* 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

_________________

R OBERT T ODD , et al., Plaintiffs-Appellees,

v.

WELTMAN
, WEINBERG & REIS C O
., L.P.A., Defendant-Appellant,

M ARK 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 Di strict 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 cl aims 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

1No. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 2

of the district court denying Defendant absolu te immunity. For the following reasons, we AFFIRM the district court’s order.

I. BACKGROUND

A. PROCEDURAL HISTORY

On August 11, 2003, Plaintiff filed a complain t against Defendant in the United States District Court for the Southern District of Ohi o. Plaintiff alleged Defe ndant 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.” S ection 1692f of Title 15 of the United States Code states: “A debt collector may not use unfair or unc onscionable 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). Defe ndant’s motion was based on four grounds: (1) the district court did not have subject matter juri sdiction over Plaintiff’s claim because of the RookerFeldman doctrine; (2) res judicata barred Plaintiff’s claim; (3) Defendant was absolutely immune for its actions; and (4) the FDCPA was inapplicab le 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 th e 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 mo tions. The Court found that the district court’s denial of absolute immunity to Defendant was a collateral order that wa s immediately appealable in the absence of a final judgment.

B. FACTS

Plaintiff is a resident of Cinci nnati, 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 pres ently receiving short-term disability payments for an injury she sustained.

In 1992, Plaintiff purchased furniture from Valu e City, and Plaintiff financed the purchase with a loan from ITT Financial Services. Plain tiff defaulted on the loan, and Defendant brought suit on behalf of the creditor and obtai ned a judgment. Defendant then initiated proceedings to garnish Plaintiff’s bank account. In order to commence su ch a proceeding under Ohio law, Defendant must file an affidavit which states that “the affiant ha s 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 Muni cipal 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 Plai ntiff’s Social Security benefits and his wife’s short-term disability benefits. On February 28, 2003, the court held that the funds were exempt.No. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 3

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 th at Plaintiff’s bank account contained non-exempt

assets.

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 RookerFeldman doctrine does not divest this Court of subj ect 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 instate 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 distri ct 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 Feld man 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 Vi rginia where he studied in a practitioner’s office, audited classes at the University of Virginia Schoolof 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 membersh ip to graduates of AB A-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: hegraduated from an un accredited 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 gr aduation 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 th e 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 overNo. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 4

plaintiffs’ claim that the state court arbitrarily de nied them a waiver of th e rule; the Court reasoned that such a claim was “inextricably intertwined” w ith the state court’s judi cial 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 Mobildealt 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 ju risdiction 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)).

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 l acks 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 Pl aintiff 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 fe deral claim that Plainti ff was injured by Defendant when he filed a false affi davit. This situation was explicitly addressed by the Exxon MobilCourt 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 a ddress the preclusive effect of the state court judgment, as this goes beyond the required jurisdictional determination and the issue on appeal.No. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 5

1 The plaintiffs in that case alleged that the police offi cers 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 an swer to Plaintiff’s contention that absolute witness immunity applies only in defamation cases. ( See Pl. Br. 26-29.) B. THE DISTRICT COURT DID NOT ERR WHEN IT DENIED ABSOLUTE IMMUNITY TO DEFENDANT

1. Standard of Review

This Court reviews the district court d ecision 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 ru le 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 crucib le 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 ac tion, 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 n eeded to be supported by sworn statements. Id. at 121. In order to satisfy this requirement, she summarizedthe evidence supporting the charge, including the evidence in the unsworn statements, in a “Certifi cation 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 acti ons, as the certification in support of the warrant contained inaccurate factual statements. Id. at 121-22.

The Court began its analysis with the rule th at “in determining immunity, we examine ‘the nature of the function performed, not the id entity of the actor who performed it.’” Id. at 127No. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 6

(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 doc uments, 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 th e 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 dis tinct and essential predicate for a finding of probable cause.” Id. at 130-31. The Court found that the prosecu tor 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 se izure 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] orwrongfully 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 th e plaintiff in federal c ourt, alleging, among other things, that the state replevin statute was uncon stitutional 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 b ecause it violated the constitutional protection of due process; however, it found that the plainti ff 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 priv ate 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 repl evin 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 C ourt 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)).

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.No. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 7

(i). Congressional Intent

Both Plaintiff and Defendant agree that C ongress 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 pr ovided 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 witn ess 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.

(iii). Ex Parte Nonadversarial Proceedings

Plaintiff argues that Defendant should not receiveabsolute 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 st ate 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 De fendant’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 De fendant 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 decisi on 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-examinati on is absent in this case, since [the defendant’s] testimony was presented in the fo rm of an affidavit, [the plaintiff] was nevertheless afforded all the other protecti ons 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,No. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 8

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 base d its decision on this fact, and not on the “complaining witness” theory, as it declinedto 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 disti nguishing between [adversarial] pretrial proceedings and the trial on the merits in determining whether absolute immun ity should be granted to a police officer witness.” Id. (internal quotations and citation omitted).

In Sykes v. James , the Second Circuit found that the petitioner’s parole officer was absolutely immune for an affidavit submitted in the petiti oner’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 decisi on; 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 eas e of its application and its partial support in the rationale of Briscoe , it is ultimately unviable. We agree withthe 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 pro cess,” is the path that would best “lead to the ascertainment of truth.” See Briscoe , 460 U.S. at 330-34 (internal quot ations and citations omitted).

We do not agree, however, that the nonadvers arial nature of a proceeding automatically precludes applicability of absolute immunity to w itness 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, mostNo. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 9

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 befo re 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 i nquiry 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 witne ss testifies, insuring that the witness is not impermissibly pressured to alter her testimony. 460 U.S. at 333-34. Additi onally, a reviewing court should look to the common law to determine whether immunity was available in specific instances.

(iv). Briscoe Rationales

The Briscoe Court gave two rationales in support of the common law immunity for witness testimony: (1) “witnesses might be reluctant to comeforward to testify” without such immunity; and (2) “once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability.” 460 U.S. at 333-34. Neither of these rationales applies to this case.

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 garnis h 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 in centives of Defendant inconnection 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 Defe ndant 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 i mmunity for its affidavit. The lack of absolute immunity may increase Defendant’s costs of coll ecting a debt on behalf of a creditor; Defendant may actually be forced to obey Ohio law and conduc t some sort of preliminary investigation of a debtor’s assets to determine whether they are ex empt. This increase in costs, however, will not be a disincentive for Defendant to pur sue actions of garnishment. Th is 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 co mpetitive 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 ac tion; 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 su ch 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.No. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 10

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’ssecond rationale is equally inapplicable. The Supreme Court in Briscoe was cognizant of a witness’ fear of being completelycandid 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 undistorte d evidence.” 460 U.S. at 333. Here, the possibility to introduce such variability into Defendant’s te stimony was limited. The affidavit made one and only one statement: that Defendant had a reasonable ba sis to believe that certain property of Plaintiff was non-exempt. Of course, Defendant and Plainti ff may disagree as to wh ether Defendant had such reasonable basis; for example, Plaintiff may cl aim 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, todistort the evidence; Defendant cannot say that it might have a reasonable basis, or that there is a possibilitythat 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 basi s. 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 ove r semantics so much as the substance of the testimony.

The fact that Defendant has to be unequivocalin 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 contra ry 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.

(v). Common Law

Most states recognize some cause of action to address a plaintiff’s claim of improper garnishment:

Where an order of attachment or garnishment is improperly obtained or tortiously employed, the defendant in the proceedings may have several modes of obtaining redress for injuries caused thereby. He may proceed on the attachment or garnishment bond, if one has been given, su e for malicious or wrongful attachment or garnishment, or maintain an action for abuse of process or malicious prosecution. 2

6 Am. Jur. 2d Attachment and Garnishment § 604. “As with the tort of malicious prosecution, two of the necessary elements of a cause of acti on for wrongful garnishment are (1) an absence of probable cause for such proceeding, and (2) the presence of legal malice, which ‘may be inferred entirely from a lack of probable cause.’” Burshan v. Nat’l Union Fire Ins. Co. , 805 So.2d 835, 845 (Fla. Dist. Ct. App. 2001) (quoting Adams v. Whitfield, 290 So.2d 49, 51 (Fla. 1974)). One court has stated that “[w]hether a garnishment is wrongful depends upon whether the steps taken by the parties seeking the writ comply with the statute authorizing such relief.” Chandler v. Cashway Bldg. Materials, Inc. , 584 S.W.2d 950, 952 (Tex. App. 1979).

In addition, certain states have explicitly ruled that a cause of action for wrongful garnishment may arise from the garnishment of exempt property. Owens v. Deutch , 137 P.2d 181, 185 (Kan. 1943); Grimestad v. Lofgren , 117 N.W. 515 (Minn. 1908); Rice v. Chase , 9 N.H. 178 (1838). See generally6 Am. Jur. 2d Attachment and Garnis hment § 612. One state has ruled thatNo. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 11

3 In support of its claim of absolute immunity, Defendant cites Etapa v. Asset Acceptance Corp. , 373 F. Supp. 2d 687 (E.D. Ky. 2004), and Beck v. Codilis , No. 4:99 CV 485-RH, 2000 WL 34490402 (N.D. Fla. Dec. 27, 2000), two cases that specifically addressed false affidavits with re spect to FDCPA claims. Because neither case addresses the complaining witness analysis, they are unpersuasive in the present factual context. a single instance of garnishment of exempt property does not amount to abuse of process, but multiple instances may be sufficient. Layton v. Chase , 144 N.W.2d 561, 564 (S.D. 1966).

The case law cited above demonstrates that st ates have allowed claims where a plaintiff alleges an improper garnishment, whether the cl aim is one of malicious prosecution, abuse of process, or wrongful garnishment. This include s a claim that the defendant improperly garnished exempt property. The defendant is not entitled to absolute immunity to counter these claims; instead, he has the defenses of probable cause and lack of malice. This common law backdrop generally indicates that Defendant would not be absolutely immune from suit for an improper garnishment.

The question then becomes whether Defendant, although not immune from suit, should receive absolute immunity for the statements he made in the affidavit. From the Supreme Court precedent previously discussed, this Court draws several rules:

(1) A private witness testifying at trial is absolutely immune for her testimony;

(2) A private witness testifying at a grand jury is absolutely immune for her testimony;

(3) A private witness testifying as a complaining witness has no immunity for her testimony.

This Court finds that Defendant is a complaining witness. 3 In Wyatt , the Supreme Court ruled that “although public prosecutors and judges were accorded absolute immunity at common law, such protection did not extend to complaining witn esses who, like respondents, set the wheels of government in motion by instigating a legal acti on.” 504 U.S. 164-65 (citation omitted). Here, Defendant instigated the legal action of garnishment and “set the wheels of government in motion.” In order to do so, Defendant swore to the truth of a certain set of facts, i.e. , it had reasonable belief that the target property of the garnishment was non-ex empt. Because of this affidavit, the state court then bound Plaintiff’s bank account. Defendant’s garnishment action is the result of Defendant’s “complaint” that Plaintiff had non-exempt property, and that Plaintiff thus owed this non-exempt property to Defendant.

From this Court’s perspective, Defendant’s actions mirror the instigation of an action in replevin. As explained in Wyatt , the Supreme Court had grouped toge ther replevin and garnishment actions in the § 1983 context, and with good reason. The two actions are quite similar: in both claims, the plaintiff believes the defendant holds pr operty to which the plaintiff is entitled; in both claims, the plaintiff files an affidavit that sw ears to his belief; in both claims, the court then dispossesses the defendant of the property or otherwise limits the defendant’s use; and in both claims, the defendant then has the right to a hearing to prove that the property properly belongs to him. In Wyatt , the Supreme Court noted that a private defendant was not immune from suit for instigating an improper replevin action under a clai m of malicious prosecution or abuse of process; the defendant did, however, have the defense of good faith. 504 U.S. 164-65. This Court sees no principled distinction that justifies differing treatment for an improper garnishment action.

Defendant may argue that an action in replevin is a prejudgment action, whereas a garnishment action is a postjudgment action. This is a trivial distinction. The fact that Defendant obtained an underlying judgment in support of the garnishment is irrelevant; the validity of theNo. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 12

underlying judgment does not extend to an ancillary action. This Court looks only to the garnishment action itself to determine whether that claim was properly made.

Defendant argues that the complaining witness analysis does not apply because the complaining witness analysis deals only with arre st warrants, and no analogy can be drawn to this case because the probable cause requirement for arrest warrants derives from the Constitution, whereas Plaintiff does not and cannot make the same constitutional claim for an improper garnishment. While the Supreme Court us ed the complaining witness analysis in Malleyin its treatment of a police officer’s statement to support probable cause for an arrest warrant, the analysis derives from the common law tort of malicious prosecution. Malley , 475 U.S. at341 n.3. If a private defendant instituted a baseless civil suit w ithout probable cause and with malice against the plaintiff, then the plaintiff w ould have a cause of action against the defendant based not in the Constitution but in the common law, and the defe ndant would be a complaining witness without absolute immunity. Likewise, if a private defendant instituted an improper garnishment action without probable cause and with malice, the plai ntiff garnishee would have a cause of action at common law. See supra . Thus, the complaining witness analysis applies outside of the constitutional context.

Defendant next argues that “no analogy canbe drawn between a claim for malicious prosecution and a claim that an affidavit in aid of garnishment contains a false statement.” (Def. Reply Br. 7.) This Court disagrees. As explai ned above, a plaintiff garnishee can use malicious prosecution as a claim to remedy an improper garnishment, so malicious prosecution is not just analogously on point; it is directly on point. This is logical, as malicious prosecution is defined as “a suit for damages brought by one against whom a criminal prosecution, civil suit, or other legal proceeding has been instituted maliciously and without probable cause, after the termination of the former proceedings in favor of the defendant.” 52 Am. Jur. 2d Malicious Prosecution § 1. Here, Defendant instituted a garnishment proceeding agai nst Plaintiff, and the proceeding ended in favor of Plaintiff. Plaintiff claims the proceeding was instituted maliciously and without probable cause because Defendant did not have a reasonable basi s to believe that Plaintiff’s property was nonexempt. Plaintiff could thus su fficiently state a claim of malici ous prosecution to which Defendant could not assert a defense of absolute immunity. Wyatt , 504 U.S. at 164.

Defendant argues that as long as the underlyi ng judgment is valid, there can be no claim of malicious prosecution with respect to a garnishment action. None of the cases to which Defendant cites support this contention. In Vanover v. Cook , the court found that the plaintiff had failed to state a malicious prosecution claim, because no judgment had been entered in the plaintiff’s favor. 260 F.3d 1182, 1189-90 ( 10th Cir. 2001). It is undisputed in the instant case that the state court dismissed the garnishment of Plaintiff’s bank account. Novick v. Becker actually supports Plaintiff’s position: the court found that “the detention of the funds of a party by garnishment is such interference with his property as to sustain an action of malicious prosecution.” 90 N.W.2d 620, 622 (Wis. 1958). The court ultimately found that the plai ntiff did not properly allege lack of probable cause on the part of the defendant. Id. at 623. Duckworth v. Boykin dealt with a case where the plaintiff in the malicious prosecution suit “made an unsuccessful attempt to obtain a judgment that the money raised by the garnishment was exempt from that process.” 41 S.E. 62, 62 (Ga. 1902). In other words, the garnishment action was good, and thus the malicious prosecution claim failed, because the plaintiff failed to s how that the garnished property was exempt. Here, Plaintiff has shown and the state court has ruled thatthe garnished property was exempt. Salsgiver v. Standard Oil Co. was a case where the plaintiff failed to prove malice; it did not state that a plaintiff could never maintain a malicious prosecution claim if there was a valid underlying judgment. No. 77 C.A. 66, 1978 WL 214778 (Ohio Ct. App. Jan. 17, 1978).

The only case that possibly lends s upport to Defendant’s contention is Delk v. Colonial Fin. Co. , 194 N.E.2d 885 (Ohio Ct. App. 1963). There, the st ate court reasoned that “[i]t is obvious thatNo. 04-4109 Todd, et al. v. Weltman, Weinberg, & Reis Co. Page 13

the existence of defendant’s valid judgment provided complete probable cause for instituting garnishment proceedings.” Id. at 888. This Court agrees that generally, when a creditor has obtained a judgment, she may then seek garnishment; however, this general probable cause does not equate to the specific probable cause requirement of Ohio law that Defendant have a reasonable basis to believe that the property garnished is non-exempt. In other words, it is no answer that Plaintiff owes Defendant money, and that Plainti ff owns property; Defendant must show that it reasonably believes the garnished property is non-exempt. Moreover, Delk could not possibly encompass this specific form of probable cause, as it was decided well before the existence of the Ohio statutory requirement of the affidavit. While the language in Delk was applicable to the days when the creditor could garnish property without i nvestigating the nature of the property, those days are no more in Ohio.

Defendant’s actions could properly be characterized as malicious prosecution. As a result, it is a complaining witness without absolute immun ity. The fact that Plaintiff is suing under the FDCPA and not the common law claim does not affect the immunity status of Defendant. As the Supreme Court stated in Kalina , “in determining immunity, we examine the nature of the function performed.” 522 U.S. at 127 (internal quotations and citation omitted). In this case, Defendant functioned as a complaining witness, so it may not assert absolute immunity against any claim in connection with this role.

From a practical perspective, treating Defendant as a complaining witness without immunity simply makes sense. The Court reserves absoluteimmunity for individuals when they functionally serve as “integral parts of the judicial process,” such as judges, advocates, and witnesses in their ordinary judicial roles. Briscoe , 460 U.S. at 335. The purpose of this immunity is to preserve the integrity of our judicial system, not to assist a self-interested party who allegedly lies in an affidavit to initiate a garnishment proceeding.

III. CONCLUSION

For the foregoing reasons, this Court AFFIRMS the order of the district court.