Marrical v. Detroit News, Inc.

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: Before ENGEL, NELSON and RYAN; PER CURIAM; DAVID A. NELSON
• Citation: Marrical v. Detroit News, Inc., 805 F.2d 169 (6th Cir. 1986)
• Decision Date: 11 November 1986
• Docket Number: No. 85-1559,85-1559
• Parties: Shirley MARRICAL, Plaintiff-Appellee, v. The DETROIT NEWS, INC., et al., Defendants, Robert Sage, Defendant-Appellant.

Page 169

805 F.2d 169

6 Fed.R.Serv.3d 860

Shirley MARRICAL, Plaintiff-Appellee, v. The DETROIT NEWS, INC., et al., Defendants Robert Sage, Defendant-Appellant.

No. 85-1559.

United States Court of Appeals Sixth Circuit.

Argued Aug. 12, 1986.

Decided Nov. 11, 1986.

Don W. Atkins (argued), Detroit, Mich., for defendant-appellant.

Douglas Wartell (argued), Southfield, Mich., for plaintiff-appellee.

Before ENGEL, NELSON and RYAN, Circuit Judges.

PER CURIAM.

Defendant Robert Sage, Deputy Chief Prosecutor for Wayne County, appeals an order of the United States District Court for the Eastern District of Michigan denying his motion for summary judgment which was predicated upon claims that under Michigan law he is entitled to absolute and qualified immunity in this diversity action. We conclude that although his notice of appeal was timely filed, Michigan law does not afford Sage the substantive rights upon which an interlocutory appeal may be predicated.

The present libel action arises out of the prosecution of Shirley Marrical by Wayne County for the alleged kidnapping of her adult son Charles. Marrical's complaint alleges among other things that Robert Sage, the prosecutor in charge of the Marrical case, communicated a false and defamatory description of Mrs. Marrical as "a holy terror" to a reporter for The Weekly World News, Inc., a Florida news service. Mrs. Marrical sought damages for libel, slander, defamation of character and intentional infliction of emotional distress. On January 30, 1984, the Florida defendant Weekly World News, Inc. petitioned for removal to the district court claiming that the allegations against it were separate and independent from those claims against the nondiverse parties under 28 U.S.C. Sec. 1441(c). The district court granted the petition for removal and also removed the claims against the nondiverse parties, "in the interest of judicial economy."

On November 26, 1984, Sage and the other defendants filed a motion for summary judgment claiming absolute and qualified immunity under Michigan law. The district court denied this motion in part on January 16, 1985, and Sage appeals. In denying the motion, the court concluded that if Sage had described Marrical to Weekly World News as "a holy terror," that remark was not related to his role as advocate. "Sage's alleged comment appears to be so unrelated to the propriety of the kidnapping charges against Marrical that it is unreasonable to conclude that the statement was made in the interest of informing the public. Thus, the policy factors which form the basis of the absolute immunity doctrine ... are not applicable here." The court noted though that it had earlier determined that all defendants, including Sage, were entitled to qualified immunity under Michigan law.

While the other defendants filed motions for reconsideration on January 28, 1985, Sage did not seek leave to move for reconsideration until February 23, 1985. On June 11, 1985, the district court granted Sage leave to file his motion for reconsideration, but at the same time denied his motion holding that Marrical was not libel-proof, and that Sage offered no other new basis for reconsideration. In so holding, the court concluded that a recent decision of the Michigan Supreme Court, Ross v. Consumers Power Co., 420 Mich. 567, 363 N.W.2d 641 (1985), did not alter its prior conclusion that Sage was not entitled to absolute immunity. On July 8, 1985, Sage filed a notice of appeal from the district court's denial of his motion for reconsideration.

On appeal, Sage argues first that the denial of his motion for summary judgment predicated upon his claim of absolute immunity is immediately appealable. He next argues that under the Michigan case of Payton v. Wayne County, 137 Mich.App. 361, 357 N.W.2d 700 (1984), prosecuting attorneys are absolutely immune from claims of defamation for statements made to the media during the pendency of criminal proceedings. He further argues that under Ross v. Consumers Power Co., 420 Mich. 567, 633, 363 N.W.2d 641 (1984), he is entitled to absolute immunity as a "highest executive official ... acting within [his] executive authority" or as a lower level official acting or reasonably believing that he acted within the scope of his authority, acting in good faith, and performing discretionary rather than ministerial acts. He finally contends that summary judgment should have been granted under his right to qualified immunity and that under the present circumstances Mrs. Marrical is libel-proof.

At oral argument, Marrical contended that Sage's interlocutory appeal should be dismissed as untimely. She also contends, among other things, that the district court's denial of Sage's claim of absolute immunity is unappealable prior to final judgment.

I.

Marrical contends that Sage's appeal is untimely since he filed his notice of appeal well beyond the 30 day period prescribed by Fed.R.App.P. 4(a). She argues that since his motion for reconsideration was also untimely, whether filed under Fed.R.Civ.P. 59(e) or 52(b), it failed to toll that time limit. See Kennedy v. City of Cleveland, 797 F.2d 297 (6th Cir.1986).

Fed.R.App.P. 4(a)(4), however, provides that a timely motion under Rules 52(b) or 59 by any party will toll the time for appeal as to all parties. ¹ Although Rule 4(a)(4) is of no avail to separate defendants in consolidated actions, Stacey v. Charles J. Rogers, Inc., 756 F.2d 440 (6th Cir.1985), the defendants in the present case were all joined in a single action. Accordingly, the timely motions for reconsideration filed by other defendants operated to toll the time for appeal for Sage. Wirtz v. International Harvester Co., 331 F.2d 462 (5th Cir.1964); Phinney v. Houston Oil Field Mat. Co., 252 F.2d 357 (5th Cir.1958). Sage's notice of appeal was filed well within 30 days of the district court's decision denying the motions for reconsideration. Consequently, his appeal is timely.

II.

Marrical next argues that the denial of Sage's immunity claims is not appealable before final judgment.

As a federal court sitting in diversity jurisdiction, we are obligated, under the doctrine of Erie R.R. Co. v. Tompkins 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), to apply state substantive law to discourage forum shopping and to avoid inequitable administration of the laws. Hanna v. Plumer, 380 U.S. 460, 466-68, 85 S.Ct. 1136, 1141-42, 14 L.Ed.2d 8 (1965); see also Herron v. Keene Corp., 751 F.2d 873 (6th Cir.1985). Undoubtedly, the parties are bound by the federal procedural rules governing appeals, including the strictures of the collateral order doctrine under which Sage now seeks our review. See Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). We conclude that the right to an interlocutory appeal from the denial of a claim of absolute or qualified immunity under state law can only exist where the state has extended an underlying substantive right to the defendant official to be free from the burdens of litigation arising from acts taken in the course of his duties. Since we find no indication that Michigan's doctrine of absolute or qualified immunity includes a right to be free from the exigencies of trial, we conclude that Michigan law affords no basis for imposing on litigants the burdens of an interlocutory appeal. In so holding, we do not decide whether prosecutors are entitled to qualified or absolute immunity under Michigan law. But cf. Hayes v. Hall, 604 F.Supp. 1063 (W.D.Mich.1985).

"Implicit in entertaining any interlocutory order is the hazard that piecemeal appeals will burden the efficacious administration of justice and unnecessarily protract litigation, thus inconveniencing the parties with the costs and delay of separate appeals." In re Nissan Motor Corp. Antitrust Litigation, 552 F.2d 1088, 1094 (5th Cir.1977). This hazard is in no way diminished in litigation against government officers. We have recognized the "opportunity for abusive delay inherent in the protections afforded by the doctrines of absolute and qualified immunity" and acknowledged the impediment that the prospect of multiple interlocutory appeals presents to plaintiffs complaining of governmental abuses. Kennedy v. City of Cleveland, 797 F.2d at 301.

It is because of this hazard that congressional and judicial policy disfavors piecemeal appeals. The Supreme Court has emphasized that the judicial exception to this policy embodied in the collateral order doctrine applies to a "small class" of decisions and is a "narrow exception to the requirement that all appeals under section 1291 await final judgment on the merits." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981). It has similarly cautioned that the statutory exception embodied in 28 U.S.C. Sec. 1292(a)(1) to the congressional policy against piecemeal appeals is narrow. Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 480, 98 S.Ct. 2451, 2453, 57 L.Ed.2d 364 (1978).

In extending the right to interlocutory appeal under the collateral order doctrine to claimants of qualified immunity, the Supreme Court recently reaffirmed that,

a decision of a district court is appealable if it falls within "that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated."

Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). It emphasized that "[a] major characteristic of the denial or granting of a claim appealable under Cohen's 'collateral order' doctrine is that 'unless it can be reviewed before [the proceedings terminate], it can never be reviewed at all.' " Id. The Court there concluded that the qualified immunity defense under federal law, like the defense of absolute...