                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               ______________

                                     No. 12-2025
                                   ______________

                                DENNIS C. O’BRIEN,

                                                             Appellant

                                           v.

                       ARCHABBOT DOUGLAS NOWICKI;
                                 JACK PERRY;
                        SAINT VINCENT ARCHABBEY,
                          an unincorporated association
                                ______________

                   On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                           (D.C. Civ. No. 2-11-cv-00979)
                   Honorable Terrence F. McVerry, District Judge
                                 ______________

                      Submitted under Third Circuit LAR 34.1(a)
                                 December 13, 2012

     BEFORE: GREENAWAY, JR., GREENBERG, and COWEN, Circuit Judges

                               (Filed: January 9, 2013)
                                   ______________

                             OPINION OF THE COURT
                                 ______________

GREENBERG, Circuit Judge.

      This matter comes on before this Court on an appeal from an order of the District

Court entered on March 14, 2012, adopting a report and recommendation of a magistrate
judge dated January 27, 2012, as its opinion and granting defendants’ motion to dismiss.

Plaintiff, now appellant, Dennis C. O’Brien, a citizen of California, brought this action

against Archabbot Douglas Nowicki, Jack Perry, and Saint Vincent Archabbey, citizens

of Pennsylvania, in the District Court for the Northern District of California but that court

transferred the action to the Western District of Pennsylvania. The case is predicated on

O’Brien’s allegation that from August 1966 until May 1970, a period in which he was a

student at Saint Vincent Scholasticate, a boarding high school, in Latrobe, Pennsylvania,

he was subjected to sexual abuse, the consequences of which still affect him. Though

O’Brien does not seek a recovery on the basis of the alleged abuse he suffered as a

student, he does seek damages on theories of negligence, recklessness and fraud in the

implementation of a counseling and assistance program formulated by the Archabbey to

assist persons who had been victims of sexual abuse in the Archabbey’s operations.

O’Brien included Perry as a defendant because he was the Archabbey’s Delegate for

Child Protection and became involved in O’Brien’s case when he sought assistance from

the program.

       After the California district court transferred the case to the Western District of

Pennsylvania, the District Court referred to a magistrate judge who considered and

recommended granting a motion to dismiss under Fed. R. Civ. P. 12(b)(6) that the

defendants, now appellees, had filed. In the magistrate judge’s report and

recommendation, she cited Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556-57, 127

S.Ct. 1955, 1965-66 (2007), and other cases for the point that a motion to dismiss under

Rule 12(b)(6) must be granted if a complaint does not set forth a claim for relief that is

                                              2
plausible on its face or does not allow a court to draw a reasonable inference that the

defendant is liable for his alleged misconduct. The magistrate judge then went on to

explain that O’Brien did not contend that defendants were liable for his abuse as a

student, as any such claim would have been barred by the statute of limitations. Rather,

he contended that they were liable for breach of a present duty for their actions in the

implementation of their current assistance program in which he had participated. 1

       In the course of her report and recommendation the magistrate judge made the

following astute observation:

       The Court observes the public policy considerations weighing strongly
       against imposing liability on private organizations electing to afford
       gratuitous assistance and/or remediation to alleged victims of otherwise
       time-barred wrongs. If by proffering a gratuitous, measured response an
       institution exposed itself to legal liability premised on second-guessing the
       nature of its investigation or remediation, the effect would be chilling, if not
       preclusive.

Sup. App. at 6.

       Of course, the magistrate judge, in addition to setting forth the above policy

considerations weighing against O’Brien’s action, also carefully considered his claims on

a strictly legal basis. Ultimately she concluded that defendants “owed (a) no general duty

as to the claims alleged and (b) no particularized duties to [O’Brien] other than those

arising from his attendance as a student forty (40) years ago – as to which the statute of

limitations has long expired.” Thus, she recommended that the District Court grant

defendant’s motion to dismiss.


1
 In his brief O’Brien agrees with the magistrate judge, that, if he made any direct claim
for child abuse, the statute of limitations would have barred the claim.
                                              3
       The magistrate judge’s report and recommendation was referred to the District

Court and O’Brien filed timely objections to it. The Court, after considering the entire

record, adopted the magistrate judge’s report and recommendation as its own opinion and

granted the motion to dismiss. This appeal followed. The District Court had jurisdiction

under 28 U.S.C. § 1332 and we have jurisdiction under 28 U.S.C. § 1291. 2 We exercise

plenary review on this appeal. 3

       After our plenary review of this matter we are in full accord with the magistrate

judge and thus, by extension, the District Court and have very little to add to their

opinion. 4 See Nichole Med. Equip. & Supply, Inc. v. Tricenturion, Inc., 694 F.3d 340,

350 (3d Cir. 2012). We note, however, that regardless of how a counseling program is

established it always would be possible to challenge aspects of it. Furthermore, we

2
 In point of fact O’Brien did not allege that he is a citizen of California and defendants
are citizens of Pennsylvania. Rather, he pleaded that they were residents of their
respective states. Of course, citizenship and residency are not synonymous. See
Martinez v. Bynum, 461 U.S. 321, 338-39, 103 S.Ct. 1838, 1847-48 (1983). Thus, in
view of our obligation to satisfy ourselves that the District Court had jurisdiction we
would be justified if we dismissed this appeal and remanded the case to the District Court
with instructions that it dismiss the action. See 28 U.S.C. § 1332; Emp’rs Ins. of Wausau
v. Crown Cork & Seal Co., 905 F.2d 42, 45 (3d Cir. 1990). Nevertheless, we are not
doing so as we are satisfied from our review of the case that the parties are citizens of
their states of residence.
3
 We are surprised that O’Brien in his brief indicates that “[r]eview by the Court of
Appeals is not a trial de novo. Appellant must demonstrate that the lower court decision
was an obvious error, a misapplication of the law and/or an abuse of discretion.”
Appellant’s br. at 8. Thus, he places a higher burden on himself than the cases require.
Of course, we apply the correct standard of review on this appeal.
4
 O’Brien includes the following sentence in his brief. “He has attempted to be as clear
and concise as possible and requests that the Court read the brief entirely and analyze the
issues fully before rendering its decision.” Appellant’s br. at 1. Of course, the parties
may be certain that we have done exactly that.
                                              4
observe that O’Brien’s participation in the program was entirely voluntary and he was

free to withdraw from it at any time. Moreover, we reiterate and expand on the District

Court opinion and point out that, if we permit this matter to proceed, institutions such as

the Archabbey will be reluctant to establish programs such as that involved here and

expose themselves to litigation with respect to the design or implementation of the

programs. 5

       We make a final but important point. We recognize that institutions such as the

Archabbey might establish a counseling program in the hope of avoiding litigation by

diverting a potential claimant into the program. We, however, are not concerned with

such a consideration in this case because O’Brien was permitted to participate in the

program even though by his own admission he would not have been successful if he had

brought an action for the sexual abuse he allegedly suffered as a student as his claim

would have been barred by the statute of limitations.

       For the foregoing reasons the order of March 14, 2012, will be affirmed.




5
 We are well aware that there have been many cases in which allegations similar to those
that O’Brien makes with respect to child abuse have been made and we can take judicial
notice of that circumstance. See Fed. R. Evid. 201. Indeed, we have dealt with such
cases ourselves. See Elliot v. Archdiocese of New York, 682 F.3d 213 (3d Cir. 2012).
Accordingly, O’Brien’s underlying claim surely is not of an isolated nature. Thus, it is
important that the courts not discourage implicated institutions from developing
assistance and counseling programs.
                                             5
