Kyla Asbury Dec. 9, 2014, 10:17am

NEW YORK (Legal Newsline) - A federal appeals court has ruled that the plaintiffs' claims in a class action lawsuit against the Congregation of Christian Brothers were barred by the statute of limitations.

Because the bulk of the plaintiffs' claims against CCB, the Order of the Sisters of Mercy Catholic Religious Order and Mercy International Association are no longer cognizable under the Alien Tort Statute, and the remaining federal claims are barred by the statute of limitations, the panel affirmed the district court's dismissal of the class action lawsuit, according to an opinion filed Dec. 8 in the U.S. Court of Appeals for the Second Circuit.

The appeal was argued on June 19, 2012.

Circuit judges Guido Calabresi, Gerard E. Lynch and Raymond Lohier Jr. voted in the majority, with Lynch authoring the opinion.

The three plaintiffs claimed as young children they were removed from their native lands and transported to Australia, where they were badly mistreated.

Given the assumption that the ATS has a 10-year statute of limitations, the plaintiffs' human trafficking claim is untimely, the panel ruled.

"The complaint makes plain that the actions allegedly constituting trafficking took place more than fifty years ago, when plaintiffs were transported from their homes in Europe to Australia," the opinion states. "Consequently, for plaintiffs’ claim to be considered within the limitations period, plaintiffs must demonstrate that they did not discover their cause of action – and could not have discovered it with due diligence – until less than ten years before bringing suit."

The plaintiffs argued that the release of the Australian Senate Report in 2001 was the triggering event that allowed them to discover their cause of action.

"That argument is undermined, however, by the allegations in the complaint, which make clear that, at least by the time plaintiffs reached the age of majority, each of them knew that he or she had been abducted from his or her family, imprisoned, abused, forced to work for no pay and not provided any education," the opinion states.

Two of the plaintifs, Valerie Carmack and Hazel Goulding, both returned to Australia as adults to investigate what had happened to them – at the latest in the early 1990s, according to the opinion. 

"Plaintiffs contend that the court has jurisdiction under the Alien Tort Statute...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," the opinion states.

The panel states that the plaintiffs argue that it was not until 2001 when they had the information to reasonably discover their injury and causes of action against the defendants.

"CCB denies any participation in the alleged child trafficking and forced labor scheme, as well as any minimum contacts with New York State," the opinion states. "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."

Carmack, Goulding and Emmanuel Ellul initially filed the lawsuit on behalf of themselves and others similarly situated on Dec. 30, 2009, in the U.S. District Court for the Southern District of New York.

The plaintiffs claim CCB, OSM and various unnamed Catholic religious orders violated customary international laws, including slavery and involuntary servitude, child trafficking, forced child labor and cruel, inhuman and degrading treatment or punishment, as well as common law claims of conversion, unjust enrichment, constructive trust, accounting and breach of fiduciary or special duty.

The defendants moved to dismiss or for summary judgment. On March 23, 2011, District Judge Paul A. Crotty dismissed the class action.

The court held that it did not have personal jurisdiction over CCB because CCB had never been properly served.

The district court also found, based on the allegations in the complaint and an affidavit submitted with OSM’s motion, that OSM was not a legal entity capable of being sued; rather, "OSM" was a loose term for nine independent, autonomous regional organizations of nuns that all use the name "Sisters of Mercy."

The plaintiffs filed a notice of appeal on April 25, 2011.

"For the same reasons, the district court correctly dismissed plaintiffs’ state common law claims, all of which have a limitations period shorter than ten years," the opinion states.

The plaintiffs are represented by Neal DeYoung and H. Rajan Sharma of Sharma & DeYoung in New York.

CCB is represented by Timothy James O’Shaughnessy and Matthew W. Naparty of Mauro Lilling Naparty LLP in Great Neck, N.Y.

OSM is represented by Thomas Edward Wack and Michael Gordon Biggers of Bryan Cave LLP in St. Louis.

U.S. Court of Appeals for the Second Circuit case number: 11-1682

From Legal Newsline: Kyla Asbury can be reached at

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