next case is elliot versus archdiocese of new york at all mr newburg break with my normal tradition and interrupt right at the outset and i apologize for that but there are i would really appreciate it speaking only for myself if you would explain why we have jurisdiction over this case under fifty four b if you wouldn't mind focusing on ask both sides to focus on that before you get into the merits and refer specifically to the language of what fifty four b requires and tell us how we have jurisdiction if you just  right right your honor and i believe the issue about i believe the carter case addresses this issue about the situation where a district court does not lay out all does not lay out things to the extent that is otherwise required by rule fifty four b it doesn't give the specificity and i believe the carter case explains that the failure by all of a district court to do so is not a jurisdictional defect that's the failure to give the reasoning right but this court never expressed the term and that there was no just reason for delay when this case came in and i discussed it with my  district court i know but after we read the briefs i thought well i don't think it's going to be a real fifty four of the issues because when the hall when the clerk raise the question somebody's got to run back to history judge and that is the state of the record as i stand here before this court or i think in carter does help you a little bit but judge greenberg points out how it doesn't help you what about berkeley and berkeley berkeley berkeley presents a problem doesn't it i'm sorry you which was which which case was berkeley to appears that the the issue that we reserved in berkeley is now presented here because the stipulation in order refers to fifty four b but it doesn't comprise contain the express determination it does not your honor and i believe that the only way around that is to look at the order in the context of the order that it amended which was the original which the original order certified that under rule under twelve ninety two under twelve n use another a lot of the because nobody took advantage of that and came here within ten days and you're out of the rationale for that was originally that the archdiocese had filed a motion with the district court at the time when only the archdiocese was out of the case it was a final judgment because the individual defend that remained on the merits defendants were made the archdiocese filed a motion i was preparing my opposition to that notion when the district court issued its decision dealing with the merest snowshoeing for judgment on the pleading ok now once that issue was decided personal jurisdiction was completely out of the case had to completely that with as had a conflict of laws at that point your honor i was approached by heated by the defense and asked to do you still would would you still oppose  i have no problem getting the issue up here sooner if you excuse me i have no issue getting the personal jurisdiction and the conflict of laws issue up here sooner rather than later because based upon the each other trials we have done before the state of delaware courts dealing with childhood sexual abuse there is going to be overlap because one of the required subsidiary findings that must be made in the trial against an institution is whether the abuse by the individual perpetrator actually occurred and there's various subsidiary findings whether that abuse was a crime at the time and things of that nature there would be overlap both on that liability aspect and on the damages aspect with that understanding with that with that background i believe that would have been more efficient and also we judge robinson agreed we had had a telephone conference with with said robinson about him a couple weeks or about a month before her certification order was entered i believe judge robinson was aware of that however your honor as i indicated my papers i believe that a lot of this also has to be viewed through the judicial emergency plans which was going on in the district of delaware for most of the last five or six years it's now been resolved but there is but there is still that backlog we've had a couple of issues before the district court in that time which is come up here on some unique procedural postures a couple times ago when i was up here your honor the district court had not allowed me to brief summary judgment but had a rule for me anyway it violates the rules and everything like that but  the district court judges have had to do what they've had to do to keep the to keep the cases moving to keep justice flowing in the district all of that seems to be an apple logia for the error but ratifying that error nonetheless it was might have concluded that some jurisdictional discovery should have been taken or what if the panel might have concluded that you know new york law applies and mean would it be helpful for  those are or not in law if we don't have jurisdiction dr i think what what ultimately happens is we probably go back and we seek we seek the proper we try to make sure the proper procedure is followed before the district court whether we end up back up here again in short order that is certainly possible another possibility of the you all want to be here that's sort of the frustrating thing to me is in and i understand why doesn't serve much purpose to try the case twice well the other option your honor  and i'm speculating a little bit now at the time this case was the most advanced of all of what i'm going to call the foreign diocese cases filed under the delaware child victims act several cases before the delo are superior court system where individual defendants have been this where individual defendants remain but the institutional defendants have been dismissed on personal jurisdiction grounds or on hold because most of the state court judges who've ruled on the issue on mayo what may ultimately end up happening your honor is one of those other cases may now be more advanced and we may just take one of those cases up to the delaware supreme court because it has now advanced to the point where and where if we can convince so this might be held in abeyance whil delaware continues to sort out what the city at you means and what the choice of law it may your honor is i believe the catch though was because so many i think one of the reasons that my office agreed that it made sense to get this case before this court sooner rather than later was that judge robinson's first opinion in this case was the foundation for most of the subsequent opinions by the delaware superior court and i think ultimately the issue on jurisdictional discovery and i didn't didn't i do not mean to move off of the rule for the few for the issue but i think they knew brother galligan was abusing other boys they knew about the trips to delaware and they authorized the trips to delaware that's all in the complaint i believe that more than meets the test for jurisdictional discovery because ultimately all that goes into a ra argument and if uses ratified it's brought within the scope of a priest job duties and then the into that the institutional defendants are on the hook under agency jurisdiction under the delaware long arm statute subsections i believe it's three in one this is and your honor and and i don't have a i don't have a nother response to that other than what i have already said i think what happened before the district court was a recognition of the emergency straits that the district was in but if the supreme court says otherwise of this court says it says otherwise we're just going to go back your honor and all right let's assume for a minute we have jurisdiction ok is that the hear what you think about the conflict of laws and i think that's the central issue in this appeal your honor because ultimately it does not alter my personal jurisdiction does not apply to the merits exceeding the personal jurisdiction part of the appeal does not affect the merits defendants but the conflict of laws issue affects everyone now at  think this appeals about conflict of laws in the state of delaware sovern ability to enact the strongest law in the nation in order to respond to a widespread problem which is not respects eight years now under subsection b of the delaware child victims act of two thousand and seven institutions are liable to victims who were sexually abused in the state of delaware under the plaintext of subsection b if a child is abused in delaware the c v a applies the institution which employed were controlled the abuse or that's the plain text that's just what the statute says as a result on this conflict issue it's not if this is not an issue of first impression for this court to decide president judge of all of the delaware superior court addressed this in the deluca eight cases and resolve the issue of conflict of laws was extensively brief i believe i put all that can textual evidence into the record and in here as i read what he said he said if there's one active delaware and elsewhere you can sue for all fifty one as i believe that is exactly what he said doesn't shed any light on what state law applies i think it does your honor because the politicos under the text of subsection b of the child victims act that's talking out the statute it does so it doesn't it all they had to say was they could have put one simple sentence that said in delaware law applies to any claims under the c v a didn't the legislature didn't say that but by bringing it back to life via the c saying that the delaware statute of limitations applies correct so that means those fifty one acts are not time board correct but it doesn't shed any light on what substantive law your honor i think that i think the distinction is one which we were fighting about before just robinson a little bit of briefing when the archdiocese first raised the issue judge judge vaughn went to step farther and under the facts of the dual gay cases you can see why in the dingell case which i think is the closest analogy of the of the michael dingle was a new york resident never taken to delaware and my office argued that delaware lost so if we didn't apply to his claims for various reasons but that was our argument judge vaughn essentially i lost the do ok are the i lost that summary judgment the deal with the cases on this issue judge one said however if that one act if you've been taken across state lines and into delaware just one time the c v a would it would apply in delaware law would apply as one looks at the appendix and sees what was briefed argued and and the questions that were asked by judge of all of that were argument in that case that you know that three four hour argument we had that day that was the conflicts of law issue because conflict of laws was had been specifically addressed in the briefing explicitly in the dingell case implicitly and not in as much detail in the other and the other six of you to look at cases which dealt with interstate child sex abuse so i believe it does apply or claim is revived your honor i believe under the c v a the law i think clearly honest face would apply to the acts of abuse occurring in delaware under subsection b which is also the institutional liability provision delaware law applies i think the larger issue which i had expected we would be fighting about a bit on appeal and we haven't thought about it in the briefing was that we're judged on what that step farther and said that not only does delaware law apply to the acts which occurred in state under the tax on of the pla legislative history and the can textual evidence and when one looks at the legislative history in the can textual evidence you see the problem that the dollar general simply was trying to address they wanted to be the toughest state in the nation to be a trendsetter to set the bar high for its vote for our for fellow sister states and the reason for that is your honor because if one in five children in america or in delaware or in any sit was suffering from a disease a disease which had long lasting consequences for the rest of that child's life through adulthood until the point that they die there would be panic in the streets and schools would be closed but one in five children one one in six boys one in four girls get sexually abused as children during their lives and the state of the law across the nation for the most part is how it has been that on the civil side no one cared no one cares the state legislature's having cared what delaware looked at that there was a groundswell there was a huge groundswell of community support the media got on board in eventually i don't think you need to convince us of the importance of the issue and i mean we don't see unanimous legislation that often so i mean clearly it's important and it was unanimous but but i believe that colors what judge vaughn was doing ok  when he went beat when he went that extra step our position on an on appeal in the conflicts of all issue is if you read subsection day the child and this is conceded that the c v a the child victims act is not your typical statute of limitations but usually says two years if you look at the california one from ten years ago it wasn't as long as this one either i don't believe the delaware legislature they chose their words carefully i believe based upon the plain text of the c d a subsection be specifically which also applies which is the institutional provision under subsection b if the acts that occurred in delaware get delaware law i believe that's the only if i believe that's a fair reading but not only does it have to be a fair reading the delaware supreme court in the she had appeal the schools are going on on their behalf we presented by ms o'connell we've divided the argument not just time wise but issue wise which given the attention paid to the personal jurisdiction issue may seem perfectly it's now but i am going to address the personal standing before tribunals because the parties all having agreed and we believe the district court having agreed that under will fifty four b there was no just reason for delay given what was going to have unfold in the wake of  then only reaching the appeal of determine whether the archdiocese and these other not institutional nonresident defendants are appropriate parties would be struck struck all the parties as being extreme and the court i would say as being very inefficient and therefore there was no just reason for delay whether the statement only in paragraph five of the stipulated order is suffices to be expressed the terminations under rule fifty four b i would say it's our position that it it's only two sentences so i'll read it to the court the court and all parties agreed that it would be most efficient to hold a single trial after the resolution of the appeals which plaintiff's counsel indicated the plaintiff would be pursuing which is to say this appeal yes we could have done that and i can only say that that the parties all be in agreement on what the order provided and what we all thought we did not not even discuss it much less conclude that it was unnecessary i'm sorry i'm particularly sure grin because the last time i was here also as absolutely also on appeal from a summary judgment which i won i won here on the ground that there was no final order in the district court so the appeal was dismissed so this is  was one of the first cases decided on this issue regarding nonresident defendants about ten percent of the cases father of the child victims act were nonresident planet suing nonresident defendants in delaware on the same theory than an occasional trip to delaware abuse occurred there and therefore that great personal jurisdiction over those nonresident defendants now miss a mother cause an address choice of law but i do strongly urge the court that  ruling in both state and federal courts on the precise jurisdictional personal jurisdictional issue before this court has held that there is no personal jurisdiction over nonresident eisen defendants in clerical sex abuse cases the but but isn't it typical for jurisdictional discovery in these types of cases i mean the complaint alleges that your clients were aware of the abuse either had actual and or constructive knowledge of the abuse and they authorized the trips to delaware so the complaint does not allege that the defendants authorized the trips of delaware the complaint alleges that the trips to or through delaware were part of the job duties of brother galligan and that the defendants were aware that the that galligan was abusing the plaintiff you look in vain in the complaint for specific allegations of the archdiocese of new york or the church or even the marriage for that matter  let me put it in more blunt terms if they know that he's a pedophile and he's in their employ and they continue to allow him to travel with youth across state lines i mean why under traditional agency  principles wouldn't they be amenable to jurisdiction whenever the specific acts of abuse occur under even at let's assume there's no systematic and continuous ties that would make you amenable to general jurisdiction why wouldn't there be specific jurisdiction under an agency for first of all the abuse of a child by in this case not a priest but i religious brother cannot have been within the scope of any agency or employment of him by the defendants the complaint alleges that it alleges no facts by the way to support employment of the gallatin by was my client but the law is clear numerous decisions under delaware law but also decision including by the if circuit and the fifth circuit that elaborate affidavits detailing in great great specificity what knowledge the archdiocese had with respect to this priest and its activities including such things as him having to check in when he was in delaware  and settled after that there's no ruling on the merits of personal jurisdiction that right but substantively you have the affidavits there available which obviously there was no opportunity here but i guess my point is this thompson the assertion was or the allegation was that the archdiocese knew that's the allegation here what's the substantive difference between thompson and this case because other facts before the court in thomson were for example the allegation that the archdiocese had an ownership interest in the mobile home in delaware where the abuse allegedly occurred on the car that was used by the priest take the child and in addition specific facts relating to that knowledge permission to travel out of state when they say in the pleading in a complaint that it was authorized well you know what i would suggest why not get discovery about what what does that mean did he have to get written permission did he have to call his superior to you know what does authorize mean who gave him the authority to leave new york and go to delaware especially with a minor child right again i would suggest that that allegation authorized even if that is the allegation that he was authorized to take this trip is not a sufficient jurisdictional discovery where the other the allegations in this complaint regarding agency and conspiracy as arkham are devoid of any facts to support a specific jurisdiction under the delaware long arm statute that  would be a you know it would be discovery in search of a theory for personal jurisdiction as opposed to as an as in the case of before this court previously on person jurisdiction discovery exploring factual disputes  pursuing specific facts identified and now an affidavit for documents to submit to the court i don't understand you make it sound as if it would be onerous i mean it sounds like you'd be like one witness did you want to arises i know nothing about it or did you  we're talking about very very focused i was just it would be a fishing expedition expedition the affidavit submitted to the court in this case not the deposition of about six people including the archbishop of new york the provincial of the marriage to order the court could have married of course cost free exercise to pursue discovery the end at the end of which there can be no personal jurisdiction in we would say messy and why why then there would be if you're right at the end how do we know there can't be at the end because you're suggesting there are case it's a specific it's a face all you've got is the one if they authorized ratified it cetera this one trip that resulted in this one exercise abuse that specific jurisdiction under traditional agency theory i have to allegation here even of such an act by the new nonresident new york defendants in delaware i would say that as i'm staring at the red light that the appellant here both conflates the standard review during which they should have known he would have used the plaintiff that may allege reckless or negligent conduct actionable a new york law in new york it does not however speak to whether dell or courts have personal jurisdiction over those defendants and again both state and federal courts reviewing not just this theory but the identical allegations the state court cases we cited to the court and the identical conspiracy and agency allegations in them that the same planes counsels the same complaint and have been rejected judge one's bench ruling of october fifth two thousand and nine has no bearing on this conflict of law's analysis that's before us today the remaining cases before the judge that day beyond dingle dealt with delaware defendants delaware plaintiffs and some instances of abuse that took place in delaware and without delaware or they had no instances of abuse in delaware the dingell case itself however involved the new york plaintiff a new york perpetrator three delaware defendants and all allegations of abuse took place in new york not delaware ultimately mr dingell's claims were rendered invalid as my adversary indicated because however he could not claim that a crime had been committed against him in delaware that would be recognized by the delaware code thus allowing him access into delaware under the c v a what john judge barnes ruling did was to require that a putative plaintiff had to show that a crime was committed against him in delaware in order to get the door open to him under the c v a but here we have doors open in this case no your honor the door is not open then this case  could come in under the c v a according to judge one's ruling because the threshold showing of criminal conduct had been there however the court still has to engage in the traditional conflict of law's analysis what judge wants ruling  was open the door to the putative plaintiff because he alleges a criminal act in delaware however a conflict of laws analysis must still be undertaken by the court because the c v a did nothing to eviscerate a traditional conflict legislation my understanding of the the cause of the term while and how bob surrounding the passage of the c v a is that the victims wanted to have justice against their abusers in court they wanted to be able to confront their abusers and seek the justice that had eluded them for so long here plaintiff below in the appellant can certainly have that day in court with the defendant gal perhaps but let's hope that justice is the real is the real goal here well that's is that i would define justice in the civil system is through the payment of them money then i would imagine that's true however understand your honor this this questioning about justice means me to another point that i'd like to make here that the district court below judge robinson rendered her well reason opinion in this case in the midst of all of this need attention to the issues and it was an emotionally charged time and judge robinson clearly concisely and rationally addressed all of the questions some of which you you are asking of me as well and it is our position and we would ask this court to a farm a well reasoned opinions because because obviously there were reasons but also because the plaintiff is not l delaware child victims act before the legislature because it would be devastating to institutions so just on the issue of that the c v a was only begs the question as to what the legislation says it does and so under subsection be it thousand and seven victims of child sexual abuse that occurred in this state who have been barred from filing suit against their abusers by virtue of the expiration of the former of the former civil statute of limitations shall be permitted to file those claims in the superior court of the state if the person committing the act of sexual abuse against a minor was employed by an institution agency firm business corporation or other public or private legal entity that owed a duty of care to the victim or the accused and the minor were engaged in some activity over which the legal entity had some degree of responsibility or control damages against the legal entity shall awarded under this subsection only if there is a finding of gross negligence on the part of the legal entity this is the institutional provision this this provision was fought over for a long time in the legislature supreme court says that the c v a applies to applies to instant excuse and that it applies to institutions which employed or controlled abusers so it's not limited to the employment relationship and i would readily agree the prior to the delaware supreme court's decision and she had some delaware state court judges in the superior court judge shot specifically who the she had a case had been in front of had interpreted the c v a as being employments only we had argued control at the she had trial the judge ruled against us the fact that the delaware supreme court said employed or controlled was consistent with our argument in that appeal that the c v a subsection be accomplished more than just the employer employee relationship on that same issue your honor the reason that defer to judge one's decision but i would like to just end on the personal i'm sorry on the appellate jurisdiction issue i would like to make an oral motion to remand to remand this not of today to to the to to the district court with this court retaining jurisdiction as have seen happen in previous cases under some different facts of course with the district court to rule on the issue within sixty days and then the issue of can be under submission to this court again with no further briefing unless i would briefing given that we've briefed the substantive issues and the issue which the court has flagged as significant as the red flag issue today is the issue of is the issue of appellate jurisdiction unless the court has a question for me i can and also your motion will be as part of the record will take that under advisement as well