Suarez Corp. Industries v. McGraw, 95-3093

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation125 F.3d 222
Docket NumberNo. 95-3093,95-3093
PartiesSUAREZ CORPORATION INDUSTRIES; Emerson Sonny Clopper; Patricia Clopper; Elizabeth Pishner, Plaintiffs-Appellees, v. Darrell V. McGRAW, Jr., Attorney General of the State of West Virginia, in his official capacity; Thomas Rodd, individually, Defendants-Appellants.
Decision Date11 September 1997

ARGUED: Rebecca Ann Baitty, Rebecca A. Baitty, P.A., Sarasota, FL, for Appellants. John Christian Yoder, Harpers Ferry, WV, for Appellees. ON BRIEF: Rudolph A. DiTrapano, DiTrapano & Jackson, Charleston, WV, for Appellant McGraw; Robert Cohen, Cohen, Abate & Cohen, L.C., Fairmont, WV, for Appellant Rodd. J. Thomas Burch, Jr., William T. Bennett, Burch & Associates, P.C., Washington, DC, for Appellees.

Before ERVIN, HAMILTON, and LUTTIG, Circuit Judges.

Affirmed in part, reversed in part, and vacated and remanded in part by published opinion. Judge ERVIN wrote the opinion, in which Judge HAMILTON and Judge LUTTIG joined.


ERVIN, Circuit Judge:

Defendants-Appellants Darrell V. McGraw, Jr. and Thomas Rodd appeal from an order denying their motions to dismiss under Fed.R.Civ.P. 12(b) on the particular ground that the order denied them the defense of absolute immunity to claims arising in part under 42 U.S.C. § 1983. They also inject into this appeal issues of qualified immunity and sovereign immunity. The appeal raises a number of jurisdictional difficulties. We ultimately determine that portions of the complaint against McGraw and Rodd must be dismissed for lack of jurisdiction. We also conclude that we possess appellate jurisdiction to hear the appeal to the extent it raises both absolute and sovereign immunity. We will not consider the qualified immunity defense in this posture. On the merits of the appeal, we reverse the district court on one count and affirm on the remainder of those counts over which federal court jurisdiction may be properly invoked.


Plaintiff-Appellee Suarez Corporation Industries (SCI) is an Ohio corporation that markets its goods through direct-mail sweepstakes promotions and other contests. Plaintiffs-Appellees Emerson Clopper, Patricia Clopper, and Elizabeth Pishner are West Virginia residents who have purchased goods from SCI or participated in its promotions. Plaintiffs-Appellees are collectively referred to as SCI. McGraw is the Attorney General of West Virginia and Rodd is a Senior Assistant Attorney General.

In January 1994, McGraw filed a civil action against four direct marketing companies, alleging violations of the state's Consumer Credit and Protection Act, W. Va.Code 46A-6-104 (1974). Rodd represented the State in the action. In August 1994, McGraw moved to join 102 additional defendants, including SCI, and applied for a preliminary injunction against all of the defendants in a single hearing. The state trial judge granted the motion to join but directed the State to proceed against only several of the defendants at the next hearing.

On September 2, 1994, SCI published a two-page ad in a local newspaper criticizing Attorney General McGraw for his prosecution of the lawsuit. That same day the Attorney General's office announced it would proceed against SCI alone at the next hearing. Ultimately, several of SCI's marketing schemes were temporarily enjoined by the state courts. See, e.g., State v. Imperial Mktg., 196 W.Va. 346, 472 S.E.2d 792, cert. denied sub nom. Suarez Corp. Indus. v. West Virginia, --- U.S. ----, 117 S.Ct. 391, 136 L.Ed.2d 307 (1996).

On April 4, 1995, SCI instituted this action. McGraw and Rodd responded with a motion to dismiss under Rule 12(b), based in part on the ground of absolute immunity. While that motion was pending, SCI filed a First Amended Complaint (hereinafter FAC), and McGraw and Rodd responded with another motion to dismiss that did not refer specifically to a claim of absolute immunity but that did incorporate by reference the earlier motion to dismiss and its supporting memorandum.

The FAC contains nine counts. Counts I, II, III, and VI, the federal question claims, are brought pursuant to 42 U.S.C. § 1983. Count I seeks declaratory and injunctive relief from enforcement of the state court's preliminary injunction on the grounds of retaliation against First Amendment rights, while Count II seeks the same relief on the basis of a denial of equal protection. Count III seeks money damages from McGraw and Rodd, in their individual capacities, for First Amendment retaliation outside the scope of their duties. In Count VI, the individual plaintiffs seek injunctive relief from the state court's preliminary injunction at least to the extent it impedes their First Amendment rights to receive communications from SCI. The remaining claims are based on state law, including defamation (Count IV), intentional interference with contractual relations (Count V), a state constitutional right to receive communications (Count VII), interference with prospective contractual relations (Count VIII), and a prima facie tort claim for damages (Count IX). The principal bases for these claims are that McGraw and Rodd accelerated enforcement proceedings against SCI after the newspaper ad; that McGraw faxed to all state attorneys general a warning that SCI's counsel threatened violence upon Rodd; that Rodd threatened the Canton, Ohio, Better Business Bureau (BBB) that the Attorney General would offer it no assistance in its expansion plan into West Virginia as long as SCI remained a member, leading ultimately to SCI's expulsion; that McGraw engaged in a running defamatory newspaper campaign against SCI, including calling SCI to one reporter a "gambling syndicate" that "prey[s] on the elderly and infirm"; and that McGraw and Rodd have disseminated derogatory information about other legal proceedings against SCI to the media and Dun & Bradstreet.

On November 16, 1995, the district court denied McGraw and Rodd's motions to dismiss in a very brief Memorandum Opinion and Order, see Suarez Corp. Indus. v. McGraw, No. CA-95-248-2 (S.D. W. Va. entered Nov. 16, 1995), stating, "After consideration of the submitted memoranda, the Court concludes it has subject matter jurisdiction and the Plaintiffs' First Amended Complaint states a claim upon which relief can be granted." See id. at 2. The district court's only explanation was provided in a footnote:

Plaintiffs' First Amended Complaint is not a model pleading in several respects. For instance, the Court is unclear what injury the Plaintiff is alleging it has suffered under 42 U.S.C. § 1983 in Counts One and Two of the First Amended Complaint. However, a mere defect in the pleading does not warrant 12(b)(6) dismissal. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978) ("pleadings should not be scrutinized with such technical nicety that a meritorious claim should be defeated, and even if the claim is insufficient in substance, it may be amended to achieve justice."), cert. denied, 439 U.S. 970, 99 S.Ct. 464, 58 L.Ed.2d 431 (1978). The Court will revisit the issue at the dispositive motion stage if necessary.

Id. at 2 n. 3.

The district court subsequently denied a motion to certify its November 16, 1995, order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Its order is thus appealable, if at all, only if it falls within the collateral order doctrine. We granted a stay of discovery on January 26, 1996, while we determined the matter.


Before proceeding to the merits of McGraw and Rodd's appeal, there are a number of jurisdictional issues with which we must contend.


Ordinarily, appellate jurisdiction is lacking to hear an appeal from an order denying a Rule 12(b)(6) motion to dismiss since such an order is interlocutory in nature. Certain collateral orders are, however, considered "final decisions" within the meaning of 28 U.S.C. § 1291 and are therefore immediately appealable. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). In Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), the Supreme Court stated that the "small class" of appealable collateral orders comprise those that "conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and [are] effectively unreviewable on appeal from a final judgment." Id. at 468, 98 S.Ct. at 2458.

In particular, certain denials of absolute and qualified immunity fall within this collateral order doctrine. Recently, we held that an order denying a Rule 12(b)(6) motion to dismiss based on qualified immunity is a final order over which we can exercise appellate jurisdiction. See Jenkins v. Medford, 119 F.3d 1156 (4th Cir.1997) (en banc). See also Behrens v. Pelletier, 516 U.S. 299, ----, 116 S.Ct. 834, 839, 133 L.Ed.2d 773 (1996). The same principles underlie the determination of whether the denial of either qualified or absolute immunity is an immediately appealable collateral order. Compare Nixon v. Fitzgerald, 457 U.S. 731, 740-43, 102 S.Ct. 2690, 2696-98, 73 L.Ed.2d 349 (1982) (absolute immunity), with Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-18, 86 L.Ed.2d 411 (1985) (qualified immunity). We accordingly hold now that we possess appellate jurisdiction to review an order denying a Rule 12(b)(6) motion to dismiss based on absolute immunity. The scope of our review is plenary, and, in this posture, we accept as true the facts as alleged in the complaint, view ing them in the light most favorable to the non-moving party. See Jenkins, 119 F.3d at 1159-60.


McGraw and Rodd also wish to place before us a claim of qualified immunity. They argue that, to the extent their absolute immunity claim may fail, SCI's claims against them are nevertheless barred by qualified immunity. If properly before us, our decision in Jenkins directly establishes our appellate jurisdiction. However,...

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