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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 98-1438 <br> <br>                        MICHAEL E. KELLY, <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                ROBERT MARCANTONIO, ETC., ET AL., <br>                      Defendants, Appellees. <br> <br>                       ____________________ <br> <br>No. 98-1439 <br> <br>                        STEPHEN B. KELLY, <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                ROBERT MARCANTONIO, ETC., ET AL., <br>                      Defendants, Appellees. <br> <br>                       ____________________ <br> <br>No. 98-1533 <br> <br>                        MICHAEL E. KELLY, <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                       ROBERT MARCANTONIO, <br>                       Defendant, Appellee. <br> <br>                       ____________________ <br> <br>                  ROMAN CATHOLIC BISHOP, ET AL., <br>                     Defendants, Appellants. <br> <br>                       ____________________

No. 98-1542 <br> <br>                        STEPHEN B. KELLY, <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                       ROBERT MARCANTONIO, <br>                       Defendant, Appellee. <br> <br>                       ____________________ <br> <br>                  ROMAN CATHOLIC BISHOP, ET AL., <br>                     Defendants, Appellants. <br> <br>                       ____________________ <br> <br>No. 98-2137 <br> <br>                          KENNETH SMITH, <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                  WILLIAM C. O'CONNELL, ET AL., <br>                      Defendants, Appellees. <br> <br>                       ____________________ <br> <br>No. 98-2138 <br> <br>                          KENNETH SMITH, <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                  WILLIAM C. O'CONNELL, ET AL., <br>                       Defendant, Appellee. <br> <br>                       ____________________ <br> <br>                  ROMAN CATHOLIC BISHOP, ET AL., <br>                     Defendants, Appellants. <br> <br>                       ____________________ <br> <br>          APPEALS FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF RHODE ISLAND <br> <br>           [Hon. Ernest C. Torres, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                 Stahl and Lynch, Circuit Judges. <br> <br>                      _____________________ <br> <br>    Richard C. Bicki, with whom Susan E. McGuirl, Cerilli, McGuirl <br>& Bicki, Lise Iwon and Laurence & Iwon were on brief, for <br>appellants Michael E. Kelly and Stephen B. Kelly. <br>    Carl P. DeLuca for appellant Kenneth Smith. <br>    Thomas R. Bender, with whom James T. Murphy, Hanson, Curran, <br>Parks & Whitman and William T. Murphy were on brief, for appellees <br>Roman Catholic Bishop, et al. <br>    Gerald C. DeMaria, with whom Paul S. Callaghan and Higgins <br>Cavanagh & Cooney, LLP were on brief, for appellee Robert <br>Marcantonio. <br>    Charles Wilson, with whom William T. Murphy, James T. Murphy,  <br>Thomas R. Bender and Hanson, Curran, Parks & Whitman were on brief <br>for defendants. <br> <br>                       ____________________ <br> <br>                          August 6, 1999 <br>                       ____________________

         TORRUELLA, Chief Judge.  In these consolidated cases, <br>plaintiff-appellants Michael Kelly, Stephen Kelly, and Kenneth <br>Smith seek to recover damages for alleged sexual abuse they <br>suffered when they were minors.  Plaintiff-appellants allege that <br>the perpetrators of this sexual abuse were priests serving in the <br>Roman Catholic Diocese of Providence, Rhode Island.  The defendant- <br>appellees are the priests, Father Robert Marcantonio <br>("Marcantonio") and Father William C. O'Connell ("O'Connell"), <br>various diocesan officials, and the churches to which the priests <br>were assigned (collectively, the "hierarchy defendants").  <br>Plaintiff-appellants appeal the district court's grant of summary <br>judgment in favor of all defendant-appellees on the ground that <br>plaintiff-appellants' claims are barred by the statute of <br>limitations.  The hierarchy defendants also appeal, challenging the <br>district court's denial of their motion to dismiss on the ground <br>that adjudication of the claims asserted against them would violate <br>the religious autonomy principle rooted in the First Amendment. <br>                            BACKGROUND <br>         Because these appeals focus on the specific issues of <br>whether plaintiff-appellants' claims of childhood sexual abuse are <br>time-barred, and whether the First Amendment precludes the district <br>court from adjudicating the claims asserted against the hierarchy <br>defendants, it is not necessary to provide a complete account of <br>the allegations set forth in the complaints.  We will, however, <br>sketch the facts central to the issues before us. <br>         In their consolidated cases, plaintiff-appellants seek to <br>recover damages under various state law tort theories for the <br>alleged sexual abuse they suffered when they were minors.  In <br>addition to the claims asserted against the priest-perpetrators, <br>plaintiff-appellants assert various claims sounding in negligence <br>and vicarious liability against the non-perpetrator hierarchy <br>defendants. <br>         Specifically, plaintiff-appellant Kenneth Smith alleges <br>that he was sexually abused by O'Connell during the period between <br>1972 and 1977 while he was in high school.  Plaintiff-appellants <br>Stephen and Michael Kelly allege that they were sexually abused by <br>Marcantonio.  Stephen alleges that the assaults on him took place <br>between 1975 and 1981, and Michael alleges that he was assaulted <br>between 1981 and 1985.  Plaintiff-appellants further allege that <br>the hierarchy defendants knew that O'Connell and Marcantonio <br>previously had committed sexual assaults and that the hierarchy <br>defendants not only failed to disclose this information, but also <br>engaged in a "cover-up" after the fact by transferring the priests <br>to different parishes.  All three plaintiff-appellants filed their <br>lawsuits in 1993 -- more than eight years after the alleged abuses <br>occurred. <br>         Prior to 1992, the statute of limitations set forth in <br> 9-1-14(b) applied to all claims of childhood sexual abuse.  It <br>requires all "actions for injuries to the person" to be brought <br>within three years after the cause of action accrues.  See R.I. <br>Gen. Laws  9-1-14(b).  Under  9-1-14(b), a cause of action for <br>childhood sexual abuse accrues on the date of injury.  See Kelly v. <br>Marcantonio, 678 A.2d 873, 877 (R.I. 1996).  <br>         In its 1993 legislative session, the Rhode Island <br>Legislature enacted  9-1-51, which enlarged the statute of <br>limitations period for claims against perpetrators of childhood <br>sexual abuse.  See id. at 876.  Section 9-1-51 permits an action <br>against the perpetrator to be brought up to seven years after the <br>victim discovers or reasonably should have discovered that the <br>abuse occurred.  See R.I. Gen. Laws  9-1-51(a).  The Rhode Island <br>Supreme Court has held, however, that  9-1-51 may not be applied <br>retroactively to revive claims previously time-barred as of <br>July 25, 1993, the effective date of the legislation.  See Kelly, <br>678 A.2d at 882, 883.  It is undisputed that all of plaintiff- <br>appellants' claims were time-barred prior to the effective date of <br> 9-1-51.  Therefore, the seven-year statute of limitations <br>contained in  9-1-51 does not apply here. <br>         To avoid dismissal under  9-1-14(b), plaintiff- <br>appellants rely primarily upon two separate tolling theories.  The <br>first is contained in  9-1-19, which tolls the period of <br>limitations with respect to persons of "unsound mind."  Section 9- <br>1-19 provides, in relevant part: <br>                  If any person at the time any such cause of <br>         action shall accrue to him or her shall be <br>         . . . of unsound mind . . . the person may <br>         bring the cause of action, within the time <br>         limited under this chapter, after the <br>         impediment is removed. <br> <br>R.I. Gen. Laws  9-1-19.  Plaintiff-appellant Smith argues that  <br>his inability to remember the alleged sexual assaults by <br>Fr. O'Connell until sometime in 1991 or 1992 qualifies as a tolling <br>feature under the "unsound mind" provision, thus saving his claims <br>from dismissal.  Plaintiff-appellants Stephen and Michael Smith <br>make a slightly different argument.  The Smiths claim that although <br>they have been conscious of the assaults on them ever since they <br>occurred, they did not appreciate their wrongful nature until <br>sometime in 1991 because Fr. Marcantonio informed them that such <br>assaults were part of their religious training in sexuality.  The <br>Smiths contend that they were of "unsound mind" up until the time  <br>they realized the wrongful nature of Fr. Marcantonio's advances, <br>and thus their claims against Fr. Marcantonio are also preserved. <br>         The second tolling provision upon which plaintiff- <br>appellants rely is contained in  9-1-20.  Section 9-1-20 postpones <br>accrual of a cause of action that has been fraudulently concealed: <br>                  If any person, liable to an action by another, <br>         shall fraudulently, by actual <br>         misrepresentation, conceal from him or her the <br>         existence of the cause of action, the cause of <br>         action shall be deemed to accrue against the <br>         person so liable at the time when the person <br>         entitled to sue thereon shall first discover <br>         its existence.  <br> <br>R.I. Gen. Laws  9-1-20.  Plaintiff-appellants assert that the <br>hierarchy defendants' failure to disclose their knowledge of prior <br>sexual misconduct by both O'Connell and Marcantonio constitutes <br>fraudulent concealment within the meaning of  9-1-20.  Thus, <br>plaintiff-appellants contend that the period of limitations on <br>their claims against the hierarchy defendants did not begin to run <br>until they first discovered the hierarchy defendants' prior <br>knowledge and concealment.  Plaintiff-appellants Stephen and <br>Michael Kelly also rely on  9-1-20 to preserve their claims <br>against Fr. Marcantonio.  The Kellys assert that Fr. Marcantonio <br>fraudulently concealed the existence of their causes of action <br>against him by falsely representing that his sexual assaults <br>constituted religious training in sexuality.  Thus, the Kellys <br>contend that their causes of action against Fr. Marcantonio did not <br>accrue until they first discovered the falsity of these <br>representations.

                            DISCUSSION <br>         Before we can delve into the issues raised in this <br>appeal, we must first determine the order in which we must proceed.  <br>As noted supra, in response to the claims asserted against them, <br>the hierarchy defendants moved to dismiss on the ground that the <br>religious autonomy principle rooted in the First Amendment <br>precluded the district court from adjudicating the claims asserted <br>against them.  Throughout this litigation, both parties have <br>characterized the hierarchy defendants' motion as a motion to <br>dismiss for lack of subject matter jurisdiction.  Whether the <br>defendants' motion involves subject matter jurisdiction at all is <br>a debatable point, but we will accept, arguendo, the parties' <br>characterization.  Therefore, on appeal, the first question we must <br>resolve is whether the United States Supreme Court's decision in <br>Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998), <br>requires us to address the hierarchy defendants' First Amendment <br>argument before considering the merits of plaintiff-appellants' <br>claims. <br>         In Steel Co., the Supreme Court declared that courts <br>should generally determine whether subject matter jurisdiction <br>exists before reaching the merits of a plaintiff's claim.  See 523 <br>U.S. at 92, 96.  In its opinion, however, the Court narrowly used <br>the term "subject matter jurisdiction," making a clear distinction <br>between Article III subject matter jurisdiction and other sources <br>of subject matter jurisdiction.  As this court recently recognized, <br>the decision in Steel Co. "distinguishes between Article III <br>jurisdiction questions and statutory jurisdiction questions, <br>holding that the former should ordinarily be decided before the <br>merits, but the latter need not be."  Parella v. Retirement Bd. of <br>the Rhode Island Employees' Retirement System, 173 F.3d 46, 54 (1st <br>Cir. 1999). <br>         It is clear that the hierarchy defendants' religious <br>autonomy arguments do not derive from Article III.  It is the First <br>Amendment -- and not Article III -- that prohibits secular courts <br>from intervening in the internal affairs of the hierarchical <br>churches by deciding issues of religious doctrine.  See, e.g., <br>Serbian E. Orthodox Diocese for the United States and Can. v. <br>Milivojevich, 426 U.S. 696 (1976); Presbyterian Church in the <br>United States v. Mary Elizabeth Blue Hull Mem'l Presbyterian <br>Church, 393 U.S. 440 (1969).  This court recently held that an <br>Eleventh Amendment defense raised by a state should not be treated <br>as an Article III question for the purposes of Steel Co.  See <br>Parella, 173 F.3d at 57.  In reaching this conclusion, the Parella <br>court reasoned that the relevant maxim outside the Article III <br>context "is not that federal courts cannot act without first <br>establishing their jurisdiction, but rather that courts should not <br>reach constitutional questions in advance of the necessity of <br>deciding them."  Id. at 56 (internal quotations omitted).  We see <br>no reason why the reasoning of Parella should not control here.  We <br>therefore choose to defer the hierarchy defendants' First Amendment <br>arguments, and proceed directly to the merits of plaintiff- <br>appellants' statute of limitations tolling claims. <br>                      STATUTE OF LIMITATIONS <br>         In the proceedings below, the district court granted <br>summary judgment in favor of defendants on the ground that  <br>plaintiff-appellants' claims of childhood sexual abuse were time- <br>barred.  We review the district court's grant of summary judgment <br>de novo, viewing the facts in the light most favorable to the <br>nonmovants.  See Dominique v. Weld, 73 F.3d 1156, 1158 (1st Cir. <br>1996). <br>         Summary judgment is appropriate when "the pleadings, <br>depositions, answers to interrogatories, and admissions on file, <br>together with the affidavits, if any, show that there is no genuine <br>issue as to any material fact and that the moving party is entitled <br>to a judgment as a matter of law."  Fed. R. Civ. P. 56(c).  Summary <br>judgment will be properly entered against a party who "fails to <br>make a showing sufficient to establish the existence of an element <br>essential to that party's case, and on which that party will bear <br>the burden of proof at trial."  Celotex Corp. v. Catrett, 477 U.S. <br>317, 322 (1986).  In this case, plaintiff-appellants bear the <br>burden of proving the applicability of the tolling provisions <br>contained in  9-1-19 and 9-1-20.  See Bonilla-Avils v. Southmark <br>San Juan, Inc., 992 F.2d 391, 393 (1st Cir. 1993). <br>         a.  "Unsound mind"  <br>         Section 9-1-19 does not define "unsound mind."  Nor has <br>the Rhode Island Supreme Court defined the term for purposes of <br>statute of limitations tolling purposes.  In the proceedings below, <br>the district court certified to the Rhode Island Supreme Court the <br>question of whether "repressed recollection of past sexual abuse <br>could qualify as a tolling feature encompassed within the 'unsound <br>mind' factor in  9-1-19."  Kelly, 678 A.2d at 879.  Unfortunately, <br>the Rhode Island Supreme Court did not provide clear guidance, <br>responding merely that whether repressed recollection is included <br>within the tolling condition of "unsound mind" within a particular <br>case is a "question of law determination to be made by the trial <br>justice."  See id. <br>         Left to its own devices, the district court engaged in <br>exhaustive and thorough research in an attempt to discover what <br>meaning the General Assembly ascribed to the term "unsound mind" <br>when it enacted  9-1-19.  It ultimately concluded that "unsound <br>mind" as used in  9-1-19 refers to a condition that renders a <br>plaintiff incapable of managing his or her everyday affairs.  We <br>can find no reason to disturb the court's well-reasoned conclusion.  <br>         Although the Rhode Island Supreme Court has never defined <br>"unsound mind" for statute of limitations tolling purposes, it has <br>interpreted the term, in other contexts, as a condition that <br>renders an individual legally incompetent or incapable of managing <br>his or her everyday affairs.  See Miller v. Rhode Island Hosp., 625 <br>A.2d 778, 785 (R.I. 1993) ("unsound mind" in the context of legal <br>incompetency defined as the inability to govern one's self and <br>manage one's affairs); Sosik v. Conlon, 164 A.2d 696, 698 (R.I. <br>1960) (in context of suit for cancellation of real estate mortgage <br> and promissory note, "unsound mind" characterized as "a condition <br>of insanity or idiocy").  These decisions are consistent with the <br>district court's interpretation. <br>         Further, it is a rule of statutory construction in Rhode <br>Island that "[e]xceptions in statutes of limitations in favor of <br>persons laboring under disabilities are strictly construed."  <br>Kenyon v. United Electric Railways Co., 151 A. 5, 8 (R.I. 1939).  <br>The district court's interpretation clearly comports with this <br>rule. <br>         Finally, we note that, as a federal court sitting in <br>diversity jurisdiction at plaintiff-appellants' election, we are <br>reluctant to push state law well beyond its current confines.  See, <br>e.g., Siedle v. Putnam Investments, Inc., 147 F.3d 1, 7 (1st Cir. <br>1998).  Thus, we are not inclined to accept plaintiff-appellants' <br>argument in favor of an expansive definition of "unsound mind."  <br>Such an argument should have been directed to the state courts in <br>the first instance. <br>         Based on the foregoing, and because we find plaintiff- <br>appellants' arguments in favor of their more liberal interpretation <br>unpersuasive, we affirm the district court's well-reasoned <br>interpretation.  We pause only to comment on several arguments <br>raised by plaintiff-appellants in their briefs. <br>         First, plaintiff-appellants take issue with the district <br>court's conclusion with respect to the inferences that can be drawn <br>from the historical context of  9-1-19.  In its opinion, the <br>district court noted that  9-1-19 was enacted as part of the Court <br>and Practice Act of 1905, which includes a chapter on probate <br>proceedings.  The district court further noted that the probate <br>chapter in the Court and Practice Act authorized the appointment of <br>a guardian for "the person and estate of any idiot, lunatic or <br>person of unsound mind . . . ."  It therefore concluded that at the <br>time of enactment of  9-1-19, the General Assembly equated the <br>condition of "unsound mind" with the conditions of idiocy and <br>lunacy, both of which are recognized as completely incapacitating <br>conditions.  In their briefs, plaintiff-appellants seize on the <br>district court's reasoning to argue that because the General <br>Assembly has changed the standard for appointment of guardians, see <br>R.I. Gen. Laws  33-15-4, the historical context of  9-1-19 should <br>no longer bear on its interpretation.  Plaintiff-appellants' <br>argument is unpersuasive.  The General Assembly's subsequent <br>amendment of the law governing appointment of guardians has little <br>bearing on the legislature's intended meaning of the term "unsound <br>mind" within the context of  9-1-19.  <br>         Plaintiff-appellants next argue that the district court's <br>conclusion that unsound mind refers to a condition that renders a <br>plaintiff incapable of managing his or her everyday affairs is <br>inconsistent with the Rhode Island Supreme Court decision in Kelly <br>v. Marcantonio, 678 A.2d 873 (R.I. 1996).  We disagree.  Although <br>the Rhode Island Supreme Court left open the possibility that <br>repressed recollection of past sexual abuse could qualify as an <br>unsound mind disability under  9-1-19, it stopped well short of <br>adopting such a definition.  And, as we have said, we are reluctant <br>to push state law to new frontiers in a plaintiff-elected diversity <br>action where the state's Supreme Court has evinced reluctance to <br>take the approach the diversity plaintiff proposes.  See Siedle, <br>147 F.3d at 7. <br>         Finally, plaintiff-appellants challenge the district <br>court's conclusion that the subsequent enactment of  9-1-51 lends  <br>support to its interpretation of the "unsound mind."  We agree with <br>plaintiff-appellants that the subsequent enactment of  9-1-51 <br>lends support only to the district court's conclusions that: (1) <br>the 1993 Rhode Island legislature wished to distinguish between <br>"unsound mind" and repressed recollection; and (2) the <br>legislature's decision not to incorporate a discovery provision in <br> 9-1-14(b) at the same time that it enacted the discovery <br>provision contained in  9-1-51 evinced an intent that claims <br>governed by  9-1-14(b) continue to be considered as accruing at <br>the time of injury.  This point does not, however, persuade us that <br>the district court's conclusion was error. <br>         In sum, because we are unpersuaded by plaintiff- <br>appellants' arguments, we affirm the district court's <br>interpretation of "unsound mind."  Further, because the facts are <br>undisputed, and plaintiff-appellants challenge only the district <br>court's legal interpretation of "unsound mind," we need not re- <br>apply the law to the facts.  Plaintiff-appellants have never argued <br>that their respective conditions satisfy the definition of "unsound <br>mind" offered by the defendants, and ultimately adopted by the <br>district court.  As plaintiff-appellants concede in their <br>memorandum in opposition to summary judgment, "if the court adopts <br>Defendants' definition [of unsound mind], Defendants must prevail <br>on this issue."  We agree with the district court (and with <br>plaintiff-appellants) that, even when the evidence presented by the <br>plaintiff-appellants is viewed in the light most favorable to them, <br>it fails to establish that they suffered from "unsound mind" within <br>the meaning of  9-1-19. <br>         b.  Fraudulent concealment <br>         We next address plaintiff-appellants' fraudulent <br>concealment arguments.  As previously noted, plaintiff-appellants <br>rely on the fraudulent concealment tolling doctrine to preserve <br>their claims against the hierarchy defendants and Father <br>Marcantonio.  Specifically, plaintiff-appellants allege that the <br>hierarchy defendants knew that both Frs. Marcantonio and O'Connell <br>had previously committed sexual assaults and that the hierarchy <br>defendants not only failed to disclose this information, but also <br>engaged in a cover-up by transferring these priests from parish to <br>parish whenever allegations of sexual abuse surfaced.  Plaintiff- <br>appellants contend that this behavior postponed the accrual of <br>their claims against the hierarchy defendants until plaintiff- <br>appellants became aware of the hierarchy defendants' knowledge and <br>concealment.  Plaintiff-appellants Stephen and Michael Kelly <br>further contend that Father Marcantonio fraudulently concealed the <br>existence of their causes of action against him by convincing them <br>that his sexual advances were part of their religious training in <br>sexuality.  These factual assertions were denied and the district <br>court did not test the truth of the assertions because it concluded <br>that they did not, as a matter of law, meet the definition of <br>fraudulent concealment. <br>         We first address the fraudulent concealment tolling <br>theory as it applies to plaintiff-appellants' claims against the <br>hierarchy defendants.  In order to establish fraudulent <br>concealment, plaintiff-appellants must prove that: (1) the  <br>hierarchy defendants made an actual misrepresentation of fact; and <br>(2) in making such misrepresentation, the hierarchy defendants <br>fraudulently concealed the existence of plaintiff-appellants' <br>causes of action.  See R.I. Gen. Laws  9-1-20.  On appeal, <br>plaintiff-appellants contend that the district court erred by <br>interpreting "actual misrepresentation" as requiring some express <br>misrepresentation or affirmative conduct on the part of the <br>hierarchy defendants.  In the alternative, plaintiff-appellants <br>argue that, even if  9-1-20 does require an express <br>misrepresentation or some affirmative conduct, a fiduciary <br>relationship existed between the hierarchy defendants and <br>plaintiff-appellants, which imposed on the hierarchy defendants a <br>duty to disclose their knowledge of previously committed sexual <br>assaults.  Under this theory, plaintiff-appellants contend that the <br>hierarchy defendants' silence about the prior assaults by Frs. <br>Marcantonio and O'Connell should be considered an "actual <br>misrepresentation" within the meaning of  9-1-20. <br>         The Rhode Island Supreme Court has never specifically <br>addressed the fiduciary relationship theory asserted by plaintiff- <br>appellants within the context of  9-1-20.  Nor has the Supreme <br>Court addressed the specific question of whether an "actual <br>misrepresentation" within the meaning of  9-1-20 must consist of <br>an express or affirmative misrepresentation.  Fortunately, we <br>conclude that we need not be the first court to resolve these <br>specific questions of Rhode Island law.  For even assuming arguendo <br>that plaintiff-appellants' interpretation prevails, and the <br>hierarchy defendants' silence does qualify as an "actual <br>misrepresentation" within the meaning of  9-1-20, we fail to see <br>how such silence concealed from plaintiff-appellants the "existence <br>of [their] cause of action."  R.I. Gen. Laws  9-1-20.   <br>         All of plaintiff-appellants' claims are claims for <br>damages for the sexual abuse perpetrated by the priest-defendants.  <br>In making these claims, plaintiff-appellants do not allege that the <br>hierarchy defendants' silence misled them into believing that the <br>alleged sexual abuse did not occur, that it had not been committed <br>by the priests, or that it had not resulted in injury to plaintiff- <br>appellants.  In other words, the hierarchy defendants never <br>concealed from any of the plaintiff-appellants the fact of the <br>injury itself.  Rather, the essence of plaintiff-appellants' <br>fraudulent concealment argument is that the hierarchy defendants' <br>silence concealed from them an additional theory of liability for <br>the alleged sexual abuse.  This argument misses the mark.  For a <br>cause of action to accrue, the entire theory of the case need not <br>be immediately apparent.  See Arnold v. R.J. Reynolds Tobacco Co., <br>956 F. Supp. 110, 117 (D.R.I. 1997); Benner v. J.H. Lynch & Sons, <br>641 A.2d 332, 337 (R.I. 1994).  Once injured, a plaintiff is under <br>an affirmative duty to investigate diligently all of his potential <br>claims.  See Arnold, 956 F. Supp. at 117; Benner, 641 A.2d at 338.  <br>In this case, as soon as plaintiff-appellants became aware of the <br>alleged abuse, they should also have been aware that the hierarchy <br>defendants, as the priests' "employers," were potentially liable <br>for that abuse.  See Doe v. Archdiocese of Washington, 689 A.2d <br>634, 645 (Md. Ct. Spec. App. 1997) (a plaintiff who is sexually <br>assaulted by a priest is on inquiry notice of his potential claims <br>against the Archdiocese, as the priest's employer).  As the Rhode <br>Island Supreme Court has pointed out in a related context "[t]he <br>plaintiff's certitude of negligence [of a potential defendant] <br>cannot be the deciding factor to determine when the statute of <br>limitations begins to run."  Benner, 641 A.2d at 338.  To postpone <br>the accrual of their causes of action until plaintiff-appellants <br>completed their investigation of all potential liability theories <br>would destroy the effectiveness of the limitations period.        <br>         Alternatively, if the plaintiffs' theory is thought of as <br>a sort of discovery rule argument, it still is not persuasive.  <br>Plaintiff-appellants contend that a discovery rule is appropriate <br>under the circumstances of this case because at the time the <br>alleged abuse occurred plaintiff-appellants had no reason to <br>suspect that the hierarchy defendants were aware of prior sexual <br>assaults by Frs. Marcantonio and O'Connell.  However, the Rhode <br>Island Supreme Court has expressly rejected the extension of a <br>discovery rule to claims against non-perpetrator defendants for <br>damages arising from childhood sexual abuse.  See Kelly, 678 A.2d <br>at 878.  We therefore decline plaintiff-appellants' request. <br>         We turn now to Michael and Stephen Kelly's contention <br>that Father Marcantonio fraudulently concealed the existence of <br>their causes of action against him by convincing them that his <br>sexual advances were part of their religious training in sexuality.  <br>On appeal, the Kellys contend that the district court erred by <br>interpreting  9-1-20 as requiring that a potential plaintiff rely <br>on the "actual misrepresentation."  We agree with the district <br>court that reliance is an essential element of the fraudulent <br>concealment tolling provision.  The statute requires "fraudulent" <br>concealment, and under Rhode Island law, reliance is an essential <br>element of fraud.  See National Credit Union Admin. Bd. v. Regine, <br>795 F. Supp. 59, 70 (D.R.I. 1992). <br>         We further agree that the Kellys' alleged reliance on <br>Father Marcantonio's misrepresentations was unreasonable as a <br>matter of law.  According to the record, Father Marcantonio's <br>alleged abuse continued for years, and ended only when both Kellys <br>reached the age of twenty.  As the district court noted, it is <br>beyond comprehension that an otherwise competent twenty year old <br>adult would continue to believe that Father Marcantonio's sexual <br>advances were part of his religious training.  See Doe v. United <br>Methodist Church, 673 N.E.2d 839, 844-45 (Ind. Ct. App. 1996) <br>(continued reliance by plaintiff upon representations made by <br>defendant that sexual activity was a part of the accepted <br>counseling process was unreasonable as a matter of law); E.J.M. v. <br>Archdiocese of Philadelphia, 622 A.2d 1388, 1395 (Pa. Super. Ct. <br>1993) (plaintiff's reliance on priest-defendant's assurances that <br>sexual acts being performed on him were necessary for his spiritual <br>development was unreasonable as a matter of law).  We therefore <br>conclude that Father Marcantonio's statements to the Kellys did not <br>rise to the level of fraudulent concealment.  Therefore, the <br>Kellys' claims against Father Marcantonio are time-barred under the <br>three-year statute of limitations contained in  9-1-14(b). <br>         c.  Continuing Tort Theory <br>         In a final attempt to avoid the statute of limitations <br>altogether, plaintiff-appellants assert various conspiracy theories <br>against the hierarchy defendants.  Under these theories, <br>plaintiff-appellants attempt to articulate a legal basis for <br>holding the hierarchy defendants independently liable for damages <br>arising from the alleged sexual abuse.  The essence of these claims <br>is that the hierarchy defendants conspired, after the fact, to <br>conceal the alleged acts of sexual abuse perpetrated by <br>Frs. Marcantonio and O'Connell.  Because this alleged conspiracy <br>continues to the present day, plaintiff-appellants contend that the <br>period of limitations on their claim has not even begun to run. <br>         The fatal weakness of this theory, however, is that none <br>of these conspiracies was even remotely asserted in any of <br>plaintiff-appellants' complaints.  Ultimately, plaintiff- <br>appellants' complaint merely alleges that the hierarchy defendants <br>failed to come forward with information concerning alleged sexual <br>assaults by Frs. Marcantonio and O'Connell. <br>         Finally, even assuming arguendo that the actions of the  <br>hierarchy defendants did amount to criminal acts under the various <br>theories asserted by plaintiff-appellants, we conclude that such <br>claims would still be time-barred.  It is  9-1-2 that enables <br>plaintiff-appellants to assert their criminal conspiracy theories <br>as civil causes of action.  However, even though plaintiff- <br>appellants seek relief under  9-1-2, the nature of their claims <br>still arises out of the alleged sexual abuse perpetrated by the <br>priest-defendants.  Plaintiff-appellants seek damages for their <br>sexual abuse -- not for any alleged conspiracy or cover-up by the <br>hierarchy.  Thus, the limitation period set forth in  9-1-14(b) <br>remains the applicable limitations period.  See Lyons v. Town of <br>Scituate, 554 A.2d 1034, 1036 (R.I. 1989) (where plaintiff's claim <br>for damages under  9-1-2 arose out of an alleged assault and <br>battery, appropriate limitations period was that applicable to <br>"injuries to the person" set forth in  9-1-14(b)).  As discussed <br>supra, plaintiff-appellants' claims for damages arising from their <br>sexual abuse are time-barred under  9-1-14(b). <br>         d.  Other Tolling Theories <br>         In their brief, plaintiff-appellants briefly mention a <br>number of other tolling theories, including equitable estoppel, <br>public policy, duress, and undue influence.  Plaintiffs complain <br>that theses theories were not properly before the district court <br>when it granted summary judgment.  Specifically, plaintiffs claim <br>that they did not have ample opportunity to fully discover and <br>address these other tolling theories, and that the district court <br>abused its discretion in denying their Fed. R. Civ. P. 56(f) motion <br>for additional discovery.  We disagree. <br>         As this court has stated, "[a] plaintiff's speculative <br>assertions that the defendant has unspecified facts in its <br>possession necessary for the plaintiff to develop its legal <br>theories . . . are entirely inadequate to extract the balm of Rule <br>56(f)."  C.B. Trucking, Inc. v. Waste Management, Inc., 137 F.3d <br>41, 45 (1st Cir. 1997) (internal quotation marks omitted).  <br>Plaintiff-appellants have failed to specify any material evidence <br>in support of these theories that they would likely uncover if <br>given additional time for discovery.  Accordingly, the district <br>court acted well within its discretion in denying their Fed. R. <br>Civ. P. 56(f) motion. <br>                            CONCLUSION <br>         Based on the foregoing, the district court's grant of <br>summary judgment in favor of defendant-appellees is affirmed.</pre>

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