Opinion
Case No. 1:00cv 433
October 9, 2001
REPORT AND RECOMMENDATION
This is a civil action brought by a pro se plaintiff against his former employer. Plaintiffs employment was terminated in 1990, and he has already sued defendant unsuccessfully in the state courts. Plaintiff's third amended complaint sets forth a number of claims under federal and state theories arising from his employment and the ensuing state-court litigation. Presently pending before the court is defendant's motion for summary judgment (docket # 32), which raises the defenses of res judicata and statute of limitations, among others.
By order of reference dated August 28, 2000, District Judge David W. McKeague referred this case to me for handling of all pretrial matters, including the issuance of a report and recommendation on dispositive motions. (Order, docket # 3). I condued a hearing on the motion on September 24, 2001. For the reasons set forth below, I conclude that defendant's motion is meritorious and recommend that it be granted.
Summary Judgment Standard
As the Sixth Circuit has noted, the federal courts have entered a "new era" in summary judgment practice. Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 150 (6th Cir. 1995); Street v. J. C. Bradford Co., 886 F.2d 1472, 1478-81 (6th Cir. 1989). While preserving the constitutional right of civil litigants to a trial on meritorious claims, the courts are now vigilant to weed out unsupported claims before trial. Summaryjudgment is appropriate when the record reveals that there are no issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1009 (6th Cir. 1997) (en bane); Sable v. General Motors Corp., 90 F.3d 171, 175 (6th Cir. 1996); Payne v. Board of Education, 88 F.3d 392, 397 (6th Cir. 1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). The standard for determining whether summary judgment is appropriate is "whether `the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" See Adcox v. Teledyne, Inc., 21 F.3d 1381, 1385 (6th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 25 1-52); see also, Burnett v. Tyco Corp., 203 F.3d 980, 982 (6th Cir. 2000); Crabbs v. Copperweld Tubing Products Co., 114 F.3d 85, 88 (6th Cir. 1997).
The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wathen v. General Flee. Co., 115 F.3d 400,403 (6th Cir. 1997). The party moving for summary judgment bears the initial burden of pointing out to the district court that there is an absence of evidence to support the nonmoving party's case, but need not support its motion with affidavits or other materials "negating" the opponent's claim. Moore v. Philip Morris Companies, Inc., 8 F.3d 335, 339 (6th Cir. 1993). Once defendants show that "there is an absence of evidence to support the nonmoving party's case," plaintiff has the burden of coming forward with evidence raising a triable issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Statement of Facts Beyond Genuine Issue
Plaintiff, David M. Kovats, is a resident of Kent County, Michigan. He alleges that defendant, Hi-Lex Corporation, is a "wholly-owned subdivision" of Nippon Cable Systems, Ltd., a Japanese corporation. Plaintiff was employed by defendant from September 19, 1988, until his termination on September 28, 1990. The parties sharply disagree concerning the justification for plaintiffs termination from employment. For purposes of the present motion for summary judgment, the reasons for plaintiff's termination are not material.
Defendant has not called into question plaintiffs characterization of Hi-Lex Corporation as a subdivision of a Japanese company. Therefore, complete diversity of citizenship appears to exist on the present record.
On September 13, 1993, plaintiff filed a pro se complaint in the Kent County Circuit Court challenging his discharge. After proceedings in the Kent County Circuit Court, Judge Dennis B. Leiber entered an order transferring venue to the Calhoun County Circuit Court on April 19, 1994. Plaintiff contends that the order was entered sua sponte, without motion by defendants. For present purposes, I accept plaintiff's contentions in this regard as true. After the caseZfile arrived in the Calhoun County Circuit Court, plaintiff filed a second amended complaint. The second amended complaint named Hi-Lex Corporation and a number of its employees as defendants. The second amended complaint alleged that defendants gathered a record of plaintiffs communications of non "Defendant employment activities in violation of the Bullard-Plawecki Employee Right-To-Know Act, MICH. COMP. LAWS § 423.501-512 (Count 1). Count 2 set forth a claim for invasion of privacy under Michigan common law. Count 3 was brought under the Elliott-Larsen Civil Right Act, Mich. COMP. LAWS § 37.2101-.2804, based upon allegations of discrimination on account of age and marital status. Counts 4 through 8 also alleged violations of the Elliott-Larsen Civil Rights Act. Count 9 was a common-law count for the intentional or negligent infliction of emotional distress. Count 10 alleged tortious interference with an advantageous economic relationship. Count 11 alleged a tort claim for negligent supervision. Count 11 alleged a claim for breach of contract and fraud. Count 12 was another breach of contract claim, and count 13 was another fraud claim. In counts 14 and 15, plaintiff again alleged violation of the Elliott-Larsen Civil Rights Act. Finally, count 16 claimed tortious interference with a contractual relationship. (See Second Amended Complaint in file no. 94-1277-CZ, Calhoun County Circuit Court, Exhibit F to docket # 32).
The Calhoun County Circuit Court case terminated on June 15, 1995, with the entry of an order by Judge Conrad J. Sint granting a motion for summary disposition under Michigan law, MICH. CT. R. 2.1 16(C)(10), finding that defendant was entitled to judgment on all claims as a matter of law. The order specifically provided that "this dismissal will operate as an adjudication on the merits." Plaintiff did not take an appeal from the judgment.
Plaintiff initiated the present action by filing a complaint on June 15, 2000. The original complaint named as defendants Hi-Lex Corporation and Nippon Cable Systems, Ltd. The complaint alleged that Hi-Lex Corporation was a "wholly-owned subdivision" of Nippon Cable Systems, Ltd. The complaint purported to allege only claims arising under the Fourteenth Amendment to the Constitution. On September 29, 2000, plaintiff filed a first amended complaint as of right under Fed.R.Civ.P. 15(a). The first amended complaint (docket #5) named only Hi-Lex Corporation as a defendant and continued to assert only constitutional claims under the Fourteenth Amendment arising from plaintiff's termination from employment. On December 22, 2000, defendant filed a motion for more definite statement pursuant to Fed.R.Civ.P. 12(e). (docket # 9). The court conducted a hearing on the motion on January 31, 2001, and concluded that the first amended complaint lacked sufficient factual allegations to inform defendant of the nature and basis for the plaintiff's claims. Plaintiff was ordered to file a second amended complaint no later than April 1, 2001. (docket # 15).
On April 2, 2001, plaintiff filed a second amended complaint, comprising 54 pages and 340 numbered paragraphs. (docket #18). The only named defendant was Hi-Lex Corporation. Count 1 of the second amended complaint alleged a violation of the Bullard-Plawecki Employee Right To Know Act, MICH. COMP. LAWS § 423.50 1-.5 12. Count 2 asserted a claim for invasion of privacy under Michigan law. Counts 3 through 8 asserted claims under the Elliott-Larsen Civil Rights Act, MICH. COMP. LAWS § 37.2 101-.2804, for employment discrimination. Counts 9-11 arise under state tort law, alleging infliction of emotional distress, tortious interference with economic advantage, and negligent supervision. Count 12 asserts breach of contract. Count 13 alleges claims for fraud. Counts 14 and 15 revert to the Elliott-Larsen Civil Rights Act. Count 16 is for tortious interference with a contractual relationship and alleges numerous facts related to the previous statecourt lawsuit pending in the Kent County and Calhoun County Circuit Courts. Counts 17 through 24 purport to allege civil rights claims arising under 42 U.S.C. § 1983, principally related to the conduct of defendant's attorneys in the state-court action. Count 25 alleges a conspiracy to deprive plaintiff of his civil rights, in violation of 42 U.S.C. § 1985.
On July 23, 2001, plaintiff filed a motion for leave to file a third amended complaint. (docket # 26). The proposed third amended complaint would have added numerous named and unnamed parties to this action, including the attorneys who represented Hi-Lex Corporation in the state-court litigation. The proposed amendment also added further claims against Hi-Lex Corporation: count 16 (unjust enrichment arising from failure to pay performance bonuses); count 17 (fraud on the courts of the State of Michigan); count 18 (equal protection claim under 42 U.S.C. § 1983); count 22 (section 1983 claim for violation of rights secured by the Bullard-Plawecki Act); count 24 (negligent supervision). By order entered August 16, 2001, 1 granted plaintiff leave to file his third amended complaint, to the extent that it asserted additional claims against the present defendant, Hi-Lex Corporation. I denied plaintiff leave to add additional parties to the case, finding that joinder of additional parties at this late stage in the litigation would unduly complicate and delay resolution of the matter.
Plaintiff has appealed that decision to Judge McKeague. FED. R. Civ. P.72(a).
Defendant has filed a motion for summary judgment (docket # 32), directed to plaintiffs second amended complaint, and a supplemental motion (docket # 41) directed to the claims added in the third amended complaint. (docket # 37). Defendant's motions raise resiudicata as a defense to all claims litigated before the state circuit court. With regard to plaintiff's remaining claims, defendant raises the bar of the statute of limitations or asserts that plaintiff has failed to state a claim upon which relief can be granted. For the reasons set forth below, I conclude that all of plaintiff's claims are indisputably meritless and recommend that judgment be entered on behalf of defendant on all claims.
Discussion
For purposes of analyzing plaintiffs claims, I have divided them into three categories: (A) state-law claims that were asserted or could have been asserted in plaintiffs circuit court lawsuit; (B) claims under the federal civil rights acts; and (C) claims arising from the proceedings in the state circuit court.
A. State-Law Claims
The bulk of plaintiffs claims arise from his termination from employment in 1990 or alleged acts of discrimination that took place during his tenure as an employee of the Hi-Lex Corporation. These claims are identified in the third amended complaint (docket # 37) as counts 1 through 16 inclusive, and count 24. These counts all assert claims under Michigan statutory law, such as the Elliott-Larsen Civil Rights Act, or the state's common law. Defendant has raised the defenses of res judieata and statute of limitations to all these claims. Both defenses are meritorious.
1. ResJudicata
The doctrine of claim preclusion, sometimes referred to as res judicata, provides that if an action results in a judgment on the merits, that judgment operates as an absolute bar to any subsequent action on the same cause between the same parties, with respect both to every matter that was actually litigated in the first case, as well as to every ground of recovery that might have been presented. Black v. Ryder/P.LE. Nationwide, Inc., 15 F.3d 573, 582 (6th Cir. 1994). "State judicial proceedings are entitled to the same preclusive effect in federal court as they would receive in the judgment-rendering state." Stuhlreyerv. Armco, Inc., 12 F.3d 75, 77 (6th Cir. 1993); see 28 U.S.C. § 1738 (Full Faith and Credit Act).
Under Michigan law, "[t]here are three prerequisites to application of the doctrine of res judicata: (1) the prior action must have been decided on its merits; (2) the issues raised in the second case must have been resolved in the first; and (3) both actions must have involved the same parties or their privies." Roberts v. City of Troy, 429 N.W.2d 206, 211 (Mich.Ct.App. 1988). Here, plaintiffs prior action against defendant Hi-Lex Corporation, litigated in the Kent County and Calhoun County Circuit Courts, meets all three prerequisites under Michigan law. First, plaintiff's prior action involved identical parties. Second, both actions involved the same issues regardinZthe lawfulness of defendant's termination of plaintiffs employment and other acts taking place during his tenure as an employee. Finally, the grant of summary disposition in favor of defendant in the Calhoun County Circuit Court for plaintiff's failure to raise a genuine issue of fact for trial was a decision on the merits. See Williams v. Fette, No. 88-1833, 1998 WL 128010, at *1 (6th Cir. Dec. 2, 1988) (summary disposition in the Michigan trial court is a decision on the merits under Michigan law and bars relitigation of such claims in federal court) (citing Corrigan v. Aetna Life Cas. Co., 364 N.W.2d 728, 733 (Mich.Ct.App. 1985)); see also City of Detroit v. Qualls, 454 N.W.2d 374, 382 (Mich. 1990); Morse v. First of Am. Bank — Michigan, Nos. 212197, 215324, N.W.2d 2001 WL 921171, at *2 (Mich.Ct.App. Aug. 1, 2001) (upholding imposition of sanctions upon counsel because "Michigan law is clear that summary dispositions . . . are final determinations on the merits for purposes of res judieata."); Moore v. Wicks, 458 N.W.2d 653, 655 (Mich.Ct.App. 1990).
In an effort to avoid the res judicata effect of the Calhoun County Circuit Court judgment, plaintiff raises insubstantial objections. First, he points to immaterial variations between the allegations in his state-law complaint and the third amended complaint in this court. This argument ignores the breadth of the claim-preclusion doctrine under Michigan law. Michigan follows the broad Restatement of Judgments rule, which bars "not only claims already litigated, but every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not." Sewell v. Clean Cut Mgmt, Inc., 621 N.W.2d 222, 225 (Mich. 2001); see Gose v. Monroe Auto Equip. Co., 294 N.W.2d 165, 167 (Mich. 1980). All of plaintiffs present state-law claims accrued, by definition, at or before the time he was terminated from employment by defendant in 1990. Plaintiffs state-law complaint brought statutory claims under the Bull.ardPlawecki and Elliott-Larsen Acts, as well as common-law claims under Michigan law sounding in both tort and contract. The state circuit courts are courts of general jurisdiction and could have entertained any claim arising under Michigan law relating to the conditions of p1 aintiffs employment or his firing. All such state-law claims are precluded under the broad res judicata doctrine applied by the Michigan Supreme Court.
Second, plaintiff asserts that the judgment of the Calhoun County Circuit Court is not entitled to preclusive effect because venue was improperly transferred to Calhoun County. Plaintiff contends that venue was proper in Kent County under the Bullard-Plawecki Act, because plaintiff resided in this county. He asserts that Judge Leiber transferred the case to Calhoun County sua sponte, in violation of Rule 2.22(B) of the Michigan Court Rules, which provides that if venue is proper, the court may not change venue on its own initiative, but may do so only on motion of a party. For purposes of adjudicating defendant's motion for summaryjudgment in this case, I assume that plaintiffs original choice of venue in Kent County was proper, that Judge Leiber transferred venue on his own initiative, and that the order of transfer was therefore erroneous.
A state-court judgment, even if gravely erroneous, is entitled to full faith and credit, unless the error deprived the rendering court of jurisdiction under the law of the state. See In Re Brady, Texas Mun. Gas Corp., 936 F.2d 212, 219 (5th Cir. 1991); United States v. Straits Steel Wire Co., 810 F. Supp. 208, 211 (W.D. Mich. 1992). The alleged error concerning venue upon which plaintiff relies does not rise to this level. In general, Michigan law holds that venue rules are not jurisdictional. Omne Fin., Inc. v. Shacks, Inc., 573 N.W.2d 641, 644 (Mich.Ct.App. 1998). Jurisdiction deals with the power of a court to hear a class of cases or the authority of the court to bind the parties. By contrast, venue rules are based upon the convenience of the parties. Id. Consequently, under Michigan law, procedural errors in handling venue motions are not jurisdictional. See Smith v. Hayes Albion, 542 N.W.2d 298, 301 (Mich.Ct.App. 1995). Where jurisdiction of the parties and the subject matter exist, errors or irregularities in the proceedings, however grave, do not render a judgment void under Michigan law. Until the judgment is set aside in the Michigan courts, "it is valid and binding for all purposes and cannot be collaterally attacked." Atman v. Nelson, 495 N.W.2d 826, 829 (Mich.Ct.App. 1992). If plaintiff believes that the Kent County Circuit Court transferred his case in error, his remedy was an appeal in the Michigan court system, not a collateral attack against the ensuing judgment.
Finally, plaintiff argues that the Calhoun County Circuit Court judgment is not entitled to full faith and credit, because it is not authenticated as required by the Full Faith and Credit Act. The Full Faith And Credit Act, 28 U.S.C. § 1738, provides that the judicial proceedings of the state courts shall have the same full faith and credit in the federal courts as they have in the courts of the state from which they are taken. The Act provides that records and judicial proceedings of the state courts "shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if the seal exists, together with a certificate of a judge of the court that the said attestation is in proper form." Plaintiff correctly points out that the judgment presented by defense counsel (docket # 42) fails to comply with the Full Faith and Credit Act, in that it is merely sealed and certified by the clerk, but lacks the required certificate of a judge that the attestation is in proper form. The federal courts have long held, however the method of attestation set forth in the Full Faith and Credit Act is not exclusive. See United States v. Mathies, 350 F.2d 963, 965 n. 4 (3d Cir. 1965). It is sufficient that a judgment is authenticated in compliance with the Rules of Evidence of the forum court. See Donald v. Jones, 445 F.2d 601, 606 (5th Cir. 1971). In the present case, Rule 902(4) of the Federal Rules of Evidence provides that a copy of an official record is self-authenticating if it bears a seal and attesting signature. The Calhoun County judgment presented by defendant meets the requirements of Rule 902(4) for authentication. It is therefore entitled to full faith and credit. See United States v. Dottin, No. 86-5605, 1987 WL 35052 (4th Cir. 1987) (state-court judgment authenticated as required by Fed.R.Evid. 902(4) entitled to full faith and credit despite lack of exemplification).
The certification of the judge is generally referred to as "exemplification." It is unclear why defense counsel failed to follow the simple requirements of the statute, thus providing the occasion for the litigation of unnecessary issues.
In summary, I conclude that all plaintiffs state-law causes of action, whether arising under statute or common law, accruing on or before the date of his termination from employment are barred by the preclusive effect of the Calhoun County judgment dated June 15, 1995.
2. Statute of Limitations
Alternatively, defendant raises the statute of limitations as a defense to any claim arising on or before plaintiff's termination from employment. All such claims accrued, by definition, no later than September 28, 1990, nine years and nine months before this federal lawsuit was initiated.
When exercising jurisdiction over state-law claims, the federal court must apply the state statute of limitations, including the state rules for accrual and tolling, in deciding a limitations defense. See Garden City Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130 (6th Cir. 1995). The statute of limitations has long expired on all plaintiffs state-law claims arising from the conditions of his employment or the termination thereof Plaintiffs claims for discrimination under the Elliott-Larsen Civil Rights Act are subject to the Michigan three-year statute of limitations applicable to personal injury claims, MICH. COMP. LAWS § 600.5805(9). See Timco v. Oakwood Custom Coating, Inc., 625 N.W.2d 101, 104 (Mich.Ct.App. 2001); Mairv. Consumers Power Co., 348 N.W.2d 256, 257 (Mich. 1984); accord Gomez v. Great Lakes Steel Div. Nat'l Steel Corp., 803 F.3d 250, 253 (6th Cir. 1986). Plaintiffs other claims for personal injury, including his claim under the Bullard-Plawecki Act and state tort-law claims for infliction of emotional distress, are also governed by a three-year limitations period. See Nelson v. Ho, 564 N.W.2d 482, 487 (Mich. Cr. App. 1997). A three-year statute likewise applies to claims for tortious interference with contract or business relations. See Johnson v. Ventra Group, inc., 191 F.3d 732, 746 (6th Cir. 1999); DXS, Inc. v. Siemens Med. Sys., 100 F.3d 462, 471 (6th Cir. 1996); James v. Logee, 388 N.W.2d 294, 296 (Mich.Ct.App. 1986). The only claims not governed by a three-year statute are plaintiff's counts for breach of express or implied contract, unjust enrichment, and fraud. Claims for breach of contract, including wrongful discharge in violation of an express or implied agreement, are governed by the six-year limitations period set forth in Mich. Comp. Laws § 600.5 807(8). See Richmond v. American Home Prod. Corp., 641 F. Supp. 483 (W.D. Mich. 1986). The Michigan courts apply varying limitations periods to claims for fraud, but in no case more than a six-year limitations period. See Kuebler v. Equitable Life Assurance Society, 555 N.W.2d 496, 498-99 (Mich.Ct.App. 1996). Plaintiff's federal complaint, filed nearly ten years after his termination from employment, comes too late under any of the various statutes applicable to his many claims.
In an effort to avoid the application of the statute of limitations to his claims, plaintiff attempts to invoke the "continuing violation doctrine." Plaintiff's argument is that his former employer's conduct in defending the state-court litigation represented a continuing violation of his rights, such that his claim for actions arising before September of 1990 were somehow revived. There are two problems with this argument. The first is that the continuing violations doctrine under Michigan law is of limited application. In limited circumstances, the Michigan courts hold that accrual does not occur when the first wrong is committed, but is delayed while a series of wrongful acts continues. This concept has only been applied in cases of nuisance and trespass, see Hodgeson v. Ragnone, 217 N.W.2d 395 (Mich.Ct.App. 1974), professional malpractice, see Nugent v. Weed, 455 N.W.2d 409, 411 (Mich.Ct.App. 1990), and civil rights, see Sumner v. Goodyear Tire Rubber Co., 398 N.W.2d 368 (Mich. 1986). Consequently, of all plaintiff's pleaded claims, only his Elliott-Larsen civil rights claims could possibly be the occasion for application of the continuing violation doctrine. The period of limitations for Elliott-Larsen claims, as noted above, is three years. This period of limitations was virtually expired when plaintiff filed his action in Kent County on September 3, 1993. Indulging the dubious assumption that acts committed in defense of that case could somehow constitute a continuing violation, all such acts ceased on June 15, 1995, when summaryjudgment was entered against plaintiff Plaintiff waited another five years before initiating the present case. Consequently, the continuing violation doctrine could not serve to revive plaintiffs Elliott-Larsen claims.
Moreover, plaintiff has not established any occasion to apply the doctrine. As authoritatively construed by the Sixth Circuit Court of Appeals, the Michigan continuing violation doctrine requires a plaintiff to show initially that he has suffered a present violation, that is, "one that occurred within the period of limitation." Bell v. Chesapeake Ohio R.R. Co., 929 F.2d 220, 223 (6th Cir. 1991). In the present case, plaintiff has not alleged anything that occurred within the three years preceding the present case. In addition, after establishing this threshold, a plaintiff must show (1) a policy of discrimination; (2) a continuing course of conduct; and (3) the present effects of past discrimination. Id. Plaintiff cannot meet this test by relying upon conduct of Hi-Lex's attorneys in defending state-court litigation. Plaintiff has not been employed by that company since September of 1990. His attempt to invoke the continuing violation doctrine on the basis of defendant's conduct as a litigant, as opposed to an employer, to revive employment-related claims transcends the frivolous.
In summary, I conclude that all plaintiffs state-law claims arising from any act or omission of defendant up to and including termination of plaintiffs employment in September of 1990 are barred by the statute of limitations.
B. Federal Claims
Plaintiffs complaint in this court asserts claims under federal law. Plaintiff's principal federal claims are for violation of rights guaranteed by the Fourteenth Amendment, brought pursuant to 42 U.S.C. § 1983. Plaintiff's original complaint also alleges an employment discrimination claim under 42 U.S.C. § 1981, and his third amended complaint sets forth a claim for civil rights conspiracy, 42 U.S.C. § 1985. All of plaintiffs federal claims are patently meritless.
Plaintiffs constitutional claims under section 1983 are frivolous. Section 1983 is not itself a source of any substantive right, but merely provides a remedy for deprivation of rights that are elsewhere conferred by federal law. Albright v. Oliver, 510 U.S. 266, 271 (1994). Plaintiff seeks a remedy under section 1983 for deprivation of rights guaranteed to him by the Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment cannot be violated by private individuals or corporations, but only by the state. Consequently, in order to assert a section 1983 claim, a plaintiff must plead and prove that the deprivation was committed by a state employee or other person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Brock it McWherter, 94 F.3d 242, 244 (6th Cir. 1996). When questioned at the hearing about the stateaction requirement, plaintiff asserted that Hi-Lex Corporation had acted under color of state law by hiring attorneys who are members of the state bar to represent Hi-Lex in state-court litigation. Plaintiff argues that attorneys are "agents of the State Bar" and that their actions are therefore attributable to the state for section 1983 purposes. Suffice it to say that this argument is nonsense. An attorney does not become a state actor merely by representing a client in the state courts. See Whittington v. Milby, 928 F.2d 188, 193 (6th Cir. 1991). Attorneys fulfill a private function in representing their clients and do not act as agents of the state. See Polk County v. Dodson, 454 U.S.
312, 321 (1981); see also Newsome v. Merz, No. 00-4307, 2001 WL 1006189, at *1 (6th Cir. Aug. 21, 2001); Koukios v. Ganson, No. 99-4060, 2000 WL 1175499, at* (6th Cir. Aug. 11, 2000) ("A lawyer representing a client is not, by virtue of being an officer of the court, a state actor under color of state law."); Roderick v. Kreckel, No. 00-308-P-H, 2001 WL225016, at * 2 (D. Me. Mar. 8, 2001) ("The status of defendants as lawyers and the fact that the plaintiff's alleged injuries a[rose] out of the defendants' use of the state courts does not and cannot establish that their conduct is chargeable to the state."). Furthermore, by merely defending itself in the state courts and being on the winning side of a lawsuit, Hi-Lex Corporation did not act under color of state law. See Kelm v. Hyatt, 44 F.3d 415, 421-22 (6th Cir. 1995); Ropoleski v. Rairigh, 886 F. Supp. 1356, 1364 (W.D. Mich. 1995). Consequently, Hi-Lex did not become a state actor by defending plaintiff's lawsuit in the state circuit court. If the law were otherwise, plaintiff himself would be deemed a state actor, as he was also a litigant in the very same state proceedings. Plaintiff's constitutional claims under section 1983 fail for want of a state actor.
Plaintiffs original complaint also sets forth an employment discrimination claim under 42 U.S.C. § 1981. Section 1981 guarantees to all persons within thejurisdiction of the United States the same rights to sue, enforce contracts, and enjoy equal benefit of the laws "as is enjoyed by white citizens." 42 U.S.C. § 1981 (a). This law stems from the Civil Rights Act of 1866, passed as part of the Reconstruction to guarantee the rights of emancipated slaves. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 421 (1968). An action based on section 1981 requires a plaintiff to demonstrate that the defendant intentionally discriminated against him on account of his race. Saint Francis College v. Al-Khazra]i, 481 U.S. 604, 613 (1987); Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001). Plaintiff, who is white, has not alleged a case of intentional race discrimination, let alone established a prima facie case.
Finally, plaintiff asserts a claim for a civil rights conspiracy under 42 U.S.C. § 1985 (3). Section 1985(3) does not cover all claims of civil conspiracy. A claim under this statute requires that a plaintiff establish "some racial, or perhaps otherwise class-based invidiously discriminatory ammus." United Bhd. of Carpenters Joiners of Am. v. Scott, 463 U.S. 825. 829 (1983). The statute covers only conspiracies directed against persons on account of their race, national origin, or other classification entitled to heightened scrutiny under the Equal Protection Clause. Bartell v. Lohiser, 215 F.3d 550, 560 (6th Cir. 2000). Neither plaintiffs complaints nor his other submissions contain any allegation that would satisfy this requirement.
Furthermore, all such federal claims would be barred by the statute of limitations, as they all relate to conduct that occurred in or before September of 1990. The Sixth Circuit has held that the three-year statute of limitations established in Mich. Comp. Laws § 600.5805(8) is the uniform limitation period applicable to federal civil rights claims arising in Michigan. See Carroll v. Wilkerson, 782 F.2d 44, 45 (6th Cir. 1986); see also Paige v. Pandya, No. 00-1325, 2000 WL 1828653, at *1 (6th Cir. Dec. 5, 2000). Consequently, plaintiffs federal civil-rights claims are barred by the statute of limitations. I therefore recommend that plaintiff's purported federal claims, contained in counts 17 through 25, be dismissed both for failure to state a claim and on grounds of limitations.
C. Claims Arising From State-Court Proceedings
Plaintiff brings several other claims, principally related to alleged litigation conduct by defendant. First, plaintiff attempts to bring a claim under the Michigan Antitrust Act in count 18 of the third amended complaint for illegal restraint of trade. At oral argument, plaintiff identified the allegedly illegal contract as a confidentiality agreement between defendant and a former employee, which plaintiff claims impeded him from discovering facts necessary to prevail in the state-court litigation. It should be obvious that the confidentiality agreement challenged by plaintiff does not qualify as a contract in restraint of trade within the meaning of the state antitrust law, Micn. COMP. LAWS § 445.772. A contract in restraint of trade under Michigan law is an agreement that unreasonably limits the right of either party to work or do business. See Stoia v. Miskinis, 298 N.W. 469, 473 (Mich. 1941). A confidentiality agreement between an employer and former employee does not fall remotely within this definition. Furthermore, Michigan law provides a four-year statute of limitations for actions by any person who claims injury as a result of violation of the state antitrust act. MICH. COMP. LAWS § 445.78 1(2). Plaintiffs claim accrued, if at all, before dismissal of his action in June of 1995, five years before he initiated the present case.
Plaintiff's remaining claim, set forth in count 17, is captioned "fraud on the court." In this count, plaintiff recites a litany of alleged wrongdoing by the state circuit judges, the defendant, and its attorneys in connection with plaintiffs unsuccessful state-court action. This is a patent collateral attack on thejudgment of the state courts. Michigan law does not subject the final judgments of its courts to collateral attack on such grounds, even if the disappointed litigant asserts that the irregularities resulted in the erroneous exercise of subject-matter jurisdiction. In re Hatcher, 505 N.W.2d 834, 840-41 (Mich. 1993). Plaintiff's remedy for the alleged wrongs he sets forth in his claim for "fraud on the court" was to take a direct appeal, which he failed to pursue. Id. A disappointed litigant in the state courts cannot collaterally attack the state court's judgment under the ruse of claiming damages for "fraud on the court." Such an action is tantamount to an appeal of the state-court judgment. The federal district courts lack appellate jurisdiction over the state courts. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483 n. 16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923); Patmon v. Michigan Supreme Court, 224 F.3d 504, 510 (6th Cir. 2000). Plaintiff's claim of "fraud on the courts" fails to state a claim upon which relief can be granted in the federal district court.
Recommended Disposition
For the foregoing reasons, I conclude that all of plaintiffs claims are meritless and recommend that defendant's motion for summary judgment (docket # 32), as supplemented (docket #41), be granted in its entirety.
NOTICE TO PARTIES
Any objections to this Report and Recommendation must be filed and served within ten days of service of this notice on you. 28 U.S.C. § 636 (b)(1)(C); FED. R. Civ. P. 72(b). All objections and responses to objections are governed by W.D. Mich. LCIVR 72.3(b). Failure to file timely objections may constitute a waiver of any further right of appeal. See Thomas v. Am, 474 U.S. 140 (1985); Neuman v. Rivers, 125 F.3d 315, 322-23 (6th Cir. 1997); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).