McCormick v. Braverman

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0200p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant, -

LINDA MCCORMICK,

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No. 04-1708

v.

,

>

ERIC A. BRAVERMAN, et al.; CITIZENS INSURANCE -

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Defendants-Appellees. N

COMPANY OF AMERICA, et al.,

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

Nos. 04-70613; 04-70622—Victoria A. Roberts, District Judge.

Submitted: February 2, 2006

Decided and Filed: June 20, 2006

Before: COLE, CLAY, and GIBBONS, Circuit Judges.

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COUNSEL

ON BRIEF: Eric A. Braverman, Lincoln Park, Michigan, Margaret A. Nelson, OFFICE OF THE

ATTORNEY GENERAL, Lansing, Michigan, David M. Findling, FINDLING LAW FIRM, Royal

Oak, Michigan, for Appellees. Linda McCormick, Livonia, Michigan, pro se.

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OPINION

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CLAY, Circuit Judge. Plaintiff Linda McCormick appeals the March 17, 2004 order of the

United States District Court for the Eastern District of Michigan dismissing Plaintiff’s cases against

Defendants Eric A. Braverman (“Braverman”), et al. and Citizens Insurance Company of America

(“Citizens Insurance”), et al. for lack of subject matter jurisdiction. Plaintiff claims violations of

42 U.S.C. § 1983, the First, Fourth, Fifth, and Fourteenth Amendments of the United States

Constitution, Michigan common and statutory law, and the Michigan constitution. Although

Plaintiff sets forth a myriad of claims, her underlying contention is that she is the owner of certain

real property, and that Defendants have acted illegally in interfering with her ownership. For the

following reasons, we AFFIRM the district court order.

1

No. 04-1708 McCormick v. Braverman, et al. Page 2

I. BACKGROUND

In 1976, Mary G. McCormick (“Mary”) filed a complaint of divorce against her husband

Edward J. McCormick (“Edward”). On July 19, 1976, Mary and Edward entered into a

reconciliation agreement. In consideration of Mary’s promise to withdraw her complaint of divorce

and to attempt a reconciliation for a period of one year, Edward conveyed his interest in marital real

property located at Henry Ruff Road in Livonia, Michigan (“Henry Ruff Property”) to Mary. On

July 19, 1976, Edward conveyed his interest in the Henry Ruff Property via quitclaim deed to Mary.

Plaintiff alleges that on July 19, 1976, as a result of the reconciliation agreement, Judge Colombo

of the Wayne County Circuit Court dismissed the complaint of divorce with the consent of the

parties.

On July 20, 1977 Mary entered into an agreement with her daughter Linda McCormick,

Plaintiff in the instant case. Mary promised Plaintiff that she would repay Plaintiff for any house

payments, taxes, maintenance costs, and any other payments concerning the Henry Ruff Property

that Plaintiff made. The agreement secured the indebtedness by promising to pay Plaintiff for all

sums provided if and when the Henry Ruff Property was sold. Plaintiff alleges that after July 1976,

Plaintiff made all of the mortgage payments on the Henry Ruff Property.

On March 21, 1980, Mary conveyed the Henry Ruff Property via quitclaim deed to herself

and her daughters Plaintiff, Nancy D. McCormick (“Nancy”), and Frances S. McCormick

(“Frances”), in joint tenancy. On April 25, 1980, Frances conveyed her interest to the remaining

joint tenants. On July 26, 1984, Nancy conveyed her interest to the remaining joint tenants. On

March 19, 1986, Mary conveyed her interest via quitclaim deed to Plaintiff. Plaintiff gave nominal

consideration for the1conveyance. As of March 19, 1986, Plaintiff was the sole title holder of the

Huff Road Property.

In 1984, Mary filed a second complaint of divorce against Edward. On August 3, 1987, the

circuit court entered a default judgment of divorce. McCormick v. McCormick, No. 193967, 1997

WL 33344872, at *1 (Mich. Ct. App. Aug. 1, 1997) (unpublished opinion). The circuit court found

that the Henry Ruff Property was marital property to be divided2between Mary and Edward. Mary

appealed from the property provision of the divorce judgment. Id. As a condition of the appeal,

the circuit court issued an injunction which froze marital assets in certain bank accounts. Id.

On September 9, 1991, the Michigan court of appeals affirmed in part and reversed in part

the circuit court’s judgment of divorce between Mary and Edward. Specifically, the court of appeals

reversed the circuit court’s decision to distribute the Henry Ruff Property as marital property. The

court of appeals found that the circuit court had failed to make any findings with respect to Mary’s

property interest, if any, in the Henry Ruff Property. The circuit court failed to even address

whether the 1976 reconciliation agreement was valid. The court of appeals remanded the case to

the circuit court to determine whether the 1976 reconciliation agreement and any of the subsequent

transfers were valid, as there was a question of whether the transfers were part of a conspiracy to

deprive Edward of his rightful marital property. The court of appeals also advised that third parties

whose property rights might be affected, such as Plaintiff, “usually must be added to the action, and

at a minimum, should have the opportunity to testify at trial. In most cases, third parties should also

be represented by counsel.” (J.A. at 38 (citation omitted).)

1

The circuit court later determined that the conveyances by Frances and Nancy were fraudulent, as their

signatures had been forged on the deeds. See infra.

2

No party contested the validity of the divorce itself.

No. 04-1708 McCormick v. Braverman, et al. Page 3

On October 24, 1992, before the remand had occurred, Edward died. McCormick, 1997 WL

33344872, at *1.

After Edward’s death, Mary filed a motion to dismiss the post-appeal proceeding without

notifying Edward’s estate. Id. On March 15, 1993, Judge Gillis of the Wayne County Circuit Court

dismissed the post-appeal proceeding and lifted the injunction on the marital bank accounts. Mary

and Plaintiff subsequently withdrew money from those accounts.

Upon learning of the dismissal, Edward’s estate moved for reinstatement of the post-appeal

proceeding. On May 21, 1993, Judge Talbot of the Wayne County Circuit Court set aside the March

15, 1993 dismissal and reinstated the post-appeal proceeding, and he ordered the return of the money

withdrawn from the marital bank accounts.3 Judge Talbot also transferred the case to the Wayne

County Probate Court.

On February 16, 1994, Judge Mack of the Wayne County Probate Court entered an order of

divorce between Mary and Edward.4 Judge Mack acted pursuant to the remand instructions of the

September 9, 1991 order of the Michigan court of appeals. Judge Mack awarded the Henry Ruff

Property to Edward’s estate, on the grounds that Mary “refused to purge herself of the contempt of

this Court, has willfully secreted assets of the marital estate, and has violated Orders of the Wayne

County Circuit Court.” (J.A. at 43.) Judge Mack did not base his decision on an analysis of the

validity of the 1976 reconciliation agreement or any of the subsequent transfers.

In 1994, after the judgment of the probate court, Plaintiff filed a quiet title claim against

Edward’s estate with respect to the Henry Ruff Property. McCormick v. McCormick, No. 84-

422014-DO, at 7 (Wayne County Circuit Court Jul. 13, 2004).5 The circuit court held that Plaintiff

had no ownership interest in the Henry Ruff Property. Id. at 8. The circuit court found that the 1976

conveyance from Edward to Mary was void because it lacked consideration and because it was

against public policy. Id. The circuit court found that the conveyances from Frances and Nancy to

the joint tenants were void because the signatures on those deeds were forged. Id. The circuit court

also found that the March 19, 1986 transfer from Mary to Plaintiff was void because it “was an

attempt to conceal the marital assets from the divorce court and a violation of the injunctive orders

against the transfer of marital property.” Id. Both the Michigan court of appeals and the Michigan

Supreme Court denied Plaintiff’s appeal. Id. at Exhibit A.

On February 21, 1997, the Michigan court of appeals vacated the May 21, 1993 order to the

extent it transferred the post-appeal proceeding to the probate court. McCormick v. McCormick, 562

N.W.2d 504, 508 (Mich Ct. App. 1997). The court of appeals also vacated the judgment of the

probate court. Id. The court of appeals found that Judge Talbot could properly reinstate the post-

appeal proceeding, as the marriage was dissolved and the divorce was final before Edward’s death.

Id. at 507. The court of appeals, however, found that Judge Talbot improperly transferred the case

to the probate court. The remand instructions from the September 9, 1991 order of the court of

appeals instructed the circuit court to determine the ownership interests in the Henry Ruff Property,

3

Mary refused to return the $21,000 that she and Plaintiff had removed from the accounts. McCormick, 1997

WL 33344872, at *1. The circuit court held Mary in contempt, and she was jailed for five months. Id. Although she

continued to refuse to return the money, the circuit court released Mary and dismissed the contempt proceedings. Id.

4

This order is somewhat unclear, as Mary and Edward were uncontestedly divorced as of August 3, 1987; only

the division of property remained at issue.

5

Plaintiff’s 1994 case is Linda McCormick v. Estate of Edward McCormick, No. 94-403973, filed in the Wayne

County Circuit Court. The Joint Appendix does not contain any record of this decision; only a subsequent circuit court

case explains what occurred at that proceeding.

No. 04-1708 McCormick v. Braverman, et al. Page 4

but instead of following this instruction, the circuit court passed the case on to the probate court.

Id. at 507-08. The court of appeals remanded the case to the circuit court with the instructions given

in the September 9, 1991 order. Id. at 508-09. The court of appeals offered the following guidance:

[W]e note that [Mary’s] continued refusal to answer questions about the funds she

removed from bank accounts in violation of injunctive orders provides an equitable

ground for granting judgment against her. Thus, the circuit court would be permitted

to award [the Henry Ruff Property] to [Edward’s] estate, subject to the property

interest of . . . Linda McCormick . . . .

Id. at 509.

On remand, the circuit court found that the Henry Ruff Property was the sole property of the

Edward’s estate, subject to a life estate for Mary, so long as Mary obeyed certain conditions, such

as insuring the property in the name of Edward’s estate. McCormick v. McCormick, No. 84-422014-

DO, at 4 (Wayne County Circuit Court Sep. 10, 1999). The Michigan court of appeals affirmed the

decision. McCormick v. Braverman, No. 222415, 2002 WL 1065641, at *1 (Mich. Ct. App. May

24, 2002) (unpublished opinion). On March 5, 2003, the Michigan Supreme Court affirmed the

court of appeals decision with respect to the Henry Ruff Property, but it vacated other portions of

the decision that have no bearing on the instant case. McCormick v. Braverman, 657 N.W.2d 118,

118 (Mich. 2003). The supreme court then remanded the case to the circuit court to address those

vacated portions. Id. Thus, after almost twenty years of litigation, the state courts finally agreed

that Plaintiff had no property interest in the Henry Ruff Property, and that the Henry Ruff Property

belonged to Edward’s estate subject to a life estate for Mary.

On December 18, 2003, a fire destroyed the interior of the Henry Ruff Property. Edward’s

estate moved the circuit court for appointment of a receiver, as Mary had failed to insure the

property in the name of Edward’s estate and had thus extinguished her life estate.

On January 23, 2004, Judge Youngblood of the Wayne County Circuit Court appointed

Defendant David Findling (“Findling”) as the receiver for the Henry Ruff Property. Judge

Youngblood also appointed Defendant Findling as the receiver for the proceeds of the insurance

policy for the Henry Ruff Property, as the property had suffered damage from the fire, although the

policy was under Plaintiff’s name. In addition, Judge Youngblood directed Defendant Findling to

make sure that all necessary repairs were made to the Henry Ruff Property.

On February 19, 2004, Plaintiff filed suit in the United States District Court for the Eastern

District of Michigan. The named Defendants were Eric A. Braverman (“Braverman”), the

administrator of Edward’s estate; Michael E. McCormick (“McCormick”), the son of Edward and

the former administrator of Edward’s estate; and the justices of the Michigan Supreme Court

(“Michigan Justices”). In Count I, Plaintiff alleges that Defendants Braverman and McCormick

seized the Henry Ruff Property under color of state law through “fraud, fabricated information,

withholding of relevant material, . . . false testimony, malicious, reckless unreasonable acts,” in

violation of the First, Fifth, and Fourteenth Amendment. Plaintiff seeks a declaratory judgment that

she is the sole rightful owner of the Henry Ruff Property, and she seeks compensatory and punitive

damages. In Count II, Plaintiff alleges that she was not made a party to the litigation that resulted

in the January 23, 2004 order of receivership. Plaintiff seeks a declaratory judgment that the

January 23, 2004 order of receivership is void. In Count III, Plaintiff makes the same allegations

of fraud against Defendants McCormick and Braverman, but in greater detail. She alleges that

Defendants McCormick and Braverman engaged in various frauds and misrepresentations from 1993

onward in order to continue litigation with respect to the divorce of Mary and Edward. Plaintiff

seeks the Henry Ruff Property, as well as compensatory and punitive damages. In Count IV,

Plaintiff makes the same factual allegations of fraud and misrepresentations on the part of

No. 04-1708 McCormick v. Braverman, et al. Page 5

Defendants McCormick and Braverman in continuing litigation of the divorce of Mary and Edward,

with a state common law claim of abuse of process. In Count V, Plaintiff claims that MCL

§ 700.1303, a statute which gives the Michigan probate court jurisdiction over certain issues, is

unconstitutionally vague and over-broad. This complaint was filed as Case No. 04-70613.

On the same day, Plaintiff filed a complaint in the United States District Court against

Defendant Findling and Defendant Citizens Insurance Company of America. In Count I, Plaintiff

alleges that the order of receivership seizes the Henry Ruff Property in violation of the First, Fourth,

Fifth, and Fourteenth Amendments. Plaintiff also alleges that the order illegally seizes the proceeds

of the insurance policy on the Henry Ruff Property, because Plaintiff is the sole policy holder. In

Count II, Plaintiff alleges that Defendant Findling has scheduled a search of the Henry Ruff

Property, and that the search would be in violation of the Fourth Amendment. In Count III, Plaintiff

alleges that the order of6receivership, and Defendant Findling’s resulting actions, are based on fraud

and misrepresentation, in violation of the Fifth and Fourteenth Amendments. This complaint was

filed as Case No. 04-70622.

On March 16, 2004, the district court dismissed both of Plaintiff’s complaints due to lack

of subject matter jurisdiction based on the Rooker-Feldman doctrine. The court found that the Case

No. 04-70613 complaint was an appeal of the state circuit court’s order of receivership and thus

impermissibly before a federal district court. The court also found that the state probate court order

of February 16, 1994 extinguished Mary’s interest7 in the Henry Ruff Property and thus Plaintiff did

not have an interest in the Henry Ruff Property. With respect to Case No. 04-70622, the court

concluded that “the thrust of the Complaint is that [Plaintiff] is the sole title holder to [the Henry

Ruff Property] and that her claim to that title cannot be attacked. The Rooker-Feldman doctrine

precludes this Court from reviewing decisions of state courts, and as such, dismissal of [Plaintiff’s

complaint] is appropriate as well.” (J.A. at 77.)

Plaintiff timely filed a notice of appeal.

II. DISCUSSION

A. THE ROOKER-FELDMAN DOCTRINE

1. Standard of Review

This Court reviews de novo the district court ruling that the Rooker-Feldman doctrine

precluded subject matter jurisdiction. Gilbert v. Ferry, 401 F.3d 411, 416 (6th Cir. 2005) (citation

omitted).

2. Analysis

The district court erred when it held that the Rooker-Feldman doctrine precluded jurisdiction

for all counts in the Case No. 04-70613 complaint and for Count III in the Case No. 04-70622

complaint. The district court did not err in dismissing on Rooker-Feldman grounds Counts I and

II in the Case No. 04-70622 complaint.

6

Plaintiff does not allege who committed the fraud and misrepresentation.

7

We note that the state probate court’s order did not extinguish Mary’s, and therefore Plaintiff’s, interest in the

Henry Ruff Property, as that order was subsequently vacated. Instead, it was the circuit court’s decision in Plaintiff’s

quiet title action that found that Plaintiff had no property interest in the Henry Ruff Property.

No. 04-1708 McCormick v. Braverman, et al. Page 6

a. Legal Framework

In Rooker v. Fidelity Trust Co., the plaintiff filed suit in district court to have a state trial

court judgment, which was affirmed by the state supreme court, declared null and void. 263 U.S.

413, 414 (1923). The plaintiff alleged that the state court judgment violated the Contract Clause and

the Fourteenth Amendment’s Due Process and Equal Protection Clauses. Id. at 414-15. The district

court dismissed the complaint based on a lack of subject matter jurisdiction, and the Supreme Court

affirmed. Id. at 415-16. The Court found that the plaintiff’s complaint was in fact requesting the

district court to exercise appellate review of the state court’s judgment. Id. The Court noted that

the district court’s jurisdiction was strictly original, and that only the Supreme Court could exercise

appellate jurisdiction over state court decisions. Id. at 416.

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

Court reiterated the holding that a district court could not exercise appellate review of a state court

decision. In that case, the plaintiff Feldman applied to the bar of the District of Columbia. Id. at

465. At the time of his application, the plaintiff was already a member of the bars of Virginia and

Maryland. Id. The bar admissions committee denied the plaintiff’s application, as the District of

Columbia Court of Appeals, pursuant to its rulemaking authority, had previously adopted Rule 46

I(b)(3), which stated that a bar applicant could not be admitted without having graduated from an

approved law school, and the plaintiff had not done so. Id. at 464-65. After this denial, the plaintiff

petitioned the District of Columbia Court of Appeals to be admitted to the bar without examination

or, at the least, to be allowed to sit for the bar examination. Id. at 466. The plaintiff argued that he

was more than adequately qualified for admission, and he noted that the District of Columbia Court

of Appeals had previously granted waivers of Rule 46 I(b)(3). Id. at 467. The court denied the

plaintiff’s petition. The plaintiff Hickey had a similar experience; the plaintiff did not graduate from

an approved law school and petitioned the District of Columbia Court of Appeals for a waiver of

Rule 46 I(b)(3). Id. at 471. The plaintiff argued that he continued his education at his non-approved

law school, as opposed to transferring to an approved school, because the state court had routinely

granted waivers of the rule to graduates of a certain non-approved school. Id. The plaintiff also

argued that he was more than adequately qualified for admission. Id. at 471-72. The court denied

the plaintiff’s petition.

The plaintiff Feldman filed suit in district court, alleging that the state court’s refusal to

waive Rule 46 I(b)(3) and its failure to judge the plaintiff’s individual qualifications violated the

Fifth Amendment and the Sherman Act. Id. at 468. The plaintiff Hickey filed an almost identical

suit in federal court, alleging that the state court’s decision was in violation of the Fifth Amendment

and federal antitrust laws. Id. at 472. The district courts in both cases dismissed the plaintiffs’ suits,

on the ground that plaintiffs sought appellate review of the state court’s decisions. Id. at 470, 473.

The D.C. Circuit, addressing both cases in a single opinion, affirmed the dismissal of the antitrust

claims on the ground that they were insubstantial, but reversed the dismissal of the constitutional

claims. Id. at 474. The court opined that the state court proceedings with respect to the petitions

for waiver were not judicial, so that the district courts did have jurisdiction. Id. at 474-75.

The Supreme Court vacated the D.C. Circuit’s judgment and remanded the case. The Court

noted that a district court was without jurisdiction to review the final determinations of a state court

in judicial proceedings, id. at 476; the Court then found that the state court proceedings with respect

to the plaintiffs’ petitions for waiver were judicial, as they “involved a ‘judicial inquiry’ in which

the court was called upon to investigate, declare, and enforce ‘liabilities as they [stood] on present

or past facts and under laws supposed already to exist,’” id. at 479 (alteration in original) (quoting

Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226 (1908)). The Court therefore ruled that to the

extent the plaintiffs sought review of the denial of their petitions, the district courts lacked subject

matter jurisdiction. Id. at 482. On the other hand, to the extent the plaintiff challenged the

constitutionality of Rule 46 I(b)(3), the district courts had subject matter jurisdiction. Id. at 482-83.

No. 04-1708 McCormick v. Braverman, et al. Page 7

Turning to the plaintiffs’ complaints, the Court held that the district courts were without

jurisdiction to hear the plaintiffs’ claims that “the District of Columbia Court of Appeals acted

arbitrarily and capriciously in denying their petitions for waiver and that the court acted

unreasonably and discriminatorily in denying their petitions.” Id. at 486. The Court reasoned that

such claims were “inextricably intertwined with the District of Columbia Court of Appeals’

decisions, in judicial proceedings, to deny the [plaintiffs’] petitions,” such that the claims called for

the district courts to review the decisions of the state court. Id. at 486-87. The Court held, however,

that the district courts did have subject matter jurisdiction over the plaintiffs’ claims that Rule 46

I(b)(3) was unconstitutional.

The Court mentioned the phrase “inextricably intertwined” in one other portion of the

Feldman opinion; in footnote 16, the Court expressed disapproval of the Fifth Circuit’s analysis in

Dasher v. Supreme Court of Texas, 658 F.2d 1045 (5th Cir. 1981). There, the Fifth Circuit held that

a plaintiff, who in state proceedings had been denied the opportunity to take the Texas state bar

examination, and who had not raised federal constitutional arguments in those state proceedings,

could raise federal constitutional arguments in district court to attack the judgment of the state court.

Id. at 1051. Importantly, the plaintiff in that case claimed that the state supreme court violated the

Fourteenth Amendment’s Equal Protection and Due Process Clauses in denying her application to

take the bar examination. Id. at 1048. In rejecting the Fifth Circuit’s analysis, the Supreme Court

noted:

If the constitutional claims presented to a United States District Court are

inextricably intertwined with the state court’s denial in a judicial proceeding of a

particular plaintiff’s application for admission to the state bar, then the District Court

is in essence being called upon to review the state court decision. This the District

Court may not do.

Feldman, 460 U.S. at 483 n.16.

After Feldman, the courts of appeals took varying approaches in giving content to the phrase

“inextricably intertwined” in applying the Rooker-Feldman doctrine. While the Supreme Court used

that phrase in Feldman to twice describe a plaintiff’s complaint of harm from a state court decision

itself, many circuits, including this one, gave an expansive definition to that phrase. See Executive

Arts Studio, Inc. v. City of Grand Rapids, 391 F.3d 783, 793 (6th Cir. 2004) (“[A] federal claim is

inextricably intertwined with a state court judgment and thus implicates Rooker-Feldman when the

federal claim succeeds only to the extent that the state court wrongly decided the issues before it.”

(internal quotations and citation omitted).).

Recognizing the inconsistency in application of the Rooker-Feldman doctrine amongst the

lower courts, the Supreme Court clarified the scope of the doctrine in Exxon Mobil Corp v. Saudi

Basic Indus. Corp., 544 U.S. 280, 125 S. Ct. 1517 (2005). There, Exxon and Saudi Basic were

involved in joint ventures, and a dispute arose as to certain royalties charged by Saudi Basic. Id. at

1524-25. Saudi Basic filed suit in state court, seeking a declaratory judgment that the royalties were

valid, and, shortly after, Exxon filed suit in federal district court, alleging that Saudi Basic had

overcharged Exxon. Id. at 1525. Saudi Basic filed a motion to dismiss in district court, which the

court denied. Id. Saudi Basic appealed the decision, and the Third Circuit dismissed Exxon’s

complaint on Rooker-Feldman grounds. Id. The court found that the district court’s subject matter

jurisdiction terminated when the state court entered a judgment. Id.

The Supreme Court reversed. The Court began its analysis with these words:

Rooker and Feldman exhibit the limited circumstances in which this Court’s

appellate jurisdiction over state-court judgments . . . precludes a United States

No. 04-1708 McCormick v. Braverman, et al. Page 8

district court from exercising subject-matter jurisdiction . . . . In both cases, the

losing party in state court filed suit in federal court after the state proceedings ended,

complaining of an injury caused by the state-court judgment and seeking review and

rejection of that judgment. Plaintiffs in both cases, alleging federal-question

jurisdiction, called upon the District Court to overturn an injurious state-court

judgment.

Id. at 1526 (emphasis supplied). The Court noted that the concurrent jurisdiction of state and federal

courts had long been recognized, and that the entry of judgment by the state court before the federal

court in such a situation would not trigger Rooker-Feldman. Id. at 1526-27. Instead, preclusion law

would govern. Id. at 1527. 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 Assoc. v. Village of Rosemont, 995 F.2d 726, 728 (7th

Cir. 1993)).

b. Application to This Case

The Rooker-Feldman doctrine does not preclude subject matter jurisdiction in this case of

Counts I through V in Case No. 04-70613 and Count III in Case No. 04-70622. In these counts,

Plaintiff does not complain of “injuries caused by the state court judgments,” id. at 1521-22; she

does not claim that the state court judgments, with respect to Mary’s divorce and to the order of

receivership, in and of themselves violate the federal Constitution or federal law, unlike the plaintiffs

in Rooker and in Feldman. Instead, Plaintiff claims that certain Defendants acted illegally and that

a state statute is unconstitutionally vague and overbroad. In Count I of Case No. 04-70613, Plaintiff

claims that Defendants Braverman and McCormick committed fraud and misrepresentation in the

divorce proceedings between Mary and Edward’s estate. In Count II, Plaintiff claims that

Defendants Braverman and McCormick intentionally did not make Plaintiff a party to the litigation

concerning the order of receivership, so that she did not have an opportunity to assert her property

right over the Henry Ruff Property. In Count III, Plaintiff repeats her claim that Defendants

Braverman and McCormick committed fraud and misrepresentation in the divorce proceedings

between Mary and Edward’s estate. In Count IV, Plaintiff claims that Defendants Braverman and

McCormick committed an abuse of process in the divorce proceedings between Mary and Edward’s

estate. In Count V, Plaintiff claims that MCL § 700.1303 is unconstitutionally vague and overbroad.

In Count III of Case No. 04-70622, Plaintiff claims that the order of receivership was obtained

through fraud and misrepresentation, though she does not specify who committed these actions.

None of these claims assert an injury caused by the state court judgments; Plaintiff does not

claim that the state court judgments themselves are unconstitutional or in violation of federal law.

Instead, Plaintiff asserts independent claims that those state court judgments were procured by

certain Defendants through fraud, misrepresentation, or other improper means, and that a state

statute is vague and overbroad. Certainly, these independent claims may deny a legal conclusion

of the state court, i.e., the Henry Ruff Property is the sole property of Edward’s estate; however, this

fact does not lead to a divestment of subject matter jurisdiction in the federal courts. Instead, the

Supreme Court has instructed that preclusion law is the appropriate solution for these independent

claims. It bears repeating that “[i]f a federal plaintiff ‘present[s] some independent claim, albeit one

No. 04-1708 McCormick v. Braverman, et al. Page 9

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. at 1527 (citation omitted).

This Court recently addressed similar arguments in Todd v. Weltman, Weinberg, & Reis Co.,

L.P.A., 434 F.3d 432 (6th Cir. 2006). In that case, the defendant debt collector sought to garnish the

bank account of the plaintiff debtor. Id. at 435. The defendant filed an affidavit in state court,

required by state law, stating that it had a reasonable belief that the target assets were not exempt

from garnishment. Id. The state court found that the affidavit was valid and froze the plaintiff’s

bank account. Id. At a subsequent hearing in state court, the plaintiff proved that the assets in the

bank account were exempt, and the state court released the account. Id. The plaintiff then filed suit

in federal court against the defendant, alleging that the defendant had lied in its affidavit in violation

of the Fair Debt Collection Practices Act. Id. at 434. The defendant argued, among other things,

that the district court did not have jurisdiction over the claim because of Rooker-Feldman. This

Court disagreed and held that Rooker-Feldman did not apply: “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.” Id. at 437. Likewise, the majority of Plaintiff’s

claims in this case assert injuries caused by Defendants Braverman’s and McCormick’s alleged

wrongdoing before the state court, or by a vague and overbroad state statute; these claims do not

assert injuries from the state court judgments.

The question naturally arises as how to differentiate between a claim that attacks a state court

judgment, which is within the scope of the Rooker-Feldman doctrine, and an independent claim,

over which a district court may assert jurisdiction. We find an appropriate rule of thumb in the

Fourth Circuit’s decision in Davani v. Virginia Dep’t of Transp., 434 F.3d 712 (4th Cir. 2006). That

court explained:

The plaintiffs in Rooker and Feldman sought redress for an injury allegedly caused

by the state-court decision itself--in Rooker, the plaintiff sought to overturn a state-

court judgment in federal district court, and in Feldman, the plaintiffs sought to

overturn a judgment rendered by the District of Columbia court in federal district

court. In Barefoot [a pre-Exxon Mobil case], by contrast, we extended the Rooker-

Feldman doctrine to apply in situations where the plaintiff, after losing in state court,

seeks redress for an injury allegedly caused by the defendant’s actions.

Id. at 717. The inquiry then is the source of the injury the plaintiff alleges in the federal complaint.

If the source of the injury is the state court decision, then the Rooker-Feldman doctrine would

prevent the district court from asserting jurisdiction. If there is some other source of injury, such

as a third party’s actions, then the plaintiff asserts an independent claim. The Second Circuit

employs a similar inquiry. See Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 87-88 (2d

Cir. 2005) (“[F]ederal plaintiffs are not subject to the Rooker-Feldman bar unless they complain of

an injury caused by a state judgment.). In differentiating between a barred claim and a valid claim

under Rooker-Feldman, the Second Circuit provided two instructive examples:

Suppose a state court, based purely on state law, terminates a father’s parental rights

and orders the state to take custody of his son. If the father sues in federal court for

the return of his son on grounds that the state judgment violates his federal

substantive due-process rights as a parent, he is complaining of an injury caused by

the state judgment and seeking its reversal. This he may not do, regardless of

whether he raised any constitutional claims in state court, because only the Supreme

Court may hear appeals from state-court judgments.

No. 04-1708 McCormick v. Braverman, et al. Page 10

Further, by focusing on the requirement that the state-court judgment be the source

of the injury, we can see how a suit asking a federal court to “den[y] a legal

conclusion” reached by a state court could nonetheless be independent for Rooker-

Feldman purposes. Suppose a plaintiff sues his employer in state court for violating

both state anti-discrimination law and Title VII and loses. If the plaintiff then brings

the same suit in federal court, he will be seeking a decision from the federal court

that denies the state court's conclusion that the employer is not liable, but he will not

be alleging injury from the state judgment. Instead, he will be alleging injury based

on the employer’s discrimination. The fact that the state court chose not to remedy

the injury does not transform the subsequent federal suit on the same matter into an

appeal, forbidden by Rooker-Feldman, of the state-court judgment.

Id. Of course, there are certain exceptions to this rule of thumb. For example, if a third party’s

actions are the product of a state court judgment, then a plaintiff’s challenge to those actions are in

fact a challenge to the judgment itself. See id. at 88 (finding that the plaintiffs’ challenge to a county

board of election’s refusal to tally certain absentee ballots was in fact a challenge to the state court

judgment that the ballots were invalid). The key point is that the source of the injury must be from

the state court judgment itself; a claim alleging another source of injury is an independent claim.

As explained previously, Counts I through V in Case No. 04-70613 and Count III in Case No. 04-

70622 all assert injury from a source other than the state court judgments; they are therefore

independent claims outside the scope of the Rooker-Feldman doctrine.

To the extent that Defendants argue that these claims, even though they do not assert injury

from the state court judgments, are “inextricably intertwined” with those judgments so as to fall

within the reach of Rooker-Feldman, that argument must fail. We first note that it was this exact

language that was the source of the pre-Exxon Mobil woes as to the application of Rooker-Feldman.

In addition, the Supreme Court used the phrase “inextricably intertwined” in Feldman to describe

a claim where the plaintiff asserted an injury from the state court judgment itself; the claims of the

plaintiffs Feldman and Hickey that the state court judgments were in violation of the Fifth

Amendment were inextricably intertwined with the state court judgments, Feldman, 460 U.S. at 486-

87; and the plaintiff’s claim in Dasher that the state court judgment was in violation of the

Fourteenth Amendment was inextricably intertwined with the state court judgment, id. at 483 n.16.

In Exxon, the Supreme Court implicitly repudiated the circuits’ post-Feldman use of the phrase

“inextricably intertwined” to extend Rooker-Feldman to situations were the source of the injury was

not the state court judgment. In short, the phrase “inextricably intertwined” only describes the

conclusion that a claim asserts an injury whose source is the state court judgment, a claim that is

thus barred by Rooker-Feldman. See Davani, 434 F.3d at 719; Hoblock, 422 F.3d at 86-87 (“But

the phrase ‘inextricably intertwined’ has no independent content. It is simply a descriptive label

attached to claims that meet the requirements outlined in Exxon Mobil.”).

We stress that the Rooker-Feldman doctrine is not a panacea to be applied whenever state

court decisions and federal court decisions potentially or actually overlap. The Supreme Court made

clear in Exxon Mobil that the doctrine is confined to those cases exemplified by Rooker and Feldman

themselves: when a plaintiff asserts before a federal district court that a state court judgment itself

was unconstitutional or in violation of federal law. In such a situation, the plaintiff seeks appellate

review of the state court judgment, and the federal district court has no subject matter jurisdiction

over such an action. Counts I through V in Case No. 04-70613 and Count III in Case No. 04-70622

do not fall within this category, so that the district court had jurisdiction over these claims.

On the other hand, in Counts I and II in Case No. 04-70622, Plaintiff alleges that the order

of receivership in and of itself is illegal and causes Plaintiff harm. In Count I, Plaintiff alleges that

“[s]aid order [of receivership], under color of law, seizes Plaintiff’s real estate . . . in violation of

No. 04-1708 McCormick v. Braverman, et al. Page 11

Plaintiff’s United States Constitutional rights under the First, Fourth, Fifth, and Fourteenth

Amendments.” Under the same count, Plaintiff alleges that “[s]aid order, absent any jurisdiction,

is also illegally seizing the proceed’s of Plaintiff’s homeowners [sic] policy, of which Plaintiff is the

sole policy holder and interfering with her rights to have said premises repaired from a recent fire.”

Like the plaintiffs in Rooker and Feldman, Plaintiff “complain[s] of injuries caused by the state

court judgment[ ] rendered before the district court proceeding commenced and inviting district

court review and rejection of those judgments.” Exxon Mobil, 125 S. Ct. at 1521-22. The count

does not allege any independent claim; but rather, the count alleges that the state court order itself

was illegal and harmed Plaintiff. Likewise, Count II alleges that a search authorized by the order

of receivership would be illegal and would cause harm to Plaintiff. Thus, Plaintiff challenges the

legality of the order itself.

The problem with applying Rooker-Feldman to divest jurisdiction of these two counts is that

the doctrine only applies to bar a federal plaintiff’s claim when she was a party in the state court

action. Johnson v. De Grandy, 512 U.S. 997, 1006 (1994). Plaintiff was not a party to the litigation

surrounding the order of receivership; the parties involved were Mary, Defendant Braverman, and

Defendant Findling. The question then becomes whether the Rooker-Feldman doctrine should apply

to a federal plaintiff in privity with a party in the state court proceeding.8 The Second and Third

Circuits have answered in the affirmative, although only the Second Circuit’s decision was filed

subsequent to the Supreme Court’s decision in Exxon Mobil. See Hoblock, 422 F.3d at 89-90;

Marran v. Marran, 376 F.3d 143, 151-53 (3d Cir. 2004). See also Bates v. Jones, 131 F.3d 843, 862

(9th Cir. 1997) (en banc) (Fletcher, J., concurring in part and dissenting in part) (“Because it is a

doctrine concerning the integrity of individual judgments, Rooker-Feldman . . . is applicable only

when the parties in a second action were also parties, or in privity with parties, in a previous state

court proceeding.”).

This is admittedly a close issue. In Exxon Mobil, the Supreme Court stated that the Rooker-

Feldman doctrine barred federal claims of “state-court losers.” 125 S. Ct. at 1521. Narrowly

interpreted, this language could mean that only actual parties in the state court proceeding may be

affected by the doctrine. Under a more moderate interpretation, a person in privity with the actual

party who loses in state court may be deemed a state-court loser. We find that the latter

interpretation is appropriate. The Rooker-Feldman doctrine prevents a party who loses in state court

from appealing that decision to the lower federal courts, as only the Supreme Court has appellate

jurisdiction over state court decisions. It would be inconsistent to disallow the party in the state suit

to raise a federal claim but to allow his privy to bring the exact same claim. A state party may not

circumvent the Article III jurisdictional provisions simply by substituting a privy’s name for his own

in the federal claim. This is especially true because the source of the injury to the state court loser

and his privy would be one and the same: the state court judgment. In other words, a federal claim

that alleged injury from a state court judgment would seek review of that state court judgment,

regardless if the state court loser or his privy filed the federal claim. The district court may not9

entertain jurisdiction over a claim that calls for appellate review, no matter who raises that claim.

8

This Court has defined a privy as either (1) a successor in interest; (2) a nonparty who controlled the original

suit; or (3) a nonparty who is adequately represented by a party in the original suit. Becherer v. Merrill Lynch, Pierce,

Fenner, and Smith, Inc., 193 F.3d 415, 422 (6th Cir. 1999). Plaintiff’s ownership interest and her consequent interest

in the litigation is wholly dependent on the conveyance of the Henry Ruff Property from Mary to Plaintiff, so she is a

successor in interest. Moreover, Plaintiff’s interest was adequately represented by Mary, as the two parties’ interests

in the Henry Ruff Property completely overlap.

9

We note that although the general rule is that only a party to a case may seek appellate review of the judgment

in that case, “it is widely recognized that in a proper case a nonparty may be sufficiently interested in a judgment to

permit him or her to take an appeal from it. This requirement is satisfied by a showing of privity with a party to the

case.” 5 Am. Jur. 2d Appellate Review § 265. Thus, a federal claim filed by a privy of the state court loser that asserts

an injury caused by the state court judgment could properly be characterized as an appeal from that judgment.

No. 04-1708 McCormick v. Braverman, et al. Page 12

We hold that Plaintiff is in privy with Mary and is a state-court loser, so that the Rooker-Feldman

doctrine bars jurisdiction over Counts I and II in Case No. 04-70622.

B. COLLATERAL ESTOPPEL

1. Preservation of the Issue

This Court may affirm the decision of the district court on any grounds, including one not

considered by the district court. United States Postal Serv. v. Nat’l Ass’n of Letter Carriers, 330

F.3d 747, 750 (6th Cir. 2003). That said, collateral estoppel is an affirmative defense which must

be raised by the defendant. Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997). Defendant

Braverman raised the affirmative defense in this case.10

2. Standard of Review

The district court did not address the issue of collateral estoppel, so there is no district court

analysis to review on this issue.

3. Analysis

Plaintiff is collaterally estopped from raising all of the remaining claims. The Michigan state

courts have already determined that Plaintiff has no ownership interest in the Henry Ruff Property.

a. Legal Framework

The Full Faith and Credit Act, 28 U.S.C. § 1738, requires the federal courts to give state

court judgments the same preclusive effect that the state would afford such judgments. Exxon

Mobil, 125 S. Ct. at 1527 (quoting Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 523

(1986)). Michigan has three requirements for collateral estoppel: “(1) ‘a question of fact essential

to the judgment must have been actually litigated and determined by a valid and final judgment’;

(2) ‘the same parties must have had a full [and fair] opportunity to litigate the issue’; and (3) ‘there

must be mutuality of estoppel.’” Monat v. State Farm Ins. Co., 677 N.W.2d 843, 845-46 (Mich.

2004) (alteration in the original) (quoting Storey v. Meijer, Inc., 429 N.W.2d 169, 172 n.3 (Mich.

1988)). With respect to the third requirement, Michigan allows the defensive use of collateral

estoppel against a prior plaintiff. Id. at 850-51.

b. Application to This Case

The Michigan state courts have already determined that Plaintiff does not have an ownership

interest in the Henry Ruff Property. In 1994, in Case No. 94-403973, Plaintiff filed a quiet title

action against Edward’s estate to establish her ownership interest in the Henry Ruff Property. The

circuit court found that Plaintiff had no ownership interest in the Henry Ruff Property, because the

1976 conveyance from Edward to Mary was invalid, the conveyances from Nancy and Frances were

10

We acknowledge that Defendant Braverman did not use the phrase “collateral estoppel” in his answer;

however, this omission is not dispositive. Defendant Braverman asserted “That the Wayne County Circuit Court, The

Michigan Court of Appeals and The Michigan Supreme Court have issued orders or opinions that have determined the

title to the real estate in question,” and “That your defendant, Eric A. Braverman, did not seize any property belonging

to your plaintiff.” (J.A. at 125.) These affirmative defenses assert that the state courts have already found that the Henry

Ruff Property does not belong to Plaintiff; thus, the core of these defenses is that Plaintiff is estopped from relitigating

her ownership interest in the Henry Ruff Property. The purpose in requiring a defendant to plead an affirmative defense

is to give the plaintiff notice and a chance to respond. Sushka, 117 F.3d at 969. While Defendant Braverman’s answer

did not contain the phrase “collateral estoppel,” his answer gave sufficient notice to Plaintiff of that defense.

No. 04-1708 McCormick v. Braverman, et al. Page 13

invalid, and the conveyance from Mary to Plaintiff was invalid.11 See supra. The state court of

appeals and the supreme court denied Plaintiff’s appeals. See supra.

Collateral estoppel applies in the instant case. With respect to the aforementioned

requirements, (1) Plaintiff’s ownership interest in the Henry Ruff Property was an issue that was

essential to the circuit court’s judgment, and the issue was litigated and determined by a valid and

final judgment; (2) Plaintiff had a full and fair opportunity to litigate the issue;12 and (3) mutuality

is not required, as parties not bound by the prior judgment may use collateral estoppel defensively

against the prior plaintiff.13 See Monat, 677 N.W.2d at 845-46, 850-51.

A factual predicate of all of Plaintiff’s remaining claims is that she has an ownership interest

in the Henry Ruff Property.14 The problem, however, is that the state courts have already decided

that she has no such interest. Thus, collateral estoppel precludes all of Plaintiff’s remaining claims.

11

Contrary to Plaintiff’s belief, the 1976 dismissal of Mary’s divorce complaint against Edward does not have

any preclusive effect as to the ownership of the Henry Ruff Property. With respect to collateral estoppel, the issue of

ownership was not actually litigated; there was no final judgment, as the divorce complaint was dismissed through the

consent of the parties; and there was no full and fair opportunity to litigate the issue, as the issue was never litigated.

With respect to res judicata, under Michigan law, “a second action is barred when (1) the first action was

decided on the merits, (2) the matter contested in the second action was or could have been resolved in the first, and

(3) both actions involve the same parties or their privies.” Sewell v. Clean Cut Mgmt., Inc., 621 N.W.2d 222, 225 (Mich.

2001). The 1976 dismissal of Mary’s divorce complaint has no res judicata effect because the case was not decided on

the merits; instead, both Mary and Edward agreed to dismiss the case. Plaintiff repeatedly alleges that no appeal was

taken from the 1976 decision; however, both parties agreed to dismiss the complaint, so an appeal from that decision

would be most unlikely.

Likewise, the March 15, 1993 dismissal of Mary’s post-appeal proceeding does not have any preclusive effect

as to the ownership of the Henry Ruff Property. With respect to collateral estoppel, the issue of ownership was not

actually litigated; there was no final judgment, as the divorce complaint was dismissed by Mary, the party who brought

the appeal; and there was no full and fair opportunity to litigate the issue, as the issue was never litigated. With respect

to res judicata, the 1993 dismissal was not a decision on the merits, and the issue of ownership was not resolved by the

1993 dismissal.

12

Plaintiff never alleges any fraud, misrepresentation, or other impropriety with respect to her quiet title action.

Her complaints only allege such conduct in connection with the divorce proceedings between Mary and Edward’s estate

and with the order of receivership. Count V of Case No. 04-70613, which alleges that MCL § 700.1303 is

unconstitutional, does not specify in which proceeding the contested state statute was used; however, because Plaintiff

never so much as mentions her quiet title action in either her complaint or brief, we assume that Count V addresses a

proceeding other than the quiet title action.

13

Thus, Defendants who were not parties to the prior litigation, such as the Michigan Justices, could raise

collateral estoppel defensively against Plaintiff.

14

Count I of Case No. 04-70613 alleges that Defendants Braverman and McCormick committed fraud and

misrepresentation to continue the divorce proceedings and to seize the Henry Ruff Property from Plaintiff; Count II

alleges that Defendants Braverman and McCormick did not make Plaintiff a party to the litigation surrounding the order

of receivership, so as to seize the Henry Ruff Property from Plaintiff; Count III duplicates the allegations of Count I;

Count IV alleges that Defendants McCormick and Braverman committed an abuse of process in seizing the Henry Ruff

Property from Plaintiff; and Count V alleges that an unconstitutionally vague and over-broad state statute impermissibly

allowed interference with Plaintiff’s ownership of the Henry Ruff Property. Count III of Case No. 04-70622 alleges that

Defendant Findling seized the Henry Ruff Property from Plaintiff based upon an order of receivership that was obtained

by fraud and misrepresentation.

No. 04-1708 McCormick v. Braverman, et al. Page 14

C. THE MICHIGAN SUPREME COURT JUSTICES

1. Preservation of the Issue

This Court may affirm the decision of the district court on any grounds, including one not

considered by the district court. Nat’l Ass’n of Letter Carriers, 330 F.3d at 750. Defendants

Michigan Justices raised a defense under Federal Rule of Civil Procedure 12(b)(6).

2. Standard of Review

The district court made no findings with respect to Defendants Michigan Justices’ 12(b)(6)

motion, so there is no district court analysis to review on this issue. In analyzing a 12(b)(6) motion,

this Court accepts as true all well-pleaded factual allegations, and this Court views the complaint

in the light most favorable to the plaintiff. Benzon v. Morgan Stanley Distributors, Inc., 420 F.3d

598, 602 (6th Cir. 2005).

3. Analysis

The Rooker-Feldman doctrine and collateral estoppel adequately dispose of Plaintiff’s

claims. We address the issue of Plaintiff’s purported claim against Defendants Michigan Justices

to note that Plaintiff fails to state a claim against Defendants Michigan Justices.

Plaintiff mentions Defendants Michigan Justices only once in her complaint;15 in the Parties

and Jurisdiction section, Plaintiff alleges, “Defendants [Michigan Justices] was [sic] at all times

relevant hereto Justice’s [sic] sitting for the Michigan Supreme Court, were state actors under color

of law and acted wholly without subject matter jurisdiction . . . . Plaintiff seeks no monetary

damages against these defendant’s [sic].” (J.A. at 6-7).

Plaintiff does not allege any action on the part of Defendants Michigan Justices; she only

alleges that they were without subject matter jurisdiction, ostensibly in the divorce proceedings

between Mary and Edward. Assuming arguendo that these Defendants were without jurisdiction,

this fact only goes to whether these Defendants have absolute immunity when sued for their judicial

acts.16 See Stump, 435 U.S. at 356-57 (explaining that the common law absolute immunity for

judges may be inapplicable when a judge acts in the clear absence of all jurisdiction). Plaintiff still

needs to allege that these Defendants, while without jurisdiction, engaged in conduct that was

actionable. Plaintiff makes no such allegations, either factual or legal. As a result, Plaintiff does

not make any cognizable claim against Defendants Michigan Justices. Moreover, Plaintiff never

mentions these Defendants in the counts of her complaint; Counts I through IV specifically address

Defendants Braverman and McCormick, and Count V addresses no Defendants at all. Finally, while

Plaintiff states that she does not seek monetary damages from these Defendants, she never states

what relief she does in fact seek from them. In short, Plaintiff only alleges that Defendants

Michigan Justices were without jurisdiction, and while this may negate absolute immunity when

these Defendants are sued for their judicial acts, it does not state a claim.

15

Plaintiff only lists Defendants Michigan Justices in her complaint in Case No. 04-70613.

16

A state judge has two potential forms of immunity. First, under the common law, all judges of superior or

general jurisdiction are absolutely immune for their judicial acts. Stump v. Sparkman, 435 U.S. 349, 355-56 (1978).

Second, under the Eleventh Amendment, a state official has absolute immunity when sued in her official capacity. Will

v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Both forms of absolute immunity are subject to certain

exceptions. Because the issue of whether either form of immunity applies depends on the nature of the claim, and

because Plaintiff makes no claim in her complaint, we will refrain from analyzing immunity.

No. 04-1708 McCormick v. Braverman, et al. Page 15

III. CONCLUSION

For the foregoing reasons, we AFFIRM the order of the district court.