Kelly v. Great Seneca Financial Corp.

• Decision Date: 17 May 2006
• Docket Number: No. 05-3830.,05-3830.
• Parties: Alice G. KELLY; Norman P. Kelly, Plaintiffs-Appellees, v. GREAT SENECA FINANCIAL CORP.; Javitch, Block & Rathbone, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

447 F.3d 944

Alice G. KELLY; Norman P. Kelly, Plaintiffs-Appellees, v. GREAT SENECA FINANCIAL CORP.; Javitch, Block & Rathbone, Defendants-Appellants.

No. 05-3830.

United States Court of Appeals, Sixth Circuit.

Argued: April 27, 2006.

Decided and Filed: May 17, 2006.

COPYRIGHT MATERIAL OMITTED

ARGUED: Michael D. Slodov, Javitch, Block & Rathbone, Cleveland, Ohio, for Appellants. Stephen R. Felson, Cincinnati, Ohio, for Appellees. ON BRIEF: Michael D. Slodov, Javitch, Block & Rathbone, Cleveland, Ohio, for Appellants. Stephen R. Felson, Cincinnati, Ohio, Steven C. Shane, Bellevue, Kentucky, for Appellees.

Before: SUHRHEINRICH, GILMAN, and ROGERS, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

The defendants in this interlocutory appeal ask us to review the district court's nonfinal order denying them, among other things, the defense of absolute witness and advocacy immunity in an action concerning unfair debt-collection practices. The preliminary issue in this case is whether this court has appellate jurisdiction to entertain the defendants' interlocutory appeal under the collateral order doctrine. Only five days after this court held in another case that we have jurisdiction to hear interlocutory appeals concerning witness immunity, the Supreme Court of the United States decided Will v. Hallock, ___ U.S. ___, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006), which clarified when appellate courts have jurisdiction under the collateral order doctrine. In light of Will, we dismiss this appeal for lack of jurisdiction. We also decline to grant mandamus relief.

I.

In September of 2003, defendant Javitch, Block & Rathbone (Javitch) filed in Ohio state court a "Complaint for Money" to collect a debt that the plaintiffs Alice and Norman Kelly allegedly owed defendant Great Seneca Financial Corporation (Seneca). When the Kellys requested discovery, Seneca voluntarily dismissed its complaint without prejudice. In 2004, the Kellys brought suit against Seneca and Javitch in federal district court, alleging violations of several provisions of the Fair Debt Collection Practices Act (FDCPA) and the Ohio Consumer Sales Practices Act (OCSPA). According to the Kellys, the $5,389.15 demanded in Seneca's complaint "was significantly in excess of the amount of money [the Kellys] may have owed or [Seneca] was legally entitled to collect." J.A. 10. The Kellys further claimed that Seneca and Javitch filed the debt-collection complaint "knowing that [they] did not have any means of proving that such debt was owed" and that a "bogus" account statement was attached to the complaint in an attempt to prove the debt. J.A. 10.

Seneca and Javitch responded to the Kellys' complaint by filing a motion to dismiss. They argued that (1) they are absolutely immune from suit for behavior that occurs during the course of litigation, (2) the filing of the Complaint for Money is protected by both the First Amendment and the Noerr-Pennington doctrine, (3) application of the FDCPA to their case exceeds Congress's power under the Commerce Clause, and (4) the Kellys failed to state a claim under several provisions of the FDCPA. The district court denied Seneca and Javitch's motion to dismiss.¹

Seneca and Javitch now challenge the denial of absolute immunity pursuant to the collateral order doctrine in this interlocutory appeal. They also argue that this court should exercise pendant appellate jurisdiction to consider their defenses under the First Amendment, the Noerr-Pennington doctrine, and the Commerce Clause.

After the parties submitted their briefs in this case, this court decided Todd v. Weltman, Weinberg & Reis Co., 434 F.3d 432, 434 (6th Cir.2006). Todd was a strikingly similar case. The plaintiff was a debtor against whom the defendant law firm, on behalf of the creditor, had filed a complaint to collect a debt. See Todd, 434 F.3d at 435. The plaintiff then sued the law firm that filed the complaint and alleged violations of the FDCPA. See id. at 434. The plaintiff moved to dismiss on grounds of, among other things, absolute immunity. See id. The district court denied the motion to dismiss, and the defendant then filed a motion for interlocutory appeal under the collateral order doctrine. We held that "this Court reviews the collateral order of the district court denying Defendant absolute immunity." See id.; accord Paine v. City of Lompoc, 265 F.3d 975, 981 (9th Cir.2001). On the merits, we held that the law firm was not entitled to absolute immunity.

Five days after we decided Todd, the Supreme Court of the United States unanimously decided Will v. Hallock, ___ U.S. ___, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006), which made clear the limited scope of the collateral order doctrine. In Will, the Supreme Court held that a party cannot take an interlocutory appeal from a district court's refusal to apply the Federal Tort Claims Act's judgment bar. We requested that the parties be prepared to discuss the effect, if any, of Will on our jurisdiction over this interlocutory appeal. At oral argument, Seneca and Javitch requested that we grant mandamus relief if we determine that we have no jurisdiction under the collateral order doctrine.

II.

"An appellate court has a duty to consider sua sponte whether appellate jurisdiction is properly invoked." Mattingly v. Farmers State Bank, 153 F.3d 336, 336 (6th Cir.1998) (per curiam). Despite the parties' agreement at oral argument that we should address the merits of this interlocutory appeal, "[s]ubject matter jurisdiction cannot be conferred on federal courts by consent of the parties." Ford v. Hamilton Invs., Inc., 29 F.3d 255, 257 (6th Cir.1994). Our review of Will v. Hallock convinces us that we must dismiss this interlocutory appeal for lack of jurisdiction.

Because the Supreme Court's opinion in Will controls the jurisdictional question in this case, we describe the case in detail. In Will, the Supreme Court held that a party cannot take an interlocutory appeal from a district court's refusal to apply the Federal Tort Claims Act's judgment bar. The Supreme Court began its analysis by noting that federal appellate courts have jurisdiction over only "final decisions of the district courts," see 28 U.S.C. § 1291, and "`a narrow class of decisions that do not terminate the litigation,' but are sufficiently important and collateral to the merits that they should `nonetheless be treated as final.'" Will, 126 S.Ct. at 956 (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994)). To determine which decisions fall within this "narrow class of decisions," courts turn to the collateral order doctrine, identified in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See id. at 957. Orders qualify only if they conclusively decide a disputed issue that is completely independent from the merits of the case and effectively unreviewable on appeal after a final order. See id. (citing P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993)).

The Supreme Court emphasized the "modest scope" of the collateral order doctrine. Id. at 958. The Court stated that the collateral order doctrine does not permit interlocutory appeal of just "any order denying a claim of [a] right to prevail without trial." Id. at 958. The Court explained that the assertion of a right not to stand trial is a necessary, but not a sufficient, condition for interlocutory review. See id. at 958-60. Consequently, "only some orders denying an asserted right to avoid the burdens of trial qualify. . . as orders that cannot be reviewed `effectively' after a conventional final judgment." Id. at 958 (emphasis added). In addition to violating an asserted right not to stand trial, the challenged order must "imperil a substantial public interest." Id. at 959.

The Court identified four instances in which it had recognized that interlocutory appeals were proper, and the Court identified the substantial public interest in each of those four cases that the immediate appeal protects:

(1) Immediate appeal from denials of presidential immunity protects "compelling public ends rooted in . . . the separation of powers";

(2) Immediate appeal from denials of qualified official immunity protects avoidance of disruption of discretionary government functions;

(3) Immediate appeal from denials of sovereign immunity protects "a State's dignitary interests"; and

(4) Immediate appeal from denials of a double jeopardy defense protects the individual from the "superior position" of the government.

Id. at 959. Applying this additional "substantial public interest" requirement to the case before it, the Supreme Court held that a district court's refusal to apply the judgment bar of the Federal Tort Claims Act is not open to interlocutory appeal. See id. at 956, 959-61.

A. Witness Immunity

Although Seneca and Javitch have invoked their right not to stand trial under the common-law doctrine of absolute witness immunity, see Spurlock v. Satterfield, 167 F.3d 995, 1001 (6th Cir.1999), they have failed to demonstrate how any substantial public interest will be imperiled by delaying their appeal until after the district court enters a final order. Their first argument—that Will stated that collateral appeal could be had from denials of all forms of absolute immunity—is not well taken. The Supreme Court stated only that it had permitted "immediate appeal of a denial of absolute Presidential immunity," and it referred to Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), to demonstrate that collateral appeal from a denial of absolute Presidential immunity protected "compelling public ends rooted in the separation of powers." Will, 126 S.Ct. at 959 (citation omitted). The Supreme Court did not say that denials of all forms of absolute immunity, regardless of the function that the invoking litigant served,...