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Kevin B. Mccarthy, et al v. Patricia Ann Fuller

April 10, 2013


Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:08-cv-00994-WTL-DML--William T. Lawrence, Judge.

The opinion of the court was delivered by: Posner, Circuit Judge.


Before POSNER, WILLIAMS, and SYKES, Circuit Judges.

These three interlocutory appeals arise from a complicated and acrimonious litigation, charging RICO, trademark, and copyright violations along with Indiana torts, that has been percolating in the district court for almost five years. The origins of the litigation go back to 1956, when Sister Mary Ephrem (born Mildred Neuzil), a Catholic Sister of the Congrega- tion of the Sisters of the Most Precious Blood of Jesus (often referred to just as the Congregation of the Sisters of the Precious Blood), had experienced a series of ap- paritions of the Virgin Mary, in the course of which Mary had told Sister Ephrem (according to the latter's report): "I am Our Lady of America." The Archbishop of Cincinnati (the chapel in which Sister Ephrem experi- enced the apparitions is, though located in Indiana, under his authority) was convinced of the truth of her report of the apparitions, and with his support an elaborate program of devotions to Our Lady of America was launched. Our Lady has been credited with healing sick people who appealed to her for a cure, although whether either the apparitions or the cures are authentic has not been ruled on by the Congregation for the Doctrine of the Faith, the body within the Roman Catholic hierarchy that is responsible for making such determinations.

Perhaps inspired by her visions, Sister Ephrem joined with other sisters within the Congregation of the Sisters of the Precious Blood in seeking to form a "contemplative cloister"--a "strictly cloistered house for members of the [Congregation] who were principally dedicated to a contemplative life." In 1965 Pope Paul VI approved the creation of the cloister, in New Riegel, Ohio, designating it a "papal enclosure." (We discuss the possible relevance of the designation later.) The New Riegel cloister lasted until at least 1977, when its three surviving members, including Sister Ephrem and Sister Mary Joseph Therese, left the Congregation of the Sisters of the Precious Blood and formed a new congregation that they called the Contemplative Sisters of the Indwelling Trinity, dedicated to promoting devotions to Our Lady of America.

We should pause to explain that although the parties and the district judge refer to Sister Ephrem and Sister Therese as "nuns," this probably is incorrect. Nuns take what are called solemn vows and live cloistered in con- vents. Sisters (the full designation is "religious sisters") take what are called simple vows--and those were the vows that both Ephrem and Therese had taken--and can engage in religious and related work outside of convents, although, as we said, both sisters chose like nuns to live the cloistered, convent life. In any event, like nuns and priests, religious sisters are members of religious orders. The amicus curiae brief submitted by the Holy See at our request states that "for the purposes of this brief, the Holy See will not accord significance to any distinction between the terms 'nun' and 'sister.'"

The Contemplative Sisters of the Indwelling Trinity, the congregation founded by Sisters Ephrem and Therese, operates out of Fostoria, Ohio. Sister Ephrem directed it until her death in 2000. She also founded in Fostoria, and directed until her death, an organization that she called Our Lady of America Center. She registered the name with the state of Ohio as a trade name. Sister Therese (referred to in the complaint by her birth name of Patricia Fuller) succeeded to Sister Ephrem's direction of the two organizations upon the latter's death.

Sister Ephrem willed all her property to Sister Therese. Most of the property--maybe all of it--was related to the devotions to Our Lady of America and had been bought with money donated to the Contemplative Sisters or to the Center. The property included documents, such as Sister Ephrem's diary (which Fuller claims Sister

Ephrem had copyrighted, along with a song, a painting, and sculpture, all relating to Our Lady of America), and artifacts that included medallions, plaques, and a statue of Our Lady of America. Sister Therese trade- marked a number of the artifacts upon assuming direc- tion of the Contemplative Sisters and the Center.

In 2005 Kevin McCarthy, a lawyer and Catholic layman, and Albert H. Langsenkamp, who claims (whether truthfully or not is in dispute) to be a Papal Knight of the Holy Sepulcher, approached Fuller and offered to help her with the devotions to Our Lady of America. She accepted their offer and the three worked together until 2007, when they had a falling out that erupted the following year into this bitter lawsuit. Langsenkamp established the Langsenkamp Family Apostolate in Rome City, Indiana, the site of the chapel in which the Virgin Mary is alleged to have appeared to Sister Ephrem. Vigorously seconded and assisted by McCarthy, Langsenkamp claims to be the authentic promoter of devotions to Our Lady of America and to be entitled to possession of the documents and artifacts.

McCarthy and Langsenkamp brought this suit against Fuller charging all manner of tortious conduct, including conversion (theft) of both physical and intellectual prop- erty, fraud, and defamation. Fuller counterclaimed vigor- ously, accusing them of the same things, including theft of the statue of Our Lady of America and of the website of Our Lady of America Center, and of defaming her by calling her a "fake nun." She joined Langsenkamp's Apostolate as an additional counterclaim defendant, though this was really a third-party claim since the Apostolate was not a party to the litigation until Fuller named it as a defendant in her counterclaims. There are other parties to both the complaint and the counter- claims, but they are peripheral and we can ignore them. To simplify, we'll generally refer to just McCarthy as the plaintiff and Fuller as the defendant-counter- claimant. Both seek damages and equitable relief.

McCarthy argues that not only did he and Langsen- kamp not steal property of Fuller, but that the property in dispute belongs to the Congregation of the Sisters of the Precious Blood of Jesus because, among other things, having taken a vow of poverty Sister Ephrem did not own and so could not bequeath to Fuller any of the property in question. McCarthy has no authority to litigate on behalf of the Congregation, but he can argue that Fuller's charge that he stole from her fails because she was the thief.

He contests the claim of defamation by denying (among other things) that he lied in saying Fuller is not a nun. Whether or not that's accurate (given the uncer- tainty that we noted concerning the precise meaning of "nun" in the Catholic religion), calling her a "fake nun" could readily be understood to deny that she had any religious vocation whatsoever--and in fact McCarthy does deny this, and obtained from the Apostolic Nunciature of the Holy See a statement that Fuller is no longer either a nun or a religious sister. Located in the Vatican, the Holy See is the central governing body of the Roman Catholic Church, and the Apostolic Nunciature is the Holy See's diplomatic mission to the United States.

McCarthy asked the district judge to take judicial notice of (and thus defer to) the Apostolic Nunciature's statement of the Holy See's ruling on Fuller's status in the Church. McCarthy's ground was that the court, being a secular body, could not re-examine the Holy See's ruling but must accept it as authoritative. The judge ...

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