-766, 700 A.2d 1377 (1997).

In Martinelli, the plaintiff claimed that a priest attemptedto teach the sacraments to him and other teenage boys by using sexualcontact. Martinelli, 989 F. Supp. at 118. The district courtdenied summary judgment for the diocese, because there was a genuinedispute as to whether the priest's activities represented a "totaldeparture from the [d]iocese's business." Id.

In Mullen, the plaintiff alleged that her priest, a trainedpsychologist to whom she had gone for counseling, was involved in asexual relationship with her. Mullen, 46 Conn. App. at 762,700 A.2d 1379. In that case, because of the priest's vow of poverty, all ofthe profits from the priest's counseling business went to the church.Id. at 761, 700 A.2d 1379. In addition, the plaintiff hadspecifically sought counseling from this priest because of his "jointstatus as a psychologist and a Roman Catholic priest." Id. Thecourt found that the monetary benefit to the Church and other factorssuggested that a trier of fact could reasonably determine that the sexualrelationship stemmed from the priest's church-sanctioned counselingposition, and thus might not have been an abandonment of Church business.Id. at 765-66, 700 A.2d 1377.

The present case is controlled by the holding in Mullen.Page 8Here, Sullivan allegedly assaulted plaintiff during counselingsessions in attempt to bring plaintiff closer to the Church and herreligious faith, thereby increasing financial donations to the Church andvolunteer time spent by plaintiff and her family in furtherance of theChurch's business. Accordingly, the court finds that the acts asalleged, however misguided, are not so clearly outside the Sullivan'sscope of employment that the question is one of law. Therefore, the courtdenies defendants' motions to dismiss count seven.

B. Fiduciary Duty

As to the tenth count alleging breach of fiduciary duty, St. ColumbaChurch contends that plaintiff has failed to sufficiently allege that aclose relationship existed between plaintiff and Sullivan and that theChurch knew of it. (Def.'s Mem. at 6-8).

Under Connecticut law, a fiduciary relationship is "characterized by aunique degree of trust and confidence between the parties, one of whomhas a superior knowledge, skill or expertise and is under a duty torepresent the interests of the other." Dunham v. Dunham,204 Conn. 303, 322, 528 A.2d 1123 (1987). The Connecticut Supreme Court has"refused to define a fiduciary relationship in precise detail and in sucha manner as to exclude new situations, choosing instead to leave the barsdown for situations in which there is a justifiable trust confided on oneside and a resultingPage 9superiority and influence on the other." Alaimo v. Royer,188 Conn. 36, 41, 448 A.2d 207 (1982) (internal quotation marksand citations omitted). Accordingly, Connecticut courts have notarticulated clear guidelines for determining whether a fiduciaryrelationship exists between a parishioner and a priest or diocese.

The leading authority on this issue is the Second Circuit'sdetermination that it is possible for a jury to find a fiduciaryrelationship between a diocese and a parishioner who had been abused by apriest. Martinelli, 196 F.3d at 429. In that case, the diocesewas connected to parishioner, Martinelli, in numerous ways. For example,the diocese ran the high school that Martinelli attended, knew thatMartinelli participated with a group of boys in sessions with FatherBrett who acted as a mentor and spiritual advisor, encouraged Brett towork with the youth of the church, and received reports from othervictims whom Brett had abused. Id. at 429-30. The courtdetermined that through Martinelli's involvement in "particularactivities . . ., including those which the [d]iocese sponsored, [he] hada particularly close relationship with the [d]iocese from which afiduciary duty might arise," and because the diocese had receivedinformation about Brett's misconduct, a jury could have determined thatthe diocese had breached that duty. Id.

Accepting all of plaintiff's factual allegations as true as the courtmust when considering a motion to dismiss,Page 10plaintiff has alleged sufficient facts to indicate a uniquesituation that supports a fiduciary duty claim. Here, plaintiff was amember of such church or diocesan sponsored activities as the CatholicYouth Organization ("CYO") and the church choir, and consulted withSullivan for spiritual and religious counseling, as encouraged bydefendants. Additionally, Sullivan attended dinners at the plaintiff'sfamily home and vacationed with them in Rhode Island. Plaintiff allegesthat defendants encouraged Sullivan to involve himself in the choir andCYO classes, as well as to have interaction with church members. (TenthCount ¶¶ 13-18). Furthermore, plaintiff alleges that defendants knewor should have known that Sullivan engaged in a sexual relationship withanother woman prior to his assignment to St. Columba Church. (Tenth Count¶ 19). Accordingly, the court denies defendants' motions to dismissCount Ten.

IV. Conclusion

In conclusion, the court denies defendants' Motions toDismiss (Docs. #46 & #49) the seventh and tenth counts ofplaintiff second amended complaint filed on August 1, 2003.

SO ORDERED.

Opinion

Pending before the court are defendant Norwich Roman CatholicDiocesan Corporation's and defendant St. Columba Church's [collectively"the defendants"] motions to dismiss the seventh and tenth countsasserted by plaintiff Jane Doe in her second amended complaint filed onAugust 1, 2003. For the reasons stated below, the court DENIESdefendants' motions to dismiss. (Docs. #46 and #49).

I. Procedural History and Facts

Plaintiff Jane Doe, proceeding under fictitious name, initiated thisaction against the Norwich Roman Catholic Diocesan Corporation, St.Columba Church, and Patrick J. Sullivan. Plaintiff, alleges thatdefendant Sullivan, who was a Roman Catholic priest, sexually assaultedand abused her when she when she was a member of St. Columba Church, aparish which is a part of the Norwich Roman Catholic Diocese.Page 2Plaintiff alleges that the sexual assaults commenced in 1968 whenshe was 15 years old and continued until 1969 when she was 16 years ofage, and that the assaults occurred at various locations, including theSt. Columba Church rectory. Plaintiff seeks, interalia, compensatory and punitive damages.

On June 26, 2003, this court issued an opinion granting defendants'motions to dismiss count seven, respondeat superior, without prejudice toplaintiff's filing an amended complaint alleging sufficient facts toindicate that Sullivan's alleged misconduct was in furtherance of Churchbusiness and/or Diocese's business. See Doe v. Norwich RomanCatholic Diocesan Corp., 268 F. Supp.2d 139, 143 (D.Conn. 2003). Thecourt also granted defendants' motions to dismiss count ten, breach offiduciary duty, without prejudice to plaintiff's filing an amendedcomplaint alleging sufficient facts to indicate that a unique degree oftrust and confidence existed between plaintiff and defendants whichcreated a fiduciary relationship. Id. at 150.

On August 1, 2003, plaintiff filed a second amended ten-countcomplaint, alleging additional facts to support her respondeat superiorclaim (Count Seven) and her breach of fiduciary duty claim (Count Ten).On October 31, 2003, St. Columba Church filed its motion to dismissCounts Seven and Ten of the amended complaint and, on November 21, 2003,Norwich Roman Catholic Diocesan Corporation filed its motionPage 3to dismiss Counts Seven and Ten of the amended complaint, adoptingall the arguments asserted by St. Columba Church.

As an initial matter, plaintiff argues that defendants' motions todismiss should be denied as untimely because they were due on August 11,2003. Furthermore, plaintiff contends that defendants did not seek anyextensions of time or relief under Rule 6(b)(2). (Pl.'s Mem. at 5-7).Defendants counter that the motions are timely and rely on the ninety-dayperiod in which to file motions to dismiss contained in the StandingOrder On Scheduling in Civil Cases as set forth in the Local Civil Rulesfor the District of Connecticut.

This court will first address the timeliness of defendants' motions todismiss. Initially, a case is governed by the Standing Order OnScheduling in Civil Cases set forth in the Local Civil Rules for theDistrict of Connecticut. See D.Conn. L. Civ. R. 26(e)(2).However, after the parties confer for the purposes of Fed.R.Civ.P. 26(f), file a 26(f) report and the court issues a written scheduling orderpursuant to Fed.R.Civ.P. 16(b), the deadlines set therein becomeoperative. See D.Conn. L. Civ. R. 26(e). In this case, theparties filed the 26(f) Report on February 4, 2003 and the court endorsedthe deadlines set therein on February 20, 2003. (Doc. #21). As statedearlier, on June 26, 2003, the court granted defendants' motions todismiss counts seven and ten without prejudice to plaintiff's filing anamended complaint. See Doe, 268 F. Supp.2d at 143,150. Accordingly,Page 4plaintiff filed an amended complaint on August 1, 2003, and aresponse was due within 10 days. See Fed.R.Civ.P. 15(a).Therefore, the court concludes that defendants' motions to dismiss werenot timely filed.

While, this court does not countenance the neglect of deadlines nor thefailure to proceed under the applicable rules of civil procedure, in theinterests of justice and judicial economy, the court will considerdefendants' motions to dismiss.

II. Standard of Review

In deciding a motion to dismiss, the court must accept all well-pleadedfactual allegations as true and draw all reasonable inferences in favorof the plaintiff. See Easton v. Sundram, 947 F.2d 1011, 1014-15(2d Cir. 1991), cert. denied, 504 U.S. 911 (1992). Acomplaint should not be dismissed "unless it appears beyond doubt thatthe plaintiff can prove no set of facts in support of his claim whichwould entitle him to relief." Conley v. Gibson, 355 U.S. 41,45-46 (1957)(footnote omitted). The issue on a motion to dismiss "is notwhether the plaintiff will prevail, but whether he is entitled to offerevidence to support his claims." United States v. Yale New HavenHosp., 727 F. Supp. 784, 786 (D. Conn. 1990) (citation omitted).

III. Discussion

A. Respondeat Superior

Defendants argue that the claim fails as a matter of lawPage 5because Sullivan's sexually abusive conduct is beyond the scope ofhis employment as a priest and is not in furtherance of the Church'sbusiness. (Def.'s Mem. at 3). Plaintiff counters that the allegations inher second amended complaint are sufficient to withstand defendants'motions to dismiss. Specifically, plaintiff alleges that Sullivan's actswere within the scope of his employment because his acts were committedduring counseling sessions in attempt to bring plaintiff closer to theChurch and her religious faith, thereby increasing financial donations tothe Church and volunteer time spent by plaintiff and her family, as wellas their overall commitment to the Church and Diocese. (Pl.'s Mem. at13).

In order for an employer to be liable for the intentional torts of itsemployee under respondeat superior, the employee must have been acting"in furtherance of the employer's business." A-G Foods Inc. v.Pepperidge Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69 (1990).Usually, "it is a question of fact as to whether a wilful tort of theservant has occurred within the scope of the servant's employment and wasdone to further his master's business. . . .But there are occasionalcases where a servant's digression from duty is so clear-cut that thedisposition of the case becomes a matter of law." Id. at 207,579 A.2d 69 (internal citations omitted).

"That the servant disobeyed the orders of the master isPage 6never a sufficient defense. It must be shown further that he ceasedto act for the master and in the course of his employment." Son v.Hartford Ice Cream Co., 102 Conn. 696, 701, 129 A. 778 (1925)(citation omitted); see also Pelletier v. Bilbiles,154 Conn. 544, 548, 227 A.2d 251 (1967). When an employee deviates from anemployer's instructions, liability turns on the extent of the deviation,in light of the totality of the circumstances, which is generally aquestion of fact for the jury. Garriepy v. Ballou & Nagle,Inc., 114 Conn. 46, 51, 157 A. 535 (1931).

Cases of sexual abuse often represent such a strong deviation fromfurthering an employer's business. In many cases of alleged sexual abuseby priests, the courts have held that respondeat superior is notapplicable to hold a church or diocese liable, because such acts by thepriests are not in furtherance of the church's business. See Nutt v.Norwich Roman Catholic Diocese, 921 F. Supp. 66, 71 (D.Conn.1995);Dumais v. Hartford Roman Catholic Diocese, No. X07CV010077631S,2002 WL 31015708, at *1 (Conn.Super. July 31, 2002); Doe v. HartfordRoman Catholic Diocesan Corp., 45 Conn. Sup. 388, 395, 716 A.2d 960(Conn.Super.Ct.1998).

Plaintiff urges us to deny the motion because respondeat superior hasbeen applied in some cases of sexual abuse by priests, and that thosecases involved similar circumstances to the present case. SeeMartinelli v. Bridgeport Roman Catholic Diocesan Corp., 989 F. Supp. 110,118 (D.Conn.1997),Page 7aff'd in part and rev'd in part on other grounds aftertrial, 196 F.3d 409 (2d Cir. 1999); Mullen v. Horton,46 Conn. App. 759, 765-766, 700 A.2d 1377 (1997).

In Martinelli, the plaintiff claimed that a priest attemptedto teach the sacraments to him and other teenage boys by using sexualcontact. Martinelli, 989 F. Supp. at 118. The district courtdenied summary judgment for the diocese, because there was a genuinedispute as to whether the priest's activities represented a "totaldeparture from the [d]iocese's business." Id.

In Mullen, the plaintiff alleged that her priest, a trainedpsychologist to whom she had gone for counseling, was involved in asexual relationship with her. Mullen, 46 Conn. App. at 762,700 A.2d 1379. In that case, because of the priest's vow of poverty, all ofthe profits from the priest's counseling business went to the church.Id. at 761, 700 A.2d 1379. In addition, the plaintiff hadspecifically sought counseling from this priest because of his "jointstatus as a psychologist and a Roman Catholic priest." Id. Thecourt found that the monetary benefit to the Church and other factorssuggested that a trier of fact could reasonably determine that the sexualrelationship stemmed from the priest's church-sanctioned counselingposition, and thus might not have been an abandonment of Church business.Id. at 765-66, 700 A.2d 1377.

The present case is controlled by the holding in Mullen.Page 8Here, Sullivan allegedly assaulted plaintiff during counselingsessions in attempt to bring plaintiff closer to the Church and herreligious faith, thereby increasing financial donations to the Church andvolunteer time spent by plaintiff and her family in furtherance of theChurch's business. Accordingly, the court finds that the acts asalleged, however misguided, are not so clearly outside the Sullivan'sscope of employment that the question is one of law. Therefore, the courtdenies defendants' motions to dismiss count seven.

B. Fiduciary Duty

As to the tenth count alleging breach of fiduciary duty, St. ColumbaChurch contends that plaintiff has failed to sufficiently allege that aclose relationship existed between plaintiff and Sullivan and that theChurch knew of it. (Def.'s Mem. at 6-8).

Under Connecticut law, a fiduciary relationship is "characterized by aunique degree of trust and confidence between the parties, one of whomhas a superior knowledge, skill or expertise and is under a duty torepresent the interests of the other." Dunham v. Dunham,204 Conn. 303, 322, 528 A.2d 1123 (1987). The Connecticut Supreme Court has"refused to define a fiduciary relationship in precise detail and in sucha manner as to exclude new situations, choosing instead to leave the barsdown for situations in which there is a justifiable trust confided on oneside and a resultingPage 9superiority and influence on the other." Alaimo v. Royer,188 Conn. 36, 41, 448 A.2d 207 (1982) (internal quotation marksand citations omitted). Accordingly, Connecticut courts have notarticulated clear guidelines for determining whether a fiduciaryrelationship exists between a parishioner and a priest or diocese.

The leading authority on this issue is the Second Circuit'sdetermination that it is possible for a jury to find a fiduciaryrelationship between a diocese and a parishioner who had been abused by apriest. Martinelli, 196 F.3d at 429. In that case, the diocesewas connected to parishioner, Martinelli, in numerous ways. For example,the diocese ran the high school that Martinelli attended, knew thatMartinelli participated with a group of boys in sessions with FatherBrett who acted as a mentor and spiritual advisor, encouraged Brett towork with the youth of the church, and received reports from othervictims whom Brett had abused. Id. at 429-30. The courtdetermined that through Martinelli's involvement in "particularactivities . . ., including those which the [d]iocese sponsored, [he] hada particularly close relationship with the [d]iocese from which afiduciary duty might arise," and because the diocese had receivedinformation about Brett's misconduct, a jury could have determined thatthe diocese had breached that duty. Id.

Accepting all of plaintiff's factual allegations as true as the courtmust when considering a motion to dismiss,Page 10plaintiff has alleged sufficient facts to indicate a uniquesituation that supports a fiduciary duty claim. Here, plaintiff was amember of such church or diocesan sponsored activities as the CatholicYouth Organization ("CYO") and the church choir, and consulted withSullivan for spiritual and religious counseling, as encouraged bydefendants. Additionally, Sullivan attended dinners at the plaintiff'sfamily home and vacationed with them in Rhode Island. Plaintiff allegesthat defendants encouraged Sullivan to involve himself in the choir andCYO classes, as well as to have interaction with church members. (TenthCount ¶¶ 13-18). Furthermore, plaintiff alleges that defendants knewor should have known that Sullivan engaged in a sexual relationship withanother woman prior to his assignment to St. Columba Church. (Tenth Count¶ 19). Accordingly, the court denies defendants' motions to dismissCount Ten.

IV. Conclusion

In conclusion, the court denies defendants' Motions toDismiss (Docs. #46 & #49) the seventh and tenth counts ofplaintiff second amended complaint filed on August 1, 2003.

SO ORDERED.

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