                                                         131 Nev., Advance Opinion 2.61
                              IN THE SUPREME COURT OF THE STATE OF NEVADA


                      CATHOLIC DIOCESE OF GREEN BAY, 1                        No. 62840
                      INC.,
                      Appellant,
                      vs.
                                                                                        FILED
                      JOHN DOE 119,                                                     MAY 2 8 2015
                      Respondent.                                                      TRA K Lir DEM AN
                                                      1                         c l.     0  A    i
                                                                                BY
                                                                                                ;I
                                                                                       CHIEF 'Oa r r,


                                  Appeal from a final judgment in a tort action. Eight Judicial
                      District Court, Clark County; Valorie J. Vega, Judge.
                                  Reversed.


                      Mazzeo Law LLC and Peter A. Mazzeo, Las Vegas,
                      for Appellant.

                      Matthew L. Sharp, Reno; Jeff Anderson & Associates, P.A., and Michael
                      G. Finnegan and Jeffrey R. Anderson, St. Paul, Minnesota,
                      for Respondent.




                      BEFORE THE COURT EN BANC.


                                                       OPINION


                      By the Court, CHERRY, J.:
                                  Here we consider whether Nevada courts have personal
                      jurisdiction over a foreign Catholic diocese. The Catholic Diocese of Green
                      Bay, a religious organization incorporated and headquartered in
                      Wisconsin, employed Father John Feeney as a priest. Feeney later served
SUPREME COURT         as a priest in California before coming to the Diocese of Reno-Las Vegas.
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                     It was alleged that, during Feeney's time in Las Vegas, Feeney sexually
                     assaulted John Doe 119. Doe sued the Diocese of Green Bay for
                     negligently hiring and retaining Feeney, asserting that the Diocese is
                     responsible for the injuries caused by the sexual abuse.
                                 We conclude that the district court did not have personal
                     jurisdiction over the Diocese of Green Bay in this case. The Diocese did
                     not have sufficient contacts with Nevada. The Catholic doctrine of
                     incardination, whereby Feeney promised obedience to the Diocese of Green
                     Bay, is insufficient to establish a legal employment or agency relationship
                     between Feeney and the Diocese. Accordingly, we reverse the judgment
                     against the Diocese.
                                      FACTS AND PROCEDURAL HISTORY
                                 Doe filed this negligence suit against the Diocese of Green Bay
                     in the Eighth Judicial District Court. Doe alleged that Feeney molested
                     him in 1984, but that it was not until around 2008 that he discovered that
                     his psychological injuries were the result of Feeney's acts of abuse. Doe
                     alleged that Feeney was an agent of the Diocese of Green Bay at the time
                     that he molested Doe in Las Vegas. Doe further alleged that, at the time
                     of the abuse, the Diocese was aware that Feeney had molested other
                     children in Wisconsin. He claimed that the Diocese negligently retained
                     and supervised Feeney and failed to warn others that Feeney was a
                     danger to children.
                                 After an evidentiary hearing held during the trial, the district
                     court concluded that it had jurisdiction over the Diocese. The district
                     court found that Feeney served both the Reno-Las Vegas and the Green
                     Bay Dioceses: While the Diocese of Reno-Las Vegas oversaw Feeney's daily
                     activities, the court found that Feeney was originally incardinated in the
                     Diocese of Green Bay and, therefore, had made a promise of obedience to
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                   the Diocese of Green Bay. The court further found that the Diocese of
                   Green Bay had the ability to restrict Feeney's ministry, could recall him to
                   Green Bay, and maintained his pension.
                               Besides any employment relationship, the district court also
                   found that the Diocese of Green Bay had two other contacts with Nevada.
                   It found that the Diocese of Green Bay gave Feeney a positive
                   recommendation via a letter of good standing. And it further found that
                   the Vicar-General of the Diocese of Green Bay spoke to the Bishop of
                   Reno-Las Vegas about Feeney's placement.
                               After a lengthy trial, the jury returned a verdict in favor of
                   Doe on the negligence claims. The Diocese of Green Bay appealed,
                   arguing that the district court lacked personal jurisdiction over the
                   Diocese.
                                                  DISCUSSION
                               When reviewing a district court's exercise of jurisdiction, we
                   review legal issues de novo but defer to the district court's findings of fact
                   if they are supported by substantial evidence.            See Baker v. Eighth
                   Judicial Dist. Court, 116 Nev. 527, 531, 999 P.2d 1020, 1023 (2000)
                   (stating standard of review for personal jurisdiction).
                               For a court to have personal jurisdiction over a nonresident
                   defendant, a plaintiff must establish, by a preponderance of the evidence,
                   that (1) Nevada's long-arm statute, NRS 14.065, is satisfied; and (2) the
                   exercise of jurisdiction does not offend due process. Arbella Mut. Ins. Co.
                   v. Eighth Judicial Dist. Court, 122 Nev. 509, 512, 134 P.3d 710, 712
                   (2006); Trump v. Eighth Judicial Dist. Court, 109 Nev.• 687, 693, 857 P.2d
                   740, 744 (1993). Because Nevada's long-arm statute is coterminous with
                   the limits of constitutional due process, Arbella Mut. Ins., 122 Nev. at 512,
                   134 P.3d at 712; see NRS 14.065, these two requirements are the same.
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                              The United States Supreme Court analyzes the
                  constitutionality of an exercise of jurisdiction in two distinct ways: general
                  personal jurisdiction and specific personal jurisdiction. See Daimler AG v.
                  Bauman, 571 U.S. „ 134 S. Ct. 746, 754 (2014). With respect to
                  general jurisdiction, the Supreme Court typically looks at a corporation's
                  place of incorporation or its principal place of business in ascertaining
                  whether jurisdiction exists.   See Daimler, 571 U.S. at , 134 S. Ct. at
                  760. The parties here do not dispute that the Diocese of Green Bay is
                  incorporated in Wisconsin and that its principal place of business is also in
                  Wisconsin. Doe does not present any argument that the Diocese is
                  essentially at home in Nevada. See Daimler, 571 U.S at          , 134 S. Ct. at
                  761. Therefore, general jurisdiction does not apply to this case.
                              A court has specific jurisdiction over a defendant when the
                  defendant has certain minimum contacts with the forum state and an
                  exercise of jurisdiction would not offend traditional notions of fair play and
                  substantial justice. See Daimler, 571 U.S. at , 134 S. Ct. at 754. This
                  court follows a three-part test to determine whether a court may exercise
                  specific jurisdiction. First, the defendant must "purposefully avail[
                  himself of the privilege of serving the market in the forum or of enjoying
                  the protection of the laws of the forum," or the defendant must
                  "purposefully establish[ I contacts with the forum state and affirmatively
                  direct[ conduct toward the forum state." Arbella, 122 Nev. at 513, 134
                  P.3d at 712-13 (internal quotations omitted). Second, the cause of action
                  must arise "from that purposeful contact with the forum or conduct
                  targeting the forum." Id. at 513, 134 P.3d at 713 (internal quotations
                  omitted). Third, "a court must consider whether requiring the defendant
                  to appear in the action would be reasonable" or, in the United States

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                  Supreme Court's terminology, whether the exercise of jurisdiction
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                comports with fair play and substantial justice. Id. at 512-13, 134 P.3d at
                712-13.
                            Our inquiry is focused on the first part of the test: Did the
                Diocese purposefully avail itself of Nevada law or otherwise establish
                contacts with or direct conduct toward Nevada? We conclude that it did
                not.
                Purposeful availment
                            Purposeful availment occurs when one "purposefully directs
                her conduct towards Nevada." Dogra v. Liles, 129 Nev., Adv. Op. 100, 314
                P.3d 952, 955 (2013). "Thus, 'the mere unilateral activity of those who
                claim some relationship with a nonresident defendant cannot satisfy the
                requirement of contact with the forum State."     Id. (quoting World-Wide
                Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)). Furthermore,
                "Toreseeability' alone has never been a sufficient benchmark for personal
                jurisdiction under the Due Process Clause." World-Wide Volkswagen, 444
                U.S. at 295. "Rather, [the foreseeability relevant to due process] is that
                the defendant's conduct and connection with the forum State are such that
                he should reasonably anticipate being haled into court there." Id. at 297.
                            In a case factually similar to this one, the New Mexico Court
                of Appeals held that a Boise priest "select[ing] New Mexico from among
                several other possible diocesan destinations in which to seek
                employment. . . does not constitute a purposeful act by the Boise Diocese
                to avail itself of the benefits and protections of New Mexico law." Doe v.
                Roman Catholic Diocese of Boise, Inc., 918 P.2d 17, 23 (N.M. Ct. App.
                1996). The New Mexico court also noted that giving "permission to leave
                Idaho [does not] constitute activity whereby the Boise Diocese could
                reasonably anticipate being haled into court in New Mexico for any and all
                tortious acts alleged to have subsequently been committed by" the priest.
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                 Id. The court emphasized that it was "the acts of the Boise Diocese, not
                 the acts of [the priest], that must provide the basis for this state exercising
                 personal jurisdiction over the Boise Diocese." Id.
                             Other courts have also focused the inquiry on whether a
                 diocese purposefully placed a priest in another state or, conversely, the
                 priest was acting of his own accord. The Washington Court of Appeals
                 held that jurisdiction did exist where the diocese itself placed the priest in
                 Washington. Does 1-9 v. Compcare, Inc., 763 P.2d 1237, 1243 (Wash. Ct.
                 App. 1988). Conversely, in an unpublished case, a Delaware Superior
                 Court found no jurisdiction where the priest unilaterally traveled into
                 Delaware to molest children. Tell v. Roman Catholic Bishops of Diocese of
                 Allentown, 2010 WL 1691199, at *1546 (Del. Super. Ct. Apr. 26, 2010).
                             Likewise, our inquiry focuses on the Diocese's purposeful
                 conduct toward Nevada. Feeney's unilateral choice to seek employment
                 here is not relevant. The question is whether the Diocese established
                 minimum contacts with Nevada, either by direct contact with the state or
                 through Feeney as its agent.
                       The Diocese's contacts with Nevada
                             According to the district court's findings, the Diocese of Green
                 Bay had the following contacts with Nevada: (1) it gave Feeney a letter of
                 recommendation, (2) it spoke to the Bishop of Reno-Las Vegas about
                 Feeney, (3) it periodically monitored and had contact with Feeney, and (4)
                 it maintained some sort of employment or controlling relationship with
                 Feeney.
                             Contrary to the district court's findings, the Green Bay
                 Diocese's letter of recommendation is not evidence of purposeful availment
                 in Nevada. The letter was addressed to a Bishop in California regarding
                 Feeney's possible employment in California. It was merely Feeney's
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                 unilateral act of seeking employment in Nevada that resulted in the
                 letter's transmission to the Diocese of Reno-Las Vegas. Such unilateral
                 acts on the part of a third party cannot create jurisdiction over a
                 defendant. See Dogra, 129 Nev., Adv. Op. 100, 314 P.3d at 955. And,
                 along the same lines, the Green Bay Diocese's receipt of a phone call from
                 the Las Vegas Diocese, possibly regarding an employment
                 recommendation, is not purposeful availment of a foreign jurisdiction's
                 law.
                              Only the third and fourth facts, the alleged monitoring and
                 employment of Feeney, could have any bearing on personal jurisdiction.
                 The alleged monitoring appears to have been little more than the
                 occasional letter between Feeney and the Vicar General of the Diocese of
                 Green Bay—but receiving and sending letters is not purposeful availment.
                 The content of the letters, however, may indicate a relationship with
                 Feeney during his time in Las Vegas. This of course suggests the
                 following issue: Was Feeney an employee or agent of the Diocese of Green
                 Bay such that it, through Feeney, subjected itself to Nevada's jurisdiction?
                        Agency, control, and the doctrine of incardination
                              The district court found that Feeney was employed by both the
                 Diocese of Reno-Las Vegas and the Diocese of Green Bay. The district
                 court's analysis appears to center on three findings. First, it found that
                 the Diocese of Green Bay maintained Feeney's pension. Second, it found
                 that the Diocese monitored Feeney and could restrict his ministry. Third,
                 it found that Feeney had made a promise of obedience to the Diocese
                 through the Catholic doctrine of incardination.
                              "At common law, an employment relationship was defined by
                 agency principles. . .." Boucher v. Shaw, 124 Nev. 1164, 1167, 196 P.3d
                 959, 961 (2008). "An agency relationship results when one person
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                     possesses the contractual right to control another's manner of performing
                     the duties for which he or she was hired."           Hamm v. Arrowcreek
                     Homeowners' Ass'n, 124 Nev. 290, 299, 183 P.3d 895, 902 (2008). To
                     determine control in an employment relationship under Nevada labor
                     statutes, courts consider the following indicia: "whether the employer has
                     the right to direct the daily manner and means of a person's work,
                     whether the worker is required to follow the putative employer's
                     instructions, and whether the worker can refuse work offered without
                     ramification." State Dep't of Emp't, Training Sz Rehab., Emp't Sec. Div. v.
                     Reliable Health Care Servs. of S. Nev., Inc., 115 Nev. 253, 258, 983 P.2d
                     414, 417 (1999).
                                 The district court's finding that the Diocese of Green Bay
                     maintained Feeney's pension is not supported by the record. The record
                     shows that Feeney's pension was maintained by a separate group, the Leo
                     Benevolent Association. This association maintained contact with the
                     Reno-Las Vegas Diocese during Feeney's employment there.
                                 The district court also found that the Diocese of Green Bay
                     monitored Feeney and that the Diocese could restrict Feeney's ministry or
                     recall him to Green Bay. But there does not appear to be any evidence
                     that the Diocese of Green Bay assigned daily tasks to Feeney that he could
                     not refuse consistent with his employment.
                                 The court's remaining support for finding an employment or
                     agency relationship is the ecclesiastical doctrine of incardination. The
                     Diocese's canonical law expert gave uncontradicted testimony explaining
                     incardination as a kind of bond tying the priest to the diocese that ordains
                     him:



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                             Let's say for example, a priest with the Diocese of
                             Salt Lake City, who's incardinated there, chooses
                             to serve in the Diocese of Las Vegas. Well, he
                             remains incardinated in virtue of his ordination
                             the Diocese of Salt Lake City.


                                   So when a cleric, deacon, priest or bishop, is
                             incardinated in the diocese, it creates a bond with
                             that diocese where that is kind of home base for
                             that cleric. The diocese of incardination would
                             have, for example, obligations of support. The
                             diocese also makes a determination that there's a
                             pastoral need in this diocese for you to help out
                             with pastoral ministry. That's why we're
                             ordaining you to this diocese and that's why we're
                             going to create this tight relationship with the
                             diocese.
                The expert testified that incardination has no bearing on supervisory
                authority; the bishop in whose territory the priest is serving has
                supervisory authority. In other words, incardination alone is irrelevant to
                supervision and supervisory authority in the Catholic Church is tied to
                geographical location, with a bishop having complete authority to
                supervise priests ministering in his particular territory. Further, the
                Diocese's expert gave uncontradicted testimony that the Diocese did not
                have unrestricted authority, under Catholic doctrine, to recall Feeney or
                restrict his ministry.
                             We conclude that the ecclesiastical system of incardination
                does not conclusively establish employment or agency. The doctrine of
                incardination did not give the Diocese of Green Bay control or supervision
                over Feeney's day-to-day work in the Diocese of Reno-Las Vegas. In light




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                of the uncontradicted deposition and expert testimony, the district court's
                finding that Feeney could be recalled to Green Bay at any time was clearly
                erroneous. The district court made no other finding, and Doe does not
                point to any evidence showing, that the Diocese of Green Bay controlled
                Feeney's ministry in Las Vegas. Accordingly, the district court erred in
                holding that the Diocese of Green Bay controlled Feeney as an employee or
                agent in Nevada.
                             The doctrine of incardination may have some significance
                for courts. Certainly courts must sometimes consider a religious
                organization's ecclesiastical structure when making decisions regarding
                the organization.    See Serbian E. Orthodox Diocese for U.S. of Am. &
                Canada v. Milivojevich, 426 U.S. 696, 709 (1976). We cannot opine on
                ecclesiastical matters; on those we must defer to the religious entity.       Id.
                But whether the religious entity's corporate structure creates an
                employment relationship is a question of civil law that we may determine
                without opining on ecclesiastical matters.       CI Ira C. Lupu & Robert W.
                Tuttle, Secular Government, Religious People             60 (Eerdmans 2014)
                ("If. . . the subject of a dispute falls outside" of ecclesiastical matters, "the
                court should. . . hear the case. Many aspects of the relationship between
                clergy and religious employers do not implicate ecclesiastical matters.").
                Here, the legal standards of employment such as control and direction, see
                Reliable Health Care Servs., 115 Nev. at 258, 983 P.2d at 417, control our
                analysis, not the ecclesiastical doctrine of incardinationi-


                      'Belatedly, the United States Supreme Court recently held that
                churches have absolute autonomy to determine who will serve as •their
                ministers. Hosanna-Tabor Evangelical Lutheran Church & Sch. v.
                E.E.O.C., 565 U.S. „ 132 S. Ct. 694, 706 (2012) ("According the
                state the power to determine which individuals will minister to the
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                                                   CONCLUSION
                              The Diocese of Green Bay did not have sufficient contacts with
                 Nevada to show that it purposefully availed itself of the state's laws and
                 protections. Feeney was not the Diocese's agent during his ministry in
                 Las Vegas. His promise of obedience to the Diocese of Green Bay, through
                 the ecclesiastical doctrine of incardination, is not sufficient to establish an
                 agency or employment relationship. Therefore, we conclude that the
                 district court did not have personal jurisdiction over the Diocese. We
                 reverse the district court's decision.


                                                                                        J.
                                                          Cherry
                 We concur:


                                             , C.J.
                 Hardesty                                          Parraguirre


                                              J.
                 Do '



                 Gibbons



                 . . . continued

                 faithful also violates the Establishment Clause, which prohibits
                 government involvement in such ecclesiastical decisions."). Although we
                 do not opine on the issue today, courts must be aware of the First
                 Amendment issues that may be raised by these kinds of negligence
                 actions.

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