Fisher v. Perron

• Decision Date: 23 March 2022
• Docket Number: 21-1184
• Citation: 30 F.4th 289
• Parties: Frank J. FISHER, Plaintiff-Appellant, v. Michelle M. PERRON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

30 F.4th 289

Frank J. FISHER, Plaintiff-Appellant,

v.Michelle M. PERRON, Defendant-Appellee.

No. 21-1184

United States Court of Appeals, Sixth Circuit.

Decided and Filed: March 23, 2022

ON BRIEF: James W. Rose, Ethan R. Holtz, JAFFE RAITT HEUER & WEISS, P.C., Southfield, Michigan, for Appellee. Frank J. Fisher, McLean, Virginia, pro se.

Before: GILMAN, STRANCH, and NALBANDIAN, Circuit Judges.

JANE B. STRANCH, Circuit Judge.

Frank J. Fisher alleges that his sister, Michelle M. Perron, violated federal and state law by recording various phone conversations among himself, Perron, and two other siblings that discussed their late mother's estate and related litigation. The district court dismissed his complaint with prejudice for failure to state a claim. Because the complaint fails to allege facts sufficient to state a claim under either the relevant state or federal laws, we AFFIRM the district court's dismissal of the case.

I. BACKGROUND¹

Fisher and Perron are siblings and children of the late Anne Markley Spivak. Fisher is the personal representative of his mother's estate, and he serves as a co-trustee of the Anne M. Spivak Revocable Trust with Perron and Peter B. Spivak, Jr., his brother. Fisher is also a co-trustee with his brother, Peter P. Perron, of the Anne M. Spivak Testamentary Trust. Fisher and Michelle Perron have clashed over decisions related to these estate entities, and Fisher alleges that Perron intended to use these disagreements to gain a greater portion of Spivak's estate. The conflicts about the estate, according to Fisher, led Perron to plan litigation against Fisher and the co-trustees of the trusts.

The heart of the complaint is Fisher's allegation, on information and belief, that Perron made "at least fourteen illegal recordings of telephone calls" with Fisher, either alone or with their other siblings, almost all of which related to the Spivak estate. The recording of one call is certain: a February 18, 2018 call between Perron and Peter Spivak in Michigan, Fisher in Virginia, and Peter Perron in Washington. Perron did not inform any of the siblings that she was recording the call. According to Fisher, the call included "private facts about [his] private life," including details about his legal conflicts with Perron over their mother's estate, information on the administration of the Spivak estate and Revocable Trust, and financial and tax information. Perron shared her recording with her attorney and third parties. The complaint alleges, on information and belief, that Perron recorded other calls without the consent of her siblings and shared those recordings with her attorney and third parties.

In September 2018, Perron sued Fisher as the representative of the estate, objecting to the petition for complete estate settlement filed in Wayne County Probate Court. She also filed claims, petitions, and pleadings in two other proceedings in the probate court. It was through this litigation that the recording of the February 18 call came to light. In November 2018, Perron attached a transcript of the call, purported to be accurate and certified, to a probate-court pleading. A month later, Perron filed the same transcript in a different probate-court proceeding. Fisher alleges that Perron used the transcript to support her theory in the probate action that Fisher was involved in conspiracy and fraud to improperly influence the administration of the Spivak estate.

Fisher alleges that the transcript was available to the public through probate-court records until August 2020, and that the transcript contained information that the call audio alone would not have provided. The transcript includes the date of the phone call and the speakers, even though the transcriber listed on the call was not present for the call and did not personally know the speakers or their names. These details, he alleges, show that Perron gave the identifications to the transcriber of the audio recording either personally or through her attorney.

Perron's filing of the transcript required Fisher to spend significant time defending against his sister's litigation that relied on the recording and made public what Fisher calls "false and frivolous allegations." Fisher alleges that the trial transcript contained private information that he would not have otherwise disclosed and that Perron knew that the call was intended to be private. He asserts that Perron "intended to use private information contained in the Sibling Calls to disclose private information publicly, and to embarrass, damage, and manipulate [Fisher], particularly with respect to their mother's estate." Fisher claims that Perron, as a trustee of the Revocable Trust, violated her fiduciary duty to maintain the confidentiality of trust information and her duty of loyalty by disclosing her recordings of calls with her siblings, using that information to pursue litigation for her own benefit, and placing her own interests above those of the trust beneficiaries.

In April 2019, the probate court struck both the call transcript and its contents from the court record and prohibited further use of the transcript. According to Fisher, the court further determined in November 2019 that Perron's allegations against Fisher and the estate entities "were frivolous and warranted sanctions." The probate court "held that [Perron] committed a breach of trust which caused the Revocable Trust to incur substantial and unnecessary attorneys’ fees and costs." In May 2020, the probate court held Perron, her lawyer, and the lawyer's firm jointly and severally liable for $19,951.23 in attorney's fees and costs to the estate and $23,500.00 in attorney's fees and costs to the Revocable Trust. In August 2020, the probate court struck Perron's filing of the call transcript in another probate action. Fisher alleges that the probate court has since dismissed all of Perron's petitions filed against him.

In September 2020, Fisher filed this lawsuit in United States District Court, bringing three claims. First, he asserts that Perron violated the Federal Wiretap Act, 18 U.S.C. §§ 2510 – 23, through her recording of the February 18 call and recordings of other calls among the siblings. Specifically, he alleges that Perron violated 18 U.S.C. § 2511, which prohibits a participant to a call from recording the call "for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State" or disclosing or using any such illegally intercepted oral communication. Id. § 2511(d). Second, Fisher alleges that the recordings violated Michigan's eavesdropping law, Mich. Comp. Laws § 750.539c, which makes the use of an electronic "device to eavesdrop upon [a] conversation without the consent of all parties thereto" a felony. Finally, Fisher alleges that Perron committed the tort of public disclosure of private facts because she "knew that the substance of the Sibling Calls, including the February 18 Call, was private, personal, and of a nature that should not be shared publicly." He seeks damages under federal and state law, punitive damages, suppression of the contents of any recordings, and other equitable relief.

After full briefing on Perron's motion to dismiss, the district court dismissed the complaint with prejudice. This timely appeal followed.

II. ANALYSIS

"We apply de novo review to a district court's grant of a motion to dismiss." Hill v. Snyder , 878 F.3d 193, 203 (6th Cir. 2017). We "accept all well-pleaded factual allegations as true," viewing the complaint in the light most favorable to the plaintiff. Id. However, the presumption of truth is inapplicable to legal conclusions. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. We consider whether the complaint has "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Id. (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

A. The Michigan Eavesdropping Statute

Fisher asserts that the February 18 call recording, Perron's alleged recordings of various other calls with her siblings, and the disclosure of those recordings violated Michigan's eavesdropping statute. The district court dismissed this claim because the court concluded, based on relevant Michigan cases and other data, that the Michigan Supreme Court would interpret the statute as a one-party consent law. Perron, as a participant to the calls, was thus legally allowed to make the recordings. Fisher argues that the district court's analysis was flawed and that the plain language of the statute is clear in requiring the consent of all parties for a legal recording.

The threshold question for the claim under Michigan's eavesdropping statute is whether the statute provides for liability of conversation participants who make recordings without the knowledge or permission of other participants. The law states:

Any person who is present or who is not present during a private conversation and who wilfully [sic] uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or who knowingly aids, employs or procures another person to do the same in violation of this section, is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both.

Mich. Comp. Laws § 750.539c. Michigan law defines "eavesdropping" as "to overhear, record, amplify, or transmit any part of the private discourse of others without the permission of all persons engaged in this discourse." Id. § 750.539a. The Michigan Supreme Court has yet to determine whether this statutory language allows for secret participant recordings or requires the consent of all parties to record a call. Thus, the district court and now we must predict how the Michigan Supreme Court would rule based on "all the available data." Stryker Corp. v. XL Ins. Am. , 735 F.3d 349, 360 (6th Cir. 2012) (quoting Allstate...