Todd v. Weltman, Weinberg

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0014p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiffs-Appellees, -

ROBERT TODD, et al.,

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No. 04-4109

v.

,

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WELTMAN, WEINBERG & REIS CO., L.P.A., -

Defendant-Appellant, -

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Defendant. -

MARK N. WISEMAN,

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Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 03-00171—Susan J. Dlott, District Judge.

Argued: November 29, 2005

Decided and Filed: January 13, 2006

Before: CLAY and COOK, Circuit Judges; COOK, District Judge.*

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COUNSEL

ARGUED: Christine M. Haaker, THOMPSON HINE, Dayton, Ohio, for Appellant. Stephen R.

Felson, NEWMAN & MEEKS CO., Cincinnati, Ohio, for Appellees. ON BRIEF: Christine M.

Haaker, THOMPSON HINE, Dayton, Ohio, for Appellant. Stephen R. Felson, NEWMAN &

MEEKS CO., Cincinnati, Ohio, for Appellees.

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OPINION

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CLAY, Circuit Judge. Defendant Weltman, Weinberg, & Reis Co., L.P.A. appeals an

August 3, 2004 collateral order of the United States District Court for the Southern District of Ohio

denying Defendant’s motion for judgment on the pleadings pursuant to Federal Rule of Civil

Procedure 12(c) against Plaintiff Robert Todd’s claims under the Fair Debt Collection Practices Act

(“FDCPA”), 15 U.S.C. § 1691 et seq., specifically violations of 15 U.S.C. §§ 1692e and 1692f.

While the district court has not yet rendered final judgment, this Court reviews the collateral order

*

The Honorable Julian A. Cook, United States District Judge for the Eastern District of Michigan, sitting by

designation.

1

No. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 2

of the district court denying Defendant absolute immunity. For the following reasons, we AFFIRM

the district court’s order.

I. BACKGROUND

A. PROCEDURAL HISTORY

On August 11, 2003, Plaintiff filed a complaint against Defendant in the United States

District Court for the Southern District of Ohio. Plaintiff alleged Defendant violated the FDCPA,

specifically 15 U.S.C. §§ 1692e and 1692f. Section 1692e of Title 15 of the United States Code

states: “A debt collector may not use any false, deceptive, or misleading representation or means in

connection with the collection of any debt.” Section 1692f of Title 15 of the United States Code

states: “A debt collector may not use unfair or unconscionable means to collect or attempt to collect

any debt.”

On February 17, 2004, Defendant filed a motion for judgment on the pleadings pursuant to

Federal Rule of Civil Procedure 12(c). Defendant’s motion was based on four grounds: (1) the

district court did not have subject matter jurisdiction over Plaintiff’s claim because of the Rooker-

Feldman doctrine; (2) res judicata barred Plaintiff’s claim; (3) Defendant was absolutely immune

for its actions; and (4) the FDCPA was inapplicable to Defendant’s actions. On August 3, 2004, the

district court denied Defendant’s motion on all grounds.

On September 1, 2004, Defendant timely appealed the district court order with respect to the

issue of witness immunity. On September 20, 2004, Defendant filed a motion with the district court

to certify that the district court’s order involved a collateral order that was immediately appealable.

On September 21, 2004, the district court denied the motion.

Plaintiff filed a motion to dismiss Defendant’s appeal and a motion for sanctions. On

February 9, 2004, this Court denied Plaintiff’s motions. The Court found that the district court’s

denial of absolute immunity to Defendant was a collateral order that was immediately appealable

in the absence of a final judgment.

B. FACTS

Plaintiff is a resident of Cincinnati, Ohio. Plaintiff’s sole source of income is Social Security

Insurance Benefits, and he receives $750 per month for himself. He also receives $190 per month

for each of his minor children. His wife is presently receiving short-term disability payments for

an injury she sustained.

In 1992, Plaintiff purchased furniture from Value City, and Plaintiff financed the purchase

with a loan from ITT Financial Services. Plaintiff defaulted on the loan, and Defendant brought suit

on behalf of the creditor and obtained a judgment. Defendant then initiated proceedings to garnish

Plaintiff’s bank account. In order to commence such a proceeding under Ohio law, Defendant must

file an affidavit which states that “the affiant has a reasonable basis to believe that the person named

in the affidavit as the garnishee may have property, other than personal earnings, of the judgment

debtor that is not exempt under the law of this state or the United States.” Ohio Rev. Code Ann.

§ 2716.11. On February 23, 2003, Defendant submitted an affidavit that conformed to the Ohio

statute to the Hamilton County Municipal Court. The court found that the affidavit was valid and

froze the funds in Plaintiff’s bank account.

On February 12, 2003, Plaintiff requested a hearing to contend that the funds in his bank

account were exempt because they derived from Plaintiff’s Social Security benefits and his wife’s

short-term disability benefits. On February 28, 2003, the court held that the funds were exempt.

No. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 3

Plaintiff contended that prior to submission of the affidavit, Defendant did not conduct a

debtor’s exam, did not undertake discovery as to whether Plaintiff possessed non-exempt assets, and

otherwise had no factual basis for believing that Plaintiff’s bank account contained non-exempt

assets.

II. DISCUSSION

A. THE ROOKER-FELDMAN DOCTRINE DOES NOT PRECLUDE THIS COURT’S

SUBJECT MATTER JURISDICTION

1. Standard of Review

This Court reviews questions of subject matter jurisdiction de novo. Green v. Ameritech

Corp., 200 F.3d 967, 972 (6th Cir. 2000).

2. Analysis

This Court has an independent obligation to determine whether the Court has subject matter

jurisdiction. Olden v. LaFarge Corp., 383 F.3d 495, 498 (6th Cir. 2004). That said, the Rooker-

Feldman doctrine does not divest this Court of subject matter jurisdiction because the instant case

is outside the scope of the doctrine.

a. Legal Framework

In Rooker v. Fidelity Trust Co., the plaintiffs filed an action in state court, and the state court

ruled against the plaintiffs. 263 U.S. 413, 414 (1923). The state supreme court affirmed the

decision. Id. The plaintiff then filed an action in federal district court alleging that the state court

decision violated various federal constitutional provisions. Id. at 414-15. The district court

dismissed the suit for lack of subject matter jurisdiction, and the Supreme Court affirmed. Id. at 415.

The Court found that federal district courts were only empowered with original jurisdiction, and that

they did not have appellate jurisdiction to hear a claim that a state court’s decision was in error. Id.

at 416. Only the Supreme Court had such appellate jurisdiction. Id.

In District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), the Supreme

Court reiterated its decision in Rooker. There, the plaintiff Feldman was an individual who sought

to practice law but did not graduate from an accredited law school. Id. at 465. Instead, he

completed a structured program of the State of Virginia where he studied in a practitioner’s office,

audited classes at the University of Virginia School of Law, and served as a judicial clerk with a

federal district court. Id. The plaintiff passed the Virginia bar examination and was admitted to that

state’s bar. Id. The plaintiff then sought admission to the bar of the District of Columbia; however,

the district had a rule that limited bar membership to graduates of ABA-accredited schools. The

plaintiff filed a petition with the District of Columbia Court of Appeals to waive the graduation

requirement, and the “state” court denied the plaintiff’s petition. Id. at 466-68. The plaintiff then

filed a complaint in the federal district court challenging the state court decision. Id. at 468. The

plaintiff Hickey had a similar experience: he graduated from an unaccredited law school and

petitioned the state court for waiver of the graduation requirement. Id. at 470-72. The state court

denied his petition, and the plaintiff filed suit in federal district court.

The Supreme Court found that the federal district court lacked subject matter jurisdiction

over an appeal from a state court judicial proceeding. Id. at 476. As a result, the plaintiffs could not

challenge the state court’s refusal to waive the graduation requirement in federal district court. Id.

at 478-79. The plaintiffs could, however, challenge the constitutionality of the graduation

requirement itself in federal district court, as the state court promulgated the rule in a non-judicial

setting. Id. at 482-86. The Court also ruled that the federal district court lacked jurisdiction over

No. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 4

plaintiffs’ claim that the state court arbitrarily denied them a waiver of the rule; the Court reasoned

that such a claim was “inextricably intertwined” with the state court’s judicial decisions in denying

the plaintiffs’ petitions. Id. at 486-87.

Subsequent to these cases, the federal courts of appeals began to apply the Rooker-Feldman

doctrine to preclude federal subject matter jurisdiction in a wide variety of cases where the state

court also asserted jurisdiction. Because of the inconsistencies between the circuits, the Supreme

Court addressed the scope of the Rooker-Feldman doctrine in Exxon Mobil Corp. v. Saudi Basic

Indus. Corp., 125 S. Ct. 1517 (2005).

The Supreme Court in Exxon Mobil held that the Rooker-Feldman doctrine applied only to

“cases brought by state-court losers complaining of injuries caused by state-court judgments

rendered before the district court proceedings commenced and inviting district court review and

rejection of those judgments.” Id. at 1521-22. Exxon Mobil dealt specifically with the case where

there were parallel state and federal cases on the same issue. The court held that normal preclusion

jurisprudence, not Rooker-Feldman, would guide the federal court decision if the state court reached

a decision first. Id. at 1527. In dicta, the court also addressed the circumstance where the plaintiff

initiated a federal claim after a state court decision:

Nor does § 1257 stop a district court from exercising subject matter jurisdiction

simply because a party attempts to litigate in federal court a matter previously

litigated in state court. If a federal plaintiff “present[s] some independent claim,

albeit one that denies a legal conclusion that a state court has reached in a case to

which he was a party . . ., then there is jurisdiction and state law determines whether

the defendant prevails under principles of preclusion.”

Id. (alteration in the original) (quoting GASH Assocs. v. Vill. of Rosemont, 995 F.2d 726, 728 (7th

Cir. 1993)).

b. Application to this Case

The Rooker-Feldman doctrine does not preclude jurisdiction over Plaintiff’s claim.

Defendant in the instant case claims this Court lacks subject matter jurisdiction because Plaintiff’s

federal claim is inextricably intertwined with the Ohio state court decision that Defendant’s affidavit

was valid. This argument ignores the fact that Plaintiff here does not complain of injuries caused

by this state court judgment, as the plaintiffs did in Rooker and Feldman. Instead, after the state

court judgment, Plaintiff filed an independent federal claim that Plaintiff was injured by Defendant

when he filed a false affidavit. This situation was explicitly addressed by the Exxon Mobil Court

when it stated that even if the independent claim was inextricably linked to the state court decision,

preclusion law was the correct solution to challenge the federal claim, not Rooker-Feldman. See

supra. While Defendant is technically correct that this guidance was not essential to the holding on

the facts of Exxon Mobil, as that case dealt with parallel state and federal proceedings, the Supreme

Court went beyond the facts of the case to give clear instructions to the circuits on how to address

additional factual situations. To follow the reasoning of Defendant would be to ignore these

unambiguous directives from the Supreme Court.

The Court will not address the preclusive effect of the state court judgment, as this goes

beyond the required jurisdictional determination and the issue on appeal.

No. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 5

B. THE DISTRICT COURT DID NOT ERR WHEN IT DENIED ABSOLUTE

IMMUNITY TO DEFENDANT

1. Standard of Review

This Court reviews the district court decision denying Defendant absolute immunity de novo.

Brookings v. Clark, 389 F.3d 614, 617 (6th Cir. 2004) (citing Barnes v. Winchell, 105 F.3d 1111,

1115 (6th Cir. 1997)).

2. Analysis

a. Legal Framework

In Briscoe v. LaHue, the Supreme Court held that police officers were absolutely immune

from suit for their testimony at trial.1 460 U.S. 325, 345-46 (1983). In reaching its decision, the

Court recited the history of the long-established rule that private witnesses were absolutely immune

from damages liability for their testimony in judicial proceedings. Id. at 330-34. The rationale

behind this absolute immunity was twofold: first, “witnesses might be reluctant to come forward to

testify,” id. at 333; second, those witnesses who came forward might distort their testimony because

of fear of subsequent liability, id. The Court found that “the truth-finding process is better served

if the witness’s testimony is submitted to ‘the crucible of the judicial process so that the factfinder

may consider it, after cross-examination, together with the other evidence in the case to determine

where the truth lies.’” Id. at 333-34 (quoting Imbler v. Pachtman, 424 U.S. 409, 440 (1976)).

In Malley v. Briggs, the Supreme Court held that police officers were not absolutely immune

from suit for seeking an arrest warrant based on deficient probable cause. 475 U.S. 335, 340-41

(1986). The Court found that the police officer resembled a “complaining witness,” and a

complaining witness was liable at common law for making a complaint with malice and without

probable cause. Id. The Court also rejected the argument that a police officer, when seeking an

arrest warrant, makes a discretionary judgment similar to the absolutely protected judgment of a

prosecutor seeking an indictment from a grand jury. Id. at 341-42 (referencing Imbler, 424 U.S.

409). In reaching its decision, the Court reasoned: “We intend no disrespect to the officer applying

for a warrant by observing that his action, while a vital part of the administration of criminal justice,

is further removed from the judicial phase of criminal proceedings than the act of a prosecutor in

seeking an indictment.” Id. at 342-43.

The Court went on to refine its “complaining witness” analysis in Kalina v. Fletcher, 522

U.S. 118 (1997). There, the state prosecutor initiated criminal proceedings against the defendant

and filed three documents, two of which were unsworn, in support of the arrest warrant. Id. at 120-

21. Under state law, an arrest warrant needed to be supported by sworn statements. Id. at 121. In

order to satisfy this requirement, she summarized the evidence supporting the charge, including the

evidence in the unsworn statements, in a “Certification for Determination of Probable Cause,” and

she personally vouched for the truth of the facts in the certification under penalty of perjury. Id. at

121. The defendant challenged the prosecutor’s actions, as the certification in support of the warrant

contained inaccurate factual statements. Id. at 121-22.

The Court began its analysis with the rule that “in determining immunity, we examine ‘the

nature of the function performed, not the identity of the actor who performed it.’” Id. at 127

1

The plaintiffs in that case alleged that the police officers gave false testimony and, as a result, deprived the

plaintiffs of the constitutional rights of due process and a fair trial. Id. at 328. The fact that the Supreme Court applied

absolute witness immunity in such a case is an adequate answer to Plaintiff’s contention that absolute witness immunity

applies only in defamation cases. (See Pl. Br. 26-29.)

No. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 6

(quoting Forrester v. White, 484 U.S. 219, 229 (1988)). The Court found that as to the prosecutor’s

actions in preparing and filing the two unsworn documents, the prosecutor was acting as an advocate

of the state in the judicial process; therefore, her actions were protected by absolute immunity. Id.

at 129. As to her attestation of the truth of the facts in the certification, the Court found that the

prosecutor was not protected by absolute immunity: “Testifying about facts is the function of the

witness, not of the lawyer. No matter how brief or succinct it may be, the evidentiary component

of an application for an arrest warrant is a distinct and essential predicate for a finding of probable

cause.” Id. at 130-31. The Court found that the prosecutor thus acted as a “complaining witness”

who lacked absolute immunity for the falsehoods in the certification. Id. at 129, 131.

In Wyatt v. Cole, 504 U.S. 158 (1992), the Supreme Court ruled that private defendants were

not entitled to any form of immunity in § 1983 claims. In that case, the plaintiff filed a state court

complaint in replevin against his former business partner. Id. at 159-60. Under state law at the time,

the plaintiff could “obtain a court order for seizure of property possessed by another by posting a

bond and swearing to a state court that the [plaintiff] was entitled to that property and that the

adversary wrongfully took and detain[ed] or wrongfully detain[ed] the property.” Id. at 160 (internal

quotations and citation omitted). State law did not grant any discretion to the state judge; he was

forced to issue the order in replevin. Id. After a hearing, the state court dismissed the plaintiff’s

complaint in replevin and ordered the plaintiff to return the confiscated property to the defendant.

When the plaintiff refused, the defendant sued the plaintiff in federal court, alleging, among other

things, that the state replevin statute was unconstitutional and that the plaintiff and his attorney

violated § 1983 by using state law to unconstitutionally deprive him of his property. Id. The district

court found that the statute was unconstitutional because it violated the constitutional protection of

due process; however, it found that the plaintiff and his attorney had qualified immunity “for

conduct arising prior to the statute’s invalidation.” Id. at 160.

The Supreme Court reversed. The Court looked first at its “garnishment, prejudgment

attachment, and replevin cases,” and found that private use of state laws could constitute state action

under § 1983. Id. at 162 (citing Lugar v. Edmonson Oil Co., 457 U.S. 922, 932-35 (1982)). The

Court then analogized the claim challenging the replevin action to claims of malicious prosecution

and abuse of process. The Court reiterated that in such cases, private party defendants did not have

immunity:

Respondents do not contend that private parties who instituted attachment

proceedings and who were subsequently sued for malicious prosecution or abuse of

process were entitled to absolute immunity. And with good reason; although public

prosecutors and judges were accorded absolute immunity at common law, such

protection did not extend to complaining witnesses who, like respondents, set the

wheels of government in motion by instigating a legal action.

Id. at 164-65 (internal citations omitted). The Court found that while private party defendants at

common law had a defense of good faith against claims of malicious prosecution and abuse of

process, this defense did not equate to immunity in the § 1983 context. Id. at 165 (citing Harlow

v. Fitzgerald, 457 U.S. 800 (1982)).

b. Application to this Case

The district court correctly denied absolute immunity to Defendant. The rationales of

absolute immunity and the complaining witness analysis support this result.

No. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 7

(i). Congressional Intent

Both Plaintiff and Defendant agree that Congress did not intend to abrogate the well-

established absolute immunity of a witness when it enacted the FDCPA. This Court agrees that

nothing in the FDCPA itself or the legislative history of the Act remotely suggests such an

abrogation. The question then becomes whether Defendant’s conduct falls under the protection of

witness immunity.

(ii). The Affidavit as Testimony

This Court agrees with Defendant that testimony presented in the form of an affidavit may

be protected under absolute witness immunity. See Cruz v. Kauai County, 279 F.3d 1064, 1068 (9th

Cir. 2002) (“It is also true that, in this circuit, a person who functions as a witness in an adversarial

proceeding to revoke a defendant’s bail is to be accorded absolute immunity for her testimony, even

if the witness’s testimony is provided by way of affidavit.” (citation omitted) (emphasis removed));

Thomason v. SCAN Volunteer Servs., Inc., 85 F.3d 1365, 1373 (8th Cir. 1996) (“To the extent

Wordlaw and SCAN are sued because Wordlaw made arguably false statements in her affidavit in

her role as a witness before the state court, the doctrine of absolute witness immunity applies.”);

Giffin v. Summerlin, 78 F.3d 1227, 1231 (7th Cir. 1996) (“The policy considerations underlying

witness immunity for testimony in open court apply with equal force to other forms of testimony

such as depositions and affidavits.” (citations omitted)). We find that the form of the witness

testimony should not affect the status of the immunity attached thereto.

(iii). Ex Parte Nonadversarial Proceedings

Plaintiff argues that Defendant should not receive absolute witness immunity for its affidavit

because the affidavit was submitted in an ex parte, nonadversarial proceeding. Under Ohio law,

Defendant can initiate a garnishment proceeding by filing the affidavit described, supra, with the

state court. Ohio Rev. Code Ann. § 2716.11. The state court then “binds” the garnished property

until a hearing so that the garnishee may not use the property. Ohio Rev. Code Ann. § 2716.13.

Ohio law does not allow Plaintiff to challenge Defendant’s affidavit when it is submitted; it only

allows a challenge at a hearing after the property has already been bound. Ohio Rev. Code Ann.

§ 2716.21. Plaintiff contends that Defendant should not receive absolute immunity for its affidavit

because there were no procedural safeguards in insuring the veracity of the affidavit at the time it

was submitted, due to the ex parte, nonadversarial nature of the initiation of garnishment

proceedings under Ohio law.

In support of its contention that the touchstone of witness immunity is the adversarial nature

of the proceeding, Plaintiff cites several cases of other circuits. In Cruz v. Kauai County, the Ninth

Circuit found that a prosecutor’s affidavit supporting revocation of the defendant’s bail was not

entitled to absolute immunity because the affidavit was submitted at an ex parte proceeding. 279

F.3d at 1068. While the court also based its decision on the fact that the prosecutor acted as a

“complaining witness,” it focused its analysis on the fact that the prosecutor “functioned as a witness

in an ex parte proceeding, at which [the defendant] did not enjoy the protections of the adversary

process.” Id. In contrast, the Ninth Circuit found absolute immunity applicable to an affidavit in

Burns v. County of King precisely because the proceeding where the affidavit was submitted was

adversarial:

Although the opportunity for cross-examination is absent in this case, since [the

defendant’s] testimony was presented in the form of an affidavit, [the plaintiff] was

nevertheless afforded all the other protections of the adversary process and judicial

supervision. . . . [The plaintiff] was entitled to present affidavits and witnesses of his

own to refute the statements made by [the defendant]. Under these circumstances,

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we conclude that the rationale underlying Briscoe requires that [the defendant] be

accorded absolute immunity for her statements to the court.

883 F.2d 819, 823 (9th Cir. 1989).

Likewise, the Fifth Circuit found that a report prepared by an expert witness that supported

probable cause for an arrest was not entitled to absolute immunity. In Keko v. Hingle, the court

began its analysis with the notion that the Supreme Court “has subsequently bounded absolute

immunity within the precise confines of adversarial judicial proceedings.” 318 F.3d 639, 642-43

(5th Cir. 2003) (citations omitted). The court found that absolute immunity did not apply to the

expert report submitted in an ex parte probable cause hearing: “We decline to extend absolute

witness immunity into an arena where the Supreme Court had not found factual testimony to justify

such heightened protection.” Id. at 643. The court expressly based its decision on this fact, and not

on the “complaining witness” theory, as it declined to address that factual question on a motion for

summary judgment. Id.

In Curtis v. Bembenek, the Seventh Circuit applied a similar analysis to the testimony of a

police officer at two separate hearings. 48 F.3d 281, 285 (7th Cir. 1995). The court found that “the

policy considerations for granting absolute immunity to witnesses testifying at trial apply with equal

force to witness testimony in adversarial pretrial settings.” Id. (citation omitted). Because the police

officer’s testimony at both hearings “was made under oath and subject to cross-examination, [w]e

see no principled basis for distinguishing between [adversarial] pretrial proceedings and the trial on

the merits in determining whether absolute immunity should be granted to a police officer witness.”

Id. (internal quotations and citation omitted).

In Sykes v. James, the Second Circuit found that the petitioner’s parole officer was absolutely

immune for an affidavit submitted in the petitioner’s habeas proceeding. 13 F.3d 515, 521 (2d Cir.

1993). The court stressed that:

A habeas corpus proceeding brought under the pertinent New York statute is

surrounded by all the judicial process safeguards. . . . Although cross-examination

is not available . . ., all the other protections of the judicial process were afforded to

[the petitioner]: the proceeding was adversarial in nature; it was conducted by a

judicial officer who rendered the final decision; and it was subject to judicial review.

Moreover, the affidavit oath subjected [the parole officer] to the penalty of perjury

if the affidavit were false; [the petitioner] had the opportunity to present affidavits

of his own; and testimony could have been taken if the judge considered it necessary.

Id. The court then distinguished Malley, as that case involved an ex parte hearing. Id. (citing

Malley, 475 U.S. 335).

While Plaintiff’s proposed inquiry of adversarial-nonadversarial for questions of absolute

immunity is viscerally appealing, considering the ease of its application and its partial support in the

rationale of Briscoe, it is ultimately unviable. We agree with the cited cases insofar as they stand

for the proposition that witness testimony at an adversarial proceeding is entitled to absolute

immunity, because this proposition is supported by the rationale in Briscoe that witness immunity,

coupled with “the crucible of the judicial process,” is the path that would best “lead to the

ascertainment of truth.” See Briscoe, 460 U.S. at 330-34 (internal quotations and citations omitted).

We do not agree, however, that the nonadversarial nature of a proceeding automatically

precludes applicability of absolute immunity to witness testimony given at such a proceeding. One

glaring example not mentioned by either Plaintiff or Defendant is witness testimony in grand jury

proceedings. A grand jury proceeding is the quintessential form of an ex parte, nonadversarial

proceeding where many of the procedural safeguards of a trial do not exist. Despite this fact, most

No. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 9

circuits, including this circuit, have held that absolute witness immunity applies to witness testimony

before a grand jury. See Grant v. Hollenbach, 870 F.2d 1135, 1139 (6th Cir. 1989) (citing Macko

v. Byron, 760 F.2d 95, 97 (6th Cir. 1985)); see also Lyles v. Sparks, 79 F.3d 372, 378 (4th Cir.

1996); Frazier v. Bailey, 957 F.2d 920, 931 n.12 (1st Cir. 1992); Anthony v. Baker, 955 F.2d 1395,

1400-01 (10th Cir. 1992); Little v. City of Seattle, 863 F.2d 681, 684 (9th Cir. 1989); Strength v.

Hubert, 854 F.2d 421, 423 (11th Cir. 1988), overruled on other grounds by Albright v. Oliver, 510

U.S. 266 (1994); San Filippo v. U.S. Trust Co., Inc., 737 F.2d 246, 254 (2d Cir. 1984); Kincaid v.

Eberle, 712 F.2d 1023, 1023-24 (7th Cir. 1983); Briggs v. Goodwin, 712 F.2d 1444, 1448-49 (D.C.

Cir. 1983). Most circuits have found that the Briscoe rationale of encouraging truthful testimony

at trial applies with equal force to testimony before a grand jury; additionally, several circuits have

explained that at common law, a witness is absolutely immune for grand jury testimony. See, e.g.,

Kincaid, 712 F.2d at 1023-24. These cases demonstrate that the adversarial-nonadversarial

delineation proposed by Plaintiff is untenable.

The question then becomes what the proper inquiry actually should be. We find that a

reviewing court should look at the twin rationales listed in Briscoe: insuring that a witness is

unafraid of providing testimony, and, when the witness testifies, insuring that the witness is not

impermissibly pressured to alter her testimony. 460 U.S. at 333-34. Additionally, a reviewing court

should look to the common law to determine whether immunity was available in specific instances.

(iv). Briscoe Rationales

The Briscoe Court gave two rationales in support of the common law immunity for witness

testimony: (1) “witnesses might be reluctant to come forward to testify” without such immunity; and

(2) “once a witness is on the stand, his testimony might be distorted by the fear of subsequent

liability.” 460 U.S. at 333-34. Neither of these rationales applies to this case.

After obtaining a default judgment on behalf of its client creditor, Defendant sought some

mechanism to extract funds from Plaintiff to satisfy this judgment; Defendant chose garnishment.

As explained, supra, under Ohio law, in order to garnish Plaintiff’s property, Defendant was

required to file an affidavit which stated that it had a reasonable basis to believe that the property

was non-exempt. The focus, then, is on the incentives of Defendant in connection with this

affidavit.

With respect to the first rationale, this Court finds it difficult to believe that Defendant would

“be reluctant to come forward to testify” without absolute immunity. Defendant is responsible to

its client; the client in this case enlisted Defendant to obtain money from Plaintiff. In such

circumstances, Defendant is unlikely to disobey its client, nor will Defendant ordinarily refuse to

take future creditor clients, without absolute immunity for its affidavit. The lack of absolute

immunity may increase Defendant’s costs of collecting a debt on behalf of a creditor; Defendant

may actually be forced to obey Ohio law and conduct some sort of preliminary investigation of a

debtor’s assets to determine whether they are exempt. This increase in costs, however, will not be

a disincentive for Defendant to pursue actions of garnishment. This cost can simply be passed on

to the client; moreover, because all attorney debt collectors would have the same incentive to make

this preliminary investigation, Defendant’s competitive position would not be harmed by denying

absolute immunity for its affidavit. In short, Ohio law requires a procedural safeguard that does

increase the cost of pursuing a garnishment action; however, because garnishment actions will

remain profitable for the attorney debt collector and its client, this Court has no doubt that the

attorney debt collector will continue to bring such actions. Defendant’s financial interest will

overcome any reluctance to come forward based on the lack of absolute immunity; the same cannot

be said, for example, for a witness who has no interest in the outcome of a criminal case.

No. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 10

Briscoe’s second rationale is equally inapplicable. The Supreme Court in Briscoe was

cognizant of a witness’ fear of being completely candid without absolute immunity; the witness

“might be inclined to shade his testimony . . ., to magnify uncertainties, and thus to deprive the

finder of fact of candid, objective, and undistorted evidence.” 460 U.S. at 333. Here, the possibility

to introduce such variability into Defendant’s testimony was limited. The affidavit made one and

only one statement: that Defendant had a reasonable basis to believe that certain property of Plaintiff

was non-exempt. Of course, Defendant and Plaintiff may disagree as to whether Defendant had such

reasonable basis; for example, Plaintiff may claim that a preliminary investigation made by

Defendant was insufficient. This, however, is beside the point of Briscoe. The focus is on the

testimony itself, not on the factual basis of the testimony. With the affidavit, Defendant has no room

to shade its testimony, to magnify uncertainties, to distort the evidence; Defendant cannot say that

it might have a reasonable basis, or that there is a possibility that it does not have a reasonable basis.

Defendant cannot be equivocal in its affidavit: it states that it either has a reasonable basis or it does

not. In other words, Defendant, even if it has an incentive to “play it safe” with ambiguous language

because of a lack of absolute immunity, it has no ability to do so, as Defendant must make the

definitive statement that it has a reasonable basis. Thus, Defendant will not have to fear

“repercussion from a disgruntled opponent over the meaning and implication of every sworn word,”

(Def. Br. 28), as the battle will not be fought over semantics so much as the substance of the

testimony.

The fact that Defendant has to be unequivocal in the affidavit without the protection of

absolute immunity will not cause Defendant to cease submitting these affidavits and to stop seeking

garnishment actions, as this would be wholly contrary to Defendant’s financial interests. Instead,

Defendant will have the incentive to conduct some sort of investigation or have some other

reasonable basis for its affidavit, as required by Ohio law.

(v). Common Law

Most states recognize some cause of action to address a plaintiff’s claim of improper

garnishment:

Where an order of attachment or garnishment is improperly obtained or tortiously

employed, the defendant in the proceedings may have several modes of obtaining

redress for injuries caused thereby. He may proceed on the attachment or

garnishment bond, if one has been given, sue for malicious or wrongful attachment2

or garnishment, or maintain an action for abuse of process or malicious prosecution.

6 Am. Jur. 2d Attachment and Garnishment § 604. “As with the tort of malicious prosecution, two

of the necessary elements of a cause of action for wrongful garnishment are (1) an absence of

probable cause for such proceeding, and (2) the presence of legal malice, which ‘may be inferred

entirely from a lack of probable cause.’” Burshan v. Nat’l Union Fire Ins. Co., 805 So.2d 835, 845

(Fla. Dist. Ct. App. 2001) (quoting Adams v. Whitfield, 290 So.2d 49, 51 (Fla. 1974)). One court

has stated that “[w]hether a garnishment is wrongful depends upon whether the steps taken by the

parties seeking the writ comply with the statute authorizing such relief.” Chandler v. Cashway Bldg.

Materials, Inc., 584 S.W.2d 950, 952 (Tex. App. 1979).

In addition, certain states have explicitly ruled that a cause of action for wrongful

garnishment may arise from the garnishment of exempt property. Owens v. Deutch, 137 P.2d 181,

185 (Kan. 1943); Grimestad v. Lofgren, 117 N.W. 515 (Minn. 1908); Rice v. Chase, 9 N.H. 178

(1838). See generally 6 Am. Jur. 2d Attachment and Garnishment § 612. One state has ruled that

2

Defendant’s argument that Plaintiff cannot maintain a malicious prosecution claim for a writ of garnishment

as long as the underlying judgment is valid is not well taken. See infra.

No. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 11

a single instance of garnishment of exempt property does not amount to abuse of process, but

multiple instances may be sufficient. Layton v. Chase, 144 N.W.2d 561, 564 (S.D. 1966).

The case law cited above demonstrates that states have allowed claims where a plaintiff

alleges an improper garnishment, whether the claim is one of malicious prosecution, abuse of

process, or wrongful garnishment. This includes a claim that the defendant improperly garnished

exempt property. The defendant is not entitled to absolute immunity to counter these claims;

instead, he has the defenses of probable cause and lack of malice. This common law backdrop

generally indicates that Defendant would not be absolutely immune from suit for an improper

garnishment.

The question then becomes whether Defendant, although not immune from suit, should

receive absolute immunity for the statements he made in the affidavit. From the Supreme Court

precedent previously discussed, this Court draws several rules:

(1) A private witness testifying at trial is absolutely immune for her testimony;

(2) A private witness testifying at a grand jury is absolutely immune for her testimony;

(3) A private witness testifying as a complaining witness has no immunity for her testimony.

This Court finds that Defendant is a complaining witness.3 In Wyatt, the Supreme Court ruled that

“although public prosecutors and judges were accorded absolute immunity at common law, such

protection did not extend to complaining witnesses who, like respondents, set the wheels of

government in motion by instigating a legal action.” 504 U.S. 164-65 (citation omitted). Here,

Defendant instigated the legal action of garnishment and “set the wheels of government in motion.”

In order to do so, Defendant swore to the truth of a certain set of facts, i.e., it had reasonable belief

that the target property of the garnishment was non-exempt. Because of this affidavit, the state court

then bound Plaintiff’s bank account. Defendant’s garnishment action is the result of Defendant’s

“complaint” that Plaintiff had non-exempt property, and that Plaintiff thus owed this non-exempt

property to Defendant.

From this Court’s perspective, Defendant’s actions mirror the instigation of an action in

replevin. As explained in Wyatt, the Supreme Court had grouped together replevin and garnishment

actions in the § 1983 context, and with good reason. The two actions are quite similar: in both

claims, the plaintiff believes the defendant holds property to which the plaintiff is entitled; in both

claims, the plaintiff files an affidavit that swears to his belief; in both claims, the court then

dispossesses the defendant of the property or otherwise limits the defendant’s use; and in both

claims, the defendant then has the right to a hearing to prove that the property properly belongs to

him. In Wyatt, the Supreme Court noted that a private defendant was not immune from suit for

instigating an improper replevin action under a claim of malicious prosecution or abuse of process;

the defendant did, however, have the defense of good faith. 504 U.S. 164-65. This Court sees no

principled distinction that justifies differing treatment for an improper garnishment action.

Defendant may argue that an action in replevin is a prejudgment action, whereas a

garnishment action is a postjudgment action. This is a trivial distinction. The fact that Defendant

obtained an underlying judgment in support of the garnishment is irrelevant; the validity of the

3

In support of its claim of absolute immunity, Defendant cites Etapa v. Asset Acceptance Corp., 373 F. Supp.

2d 687 (E.D. Ky. 2004), and Beck v. Codilis, No. 4:99 CV 485-RH, 2000 WL 34490402 (N.D. Fla. Dec. 27, 2000), two

cases that specifically addressed false affidavits with respect to FDCPA claims. Because neither case addresses the

complaining witness analysis, they are unpersuasive in the present factual context.

No. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 12

underlying judgment does not extend to an ancillary action. This Court looks only to the

garnishment action itself to determine whether that claim was properly made.

Defendant argues that the complaining witness analysis does not apply because the

complaining witness analysis deals only with arrest warrants, and no analogy can be drawn to this

case because the probable cause requirement for arrest warrants derives from the Constitution,

whereas Plaintiff does not and cannot make the same constitutional claim for an improper

garnishment. While the Supreme Court used the complaining witness analysis in Malley in its

treatment of a police officer’s statement to support probable cause for an arrest warrant, the analysis

derives from the common law tort of malicious prosecution. Malley, 475 U.S. at 341 n.3. If a

private defendant instituted a baseless civil suit without probable cause and with malice against the

plaintiff, then the plaintiff would have a cause of action against the defendant based not in the

Constitution but in the common law, and the defendant would be a complaining witness without

absolute immunity. Likewise, if a private defendant instituted an improper garnishment action

without probable cause and with malice, the plaintiff garnishee would have a cause of action at

common law. See supra. Thus, the complaining witness analysis applies outside of the

constitutional context.

Defendant next argues that “no analogy can be drawn between a claim for malicious

prosecution and a claim that an affidavit in aid of garnishment contains a false statement.” (Def.

Reply Br. 7.) This Court disagrees. As explained above, a plaintiff garnishee can use malicious

prosecution as a claim to remedy an improper garnishment, so malicious prosecution is not just

analogously on point; it is directly on point. This is logical, as malicious prosecution is defined as

“a suit for damages brought by one against whom a criminal prosecution, civil suit, or other legal

proceeding has been instituted maliciously and without probable cause, after the termination of the

former proceedings in favor of the defendant.” 52 Am. Jur. 2d Malicious Prosecution § 1. Here,

Defendant instituted a garnishment proceeding against Plaintiff, and the proceeding ended in favor

of Plaintiff. Plaintiff claims the proceeding was instituted maliciously and without probable cause

because Defendant did not have a reasonable basis to believe that Plaintiff’s property was non-

exempt. Plaintiff could thus sufficiently state a claim of malicious prosecution to which Defendant

could not assert a defense of absolute immunity. Wyatt, 504 U.S. at 164.

Defendant argues that as long as the underlying judgment is valid, there can be no claim of

malicious prosecution with respect to a garnishment action. None of the cases to which Defendant

cites support this contention. In Vanover v. Cook, the court found that the plaintiff had failed to state

a malicious prosecution claim, because no judgment had been entered in the plaintiff’s favor. 260

F.3d 1182, 1189-90 (10th Cir. 2001). It is undisputed in the instant case that the state court

dismissed the garnishment of Plaintiff’s bank account. Novick v. Becker actually supports Plaintiff’s

position: the court found that “the detention of the funds of a party by garnishment is such

interference with his property as to sustain an action of malicious prosecution.” 90 N.W.2d 620, 622

(Wis. 1958). The court ultimately found that the plaintiff did not properly allege lack of probable

cause on the part of the defendant. Id. at 623. Duckworth v. Boykin dealt with a case where the

plaintiff in the malicious prosecution suit “made an unsuccessful attempt to obtain a judgment that

the money raised by the garnishment was exempt from that process.” 41 S.E. 62, 62 (Ga. 1902).

In other words, the garnishment action was good, and thus the malicious prosecution claim failed,

because the plaintiff failed to show that the garnished property was exempt. Here, Plaintiff has

shown and the state court has ruled that the garnished property was exempt. Salsgiver v. Standard

Oil Co. was a case where the plaintiff failed to prove malice; it did not state that a plaintiff could

never maintain a malicious prosecution claim if there was a valid underlying judgment. No. 77 C.A.

66, 1978 WL 214778 (Ohio Ct. App. Jan. 17, 1978).

The only case that possibly lends support to Defendant’s contention is Delk v. Colonial Fin.

Co., 194 N.E.2d 885 (Ohio Ct. App. 1963). There, the state court reasoned that “[i]t is obvious that

No. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 13

the existence of defendant’s valid judgment provided complete probable cause for instituting

garnishment proceedings.” Id. at 888. This Court agrees that generally, when a creditor has

obtained a judgment, she may then seek garnishment; however, this general probable cause does not

equate to the specific probable cause requirement of Ohio law that Defendant have a reasonable

basis to believe that the property garnished is non-exempt. In other words, it is no answer that

Plaintiff owes Defendant money, and that Plaintiff owns property; Defendant must show that it

reasonably believes the garnished property is non-exempt. Moreover, Delk could not possibly

encompass this specific form of probable cause, as it was decided well before the existence of the

Ohio statutory requirement of the affidavit. While the language in Delk was applicable to the days

when the creditor could garnish property without investigating the nature of the property, those days

are no more in Ohio.

Defendant’s actions could properly be characterized as malicious prosecution. As a result,

it is a complaining witness without absolute immunity. The fact that Plaintiff is suing under the

FDCPA and not the common law claim does not affect the immunity status of Defendant. As the

Supreme Court stated in Kalina, “in determining immunity, we examine the nature of the function

performed.” 522 U.S. at 127 (internal quotations and citation omitted). In this case, Defendant

functioned as a complaining witness, so it may not assert absolute immunity against any claim in

connection with this role.

From a practical perspective, treating Defendant as a complaining witness without immunity

simply makes sense. The Court reserves absolute immunity for individuals when they functionally

serve as “integral parts of the judicial process,” such as judges, advocates, and witnesses in their

ordinary judicial roles. Briscoe, 460 U.S. at 335. The purpose of this immunity is to preserve the

integrity of our judicial system, not to assist a self-interested party who allegedly lies in an affidavit

to initiate a garnishment proceeding.

III. CONCLUSION

For the foregoing reasons, this Court AFFIRMS the order of the district court.