FILED
DISTRICT COURTOF GUAM
DAVID J. LUJAN
LUJAN & WOLFF LLP
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5
MAY 22 2017
Attorneys at Law
DNA Building. Suite 300
238 Archbishop Flores Street
JEANNE G. QUINATA
Haeatna. Guam 96910
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CLERK OF COURT
Telephone: (671) 477-8064/5
Facsimile: (671) 477-5297 (LAWS)
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Attorneyfor Plaintiff,
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Francis Charfauros
IN THE UNITED STATES DISTRICT COURT
FOR 1 III. DISTRICT OF GUAM
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CIVIL ACTION NO:
FRANCIS CHARFAUROS.
:17-00058
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Plaintiff.
VERIFIED COMPLAIN! FOR DAMAGES
FOR
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v.
!I
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13
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ROMAN CATHOLIC
1.
Child Sexual Abuse
ARCHBISHOP OF AGANA. a Corporation
2.
3.
4.
5.
Negligence
Negligent Supervision
Negligent Hiring and Retention
Breach of Fiduciary Duty /
Confidential Relationship
sole: CAPUCHIN FRANCISCANS:
CAPUCHINS FRANCISCANS PROVINCE
OF ST. MARY: DOE ENTITIES 1-5: and
DOE-INDIVIDUALS 6-50. inclusive
JURY TRIA L D E M A N D E I)
Defendants.
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16
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Plaintiff Francis Charfauros ("Francis") files this Complain! fordamages based on prior sexual
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abuse(the "Complaint") against Defendants Archbishop of Agana, a corporation sole. Capuchin Franciscans.
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Capuchin Franciscans Province of St. Mary, and DOES I-50 ("Defendants*').
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I.
JURISDICTION AND VENUE
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1.
This Court has subject matter jurisdiction over this matter under 28 U.S.C. Jj 1332 because all
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parties are citizens of diverse statesand the amount in controversy exceeds $75,000.00 exclusive of interest,
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fees, and costs.
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2.
This Court has personal jurisdiction over this matter because Defendants purposefully availed
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themselves to the benefit of the laws of this judicial district by regularly transacting and / or conducting
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business in this state.
Case 1:17-cv-00058 Document 1 Filed 05/22/17 Page 1 of 16
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3.
Venueis appropriate under 28 U.S.C. § 1391(b)(2) because this is thejudicial district in which
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a substantial partof the events or omissions givingriseto the claimoccurred, and or a substantial part of
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property that is thesubject of theaction is situated.
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II.
PARTIES
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6
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;
4.
At all times relevant hereto, Francis is a 49-year-old resident of Arizona, whopreviously lived
in Guam during his childhood years.
5.
Atall times relevant hereto, and upon information andbelief, Roman Catholic Archbishop of
Agana, a corporation sole, inaccordance with the discipline and government of the Roman Catholic Church,
10
isthe legal name for Defendant Archbishop of Agana, also known as Archdiocese of Agana. ("Agana
11
Archdiocese"), which is and has been at all times relevant hereto a non-profit corporation organized and
12
existing under the laws of Guam, authorized to conduct business and conducting business inGuam, with its
13 • principal place of business inGuam. TheAgana Archdiocese is an entity under the control of the Holy See,
14
based in Vatican City, Rome, Italy, and as such constitutes a citizen of a foreign country for purposes of
15
diversity jurisdiction. Agana Archdiocese is responsible and liable inwhole or in part, directly or indirectly,
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for thewrongful actscomplained of herein.
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6. At all times relevant hereto, andupon information andbelief, the Capuchin Franciscans and the
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Capuchin Franciscans Province of St. Mary (collectively referred to herein as the "Capuchins"), are a
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religious order ofpriests who serve various Catholic positions throughout the United States, including
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positions in Guam. The Capuchin Franciscans inthe United States are divided into geographic areas called
21 . provinces, and Defendant Capuchin Franciscans Province of St. Mary, is one of those geographic areas. At
22
all times relevant hereto, and uponinformation and belief, the Capuchin Franciscans Province of St. Mary,
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regularly assigned .Capuchin Priests to Guam, and acted as anagent of the Capuchin Franciscans under its
24 " direction, supervision, andjurisdiction. Upon information and belief, the Capuchin Franciscans hadauthority
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and control over the Capuchin Franciscans Province of St. Mary, includingFatherJohn "Jack" Niland and
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the otherCapuchin Priests in that province. Upon further information and belief, the Capuchin defendants
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participated in, if not'directly assigned FatherJohn"Jack" Niland to serve the Agana Archdiocese in Guam,
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and the Capuchin defendants materially benefited from thatassignment. The Capuchins are responsible and
2
liable in wholeor in part, directly or indirectly, for the wrongful acts complained of herein
3
7.
At all times relevanthereto, FatherJohn "Jack" Niland ("Niland"), now deceased,was an
4
individual and an agent of the Agana Archdiocese and specifically a Capuchin Priest in Guam. Niland
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became a Capuchin in 1967 and wasordained as a Catholic Priest in 1976. Niland's first assignment on
6
Guam was under Father Anthony Sablan Apuron at the Our Ladyof MountCarmel Church in Agat("Agat
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Parish") where he worked in parishes and schools. During his assignment at the Agat Parish, Niland resided
8
at the Mount Carmel Rectory ("Rectory"). In or about August 5,2009, Niland died around theageof 59-
9
years-old. If not deceased, Niland would have been individually responsible and liable, in whole or in part,
10
11
directly or indirectly, forthe wrongful acts complained of herein.
8.
Defendant-entities named herein as DOES 1 - 5, inclusive, are or at all times relevant hereto,
12
were insurance companies that provided general liability coverage and/ or excess level liability coverage
13
pursuant to policies issued tothe Capuchins. Agana Archdiocese and / orRoman Catholic Church ofGuam.
14
Defendant-individuals named here-in as DOES6-50, inclusive, are at all times relevanthereto, were agents,
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employees, representatives and / oraffiliated entities ofthe Capuchins, Agana Archdiocese and /or Roman
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Catholic Church outsideof Guam whose true names and capacities are unknown to Franciswho therefore
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sues such defendants by such fictitious names, andwho will amend the Complaint to show the truenames
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and capacities of each such Doe defendant when ascertained. DOES 6 -50 assisted, aided and abetted and /
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or conspired with Niland and / or other members of the Agana Archdiocese and / or the Capuchins to
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conceal, disguise, cover up, and / or promote the wrongful acts complained of herein. Assuch, each such
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Doe is legally responsible insome manner for the events, happenings, and / or tortious andunlawful conduct
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thatcaused the injuries anddamages alleged in thisComplaint.
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9.
Each defendant is the agent, servant and/or employee of otherdefendants, andeachdefendant
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wasacting within thecourse andscope of his, her or its authority as an agent, servant and/or employee of the
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other defendants. Defendants,and each of them, are individuals, corporations, alter egos and partnerships of
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eachotherand otherentities which engaged in,joinedin and conspired with the other wrongdoers in
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carrying out the tortious and unlawful activities described in thisComplaint; anddefendants, each of them,
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ratifiedthe acts of the other defendants as described in this Complaint.
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HI.
INTRODUCTORY ALLEGATIONS
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A. Culture of Sexually Predatory Behavior
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10. Since the inception of thepriesthood many centuries ago, becoming a Catholic priesthas
5
required numerous vows to be taken among them a vowof celibacy, obedience to the laws of both God and
<$
society, anda variety of responsibilities that elevated priests, nuns, and entities that utilized the services of
7
priests and nuns, to a high status in the community, which has induced parents to entrust theirchildren to the
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careof priests and likewise induced children to submit to the commands andwill of priests.
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11. Thecreation of the ritual of altar boy service as a component of theCatholic mass and other
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religious services with the Catholic Church, if not originally conceived as such, ultimately became a tool by
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which sexually predatory priest would gain access to young boys and such access was disguised in the form
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ofprivileged opportunities by which the church invited certain young boys toserve asaltar boys, an
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opportunity that was viewed as a respectable and distinguished role for a young boy in the community and
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gave the boy status ofwearing liturgical apparel during church services and working side by side with the
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priests.
j5
12. Further disguising the scheme to have sexual access to young boys was the ritual ofrequiring
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altar boys to spend the night atthe church rectory, ostensibly to facilitate preparation for the following
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morning church services. By presenting the overnight requests in this manner, priests routinely gained the
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approval ofparents; and often times the sexual abuses occurred during the night in their beds at the priests*
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residences. These seemingly routine practices ofhaving altar boys stay overnight served the predatory priests
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with a steady supply ofvictims under the auspices and pretense offormal church protocol, which allowed the
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Church tocontinually operate a veritable harem ofyoung boys who were readily available topedophiles who
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utilized the stature ofthe church into deceiving the community toregard them as high-level officials.
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13. The systematic and ongoing pattern ofsexual abuse ofyoung children was characteristic ofan
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internal society within Defendant Agana Archdiocese and whose norms were based on pedophilic conduct
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disguised by therituals andpageantry of liturgical services, together with theaura of prestige thatwas
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inculcated inthe community and which caused Catholic parishioners.to place the highest level of confidence
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and trust in the church and itsclergy. Thisinternal society ofsexual corruption sustained itselfthrough a
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conspiratorial arrangement between priests and higherofficials in the Agana Archdiocese whereby they all
2
understood andagreed to remain quiet about each others sexual abuse misconduct, to tolerate such
3
misconduct, and to withhold information aboutsuchmisconduct from third partiesincluding victim's parents
4
or guardians and law enforcement authorities, in orderto protect the offenders and the Agana Archdiocese,
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thereby placing theirloyalty above theirduty to protect the minor children and theirlegal responsibilities.
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14. Thesesexually predatory norms werean integral part of the standards and culturegenerated by
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the central authority of the Roman Catholic Qiurch based in Vatican City, Italy, which closelycontrolled the
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operations of theAgana Archdiocese, and which aided and abetted such sexually predatory and abusive
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practices by priests by knowingly tolerating such actions, failing to manage the Agana Archdiocese to
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prevent sexual misconduct, and engaging in actions to protect and shield priests through such policies as
11
transfers to otherjurisdictions, maintaining an internal code of silence, and choosing to remain willfully
12
blindto the ongoing sexual misconduct committed byCatholic priests.
13
15. These sexually predatory norms werealsoan integral partof the long-term relationship between
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the Agana Archdiocese and theCapuchins which fostered an environment conducive to thesexual abuse of
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young boys on Guam andexploited the trust placed in thechurch by the community of Guam, while the
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Agana Archdiocese and the Capuchins tolerated and remained willfully blind to the rampant sexual abuse
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that wasperpetrated on an ongoing basis.
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B. Sexual Abuse Inflicted on Plaintiff Francis Charfauros
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20
16. Franciswas raised in a religious family. Throughout his life, Francis's parents were devout
Catholics and attendedmass on a regularbasis. As a young child Francis was an altar boy.
21
17. In or about 1982, around the age of fourteen (14) yearsold, Francis aspired to become a priest
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and consulted with Father Niland whowasa Capuchin Priest at the AgatParish during this timeperiod.
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Niland gaveFrancis advice on howto become a priest and proposed that Francis work for Niland at theAgat
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Parish. Niladagreed to compensate Francis on a weekly basis and also promised Francis a full-scholarship to
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attend FatherDuenas Memorial School on Guam, a minor seminary that teaches young men to become
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priests.
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18. Francis's parents looked up to Niland as a trusted mentor based principally on hiselevated
status in thecommunity as a Capuchins Priest. Francis's parents wereproud of him for his interest in the
Case 1:17-cv-00058 Document 1 Filed 05/22/17 Page 5 of 16
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priesthood and gave Francis permission towork for Niland at the Agat Parish. Francis began working for
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Niland at theAgat Parish andwas responsible forsetting up everything for mass and ensuring that mass
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startedon time and went smoothly.
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19. Later during thatsame year, between September andOctober of 1982, Niland offered and
5
suggested that Francis live with Niland at the Agat Rectory since it was closer to school and told Francis it
6
would be more convenientfor Francisto be able to assist with immediate things that may arise around the
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Agat Parish. Francis was excited about Niland's offer tolive in the Rectory and eager to learn first-hand
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about the priesthood.. Exploiting the trust and confidence that Francis's parents bestowed upon him, Niland
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sought and obtained permission from Francis's parents for Francis to live with Niland at the Rectory.
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Francis's parents were deceived byNiland's offer for Francis to live at the Rectory because Francis's
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parents, like the Catholic community on Guam, had been inculcated by a deep-seeded trust in the Catholic
12
Church. Based on theirunquestioned faith in the church and Niland as a Capuchin Priest, Francis's parents
13
gave consent without the slightest ofdoubt, not realizing that they were sending their son, Francis, to be
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sexually molested and abused by a predator disguised inthe robes of the clergy.
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20. In or about 1982, around the age of fourteen (14) years old, Francis began residing at the
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Rectory with Niland. Niland took Francis under his wing for the purported purposed of teaching Francis
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about theways of being a Priest.
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21. During the period in which he lived with Niland at the Agat Rectory, Francis was sexually
molested and abused by Niland.
22. One evening in 1982, Francis awoke alarmed when he felt someone touching his private parts.
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As Francis opened his eyes, Niland was performing oral sex on Francis. Francis tried to getup butNiland
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held Francis down. Francis was disturbed, confused, and terrified. AfterNiland was done sexually abusing
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Francis, Francis leftthe Rectory and went home. Francis ceased residing at the Rectory with Niland and no
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longer had any interest in the priesthood.
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23. Upon information and belief, otherpriests and representatives of the Capuchins and the Agana
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Archdiocese, including Archbishop Anthony S. Apuron and other individuals named herein as Doe
27
defendants, were aware of the sexual abuse committed by Nilandand deliberatelyremainedquiet and
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withheld such information from third parties including victim's parents or guardians and law enforcements
Case 1:17-cv-00058 Document 1 Filed 05/22/17 Page 6 of 16
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authorities, in order to protect Niland, the Agana Archdiocese and the Capuchins, thereby placing their
2
loyalty above their duty to protect the minor children and their legal responsibilities.
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24. Atall times relevant hereto, Niland, prior to his death, sexually abused and molested Francis
4
when Francis was a minor and committed such acts while serving as a Capuchin Priest in the Agat Parish, in
5
his capacity as an agent and employee ofthe Agana Archdiocese and the Capuchins, which are vicariously
6
liable for his actions.
7
25. The Agana Archdiocese, Capuchins, and DOES 1-50, inclusive, knew that Niland had sexually
8
abused andmolested Francis, andrather than reporting the matter to lawenforcement andwithout
9
intervening soasto prevent Niland from engaging in additional instances ofsexual abuse, and without
10
seeking tohave Niland acknowledge and take responsibility for his wrongful actions, they assisted Niland
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with the specific purpose or design to keep Niland's misconduct hidden and secret; to hinder or prevent
12
Niland's apprehension andprosecution: and to protect the Capuchins, Agana Archdiocese, as well as the
13
Roman Catholic church as an international institution.
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26. To thisday,the Agana Archdiocese, Capuchins, and DOES I-50 never contacted Francis,
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Francis's family, or children theyknow Niland had sexual contact or sexual conduct with. The Agana
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Archdiocese, Capuchins, and DOES I-50 have been content that anyotherchildren thatweresexually
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abused by Niland while he was serving as a Capuchin Priest, will remain affected by guilt, shame and
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emotional distress.
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27. The criminal offenseof Child Abuse is defined in 9 GCA § 31.30, which states in pertinent part
as follows:
(a) a person isguilty ofchild abuse when:
(I)
he subjects a child to cruel mistreatment; or
(2)
having a child in his care orcustody orunder his control, he:
*
23
*
*
(B) subjects that child to cruel mistreatment; or
(C) unreasonably causes or permits the physical or, emotional
24
health ofthat child to be endangered
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28. Under 19 GCA § 13101, the following relevant definitions are provided:
26
*
*
*
(b) Abused or neglected childmeans a childwhose physical or mental health or
27
welfare isharmed or threatened with harm by the acts oromissions ofthe
person(s) responsible for the child's welfare;
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*
*
.*
(d) Childmeans a person underthe age of 18 years;
7
'
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(t) Harm to a child's physical health or welfare occurs in a case where there
existsevidence of* injury, including but not limited to:
*
3
*
«
(2) Anycasewhere thechild hasbeen thevictim of a sexual offense as
defined in the Criminal and Correctional Code; or
4
5
6
(3) Anycasewhere there exists injury to the psychological capacity of a
child such as failure to thrive,extrememental distress, or gross
emotional or verbal degradation as is evidenced by an observable and
substantial impairment in the child's abilityto function within a
normal rangeof performance with due regard to the child'sculture(.)
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29. Under 9 GCA § 25A201. "sexual conduct" with a minor is defined as follows:
8
9
10
11
12
13
14
15
16
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19
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25
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(o) Sexual Conduct means acts of sexual penetration, sexual contact,
masturbation, bestiality, sexual penetration, deviate sexual intercourse,
sadomasochistic abuse, or lascivious exhibition of the genital or pubicarea
of a minor.
30. Under 9 GCA § 25.10(8),"sexual contact" is defined as follows:
(8) Sexual Contact includes the intentional touching of the victim's or
actor's intimate parts or theintentional touching of theclothing covering the
immediate area of the victim's or actor'sintimate parts, if that intentional
touching can reasonably be construed as being for the purpose of sexual
arousal or gratification.
31. Under 9 GCA § 25.20, the crimeof Second Degree Criminal Sexual Misconduct with regard to
a childis set forth in pertinent part as follows:
(a) A person isguiltyof criminal sexual conduct in the second degree if the
person engages in sexual contact with another person and if any of the
following circumstances exists:
(1) that other person is underfourteen (14)yearsof age;
(2) that otherperson is at leastfourteen (14) but less than sixteen(16)
years of ageand theactoris a member of the samehousehold as the
victim, or is related by blood or affinity to the fourth degree to the
victim,or is in a position of authority over the victim and the actor
used this authority to coerce the victim to submit
32. Under 19GCA § 13201 (b), the following are required to report child abuse:
(b) Persons required to reportsuspected child abuse under Subsection (a)
include, but are not limited to,... clergy memberofany religious faith,
or other similar functionary or employee of any church, place of
worship, or otherreligious organization whoseprimary duties consist
of teaching, spreading the faith, church governance, supervision of a
religious order, or supervision or participation in religiousritual and
worship,...
27
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IV.
FIRST CAUSE OF ACTION
2
Child Sexual Abuse
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4
5
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[Against All Defendants!
33. Plaintiffre-alleges and incorporates by reference paragraphs I through 32 of this Complaint as
if fully set forth herein.
34. Defendants Agana Archdiocese, Capuchins, and DOES I - 50 (collectively "Defendants" as
7
alleged in thiscause of action) are vicariously liable forthesexual abuse committed upon Francis by Niland.
8
Public policy dictates that Defendants should be held responsible forNiland's wrongful conduct underthe
9
theory commonly referred to as Respondeat Superior.
10
35. Niland, prior to his death, committed the offense of Second Degree Criminal Sexual
11
Misconduct, as set forth in 9 GCA § 25.20,by engaging in sexual contactwith Franciswhen Franciswas at
12
least fourteen (14) but lessthansixteen (16) years of age, andNiland, in his position as a Capuchin Priest,
13
wasin a position of authority overFrancis and Niland used thisauthority to coerce Francis to submit
14
36. Niland, prior to his death, also committed the offense of Child Abuse,as set forth in 9 GCA §
15
31.30by subjecting Francis, who was a childat the time pursuant to 19GCA § 13101 (d) and was underthe
16
care, custody or control of Niland, to cruel mistreatment which included unreasonably causingor permitting
17
the physical or emotional health of the childto be endangered.
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37. As a direct and proximate consequence of Niland's misconduct, Franciswas an abused or
19
neglected childwithin the meaning of 19GCA § 13101 (b) because his physical or mental health or welfare
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wasand continues to be harmed by the acts or omissions of Niland, whowas responsible for the child's
21
welfare. Moreover, as Niland's misconduct constitutes the commission of one or more criminal offenses,
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Francis has suffered harm to a child's physical health or welfare within the meaning of 19 GCA §
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13101(f)(2) because Franciswas the victim of a sexual offense as defined in the Criminal and Correctional
24
Code (9 GCA)
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38. For the reasonsset forth in the incorporated paragraphs of this Complaint, the sexual abuse of
26
Francis arose from and was incidental to Niland's employment with the Agana Archdiocese and the
27
Capuchins, and while Niland, wasacting within thescope of his employment with the Agana Archdiocese
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and the Capuchins at the time he committed the acts of sexual abuse, which were foreseeable to Defendants.
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39. Defendants ratified and / or approved of Niland's sexual abuseby failing to adequately
2
investigate, discharge, discipline and / or supervise Niland and otherpriestsknownby Defendants to have
3
sexually abused children, or to havebeen accused of sexually abusing children; by concealing evidence of
4
Niland's sexual abuse; failing to intervene to prevent ongoing and / or further sexual abuse; by failing to
5
report thesexual abuse as required under 19 GCA 13201 (b); by allowing Niland to continue in service as a
6
Capuchin Priest working for the Agana Archdiocese and the Capuchins.
7
40. Despite the pretense of policies and procedures to investigate and address instances of child
8
sexual abuse by priests, Defendants in fact implemented suchpolicies and procedures for no other purpose
9
than to avoid scandal, maintain secrecy and preserve loyalty to fellow clergy, includingchild molesting
10
clergy, rather than theprotection of children. Such hypocritical conduct by Defendants has served to
11
systematically encourage, perpetuate and promote sexually abusive conduct by priests in the Agana
12
Archdioceseand the Capuchins.
13
41. Defendants eitherhad actual knowledge of Niland's sexual abuse of Francis, or couldhave and
14
should have reasonably foreseen thatNiland would commit sexual abuse to Francis in the course of his
15
employment as a Capuchin Priest in the Agat Parish, asan agent and employee of theAgana Archdiocese
16
and the Capuchins.
17
42. As a direct andproximate result of the Defendants' above - described conduct. Francis has
18
suffered, andcontinues to suffer, great pain of mind and body, shock, emotional distress, physical
19
manifestations of emotional distress, embarrassment, loss of self-esteem, disgrace, humiliation, and loss of
20-
enjoyment of life; and has incurred and / or will continue to incur expenses formedical andpsychological
21
treatment, therapy and counseling.
22
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43. By engaging in the conduct described herein, Defendants acted with malice, oppression, and/or
fraud, entitling Francisto exemplaryand punitive damages.
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V.
SECOND CAUSE OF ACTION
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Negligence
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27
28
[Against All Defendants]
44. Plaintiffre-alleges and incorporates by reference paragraphs 1 through 43 of this Complaintas
if fully set forth herein.
10
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45. Defendants Agana Archdiocese. Capuchins, and DOES I - 50 (collectively "Defendants" as
2
alleged in thiscause of action) had a duty to protect Francis when hewasentrusted to Niland's care by
3
Francis's parents. Francis's care, welfare, and / or physical custody weretemporarily entrusted to
4
Defendants, and Defendants accepted the entrusted care of Francis. As such, Defendants owed Francis, as a
5
child at the time, a special dutyof care, in addition to a dutyof ordinary care,and owed Francis the higher
6
dutyof carethat adults dealing with children owe to protect them from harm.
7
46. Byvirtue of his unique authority andposition as a Roman Catholic and Capuchin Priest, Niland
8
was able to identify vulnerable victims and their families upon which he could perform such sexual abuse; to
9
manipulate hisauthority to procure compliance with hissexual demands from hisvictims; to induce the
10
victims to continue to allowthe abuse; and to coerce them not to report it to any other persons or authorities.
11
As a Capuchin Priest, Niland had unique access toa position of authority within Roman Catholic families
12
like the family of Francis. Such access, authority and reverence wasknown to the Defendants and
13
encouraged by them.
14
47. Defendants, by and through theiragents, servants and employees, knewor reasonably should
15
have known of Niland's sexually abusive and exploitative propensities and/ or that Niland wasan unfit
16
agent. It was foreseeable that if Defendants did not adequately exercise or provide theduty of care owed to
17
children in their care, including butnot limited to Francis, thechildren entrusted to Defendants' carewould
18
be vulnerable to sexual abuse by Niland.
19
48. Defendants breached theirduty of careto the minor Francis by allowing Niland to be in the
20
company of minor children, including Francis, without supervision; by failing to adequately supervise, or
21
negligently retaining Niland whom they permitted and enabled to have access to Francis; by failing to
22
properly investigate; by failing to inform or concealing from Francis's parents, guardians, or law
23
enforcement officials that Nilandwas or may have been sexually abusing minors; by holding out Niland to
24
Francis's parents or guardians, and to thecommunity of Guam at large, as beingin good standing and
25
trustworthy as a person of stature and. integrity. Defendants cloakedwithin the facade of normalcyNiland's
26
contact with Francis and/ or with other minors who were victims of Niland, and deliberately concealed and
27
disguised the sexual abusecommitted by Niland.
28
II
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49. Asa directandproximate result of the Defendants' above described conduct, Francis has
2
suffered, and continues to suffer, great pain of mind and body, shock, emotional distress, physical
3
manifestations of emotional distress,embarrassment loss of self-esteem, disgrace, humiliation, and loss of
4
enjoyment of life; and have incurred and/ or will continue to incur expenses for medical and psychological
5
treatment, therapyand counseling.
6
7
50. Byengaging in theconduct described herein, Defendants acted with malice, oppression, and/or
fraud, entitling Francis to exemplary and punitive damages.
8
VI.
THIRD CAUSE OF ACTION
9
Negligent Supervision
10
11
12
13
[Against All Defendants]
51. Plaintiff re-alleges and incorporates by reference paragraphs I through 50 of this Complaint as
if fully set forth herein.
52. Defendants Agana Archdiocese, Capuchins, and DOES I - 50 (collectively "Defendants" as
14
alleged in this cause of action) had a duty to provide reasonable supervision of both Niland and minor child,
15
Francis; to usereasonable care in investigating Niland; and to provide adequate warning to Francis's family,
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and to families of otherchildren who wereentmsted to Niland, of Niland's sexuallyabusive and exploitative
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propensities and unfitness.
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53. Defendants, by and through theiragents, servants and employees, knewor reasonably should
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have known of Niland's sexually abusive andexploitative propensities and/or thatNiland wasan unfit agent.
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Despite suchknowledge, Defendants negligently failed to supervise Niland in his position of trust and
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authority as a Capuchin Priest, where he wasable to commit thewrongful acts against Francis alleged
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herein. Defendants failed to providereasonable supervision of Niland, failed to use reasonable care in
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investigating Niland, and failed to provide adequate warning to Francis's family regarding Niland's sexually
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abusive andexploitative propensities andunfitness. Defendants further failed to takereasonable measures to
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prevent future sexual abuse.
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54. As a direct and proximate result of the Defendants' above described conduct, Francishas
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suffered, and continues to suffer, great pain of mind and body, shock, emotional distress, physical
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manifestations of emotional distress, embarrassment, loss of self-esteem, disgrace, humiliation, and loss of
Case 1:17-cv-00058 Document 1 Filed 05/22/17 Page 12 of 16
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enjoyment of life; and have incurred and / orwill continue to incur expenses for medical andpsychological
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treatment, therapy and counseling.
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55. By engaging in the conduct described herein, Defendants acted with malice, oppression, and/or
fraud, entitling Francis to exemplary and punitive damages.
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VII.
FOURTH CAUSE OF ACTION
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Negligent Hiring And Retention
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[Against All Defendants]
56. Plaintiff re-alleges and incorporates by reference paragraphs I through 55 of thisComplaint as
if fully set forth herein.
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57. Defendants Agana Archdiocese. Capuchins, and DOES I - 50 (collectively "Defendants" as
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alleged in this cause of action) had a duty not to hire and / or retain Niland in light of his sexually abusive
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and exploitative propensities.
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58. Defendants, byandthrough their agents, servants and employees, knew or reasonably should
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have known of Niland's sexually abusive and exploitative propensities and/ or thatNiland wasan unfit
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agent. Despite such knowledge and / oran opportunity tolearn ofNiland's misconduct, Defendants
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negligently hired and retained Niland in his position oftrust and authority asa Capuchin Priest, where he
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wasableto commit thewrongful acts against Francis alleged herein. Defendants failed to properly evaluate
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Niland's application for employment by failing to conduct necessary screening; failed to properly evaluate
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Niland's conduct andperformance as anemployee of Defendants; and failed to exercise the duediligence
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incumbent upon employers to investigate employee misconduct, or to take appropriate disciplinary action,
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including immediate termination andreporting andreferral of Niland's sexual abuse to appropriate
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authorities. Defendants negligently continued to retain Niland in service as a Capuchin Priest, working for
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Defendants, which enabled himto continue engaging in thesexually abusive and predatory behavior
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described herein.
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59. As a directand proximate result of the Defendants' above - described conduct, Francis has
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suffered, and continues to suffer, great pain of mindand body, shock,emotionaldistress, physical
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manifestations of emotional distress, embarrassment, loss of self-esteem, disgrace, humiliation, and loss of
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Case 1:17-cv-00058 Document 1 Filed 05/22/17 Page 13 of 16
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enjoyment of life; and have incurred and/ or will continue to incur expenses for medical and psychological
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treatment, therapy and counseling.
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60. Byengaging in the conduct described herein, Defendants acted with malice, oppression, and/or
fraud, entitling Francis to exemplary and punitive damages.
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VIII.
FIFTH CAUSE OF ACTION
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Breach of Fiduciary Duty And / Or Confidential Relationship
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[Against All Defendants!
61. Plaintiff re-alleges and incorporates by reference paragraphs I through 60 of thisComplaint as
if fully set forth herein.
62. Byholding Niland outas a qualified Capuchin Priest anda person of stature andintegrity
. within the Catholic Archdiocese, Defendants Agana Archdiocese, Capuchins, and DOES I - 50, together
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with Niland himself,invited, counseled, encouraged and induced the Catholiccommunityof Guam,
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including parents or guardians of children, and particularly parents or guardians of children who were
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parishioners and members of the Catholic church volunteering their services, to havetrust and confidence in
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the Agana Archdiocese, the Capuchins, and its priests, and to entrust their children to the company of priests
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and specifically to Niland, including allowing their children to be alone with Niland without supervision and
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to reside at a church facility with Niland to learn about the priesthood. Through such actions, Defendants
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collectively created and entered intoa fiduciary and / or confidential relationship with its parishioners.
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including Catholic parents or guardians and theirchildren, and in particular, children whoprovided services
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to the Agana Archdiocese and the Capuchins, and resided at a church facility to learn about the priesthood.
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Accordingly, Defendants collectively created and entered into a fiduciary and/ or confidential relationship
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specifically with the minor child Francis.
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63. Through such fiduciary and / or confidential relationship. Defendants collectively caused
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parents or guardians to entrusttheirchildren to priests, and specifically to Niland,including the parents of
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Francis, which resultedin Francis residing at church facility with Niland to learn about the priesthood,
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resultingin the subject acts of sexual abuse described herein.
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28
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Case 1:17-cv-00058 Document 1 Filed 05/22/17 Page 14 of 16
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64. Defendantscollectively breached their fiduciary and / or confidential relationship with the
2
minor child Francis by violating the trust andconfidence placed in them by parishioners and specifically by
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the minor child Francis, and by engaging in the wrongful actsdescribed in this Complaint.
4
65. As a direct and proximate result of the Defendants' above described conduct. Francis has
5
suffered, and continues to suffer, greal pain of mind and body, shock, emotional distress, physical
6
manifestations of emotional distress, embarrassment, loss of self-esteem, disgrace, humiliation, and loss of
7
enjoyment of life; and have inclined and / or will continue to incur expenses for medical and psychological
8
treatment, therapy and counseling.
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66. By engaging in the conduct described herein. Defendants acted with malice, oppression, and/or
fraud, entitling Francis to exemplary and punitive damages.
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IX.
REQUEST FOR RELIEF
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WHEREFORE. Plaintiff Francis Charfauros requestsjudgment against all Defendants on all counts as
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follows:
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I.
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For all general, special, exemplary and punitivedamages, as allowed by law in a sum to be
proven at trial and in an amount not less than $5,000,000;
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2.
For costs and fees incurred herein;
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3.
Attorneys' fees, as permitted by law: and
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4.
For other such and further relief as the Court may deemjust and proper.
2') |
X.
DEMAND FOR JURY TRIAL
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' Plaintiff Francis Charfauros. through his counsel. David J. Lujan. hereby demands a jury trial of six
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(6) in the above-entitled action, pursuant to Fed. R. Civ. Proc. 48(a).
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Respectfully submitted this 8th day of May. 2017.
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DAVID.I. LUJAN,
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Attorney for Plaintiff.
Francis Charfauros
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Case 1:17-cv-00058 Document 1 Filed 05/22/17 Page 15 of 16
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VERIFICATION
FRANCIS CHARFAUROS, declares and states that he is the PLAINTIFF in the foregoing
COMPLAINT; that he has read said VERIFIED COMPLAINT FOR DAMAGES and knows the contents
thereofto be true and correct, except asto the matters whichmay have beenstated upon his information and
belief; and as to those matters, he believes them to be true.
I declare, under penalty of perjury, this 8thday of May, 2017, that the foregoing is true and correct
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to the best ofmy knowledge.
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'0
YttfM&a /7/^h^f
FRANCISX>1ARFAMR0S
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