Linda E. DAUSCH, Plaintiff-Appellant, v. Reverend Greg RYKSE, Knox Presbyterian Church, Chicago Presbytery, also known as Presbytery of Chicago, et al., Defendants-Appellees, 52 F.3d 1425

PER CURIAM. Linda E. Dausch, a member of the congregation of the Knox Presbyterian Church (“Knox Church”), sought counseling from her church’s pastor, Reverend Greg Rykse. She alleged in her complaint that it was one of the duties of Rykse and of the Knox Church and the Chicago Presbytery (“the church defendants”) to provide psychological counseling to members of the congregation. However, according to Mrs.

Dausch’s complaint, Rykse “engaged in dangerous and improper counseling relations with plaintiff,” which included “engaging in sexual contact during the course of psychotherapy with the plaintiff, an emotionally dependent patient.” The ease before us, brought under diversity jurisdiction and controlled by Illinois law, is an appeal from the dismissal of Mrs. Dausch’s first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

Against the individual defendant Rykse, the complaint sets forth claims for professional negligence (Count I), breach of fiduciary duty (Count III), negligent infliction of emotional distress (Count V), and violation of the Sexual Exploitation of Psychotherapy Act, 740 ILCS 140/1 et seq. (Count IX). Knox Church and Chicago Presbytery were also charged with professional negligence (Count II), breach of fiduciary duty (Count VI), and negligent infliction of emotional distress (Count VIII). 1. Because our review of this ease is limited to the sufficiency of Mrs.

Dausch’s complaint, we must accept all well-pled facts as true and must draw all reasonable inferences in favor of the appellant Mrs. Dausch. Dowlatshahi v. Motorola, Inc., 970 F.2d 289, 290 (7th. Cir.1992). Applying this standard, the complaint presented these facts: During the period between January 1988 and June 1990, Rykse held himself out, and was held out by the church defendants, to be a duly qualified person engaged in providing psychological counseling to members of his congregation. Complaint ¶ 12, R.33 at 5.

Such counseling was “in furtherance of the business and purpose” of the church defendants, and was within the scope of his employment. Id. Linda Dausch sought psychological counseling from Rykse between January 1988 and June 1990 in order to assist her in coping with certain emotional conditions she was experiencing, particularly depression. ¶¶ 14-15, R.33 at 5-6. Rev. Rykse accepted her for professional psychological treatment. ¶ 16, R.33 at 6.

Operating within the framework of this counseling relationship, Rykse “compelled, encouraged, .fostered and engaged in dangerous and improper counseling relations with plaintiff.” ¶ 17, R.33 at 6-7. The relations included sexual contact during the course of the psychotherapy. ¶51, R.33 at 19. The church defendants knew or should have known of these improper counseling relations. ¶ 18, R.33 at 7. 2. On February 9, 1993, the district court granted the defendants’ motion to dismiss the complaint for failure to state a claim upon which relief can be granted. See Fed. R.Civ.P. 12(b)(6). Mem.Op. at 17.

The court turned first to Mrs. Dausch’s allegations of professional negligence against the church defendants. In the court’s view, these allegations were most accurately characterized as a claim for clergy malpractice. The court held that such a cause of action was not recognized in Illinois and therefore could not be the basis for holding the church defendants vicariously liable.

It also determined, in the alternative, that, even if such a cause of action existed, the church defendants could not be held vicariously liable for actions done by Rykse solely for his own benefit and not as part of his ministerial duties. Nor, according to the district court, could the church defendants be held liable for failing to exercise reasonable care over Rykse when acting outside the scope of his employment because there was no allegation that the church defendants knew or should have known of Rykse’s improper relations or of the need to exercise control over him.

Under such circumstances, the fact that Rykse was the church defendants’ employee was not a sufficient basis for vicarious liability. The district court next addressed the professional negligence allegation against Rykse. The court reiterated that Illinois does not recognize a cause of action for clergy malpractice. It noted that courts that have considered but rejected such a claim have recognized the free exercise implications of any such recognition.

The district court also recognized, however, that such free exercise considerations would not be relevant if Rykse’s conduct was not part of the belief and practices of his church. Repeating its earlier view with respect to the church defendants, the district court concluded that Mrs. Dausch had failed to allege adequately that Rykse’s psychological counseling was not part of the church’s religious beliefs and practices. As a result, concluded the court, the free exercise clause of the First Amendment was’implicated and Mrs. Dausch failed to state a valid claim.

The district court next turned to the allegations that the defendants had breached a fiduciary duty to Mrs. Dausch. At the outset, the district court concluded that, even though the church defendants might be characterized as her “spiritual and religious ad-visors,” Mem.Op. at 14, that relationship was not, under the law of Illinois, that of a fiduciary. With respect to Rykse, the court concluded that he did not have a fiduciary duty, but rather a general duty to refrain from violating the law.

More fundamentally, the court determined that the allegation of a fiduciary duty was simply an elliptical way to state a clergy malpractice claim, a cause of action that it had already held to be not recognized in Illinois. The district court dismissed, on the same rationale, Mrs. Dausch’s allegations of negligent infliction of emotional distress. Because Illinois does not recognize clergy malpractice claims, it would also not recognize claims for negligent infliction of emotional distress in these circumstances. Finally, the court dismissed Mrs.

Dausch’s counts concerning the church defendants’ negligent hiring, training, and supervision of Rykse because adjudication of such claims would foster excessive state entanglement with religion. For the reasons that follow, we affirm the district court’s dismissal of counts against the church defendants, Counts II, VI, and VIII. Concerning the counts against Rykse, we affirm the district court’s dismissal of Count III, breach of fiduciary duty.

We also affirm the .dismissal of Count V, alleging negligent infliction of emotional distress against Rykse; because there was no assignment of error, this count is not properly before the court. We reverse the dismissal of the remaining counts, Counts I and IX, and remand for further proceedings consistent with this opinion. AFFIRMED IN PART AND REVERSED AND REMANDED in Part . The initial jurisdictional statement indicated that the requirement of complete diversity of citizenship may be lacking. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). However, pursuant to the order of this court, Mrs.

Dausch filed an affidavit showing that complete diversity of citizenship exists. At the time the complaint was filed, Mrs. Dausch was a citizen of Pennsylvania; Rev. Ryske was a citizen of Illinois; the Knox Presbyterian Church and the Chicago Presbytery were citizens of Illinois with their principal places of business in Illinois. The Presbyterian Church (U.S.A.) is no longer a party to this action. On motion of the appellant Linda Dausch, the Presbyterian Church (U.S.A.) was dismissed from this appeal without prejudice by order of this court on August 13, 1993.

Both complaints allege that the amount in controversy exceeds $50,000. . Mrs. Dausch’s first amended complaint, filed August 6, 1992, is misnumbered and therefore does not include Counts IV or VII. All references to the "complaint” before this court are to this first amended version found at R.33. . In her memorandum in response to the motions to dismiss, Mrs. Dausch explained further the basis for the complaint. The district court referred to this document extensively in its memorandum order.

As we have noted in the text, in determining whether a complaint ought to be dismissed, the district court considers the allegations that are contained in it and all reasonable inferences drawn from it in favor of the nonmov-ant. The facts asserted in the memorandum in opposition to the motion to dismiss, but not contained in the complaint, are relevant to the extent that they “could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Hrubec v. National R.R. Passenger Corp., 981 F.2d 962, 964 (7th Cir.1992).

Because a plaintiff may point to "facts consistent with the existing language of the complaint to establish entitlement to prevail,” American Inter-Fidelity Exch. v. American Re-Insurance Co., 17 F.3d 1018, 1022 (7th Cir.1994), we set forth, for the sake of completeness, the factual allegations made in the memorandum in opposition. According to the memorandum, a coordinator at Knox Presbyterian Church called Mrs. Dausch to inquire why she was not attending church, and recommended that she seek counseling from Rev. Greg Rykse, one of the pastors at the church.

According to the complaint, Rykse contacted her soon thereafter and offered his services as a psychological counselor. Dausch stated that Rykse told her that she needed secular psychological, not religious, counseling, and that he was qualified to provide it. According to Dausch, Rykse stated that such treatment was included in his job description at Knox Presbyterian Church. Dausch attended counseling sessions with Rykse at his office in the church from January 1988 until May 1990. Over time Rykse increased the frequency and length of the sessions. Mrs.

Dausch claimed that he told her that "religion does not apply here. Your problems are so deep you need more psychological treatment from me.” She stated that she became very involved in the therapy and attached to Rykse. Rykse allegedly represented to her that he was a capable, trained professional on whom she could rely to assist her with her personal problems. However, on June 14, 1988, Rykse allegedly gave Mrs. Dausch an ultimatum: "I have been giving to you, and I need something back for my services. You must give back to me or I will not work with you anymore.” From that date through May 1990 Mrs.

Dausch’s therapy sessions began with sexual relations with Rykse.