A Substantials Victory For Consumers vs. Mutants-Lawyers.

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Very Important law-case in our favor

A May 9 decision in the 4th U.S. Circuit Court of Appeals denying immunity to Rockville, Md.-based debt-collection law firm Wolpoff & Abramson for claims based on statements made as part of its judicial proceedings has sent shudders throughout the defense bar. The circuit court reversed and remanded a lower court's ruling to dismiss a fair debt case against a debt-collection law firm.

The court rejected the law firm's claim that it was entitled to common law litigation immunity for claims based on its statements during court proceedings.
Sayyed v. Wolpoff & Abramson, No. 06-1458 (4th Cir.).

Wolpoff & Abramson first sued Farid Sayyed in state court to collect an unpaid credit card debt. Sayyed then sued the law firm in federal court for violating the fair debt act in its interrogatories and its summary judgment motion.

The debt-collection bar was relying on a couple of district court decisions from the 6th Circuit to claim a broad litigation immunity from the fair debt law for their legal filings, said Arlington, Va., lawyer Ernest Francis, who represented the plaintiff and appellant Farid M. Sayyed.

But Sayyed is consistent with a 6th Circuit decision last year in Todd v. Weltman, Weinberg & Reis Co., 434 F.3d 432 (6th Cir. 2006), Francis said. The Todd ruling said that lawyers filing Fair Debt Collection Practices Act lawsuits don't have the absolute immunity usually granted to witnesses in judicial proceedings. In that case, the debt-collection lawyer had filed an affidavit in state court to garnish property.

"It removes an arrow from the quiver of those defending fair debt cases," Francis said.

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http://www.ca6.uscourts.gov/opinions...6a0014p-06.pdf

*The Honorable Julian A. Cook, United States District Judge for the Eastern District of Michigan, sitting by
designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0014p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ROBERT TODD, et al.,
Plaintiffs-Appellees,
v.
WELTMAN, WEINBERG & REIS CO., L.P.A.,
Defendant-Appellant,
MARK N. WISEMAN,
Defendant.
X----
>,------N
No. 04-4109


Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 03-00171—Susan J. Dlott, District Judge.


Argued: November 29, 2005


Decided and Filed: January 13, 2006
Before: CLAY and COOK, Circuit Judges; COOK, District Judge.*
_________________
COUNSEL

ARGUED: Christine M. Haaker, THOMPSON HINE, Dayton, Ohio, for Appellant. Stephen R.
Felson, NEWMAN & MEEKS CO., Cincinnati, Ohio, for
Appellees. ON BRIEF: Christine M.
Haaker, THOMPSON HINE, Dayton, Ohio, for Appellant. Stephen R. Felson, NEWMAN &
MEEKS CO., Cincinnati, Ohio, for Appellees.
_________________
OPINION
_________________
CLAY, Circuit Judge. Defendant Weltman, Weinberg, & Reis Co., L.P.A. appeals an
August 3, 2004 collateral order of the United States District Court for the Southern District of Ohio
denying Defendant’s motion for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c) against Plaintiff Robert Todd’s claims under the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1691 et seq., specifically violations of 15 U.S.C. §§ 1692e and 1692f.
While the district court has not yet rendered final judgment, this Court reviews the collateral order
of the district court denying Defendant absolute immunity. For the following reasons, we AFFIRM
the district court’s order.


I. BACKGROUND


A. PROCEDURAL HISTORY

On August 11, 2003, Plaintiff filed a complaint against Defendant in the United States
District Court for the Southern District of Ohio. Plaintiff alleged Defendant violated the FDCPA,
specifically 15 U.S.C. §§ 1692e and 1692f. Section 1692e of Title 15 of the United States Code
states: “A debt collector may not use any false, deceptive, or misleading representation or means in
connection with the collection of any debt.” Section 1692f of Title 15 of the United States Code
states: “A debt collector may not use unfair or unconscionable means to collect or attempt to collect
any debt.”

On February 17, 2004, Defendant filed a motion for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c). Defendant’s motion was based on four grounds: (1) the
district court did not have subject matter jurisdiction over Plaintiff’s claim because of the Rooker-
Feldman doctrine; (2) res judicata barred Plaintiff’s claim; (3) Defendant was absolutely immune
for its actions; and (4) the FDCPA was inapplicable to Defendant’s actions. On August 3, 2004, the
district court denied Defendant’s motion on all grounds.
On September 1, 2004, Defendant timely appealed the district court order with respect to the
issue of witness immunity. On September 20, 2004, Defendant filed a motion with the district court
to certify that the district court’s order involved a collateral order that was immediately appealable.

On September 21, 2004, the district court denied the motion.
Plaintiff filed a motion to dismiss Defendant’s appeal and a motion for sanctions.

On
February 9, 2004, this Court denied Plaintiff’s motions. The Court found that the district court’s
denial of absolute immunity to Defendant was a collateral order that was immediately appealable
in the absence of a final judgment.

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B. FACTS

Plaintiff is a resident of Cincinnati, Ohio. Plaintiff’s sole source of income is Social Security
Insurance Benefits, and he receives $750 per month for himself. He also receives $190 per month
for each of his minor children. His wife is presently receiving short-term disability payments for
an injury she sustained.

In 1992, Plaintiff purchased furniture from Value City, and Plaintiff financed the purchase
with a loan from ITT Financial Services. Plaintiff defaulted on the loan, and Defendant brought suit
on behalf of the creditor and obtained a judgment. Defendant then initiated proceedings to garnish
Plaintiff’s bank account. In order to commence such a proceeding under Ohio law, Defendant must
file an affidavit which states that “the affiant has a reasonable basis to believe that the person named
in the affidavit as the garnishee may have property, other than personal earnings, of the judgment
debtor that is not exempt under the law of this state or the United States.” Ohio Rev. Code Ann.

§ 2716.11. On February 23, 2003, Defendant submitted an affidavit that conformed to the Ohio
statute to the Hamilton County Municipal Court. The court found that the affidavit was valid and
froze the funds in Plaintiff’s bank account.

On February 12, 2003, Plaintiff requested a hearing to contend that the funds in his bank
account were exempt because they derived from Plaintiff’s Social Security benefits and his wife’s
short-term disability benefits. On February 28, 2003, the court held that the funds were exempt.

Plaintiff contended that prior to submission of the affidavit, Defendant did not conduct a
debtor’s exam, did not undertake discovery as to whether Plaintiff possessed non-exempt assets, and
otherwise had no factual basis for believing that Plaintiff’s bank account contained non-exempt
assets.

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II. DISCUSSION

A. THE ROOKER-FELDMAN DOCTRINE DOES NOT PRECLUDE THIS COURT’S
SUBJECT MATTER JURISDICTION

1. Standard of Review

This Court reviews questions of subject matter jurisdiction de novo. Green v. Ameritech
Corp., 200 F.3d 967, 972 (6th Cir. 2000).

2. Analysis

This Court has an independent obligation to determine whether the Court has subject matter
jurisdiction. Olden v. LaFarge Corp., 383 F.3d 495, 498 (6th Cir. 2004). That said, the Rooker-
Feldman doctrine does not divest this Court of subject matter jurisdiction because the instant case
is outside the scope of the doctrine.

a. Legal Framework

In Rooker v. Fidelity Trust Co., the plaintiffs filed an action in state court, and the state court
ruled against the plaintiffs. 263 U.S. 413, 414 (1923). The state supreme court affirmed the
decision. Id. The plaintiff then filed an action in federal district court alleging that the state court
decision violated various federal constitutional provisions. Id. at 414-15. The district court
dismissed the suit for lack of subject matter jurisdiction, and the Supreme Court affirmed. Id. at 415.

The Court found that federal district courts were only empowered with original jurisdiction, and that
they did not have appellate jurisdiction to hear a claim that a state court’s decision was in error. Id.
at 416. Only the Supreme Court had such appellate jurisdiction. Id.

In District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), the Supreme
Court reiterated its decision in Rooker.

There, the plaintiff Feldman was an individual who sought
to practice law but did not graduate from an accredited law school. Id. at 465. Instead, he
completed a structured program of the State of Virginia where he studied in a practitioner’s office,
audited classes at the University of Virginia School of Law, and served as a judicial clerk with a
federal district court. Id.

The plaintiff passed the Virginia bar examination and was admitted to that
state’s bar. Id. The plaintiff then sought admission to the bar of the District of Columbia; however,
the district had a rule that limited bar membership to graduates of ABA-accredited schools.

The
plaintiff filed a petition with the District of Columbia Court of Appeals to waive the graduation
requirement, and the “state” court denied the plaintiff’s petition. Id. at 466-68. The plaintiff then
filed a complaint in the federal district court challenging the state court decision. Id. at 468. The
plaintiff Hickey had a similar experience: he graduated from an unaccredited law school and
petitioned the state court for waiver of the graduation requirement. Id. at 470-72. The state court
denied his petition, and the plaintiff filed suit in federal district court.

The Supreme Court found that the federal district court lacked subject matter jurisdiction
over an appeal from a state court judicial proceeding. Id. at 476. As a result, the plaintiffs could not
challenge the state court’s refusal to waive the graduation requirement in federal district court. Id.
at 478-79. The plaintiffs could, however, challenge the constitutionality of the graduation
requirement itself in federal district court, as the state court promulgated the rule in a non-judicial
setting. Id. at 482-86. The Court also ruled that the federal district court lacked jurisdiction over
plaintiffs’ claim that the state court arbitrarily denied them a waiver of the rule; the Court reasoned
that such a claim was “inextricably intertwined” with the state court’s judicial decisions in denying
the plaintiffs’ petitions. Id. at 486-87.

Subsequent to these cases, the federal courts of appeals began to apply the Rooker-Feldman
doctrine to preclude federal subject matter jurisdiction in a wide variety of cases where the state
court also asserted jurisdiction. Because of the inconsistencies between the circuits, the Supreme
Court addressed the scope of the Rooker-Feldman doctrine in Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 125 S. Ct. 1517 (2005).

The Supreme Court in Exxon Mobil held that the Rooker-Feldman doctrine applied only to
“cases brought by state-court losers complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and inviting district court review and
rejection of those judgments.” Id. at 1521-22. Exxon Mobil dealt specifically with the case where
there were parallel state and federal cases on the same issue. The court held that normal preclusion
jurisprudence, not Rooker-Feldman, would guide the federal court decision if the state court reached
a decision first. Id. at 1527. In dicta, 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 Assocs. v. Vill. of Rosemont, 995 F.2d 726, 728 (7th
Cir. 1993)).

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b. Application to this Case

The Rooker-Feldman doctrine does not preclude jurisdiction over Plaintiff’s claim.
Defendant in the instant case claims this Court lacks subject matter jurisdiction because Plaintiff’s
federal claim is inextricably intertwined with the Ohio state court decision that Defendant’s affidavit
was valid. This argument ignores the fact that 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. This situation was explicitly addressed by the Exxon Mobil Court
when it stated that even if the independent claim was inextricably linked to the state court decision,
preclusion law was the correct solution to challenge the federal claim, not Rooker-Feldman.

See supra.

While Defendant is technically correct that this guidance was not essential to the holding on
the facts of Exxon Mobil, as that case dealt with parallel state and federal proceedings, the Supreme
Court went beyond the facts of the case to give clear instructions to the circuits on how to address
additional factual situations.

To follow the reasoning of Defendant would be to ignore these
unambiguous directives from the Supreme Court.

The Court will not address the preclusive effect of the state court judgment, as this goes
beyond the required jurisdictional determination and the issue on appeal.

1 The plaintiffs in that case alleged that the police officers gave false testimony and, as a result, deprived the
plaintiffs of the constitutional rights of due process and a fair trial. Id. at 328. The fact that the Supreme Court applied
absolute witness immunity in such a case is an adequate answer to Plaintiff’s contention that absolute witness immunity
applies only in defamation cases. (See Pl. Br. 26-29.)

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B. THE DISTRICT COURT DID NOT ERR WHEN IT DENIED ABSOLUTE
IMMUNITY TO DEFENDANT

1. Standard of Review

This Court reviews the district court decision denying Defendant absolute immunity de novo.
Brookings v. Clark, 389 F.3d 614, 617 (6th Cir. 2004) (citing Barnes v. Winchell, 105 F.3d 1111,
1115 (6th Cir. 1997)).

2. Analysis
a. Legal Framework

In Briscoe v. LaHue, the Supreme Court held that police officers were absolutely immune
from suit for their testimony at trial.1 460 U.S. 325, 345-46 (1983). In reaching its decision, the
Court recited the history of the long-established rule that private witnesses were absolutely immune
from damages liability for their testimony in judicial proceedings. Id. at 330-34.

The rationale
behind this absolute immunity was twofold: first, “witnesses might be reluctant to come forward to
testify,” id. at 333; second, those witnesses who came forward might distort their testimony because
of fear of subsequent liability, id. The Court found that “the truth-finding process is better served
if the witness’s testimony is submitted to ‘the crucible of the judicial process so that the factfinder
may consider it, after cross-examination, together with the other evidence in the case to determine
where the truth lies.’” Id. at 333-34 (quoting Imbler v. Pachtman, 424 U.S. 409, 440 (1976)).

In Malley v. Briggs, the Supreme Court held that police officers were not absolutely immune
from suit for seeking an arrest warrant based on deficient probable cause. 475 U.S. 335, 340-41
(1986).

The Court found that the police officer resembled a “complaining witness,” and a
complaining witness was liable at common law for making a complaint with malice and without
probable cause. Id. The Court also rejected the argument that a police officer, when seeking an
arrest warrant, makes a discretionary judgment similar to the absolutely protected judgment of a
prosecutor seeking an indictment from a grand jury. Id. at 341-42 (referencing Imbler, 424 U.S.
409).

In reaching its decision, the Court reasoned: “We intend no disrespect to the officer applying
for a warrant by observing that his action, while a vital part of the administration of criminal justice,
is further removed from the judicial phase of criminal proceedings than the act of a prosecutor in
seeking an indictment.” Id. at 342-43.


The Court went on to refine its “complaining witness” analysis in Kalina v. Fletcher, 522
U.S. 118 (1997). There, the state prosecutor initiated criminal proceedings against the defendant
and filed three documents, two of which were unsworn, in support of the arrest warrant. Id. at 120-
21. Under state law, an arrest warrant needed to be supported by sworn statements. Id. at 121. In
order to satisfy this requirement, she summarized the evidence supporting the charge, including the
evidence in the unsworn statements, in a “Certification for Determination of Probable Cause,” and
she personally vouched for the truth of the facts in the certification under penalty of perjury. Id. at
121.

The defendant challenged the prosecutor’s actions, as the certification in support of the warrant
contained inaccurate factual statements. Id. at 121-22.
The Court began its analysis with the rule that “in determining immunity, we examine ‘the
nature of the function performed, not the identity of the actor who performed it.’” Id. at 127(quoting Forrester v. White, 484 U.S. 219, 229 (1988)). The Court found that as to the prosecutor’s
actions in preparing and filing the two unsworn documents, the prosecutor was acting as an advocate
of the state in the judicial process; therefore, her actions were protected by absolute immunity. Id.
at 129. As to her attestation of the truth of the facts in the certification, the Court found that the
prosecutor was not protected by absolute immunity: “Testifying about facts is the function of the
witness, not of the lawyer. No matter how brief or succinct it may be, the evidentiary component
of an application for an arrest warrant is a distinct and essential predicate for a finding of probable
cause.” Id. at 130-31. The Court found that the prosecutor thus acted as a “complaining witness”
who lacked absolute immunity for the falsehoods in the certification. Id. at 129, 131.

In Wyatt v. Cole, 504 U.S. 158 (1992), the Supreme Court ruled that private defendants were
not entitled to any form of immunity in § 1983 claims. In that case, the plaintiff filed a state court
complaint in replevin against his former business partner. Id. at 159-60. Under state law at the time,
the plaintiff could “obtain a court order for seizure of property possessed by another by posting a
bond and swearing to a state court that the [plaintiff] was entitled to that property and that the
adversary wrongfully took and detain[ed] or wrongfully detain[ed] the property.” Id. at 160 (internal
quotations and citation omitted). State law did not grant any discretion to the state judge; he was
forced to issue the order in replevin. Id. After a hearing, the state court dismissed the plaintiff’s
complaint in replevin and ordered the plaintiff to return the confiscated property to the defendant.

When the plaintiff refused, the defendant sued the plaintiff in federal court, alleging, among other
things, that the state replevin statute was unconstitutional and that the plaintiff and his attorney
violated § 1983 by using state law to unconstitutionally deprive him of his property. Id. The district
court found that the statute was unconstitutional because it violated the constitutional protection of
due process; however, it found that the plaintiff and his attorney had qualified immunity “for
conduct arising prior to the statute’s invalidation.” Id. at 160.

The Supreme Court reversed. The Court looked first at its “garnishment, prejudgment
attachment, and replevin cases,” and found that private use of state laws could constitute state action
under § 1983. Id. at 162 (citing Lugar v. Edmonson Oil Co., 457 U.S. 922, 932-35 (1982)).

The
Court then analogized the claim challenging the replevin action to claims of malicious prosecution
and abuse of process. The Court reiterated that in such cases, private party defendants did not have
immunity:
Respondents do not contend that private parties who instituted attachment
proceedings and who were subsequently sued for malicious prosecution or abuse of
process were entitled to absolute immunity. And with good reason; although public
prosecutors and judges were accorded absolute immunity at common law, such
protection did not extend to complaining witnesses who, like respondents, set the
wheels of government in motion by instigating a legal action.
Id. at 164-65 (internal citations omitted). The Court found that while private party defendants at
common law had a defense of good faith against claims of malicious prosecution and abuse of
process, this defense did not equate to immunity in the § 1983 context. Id. at 165 (citing Harlow
v. Fitzgerald, 457 U.S. 800 (1982)).

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b. Application to this Case

The district court correctly denied absolute immunity to Defendant. The rationales of
absolute immunity and the complaining witness analysis support this result.

(i). Congressional Intent

Both Plaintiff and Defendant agree that Congress did not intend to abrogate the wellestablished
absolute immunity of a witness when it enacted the FDCPA. This Court agrees that
nothing in the FDCPA itself or the legislative history of the Act remotely suggests such an
abrogation. The question then becomes whether Defendant’s conduct falls under the protection of
witness immunity.

(ii). The Affidavit as Testimony

This Court agrees with Defendant that testimony presented in the form of an affidavit may
be protected under absolute witness immunity. See Cruz v. Kauai County, 279 F.3d 1064, 1068 (9th
Cir. 2002) (“It is also true that, in this circuit, a person who functions as a witness in an adversarial
proceeding to revoke a defendant’s bail is to be accorded absolute immunity for her testimony, even
if the witness’s testimony is provided by way of affidavit.” (citation omitted) (emphasis removed));
Thomason v. SCAN Volunteer Servs., Inc., 85 F.3d 1365, 1373 (8th Cir. 1996) (“To the extent
Wordlaw and SCAN are sued because Wordlaw made arguably false statements in her affidavit in
her role as a witness before the state court, the doctrine of absolute witness immunity applies.”);
Giffin v. Summerlin, 78 F.3d 1227, 1231 (7th Cir. 1996) (“The policy considerations underlying
witness immunity for testimony in open court apply with equal force to other forms of testimony
such as depositions and affidavits.” (citations omitted)). We find that the form of the witness
testimony should not affect the status of the immunity attached thereto.

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(iii). Ex Parte Nonadversarial Proceedings

Plaintiff argues that Defendant should not receive absolute witness immunity for its affidavit
because the affidavit was submitted in an ex parte, nonadversarial proceeding. Under Ohio law,
Defendant can initiate a garnishment proceeding by filing the affidavit described, supra, with the
state court. Ohio Rev. Code Ann. § 2716.11. The state court then “binds” the garnished property
until a hearing so that the garnishee may not use the property. Ohio Rev. Code Ann. § 2716.13.

Ohio law does not allow Plaintiff to challenge Defendant’s affidavit when it is submitted; it only
allows a challenge at a hearing after the property has already been bound. Ohio Rev. Code Ann.
§ 2716.21.

Plaintiff contends that Defendant should not receive absolute immunity for its affidavit
because there were no procedural safeguards in insuring the veracity of the affidavit at the time it
was submitted, due to the ex parte, nonadversarial nature of the initiation of garnishment
proceedings under Ohio law.

In support of its contention that the touchstone of witness immunity is the adversarial nature
of the proceeding, Plaintiff cites several cases of other circuits. In Cruz v. Kauai County, the Ninth
Circuit found that a prosecutor’s affidavit supporting revocation of the defendant’s bail was not
entitled to absolute immunity because the affidavit was submitted at an ex parte proceeding. 279
F.3d at 1068.

While the court also based its decision on the fact that the prosecutor acted as a
“complaining witness,” it focused its analysis on the fact that the prosecutor “functioned as a witness
in an ex parte proceeding, at which [the defendant] did not enjoy the protections of the adversary
process.” Id.

In contrast, the Ninth Circuit found absolute immunity applicable to an affidavit in
Burns v. County of King precisely because the proceeding where the affidavit was submitted was
adversarial:
Although the opportunity for cross-examination is absent in this case, since [the
defendant’s] testimony was presented in the form of an affidavit, [the plaintiff] was
nevertheless afforded all the other protections of the adversary process and judicial
supervision. . . . [The plaintiff] was entitled to present affidavits and witnesses of his
own to refute the statements made by [the defendant]. Under these circumstances,
we conclude that the rationale underlying Briscoe requires that [the defendant] be
accorded absolute immunity for her statements to the court.
883 F.2d 819, 823 (9th Cir. 1989).

Likewise, the Fifth Circuit found that a report prepared by an expert witness that supported
probable cause for an arrest was not entitled to absolute immunity. In Keko v. Hingle, the court
began its analysis with the notion that the Supreme Court “has subsequently bounded absolute
immunity within the precise confines of adversarial judicial proceedings.” 318 F.3d 639, 642-43
(5th Cir. 2003) (citations omitted). The court found that absolute immunity did not apply to the
expert report submitted in an ex parte probable cause hearing: “We decline to extend absolute
witness immunity into an arena where the Supreme Court had not found factual testimony to justify
such heightened protection.” Id. at 643. The court expressly based its decision on this fact, and not
on the “complaining witness” theory, as it declined to address that factual question on a motion for
summary judgment. Id.

In Curtis v. Bembenek, the Seventh Circuit applied a similar analysis to the testimony of a
police officer at two separate hearings. 48 F.3d 281, 285 (7th Cir. 1995). The court found that “the
policy considerations for granting absolute immunity to witnesses testifying at trial apply with equal
force to witness testimony in adversarial pretrial settings.” Id. (citation omitted). Because the police
officer’s testimony at both hearings “was made under oath and subject to cross-examination, [w]e
see no principled basis for distinguishing between [adversarial] pretrial proceedings and the trial on
the merits in determining whether absolute immunity should be granted to a police officer witness.”
Id. (internal quotations and citation omitted).[/quote]
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In Sykes v. James, the Second Circuit found that the petitioner’s parole officer was absolutely
immune for an affidavit submitted in the petitioner’s habeas proceeding. 13 F.3d 515, 521 (2d Cir.
1993). The court stressed that:
A habeas corpus proceeding brought under the pertinent New York statute is
surrounded by all the judicial process safeguards. . . . Although cross-examination
is not available . . ., all the other protections of the judicial process were afforded to
[the petitioner]: the proceeding was adversarial in nature; it was conducted by a
judicial officer who rendered the final decision; and it was subject to judicial review.
Moreover, the affidavit oath subjected [the parole officer] to the penalty of perjury
if the affidavit were false; [the petitioner] had the opportunity to present affidavits
of his own; and testimony could have been taken if the judge considered it necessary.
Id. The court then distinguished Malley, as that case involved an ex parte hearing. Id. (citing
Malley, 475 U.S. 335).

While Plaintiff’s proposed inquiry of adversarial-nonadversarial for questions of absolute
immunity is viscerally appealing, considering the ease of its application and its partial support in the
rationale of Briscoe, it is ultimately unviable. We agree with the cited cases insofar as they stand
for the proposition that witness testimony at an adversarial proceeding is entitled to absolute
immunity, because this proposition is supported by the rationale in Briscoe that witness immunity,
coupled with “the crucible of the judicial process,” is the path that would best “lead to the
ascertainment of truth.” See Briscoe, 460 U.S. at 330-34 (internal quotations and citations omitted).

We do not agree, however, that the nonadversarial nature of a proceeding automatically
precludes applicability of absolute immunity to witness testimony given at such a proceeding. One
glaring example not mentioned by either Plaintiff or Defendant is witness testimony in grand jury
proceedings.

A grand jury proceeding is the quintessential form of an ex parte, nonadversarial
proceeding where many of the procedural safeguards of a trial do not exist. Despite this fact, most
circuits, including this circuit, have held that absolute witness immunity applies to witness testimony
before a grand jury. See Grant v. Hollenbach, 870 F.2d 1135, 1139 (6th Cir. 1989) (citing Macko
v. Byron, 760 F.2d 95, 97 (6th Cir. 1985)); see also Lyles v. Sparks, 79 F.3d 372, 378 (4th Cir.
1996); Frazier v. Bailey, 957 F.2d 920, 931 n.12 (1st Cir. 1992); Anthony v. Baker, 955 F.2d 1395,
1400-01 (10th Cir. 1992); Little v. City of Seattle, 863 F.2d 681, 684 (9th Cir. 1989); Strength v.
Hubert, 854 F.2d 421, 423 (11th Cir. 1988), overruled on other grounds by Albright v. Oliver, 510
U.S. 266 (1994); San Filippo v. U.S. Trust Co., Inc., 737 F.2d 246, 254 (2d Cir. 1984); Kincaid v.
Eberle, 712 F.2d 1023, 1023-24 (7th Cir. 1983); Briggs v. Goodwin, 712 F.2d 1444, 1448-49 (D.C.
Cir. 1983).

Most circuits have found that the Briscoe rationale of encouraging truthful testimony
at trial applies with equal force to testimony before a grand jury; additionally, several circuits have
explained that at common law, a witness is absolutely immune for grand jury testimony. See, e.g.,
Kincaid, 712 F.2d at 1023-24.

These cases demonstrate that the adversarial-nonadversarial
delineation proposed by Plaintiff is untenable.


The question then becomes what the proper inquiry actually should be. We find that a
reviewing court should look at the twin rationales listed in Briscoe: insuring that a witness is
unafraid of providing testimony, and, when the witness testifies, insuring that the witness is not
impermissibly pressured to alter her testimony. 460 U.S. at 333-34.

Additionally, a reviewing court
should look to the common law to determine whether immunity was available in specific instances.

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(iv). Briscoe Rationales

After obtaining a default judgment on behalf of its client creditor, Defendant sought some
mechanism to extract funds from Plaintiff to satisfy this judgment; Defendant chose garnishment.
As explained, supra, under Ohio law, in order to garnish Plaintiff’s property, Defendant was
required to file an affidavit which stated that it had a reasonable basis to believe that the property
was non-exempt.

The focus, then, is on the incentives of Defendant in connection with this
affidavit.

With respect to the first rationale, this Court finds it difficult to believe that Defendant would
“be reluctant to come forward to testify” without absolute immunity. Defendant is responsible to
its client; the client in this case enlisted Defendant to obtain money from Plaintiff.

In such
circumstances, Defendant is unlikely to disobey its client, nor will Defendant ordinarily refuse to
take future creditor clients, without absolute immunity for its affidavit. The lack of absolute
immunity may increase Defendant’s costs of collecting a debt on behalf of a creditor; Defendant
may actually be forced to obey Ohio law and conduct some sort of preliminary investigation of a
debtor’s assets to determine whether they are exempt.

This increase in costs, however, will not be
a disincentive for Defendant to pursue actions of garnishment. This cost can simply be passed on
to the client; moreover, because all attorney debt collectors would have the same incentive to make
this preliminary investigation, Defendant’s competitive position would not be harmed by denying
absolute immunity for its affidavit. In short, Ohio law requires a procedural safeguard that does
increase the cost of pursuing a garnishment action; however, because garnishment actions will
remain profitable for the attorney debt collector and its client, this Court has no doubt that the
attorney debt collector will continue to bring such actions. Defendant’s financial interest will
overcome any reluctance to come forward based on the lack of absolute immunity; the same cannot
be said, for example, for a witness who has no interest in the outcome of a criminal case.

2 Defendant’s argument that Plaintiff cannot maintain a malicious prosecution claim for a writ of garnishment
as long as the underlying judgment is valid is not well taken. See infra.

Briscoe’s second rationale is equally inapplicable.

The Supreme Court in Briscoe was
cognizant of a witness’ fear of being completely candid without absolute immunity; the witness
“might be inclined to shade his testimony . . ., to magnify uncertainties, and thus to deprive the
finder of fact of candid, objective, and undistorted evidence.” 460 U.S. at 333. Here, the possibility
to introduce such variability into Defendant’s testimony was limited. The affidavit made one and
only one statement: that Defendant had a reasonable basis to believe that certain property of Plaintiff
was non-exempt. Of course, Defendant and Plaintiff may disagree as to whether Defendant had such
reasonable basis; for example, Plaintiff may claim that a preliminary investigation made by
Defendant was insufficient. This, however, is beside the point of Briscoe.

The focus is on the
testimony itself, not on the factual basis of the testimony. With the affidavit, Defendant has no room
to shade its testimony, to magnify uncertainties, to distort the evidence; Defendant cannot say that
it might have a reasonable basis, or that there is a possibility that it does not have a reasonable basis.
Defendant cannot be equivocal in its affidavit: it states that it either has a reasonable basis or it does
not. In other words, Defendant, even if it has an incentive to “play it safe” with ambiguous language
because of a lack of absolute immunity, it has no ability to do so, as Defendant must make the
definitive statement that it has a reasonable basis. Thus, Defendant will not have to fear
“repercussion from a disgruntled opponent over the meaning and implication of every sworn word,”
(Def. Br. 28), as the battle will not be fought over semantics so much as the substance of the
testimony.

The fact that Defendant has to be unequivocal in the affidavit without the protection of
absolute immunity will not cause Defendant to cease submitting these affidavits and to stop seeking
garnishment actions, as this would be wholly contrary to Defendant’s financial interests. Instead,
Defendant will have the incentive to conduct some sort of investigation or have some other
reasonable basis for its affidavit, as required by Ohio law.

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