Case Information
*1 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.
_________________________________________________________________ COUNSEL
ARGUED: Rebecca Ann Baitty, REBECCA A. BAITTY, P.A., Sara- sota, Florida, for Appellants. John Christian Yoder, Harpers Ferry, *2 West Virginia, for Appellees. ON BRIEF: Rudolph A. DiTrapano, DITRAPANO & JACKSON, Charleston, West Virginia, for Appel- lant McGraw; Robert Cohen, COHEN, ABATE & COHEN, L.C., Fairmont, West Virginia, for Appellant Rodd. J. Thomas Burch, Jr., William T. Bennett, BURCH & ASSOCIATES, P.C., Washington, D.C., for Appellees.
_________________________________________________________________ OPINION
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.
I.
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 *3 Credit and Protection Act, W. Va. Code 46A-6-104 (1974). Rodd rep- resented the State in the action. In August 1994, McGraw moved to join 102 additional defendants, including SCI, and applied for a pre- liminary 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., 472
S.E.2d 792 (W. Va.), cert. denied sub nom. Suarez Corp. Indus. v.
West Virginia,
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 remain- ing 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), interfer- ence with prospective contractual relations (Count VIII), and a prima *4 facie tort claim for damages (Count IX). The principal bases for these claims are that McGraw and Rodd accelerated enforcement proceed- ings against SCI after the newspaper ad; that McGraw faxed to all state attorneys general a warning that SCI's counsel threatened vio- lence upon Rodd; that Rodd threatened the Canton, Ohio, Better Busi- ness 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 syndi- cate" 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 juris- diction 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 plead-
ing 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 scruti-
nized 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,
The district court subsequently denied a motion to certify its November 16, 1995, order for interlocutory appeal pursuant to 28 *5 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.
II.
Before proceeding to the merits of McGraw and Rodd's appeal, there are a number of jurisdictional issues with which we must con- tend. A.
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.,
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 immu-
nity is a final order over which we can exercise appellate jurisdiction.
See Jenkins v. Medford, ___ F.3d #6D 6D6D#,
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, McGraw and
Rodd raise their qualified immunity claim for the first time on this
appeal. They claim they argued this "defense" in their Reply Memo-
randum in Support of Defendants' Motion to Dismiss, but a perusal
of that memorandum does not substantiate their claim. It is neverthe-
less clear that the defense was not squarely before the district court,
and, indeed, the notice of appeal to this court only specifically refers
to the defense of absolute immunity. It is well-settled that a defense
may not be first raised on appeal. G. Heileman Brewing Co. v. Stroh
Brewery Co.,
C.
McGraw and Rodd also interjected for the first time on appeal claims of sovereign immunity under the Eleventh Amendment.
Before we may reach the merits of those claims, we must again deter- mine whether we possess appellate jurisdiction to do so. We have recently held that, on an appeal from a grant of summary judgment, Eleventh Amendment immunity could be raised for the first time on that appeal. See In Re Creative Goldsmiths of Washing- ton, D.C., Inc., No. 96-1895, slip op. at 5, ___ F.3d ___, ___ (4th Cir. July 22, 1997). The question here is whether it should be permitted on an appeal from the denial of a Rule 12(b)(6) motion. We conclude that it should be.
The Eleventh Amendment provides that "[t]he Judicial power of
the United States shall not be construed to extend to any suit in law
or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign
State." U.S. Const. amend. XI. The Eleventh Amendment, therefore,
demands a "withdrawal of jurisdiction" that"effectively confers an
immunity from suit" in federal court. Puerto Rico Aqueduct and
Sewer Auth. v. Metcalf & Eddy, Inc.,
In Coakley, we found we possessed appellate jurisdiction over an
appeal from a denial of a Rule 12(b)(6) motion to dismiss predicated
on Eleventh Amendment immunity, for there there was"no serious
contention that the order denying immunity in this case does not ful-
fill the Cohen criteria," id., a position later supported by the Supreme
Court in Puerto Rico Aqueduct. Unlike in the instant case, in Coakley
the issue of Eleventh Amendment immunity was squarely before the
district court, and there could be no claim that the"defense" was
*8
raised for the first time on appeal. The posture was similar in Puerto
Rico Aqueduct. There the Aqueduct and Sewer Authority moved to
dismiss on the ground that it was an "arm of the State," and thus
immune from suit in federal court under the Eleventh Amendment.
Puerto Rico Aqueduct,
In Creative Goldsmiths, however, the defense was raised for the
first time on an appeal from summary judgment. There we concluded
that the defense's jurisdictional characteristics did permit it to be
raised on appeal. See Creative Goldsmiths, slip op. at 5, ___ F.3d at
___. See also Edelman v. Jordan,
Although not raised by the parties, we see additional jurisdictional
hurdles. Counts I, II, VI, and VII of the FAC seek, in part, injunctive
relief from the enforcement of the state court preliminary injunction.
That injunction was originally set to expire 180 days after the entry
of the mandate by the West Virginia Supreme Court of Appeals on
March 20, 1996. See Imperial Mktg.,
We now turn to the merits of McGraw and Rodd's appeal on those counts over which we appear to possess jurisdiction, beginning first with their assertion of Eleventh Amendment immunity. A.
Examining the FAC under the lens of the Eleventh Amendment,
we find we must reverse the denial of the motion to dismiss with
regard to whatever remains of Count VII, a claim seeking injunctive
relief for a state official's violation of state law. Such a claim is
barred by the Eleventh Amendment under Pennhurst State Sch. &
Hosp. v. Halderman,
McGraw and Rodd urge that all of the state law claims are simi-
larly barred. The remaining counts (Counts IV, V, VIII, and IX), how-
ever, seek monetary relief. Although the FAC is silent as to the
capacity in which McGraw and Rodd are being sued in these counts,
we take SCI's request for compensatory and punitive damages as an
indication that these state actors are being sued in their personal
capacities here, since such relief is unavailable in official capacity
suits. See Biggs v. Meadows,
There is also no prima facie Eleventh Amendment bar to the four
federal claims. Two claims (Counts I and II) seek declaratory and
injunctive relief, and a third (Count VI) seeks injunctive relief; the
long-standing rule of Ex parte Young,
B.
Finding subject matter jurisdiction over what remains of the eight
remaining claims,
1
we finally address the issue of the adequacy of the
complaint. We have previously held that defendants face a "proce-
dural stumbling block" in asserting affirmative defenses in a Rule
12(b)(6) motion. Richmond, Fredericksburg & Potomac R.R. Co. v.
Forst,
McGraw and Rodd argue that, to the extent the FAC seeks relief
for their pursuit of the state court action, the claims are barred by
absolute immunity. While traditional prosecutorial activities are
accorded absolute immunity, see Imbler v. Pachtman,
We agree with the district court's observation that the FAC is not a model pleading. This court, however, is a court of limited jurisdic- tion. Where issues have not been properly presented below, permit- ting the district court to do its job, we refuse, beyond what our jurisdictional mandate requires, to parse through every element in a nine-count complaint upon the denial of a Rule 12(b)(6) motion and tell the parties where we think viable claims and defenses thereto may lie. Such a piecemeal approach would hazard us stepping beyond our proper jurisdictional bounds and stepping on the toes of the district court.
Here we do decide that we possess appellate jurisdiction to con- sider whether a complaint on its face may be vitiated by an Eleventh Amendment claim to immunity from suit in federal court. In this case, Count VII of the FAC is barred on its face under the Eleventh Amendment, and the district court's order must therefore be reversed with respect to that one count. The other eight counts are not so barred. We express no opinion as to whether, upon further proceed- ings and factual development, this same conclusion would hold. _________________________________________________________________ 2 We, of course, recognize that McGraw was the defendant in Allen whom we denied qualified immunity for acts clearly established to be beyond the scope of his authority. That recognition, however, in no way unduly influences our decision in the instant case.
We also conclude that those parts of the controversy seeking relief from a state court preliminary injunction have become moot and that Article III jurisdiction is accordingly lacking. In addition, we deter- mine that both we and the district court lack jurisdiction to hear SCI's claims to the extent it seeks review of, or relief from, any continuing state court judicial proceedings or decisions. We therefore vacate the order below and remand with instructions to the district court to dis- miss the FAC to the extent that claims are moot or the Rooker- Feldman doctrine is implicated.
We further decide that we do possess appellate jurisdiction to con- sider McGraw and Rodd's claim of absolute immunity. On that claim, we conclude that SCI's allegations do not show that the defense of absolute immunity will vitiate completely its ability to recover on any of the counts over which federal court subject matter jurisdiction is properly invoked. We accordingly affirm the district court's order to that extent.
We will not consider McGraw and Rodd's claim of qualified immunity at this stage of the litigation.
IT IS SO ORDERED.