Kimberly Grippa v. Ronald Rubin

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11714

____________________

KIMBERLY GRIPPA,

Plaintiff-Appellee,

versus

RONALD RUBIN,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 4:20-cv-00457-MW-MAF

____________________

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2 Opinion of the Court 23-11714

Before BRASHER, ED CARNES, and WILSON, Circuit Judges.

BRASHER, Circuit Judge:

This case raises questions of first impression about the ap-

pealability of an interlocutory order denying Florida’s absolute and

qualified litigation privileges in a defamation action. Ronald Rubin

filed a lawsuit that named Kimberly Grippa as a member of a crim-

inal enterprise. His lawyer mailed allegedly defamatory letters to

state officials, asking them to investigate this alleged criminal en-

terprise and including copies of the complaint.

Grippa sued Rubin for defaming her through these letters,

and Rubin moved for summary judgment. He argued that the let-

ters were protected by Florida’s absolute litigation privilege. In the

alternative, he argued that, even if the letters were not protected

by the absolute privilege, they were protected by Florida’s qualified

litigation privilege. He also claimed that he could not be held vicar-

iously liable for his lawyer’s letters.

The district court denied Rubin’s motion for summary judg-

ment on each ground, and he immediately appealed. We hold that

the denial of Florida’s absolute litigation privilege is immediately

appealable under the collateral order doctrine, but we lack jurisdic-

tion to consider the denial of the qualified litigation privilege or the

remaining vicarious liability issue. We believe the district court cor-

rectly denied the absolute litigation privilege because the letters

were sent outside the litigation process and included additional

statements beyond those in the complaint. Accordingly, we affirm

in part and dismiss in part.

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23-11714 Opinion of the Court 3

I.

In March 2019, Grippa interviewed for a job in the Florida

government with Rubin. Ultimately, Rubin determined that

Grippa was unqualified for the position and refused to hire her.

Grippa alleged that Rubin made several discriminatory statements

and behaved inappropriately based on her gender during the inter-

view, which she reported. Due to these reports, Rubin was subject

to an internal investigation.

As the investigation unfolded, Rubin sued various officials in

the Florida government for orchestrating an allegedly sham com-

plaint and investigation against him because he “refuse[d] to fall in

line” with their criminal “enterprise.” According to the complaint,

these officials rely on a “system of blackmail and intimidation” to

“consolidate their political power and advance their financial inter-

ests.” When state employees refuse to cooperate, the enterprise

uses the media to “extort their resignations with defamatory alle-

gations or fires them outright so they can be replaced with obedi-

ent foot soldiers.” In furtherance of the enterprise’s goals, Rubin

was asked to hire Grippa because her ex-husband was friends with

a lobbyist and donated money to an official’s election campaign,

both of whom were enterprise members. Because Rubin refused to

cooperate, the officials “blackmailed Rubin, threatening to publicly

accuse him of sexual harassment if he did not immediately resign.”

Rubin refused to resign, which invited the allegedly false accusa-

tions from Grippa and others, as well as the ensuing investigation.

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4 Opinion of the Court 23-11714

Although Grippa was not a party to the suit, Rubin named her as

part of this criminal enterprise in his complaint.

Rubin’s lawyer then wrote to high-ranking government of-

ficials and state investigators asking them to intercede in the inter-

nal investigation into Rubin and open a separate investigation into

the accused officials’ alleged misconduct. These letters specifically

refer to the “improper, unethical[,] and perhaps unlawful conduct

on the part of . . . [the] enterprise, including the orchestration and

publication of allegations against Rubin.” Additionally, the letters

included copies of Rubin’s complaint to support his accusations and

requests.

Because of these letters and the media attention they gar-

nered, Grippa claimed to suffer several injuries. Specifically, her

reputation was harmed, she could not show up to work, she lost

credibility with her coworkers, and she was professionally preju-

diced. As a result, she sued Rubin for defamation in state court; Ru-

bin then removed the case to federal court.

Rubin moved for summary judgment on several theories.

He argued that he could not be held liable because the allegedly

defamatory statements were privileged under either Florida’s ab-

solute or qualified litigation privileges and that he could not be vi-

cariously liable for his attorney’s conduct. The district court denied

the motion, finding that the letters were not absolutely privileged

because Rubin’s attorney sent them outside the course of a judicial

proceeding. The district court also determined that it could not rec-

ognize the qualified privilege because there was a genuine dispute

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23-11714 Opinion of the Court 5

of material fact as to whether the statements were made with ex-

press malice. Last, the district court rejected the vicarious liability

argument because the language in the letters suggested that Rubin

directed his lawyer’s actions.

Rubin then commenced this interlocutory appeal, challeng-

ing the district court’s denial of summary judgment.

II.

We review the denial of an immunity defense as well as ap-

pellate jurisdictional issues de novo. Patel v. City of Madison, 959 F.3d

1330, 1336–37 (11th Cir. 2020).

III.

Rubin argues that the district court should have granted

summary judgment for three reasons. First, he says that the state-

ments in the letters were protected by Florida’s absolute litigation

privilege. Second, he argues that they were protected by the quali-

fied litigation privilege. And third, Rubin argues that he cannot be

held vicariously liable for his attorney’s conduct.

Rubin argues that he can appeal the denial of summary judg-

ment without waiting for the end of the litigation in the district

court. He says that the Florida litigation privileges are immunities

from suit, the denial of which “falls within the collateral order doc-

trine.” SmileDirectClub, LLC v. Battle, 4 F.4th 1274, 1279 (11th Cir.

2021) (citing Mitchell v. Forsyth, 472 U.S. 511, 525, 529–30 & n.10

(1985)). And Rubin argues that, because we have jurisdiction over

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6 Opinion of the Court 23-11714

the denial of these immunities, we can exercise pendent appellate

jurisdiction over the issue of vicarious liability.

We address, in order, our jurisdiction over each issue Rubin

has raised before turning to the merits.

A.

We start with the absolute litigation privilege. Florida law

recognizes an absolute privilege for conduct occurring during the

course of a judicial proceeding. The Florida Supreme Court has ex-

plained that “absolute immunity must be afforded to any act occur-

ring during the course of a judicial proceeding, regardless of

whether the act involves a defamatory statement . . . so long as the

act has some relation to the proceeding.” Levin, Middlebrooks, Ma-

bie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d

606, 608 (Fla. 1994). We are familiar with this privilege and have

dutifully enforced it in the past when applying Florida law. See Jack-

son v. BellSouth Telecomms., 372 F.3d 1250, 1274 (11th Cir. 2004) (ap-

plying Florida’s absolute litigation privilege which “affords abso-

lute immunity for acts occurring during the course of judicial pro-

ceedings”). When evaluating whether the statement relates to a ju-

dicial proceeding, “much latitude must be allowed to the judgment

and discretion of those who maintain a cause in court.” Myers v.

Hodges, 44 So. 357, 362 (Fla. 1907). This privilege provides an im-

munity from suit, not just a defense to liability, as litigants must be

free to litigate “without fear of having to defend their actions in a

subsequent civil action for misconduct.” Levin, 639 So. 2d at 608.

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Applying the privilege requires balancing two competing in-

terests: the public interest in allowing litigants to zealously advo-

cate for their causes and the individual interest in avoiding slander.

DelMonico v. Traynor, 116 So. 3d 1205, 1217 (Fla. 2013), abrogated on

other grounds by Askew v. Fla. Dep’t of Child. & Fams., 385 So. 3d 1034,

1036 n.2 (Fla. 2024). Whenever the Florida Supreme Court has ap-

plied the absolute litigation privilege, the relevant statements were

made “either in front of a judicial officer or in pleadings or docu-

ments filed with the court or quasi-judicial body” because these set-

tings were uniquely equipped with “safeguards” that protected

both interests. Id. These safeguards arose from “the ‘comprehen-

sive control exercised by the trial judge whose action is reviewable

on appeal’ and the availability of other remedies through which the

trial court could mitigate the harm” that may occur. Id. at 1215

(quoting Fridovich v. Fridovich, 598 So. 2d 65, 69 n.5 (Fla. 1992)).

Conversely, “ex-parte, out-of-court statements” that are related to

the underlying lawsuit are not entitled to absolute immunity be-

cause the safeguards are “either unavailable or far less effective.”

Id. at 1211, 1218.

Given the nature of the absolute litigation privilege as an im-

munity from suit, and its necessary connection to judicial proceed-

ings, we conclude that we have jurisdiction to review this issue and

that the privilege does not apply to the statements found in the let-

ters.

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8 Opinion of the Court 23-11714

1.

We begin with jurisdiction. We must not “exercise power

we do not have over disputes Congress has not given us authority

to decide.” United States v. Rojas, 429 F.3d 1317, 1320 (11th Cir.

2005). Because Rubin raises a state law immunity issue, we must

apply federal law to assess our jurisdiction and state law to deter-

mine the substance of the privilege. See Butler v. Gualtieri, 41 F.4th

1329, 1335 (11th Cir. 2022).

Rubin has appealed from the denial of his summary judg-

ment motion and, usually, we would lack jurisdiction to review

that kind of order. We are a court of limited jurisdiction and, in

general, we are “barred from entertaining appeals of non-final or-

ders because we have no congressional grant to do so.” Hall v.

Flournoy, 975 F.3d 1269, 1274 (11th Cir. 2020); see 28 U.S.C. § 1291.

But we may nonetheless immediately review orders that “fall into

a specific class of interlocutory orders that are made appealable by

statute or jurisprudential exception.” CSX Transp., Inc. v. City of Gar-

den City, 235 F.3d 1325, 1327 (11th Cir. 2000); see 28 U.S.C. § 1292;

Atl. Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890

F.2d 371, 375–76 (11th Cir. 1989).

As relevant here, Rubin argues that we can consider this ap-

peal because the denial of Florida’s absolute litigation immunity

falls within the collateral order doctrine. To be immediately ap-

pealable under this doctrine, the order must satisfy three condi-

tions. Plaintiff A v. Schair, 744 F.3d 1247, 1253 (11th Cir. 2014) (citing

Will v. Hallock, 546 U.S. 345, 349 (2006)). The order must “(1)

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conclusively determine the disputed question, (2) resolve an im-

portant issue completely separate from the merits of the action,

and (3) be effectively unreviewable on appeal from a final judg-

ment.” Id. (quoting Will, 546 U.S. at 349). Because the denial of the

absolute litigation privilege in this instance meets all three criteria,

we conclude that we have jurisdiction to review the district court’s

decision. See Diverse Power, Inc. v. City of LaGrange, 934 F.3d 1270,

1272 n.1 (11th Cir. 2019) (“[D]enials of immunity from suit . . . are

immediately appealable under the collateral order doctrine.”).

First, the district court’s denial of summary judgment un-

questionably constituted a conclusive determination on the abso-

lute litigation privilege issue. Although denials of summary judg-

ment may not ordinarily exhibit the finality necessary to trigger an

immediate appeal, “there can be no doubt that such orders consti-

tute a complete, formal, and, in the trial court, final rejection” of

the absolute litigation privilege. See Abney v. United States, 431 U.S.

651, 659 (1977) (immediately reviewing denial of defendant’s mo-

tion to dismiss indictment where defendant claimed prosecution

was barred by the Fifth Amendment’s double jeopardy immunity).

Once the district court denied Rubin’s motion for summary judg-

ment, “[t]here [were] simply no further steps that [could] be taken

in the District Court to avoid the trial” that Rubin insists was pre-

cluded by the absolute litigation privilege. Id.

Second, the availability of the absolute litigation privilege is

critically important to the continued functionality of the judicial

process and entirely distinct from the merits of the case. As the

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10 Opinion of the Court 23-11714

Florida Supreme Court explained, litigants “must be free from the

fear of later civil liability” based on what they say during litigation

“so as not to chill the actions of the participants in the immediate

claim.” Levin, 639 So. 2d at 608. Without this protection, “the

chilling effect on free testimony would seriously hamper the adver-

sary system.” Id. We agree. The judicial process requires that one

party accuse another party of some wrong. As “adversarial” may

imply, this process can be personal, uncomfortable, and hostile. It

is a system predicated on differences, whether those differences re-

late to positions, perspectives, interpretations, or understandings of

fact and law. By bringing a dispute to court, we try to resolve those

differences and discover truth. But we cannot arrive at the ultimate

answer without first asking difficult questions. And a system in

which parties cannot freely identify these differences or present

challenging questions—without fear of defamation litigation—is

incompatible with this pursuit.

Not only is the absolute litigation privilege important, but it

is also separate from the underlying dispute over whether Rubin

defamed Grippa. In arguing that he is entitled to the privilege, Ru-

bin does not engage with the merits of Grippa’s claim. In fact, if he

were immune from suit, he could admit to the underlying allega-

tions against him and still avoid liability. This dynamic captures

what it means for an order to be collateral to the core issue. As the

Supreme Court explained in the double jeopardy context, absolute

immunity is “collateral to, and separable from the principal issue”

because “the defendant makes no challenge whatsoever to the mer-

its of the charge against him” but instead “contest[s] the very

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authority” of the opposing party to prosecute him. Abney, 431 U.S.

at 659. Truth, falsity, intent, and harm—although relevant in a def-

amation action—have no impact on the applicability of the abso-

lute privilege. See Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106

(Fla. 2008) (listing the elements of defamation under Florida law).

All that matters is whether the statement was made in the course

of judicial proceedings and was related to those proceedings. Levin,

639 So. 2d at 608. Therefore, the privilege is separate from the mer-

its of Grippa’s claim and satisfies the second requirement of the col-

lateral order doctrine.

Third, the district court’s denial is effectively unreviewable

on appeal from final judgment because the absolute litigation priv-

ilege is an immunity from suit. In diversity cases, we are bound by

state substantive law on the issue of immunity. See Erie R. Co. v.

Tompkins, 304 U.S. 64, 78 (1938); Butler, 41 F.4th at 1335. Therefore,

Florida courts’ description of the privilege binds us on the collateral

order doctrine’s third prong. They have said, and we have recog-

nized, that “Florida’s litigation privilege affords absolute immunity

for acts occurring during the course of judicial proceedings.” Bell-

South Telecomms., 372 F.3d at 1274; Levin, 639 So. 2d at 608 (Florida

Supreme Court referring to the privilege as an “absolute immun-

ity”). And as the Florida Supreme Court made clear, an absolute

immunity is intended to protect parties from the “fear of having to

defend their actions in a subsequent civil action.” Levin, 639 So. 2d

at 608. An immunity from defending one’s actions in a lawsuit can-

not be vindicated on appeal after a judgment. The only way Rubin

can preserve that interest is by commencing an immediate appeal.

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12 Opinion of the Court 23-11714

Grippa notes that the Florida courts have described this liti-

gation privilege as an “affirmative defense” and argues that this dis-

tinction precludes our jurisdiction. We disagree. True, Florida

courts have described the privilege as an affirmative defense. See

Am. Nat. Title & Escrow of Fla., Inc. v. Guarantee Title & Tr. Co., 810

So. 2d 996, 998 (Fla. 4th Dist. Ct. App. 2002). But an “affirmative

defense” for purposes of pleading is not necessarily a “defense to

liability” that can be addressed on appeal at the conclusion of the

litigation. See Parker v. Am. Traffic Sols., Inc., 835 F.3d 1363, 1367

(11th Cir. 2016). An affirmative defense is one that, “if established,

requires judgment for the defendant even if the plaintiff can prove

his case by a preponderance of the evidence.” Wright v. Southland

Corp., 187 F.3d 1287, 1303 (11th Cir. 1999). Many kinds of immunity

are routinely pleaded as affirmative defenses. See, e.g., Moore v. Mor-

gan, 922 F.2d 1553, 1557 (11th Cir. 1991) (“Qualified immunity is an

affirmative defense to personal liability that the defendant has the

burden of pleading.”). The tendency of the Florida courts to de-

scribe the absolute litigation privilege as an affirmative defense is

not dispositive to whether the denial of that privilege is immedi-

ately appealable.

Our conclusion is consistent with those of our sister circuits.

In Shanks v. AlliedSignal, Inc., the Fifth Circuit reviewed a collateral

appeal of Texas’s own absolute litigation privilege. 169 F.3d 988

(5th Cir. 1999). Similar to Florida’s privilege, Texas law protects

“communications made during the course of judicial, quasi-judi-

cial, or legislative proceedings” and prohibits them from “consti-

tut[ing] the basis of a civil action.” Id. at 992 (quoting Reagan v.

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Guardian Life Ins. Co., 166 S.W.2d 909, 912 (Tex. 1942)). The Fifth

Circuit explained that requiring the defendant to proceed to final

judgment before reviewing a denial of absolute immunity “could

deprive [the defendant] of [his] entitlement to avoid the burdens of

trial.” Id.

The Tenth Circuit reached a similar conclusion in Robinson

v. Volkswagenwerk AG, 940 F.2d 1369 (10th Cir. 1991). There, the

Tenth Circuit considered a collateral appeal in which the defendant

argued that it was entitled to the Oklahoma absolute litigation priv-

ilege. Id. at 1370. Oklahoma’s privilege protects lawyers from “def-

amation actions based upon litigation conduct in judicial proceed-

ings.” Id. at 1372. Citing Cohen, from which the collateral order test

is derived, the Tenth Circuit determined that it had “jurisdiction

based on the collateral order doctrine as applied to a denial of ab-

solute immunity.” Id. at 1370 (citing Cohen, 337 U.S. at 546–47).

Because the denial of Florida’s absolute litigation privilege

conclusively determines a distinct and important issue which is ef-

fectively unreviewable on appeal from final judgment, we have ju-

risdiction to consider this appeal under the collateral order doc-

trine.

2.

Having concluded that we have jurisdiction to hear this ap-

peal, we believe that the absolute immunity argument fails. Flor-

ida’s absolute litigation privilege applies only when the statement

was made during a judicial proceeding and only if the statement

was related to those proceedings. Levin, 639 So. 2d at 608. And the

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14 Opinion of the Court 23-11714

Florida courts have recognized the privilege only if the statement

was made before a judicial officer or in documents filed with a

court or quasi-judicial body. DelMonico, 116 So. 3d at 1217. The let-

ters do not meet this standard.

Although the letters referenced Rubin’s ongoing judicial

proceeding, his lawyer did not send those letters within the course

of that proceeding. Instead, he sent the letters to high-ranking gov-

ernment officials and investigators, asking them to oversee the in-

ternal investigation into Rubin’s alleged misconduct and open a

new investigation into other government officials’ supposed crim-

inal enterprise. True, the fact that these letters exist outside of the

judicial process is not dispositive. Florida courts have recognized

the privilege in other settings that are closely related to courtroom

proceedings, including depositions, witness interviews, discovery,

settlement discussions, and the like. See Anderson v. Shands, 570 So.

2d 1121, 1122 (Fla. 1st Dist. Ct. App. 1990); Stucchio v. Tincher, 726

So. 2d 372, 374 (Fla. 5th Dist. Ct. App. 1999); Ange v. State, 123 So.

916, 917 (Fla. 1929) (receded from by Fridovich, 598 So. 2d at 69); see

also BellSouth Telecomms., 372 F.3d at 1274–77. But the privilege is

not recognized when “an attorney steps outside of both the court-

room and the formal discovery process to investigate a claim,” Del-

Monico, 116 So. 3d at 1218, or when “false and malicious statements

were made in order to bring about a judicial proceeding,” Stucchio,

726 So. 2d at 374 (citing Fridovich, 598 So. 2d at 69). Rubin’s lawyer

took his allegations outside of his judicial proceeding by sending his

complaint to uninvolved third parties with the hopes of launching

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a new investigation and stifling an ongoing one. In doing so, he

acted outside the scope of the privilege.

Rubin argues that the absolute litigation privilege applies be-

cause his lawyer attached the complaint, a publicly available court

document, to the letters. The Florida Fourth District Court of Ap-

peals addressed a similar argument, concluding that the absolute

immunity privilege protected a lawyer who shared a copy of court

documents with a reporter. Stewart v. Sun Sentinel Co., 695 So. 2d

360, 362 (Fla. 4th Dist. Ct. App. 1997). In a later case, the same court

explained that Stewart departed from the general rule against pro-

tecting extra-judicial statements “in one limited context.” Ball v.

D’Lites Enters., Inc., 65 So. 3d 637, 641 (Fla. 4th Dist. Ct. App. 2011).

It clarified that, “at most,” Stewart stood for the proposition that

“the publication of the complaint or those documents which would

be public records when filed in court would be covered by the [lit-

igation] absolute immunity, because these documents are part of

the judicial proceeding.” Id.

The letters here exceeded the scope of the Stewart exception.

Assuming without deciding that the Supreme Court of Florida

would adopt the Stewart exception, Stewart was a narrow departure

from the broader principle that the absolute privilege does not

cover statements made outside of the judicial process. The excep-

tion covers only statements in public documents that are part of

the judicial proceeding. The letters in this case, however, did not

simply provide public records from the proceedings. They instead

alleged “improper, unethical[,] and perhaps unlawful conduct on

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16 Opinion of the Court 23-11714

the part of . . . [an] enterprise.” The attached documents amplified

that allegation and connected it to Grippa. By adding this additional

commentary, Rubin’s lawyer went beyond the scope of the ongo-

ing proceedings.

Because Rubin’s lawyer made allegedly defamatory state-

ments outside the judicial process, we conclude that the absolute

litigation privilege does not apply.

B.

Next, we consider the qualified litigation privilege. In addi-

tion to the absolute litigation privilege, Florida law recognizes a

qualified litigation privilege for “ex-parte, out-of-court statements”

that are related to the underlying lawsuit and were made without

express malice. DelMonico, 116 So. 3d at 1208, 1218–19. Unlike the

absolute privilege, the qualified litigation privilege is a defense to

liability that applies only upon the jury’s finding of certain facts. See

Glickman v. Potamkin, 454 So. 2d 612, 613 (Fla. 3d Dist. Ct. App.

1984) (“In a defamation action, the affirmative defense[] of . . . qual-

ified privilege present[s] factual questions for resolution by the

jury.”); Fariello v. Gavin, 873 So. 2d 1243, 1245 (Fla. 5th Dist. Ct.

App. 2004) (similar). Because the qualified privilege involves a

question of fact that is typically decided by a jury, it cannot be an

immunity from suit. With the contours of this privilege in mind,

we consider whether denial of the privilege was a collateral order

that qualified for immediate appeal. Applying the collateral order

test, we conclude that we lack jurisdiction.

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1.

The denial of the qualified litigation privilege fails each part

of the collateral order test. We address each in turn.

First, the district court’s denial did not conclusively resolve

the availability of the privilege because the order was based on a

genuine dispute of material fact concerning Rubin’s mens rea. Ex-

press malice exists, and the qualified litigation privilege is pre-

cluded, when a statement is primarily motivated by “an intention

to injure the plaintiff.” Nodar v. Galbreath, 462 So. 2d 803, 806 (Fla.

1984). To prove express malice, there must be “some evidence be-

yond the mere fact of publication,” but evidence may be derived

from “the style and tone” of the statement. Myers, 44 So. at 365.

The district court, at Rubin’s behest, initially applied the

wrong qualified privilege test. Although it did not invoke express

malice to reach its conclusion, the district court did suggest that

“the issue of malice is likely a question for the jury.” In a later order,

the district court dispelled any uncertainty and explained that it

would still deny the privilege under the proper standard because

there was a “genuine dispute of material fact as to whether or not

[Rubin] acted with express malice.” Based on this reasoning, the

district court clearly did not definitively determine the qualified

privilege issue and instead reserved the matter for the jury to de-

cide. On this basis alone, the denial fails the collateral order test.

Second, we cannot disentangle the qualified litigation privi-

lege from the merits of the case. The defendant’s liability in a defa-

mation action and the availability of the qualified privilege both

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18 Opinion of the Court 23-11714

require a finding as to the defendant’s mens rea. Statements are pro-

tected under the qualified privilege only if the defendant made

them without express malice. DelMonico, 116 So. 3d at 1219. Simi-

larly, a defendant can be liable for defamation against a private per-

son only if he acted “at least negligently.” Jews for Jesus, 997 So. 2d

at 1106. These two issues turn on the answer to the same question

of fact: what was the defendant’s mens rea? Only after the jury an-

swers this question can it decide either issue. Because the jury can-

not answer one without the other, the matters are essentially en-

tangled.

Third, the denial of the qualified litigation privilege can be

adequately reviewed after a final judgment. Unlike the absolute

privilege, which provides an immunity from suit, the qualified priv-

ilege provides a defense from liability. The “crucial distinction” be-

tween these two kinds of defenses is that an immunity from suit

“can be enjoyed only if vindicated prior to trial.” United States v.

Hollywood Motor Car Co., 458 U.S. 263, 269 (1982). True, there are

“exceptional cases” in which the facts giving rise to the qualified

privilege are so “clearly apparent” that a court may recognize the

privilege on a motion to dismiss. Fariello, 873 So. 2d at 1245; Nodar,

462 So. 2d at 810. But, although the qualified litigation privilege can

lead to a dismissal before trial, it does not necessarily protect the

defendant from standing trial. C.f. Will, 546 U.S. at 351. The ordi-

nary procedure, in which the jury must resolve questions of fact

like the defendant’s mens rea, necessitates trial. Because the quali-

fied privilege is only a defense to liability and ordinarily depends on

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23-11714 Opinion of the Court 19

fact findings by the jury, it is precisely the type of issue that can be

properly reviewed upon the entry of a final judgment.

2.

Although we lack jurisdiction under the collateral order doc-

trine, Rubin argues that we should exercise pendent appellate ju-

risdiction because the absolute and qualified litigation privilege is-

sues are sufficiently connected. If we have jurisdiction to review

one interlocutory order, we may, at our discretion, review other

orders under the pendent appellate jurisdiction doctrine “if they are

‘inextricably intertwined’ with an appealable decision or if ‘review

of the former decision [is] necessary to ensure meaningful review

of the latter.’” Summit Med. Assoc., P.C. v. Pryor, 180 F.3d 1326, 1335

(11th Cir. 1999) (citing Swint v. Chambers Cnty. Comm’n, 514 U.S. 35,

51 (1995)). We have this tool at our disposal, but “we have not been

shy about declining to indulge in it.” Jackson v. City of Atlanta, 97

F.4th 1343, 1354 (11th Cir. 2024).

Assuming without deciding that these two issues are suffi-

ciently connected to allow the exercise of pendent appellate juris-

diction, we exercise our discretion to decline review of this issue.

See, e.g., Hartley v. Parnell, 193 F.3d 1263, 1272 (11th Cir. 1999) (“To

the extent we have discretionary pendent appellate jurisdiction . . .

we decline to exercise that jurisdiction.”) (citation omitted). Alt-

hough both privileges apply only to statements that are related to

a judicial proceeding, the qualified privilege also requires that the

statements were made without express malice. As we have ex-

plained, that issue is closely related to the underlying merits of

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20 Opinion of the Court 23-11714

Grippa’s defamation claim. Because the qualified litigation privi-

lege turns on a merits-related issue that is unrelated to the absolute

privilege analysis, we decline to extend pendent appellate jurisdic-

tion.

C.

The third and final basis for Rubin’s appeal is the district

court’s rejection of his vicarious liability argument. A vicariously

liable party “has not committed any breach of duty to the plaintiff

but is held liable simply as a matter of legal imputation of respon-

sibility for another’s tortious acts.” Restatement (Third) of Torts:

Apportionment Liab. § 13 cmt. b (2000). Under Florida law, “an

attorney acting within the scope of his authority represents his cli-

ent” such that his actions are attributable to the client and “his ne-

glect is equivalent to the neglect of the client himself.” Griffith v.

Inv. Co., 110 So. 271, 271 (Fla. 1926). Furthermore, “an employer

can generally be held vicariously liable for an intentional tort where

the employee’s tortious conduct is undertaken in furtherance of the

employer’s interests.” Fields v. Devereux Found., Inc., 244 So. 3d

1193, 1196 (Fla. 2d Dist. Ct. App. 2018).

The district court’s denial of Rubin’s motion for summary

judgment on the vicarious liability issue is not appealable. “Gener-

ally, an order denying a motion for summary judgment is not an

appealable final order.” Schmelz v. Monroe County, 954 F.2d 1540,

1542 (11th Cir. 1992). Nor is it a collateral order ripe for immediate

review. Whether Rubin can be held vicariously liable for his law-

yer’s actions concerns the merits of the case, which are yet to be

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23-11714 Opinion of the Court 21

decided and are reviewable upon the entry of a final order. There-

fore, this appeal fails every factor of the collateral order test. See

Plaintiff A, 744 F.3d at 1253. And because this matter represents an

entirely separate issue from the absolute litigation privilege, we de-

cline to exercise pendent appellate jurisdiction.

IV.

For these reasons, we AFFIRM IN PART AND DISMISS IN

PART.