30 F.4th 289
6th Cir.2022Background
- Frank Fisher and Michelle Perron are siblings; Fisher is personal representative of their mother’s estate and co-trustee of related trusts with Perron and others.
- Fisher alleges Perron secretly recorded at least 14 calls among the siblings, including a multi-jurisdictional call on Feb. 18, 2018, and shared recordings/transcripts with her attorney and filed a transcript in probate court.
- Probate court later struck the transcript(s), found Perron’s probate allegations frivolous, and awarded sanctions/fees against Perron; Perron’s probate petitions were dismissed.
- Fisher sued in federal court asserting: (1) violation of the Federal Wiretap Act, (2) violation of Michigan’s eavesdropping statute, and (3) tort of public disclosure of private facts; he sought damages and injunctive relief.
- The district court dismissed the complaint for failure to state a claim; the Sixth Circuit affirmed, concluding Fisher failed to plead a viable Michigan eavesdropping violation, failed to allege sufficiently offensive public disclosures, and failed to allege the Wiretap Act’s required tortious/criminal intent underlying any one-party recording exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Michigan’s eavesdropping statute requires all-party consent or permits one-party recordings | Fisher: statute’s plain text requires consent of all parties; Sullivan should not control | Perron: Michigan precedent treats statute as one-party consent when recorder is a participant | Court: Predicting Michigan law, participant recordings are not covered by statute (one-party consent); claim fails |
| Whether the complaint plausibly pleads public disclosure of private facts | Fisher: transcript and alleged other disclosures revealed private, sensitive estate/financial facts and were public | Perron: filings were privileged litigation communications; allegations insufficiently specific/offensive | Court: Allegations about Feb. 18 call are conclusory and fail to show highly offensive, widespread disclosure; claim dismissed |
| Whether Fisher stated a claim under the Federal Wiretap Act (18 U.S.C. § 2511) | Fisher: Perron recorded to procure material to use in litigation and to harm him; underlying torts/statutes support § 2511(2)(d) exception | Perron: Federal statute is one-party consent; no pleaded underlying tort/crime or intent to commit one when recording | Court: One-party consent governs; Fisher failed to allege intent to commit a criminal/tortious act (no plausible underlying violation pleaded); Wiretap claim fails |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: courts ignore conclusory allegations; require plausible facts)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Sullivan v. Gray, 324 N.W.2d 58 (Mich. Ct. App. 1982) (Michigan appellate court held eavesdropping statute excludes participant recordings)
- Stryker Corp. v. XL Ins. Am., 735 F.3d 349 (6th Cir. 2012) (procedure for predicting how state supreme court would decide unsettled state-law questions)
- Grantham & Mann, Inc. v. Am. Safety Prods., Inc., 831 F.2d 596 (6th Cir. 1987) (state appellate decisions are important data points when ascertaining state law)
- Swickard v. Wayne Cnty. Med. Exam’r, 475 N.W.2d 304 (Mich. 1991) (standard for "highly offensive" in public disclosure tort)
- Doe v. Mills, 536 N.W.2d 824 (Mich. Ct. App. 1995) (public disclosure of abortion information found private and offensive)
- Maiden v. Rozwood, 597 N.W.2d 817 (Mich. 1999) (litigation privilege protects communications in judicial proceedings)