United States District Court, W.D. Michigan, Southern Division
J. QUIST UNITED STATES DISTRICT JUDGE
Cindy Gamrat, a former Michigan legislator, has sued a number
of Defendants alleging various claims arising out of her
expulsion from the Michigan House of Representatives and
events preceding and following her expulsion. Defendants
include (among others) the Michigan House of Representatives,
Edward McBroom, Tim Bowlin, Kevin Cotter, Brock Swartzle, and
Hassan Beydoun (collectively referred to as the “House
Defendants”); Norm Saari; and Keith Allard and Benjamin
Graham. Gamrat alleges a claim under 42 U.S.C. § 1983
for violation of her right to procedural due process, a claim
for violation of the Electronic Communications Privacy Act
(federal wiretapping act), 18 U.S.C. §§ 2511 and
2520, and various state law claims. The House Defendants and
Saari have moved to dismiss Gamrat's claims pursuant to
Fed.R.Civ.P. 12(b)(1) for lack of jurisdiction and pursuant
to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Allard
and Graham move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).
course of the briefing, Gamrat has agreed to dismiss her
defamation claim against all Defendants and to dismiss her
malicious prosecution/abuse of process claims against Saari,
Allard, and Graham. Therefore, those claims will be dismissed
with prejudice against the appropriate Defendants.
Court heard oral argument on the motions to dismiss on March
5, 2018. For the following reasons, the Court will grant
Defendants' motions and dismiss all claims, except those
against Defendants Joseph Gamrat and David Horr.
November 4, 2014, Gamrat won the general election for State
Representative of Michigan's 80th District and Todd
Courser won the general election for State Representative of
Michigan's 82nd District. Gamrat and Courser ran as Tea
Party candidates on conservative platforms that included
“advocating for lower taxes, less spending, and
transparency in government.” (ECF No. 20 at
the period in question, Defendants Cotter and McBroom were
State Representatives, and Cotter was also the Speaker of the
House. Defendant Bowlin was the Business Director and Chief
Financial Officer for the House. Defendant Swartzle was
General Counsel for the House and Cotter's Chief of
Staff. Defendant Saari was Cotter's Chief of Staff until
approximately August 2, 2015. Defendant Beydoun was the House
Majority Legal Counsel. Defendants Allard, Graham, and Cline
had served on Gamrat's and Courser's campaigns as
volunteers or paid political consultants and, following the
election, served as staffers in Gamrat's and
Courser's offices. (Id. at PageID.116-17.)
Defendant Joe Gamrat was Gamrat's husband, and Defendants
David Horr and Vincent Krell are two individuals whom Gamrat
alleges were conducting surveillance on her.
the election, Gamrat and Courser agreed to a staff sharing
arrangement in which Allard, Graham, and Cline served as
staff members in both districts and worked out of both
Gamrat's and Courser's separate offices.
(Id. at PageID.117.) In addition, at some point
Gamrat and Courser, both of whom were married, began a sexual
affair. On several occasions between January 2, 2015, and
July 6, 2015, Allard, Graham, and Cline began reporting
perceived misconduct by Gamrat and Courser to members and
staff of the House leadership, including Defendants Saari,
Swartzle, and Cotter. One such report included an incident in
which Courser asked Graham to send a “false flag”
email that would serve as a “controlled burn” to
“inoculate the herd”-in other words, to serve as
cover for the affair. The email that Courser or someone on
his behalf had authored contained a number of outlandish,
untrue, and salacious allegations about Courser. Courser
hoped that the email would create such a stir that any facts
that came out about the affair would be ignored as an
exaggeration or seen as a smear campaign. Graham refused to
send the email, but Courser found someone else to send it.
6, 2015, Gamrat met with Bowlin about issues concerning
Allard and Graham (Cline had previously resigned on April 14,
2015). (Id. at PageID.121, 123.) Following that
meeting, Bowlin terminated Allard's and Graham's
employment. (Id. at PageID.123.) After the
termination, Allard and Graham told Bowlin about their prior
reports to Swartzle, Saari, and Cotter. When the House
leadership failed or refused to investigate, Allard and
Graham provided their information to the Detroit
News. On August 7, 2015, the Detroit News ran a
story about the affair and Courser's “false
flag” email, and alleged that Gamrat and Courser
misused taxpayer money to cover up their affair.
same day the Detroit News article ran, Cotter
requested Bowlin to investigate and prepare a report on
alleged misconduct by Gamrat and Courser. On August 31, 2015,
the House Business Office (HBO) issued a report concluding
that further investigation by the House was warranted. On
August 19, 2015, before Bowlin had completed the HBO report,
the House adopted Resolution 129 to form a Select Committee
to examine the qualifications of Gamrat and Courser and to
determine their fitness to continue holding office. (ECF No.
24-2 at PageID.305.) The Select Committee was composed of six
members, four from the Republican Caucus and two from the
Democratic Caucus. Defendant McBroom chaired the Select
September 8, 2015, the HBO and the Office of the General
Counsel issued a “Combined Statement, ” which set
forth the facts uncovered during the investigation. The
Combined Statement concluded with the recommendation that
Gamrat not be expelled but censured with severe conditions
attached. (ECF No. 24-4 at PageID.349.) The following day,
McBroom introduced House Resolution 141, which was referred
to the Select Committee and reported with recommendation and
without amendment. As originally introduced, HR 141 specified
that Gamrat be expelled for misconduct in office and for
misuse of state resources, but made no mention of a criminal
investigation. (ECF No. 24-5.) However, on September 11,
2015, Democratic Representative Andy Schor introduced a
resolution to request that the Michigan Attorney General and
the Michigan State Police investigate the behavior and
conduct of Courser. (ECF No. 24-6.) The same day, Democratic
Representative Winnie Brinks moved to amend HR 141 to request
that the Michigan Attorney General and the Michigan State
Police investigate the behavior and actions of Gamrat and
that a copy of the unredacted report and the entire
evidentiary record be provided to the Michigan Attorney
General and the Michigan State Police. (ECF No. 24-7.) Upon a
vote, ninety-one Representatives voted in favor of the
amendment. The House then passed HR 141, expelling Gamrat, on
a 91 to 12 vote.
filed her initial complaint in this case pro se, but failed
to serve it. Subsequently, certain Defendants moved to
dismiss the case for lack of prosecution. Gamrat responded
through counsel, requesting additional time to file an
amended complaint. The Court granted Gamrat thirty days to
file an amended complaint. Gamrat thereafter filed an amended
complaint removing certain Defendants and adding others and
adding new claims.
to Federal Rule of Civil Procedure 8(a), a complaint must
provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Detailed factual allegations are not required, but “a
plaintiff's obligation to provide the ‘grounds'
of h[er] ‘entitle[ment] to relief' requires more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 1964-65 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103 (1957)). The
court must accept all of the plaintiff's factual
allegations as true and construe the complaint in the light
most favorable to the plaintiff. Gunasekera v.
Irwin, 551 F.3d 461, 466 (6th Cir. 2009). The complaint
must contain “enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570, 127 S.Ct. at 1974. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 1949 (2009). Although the plausibility standard is not
equivalent to a “‘probability requirement, '
. . . it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting
Twombly, 550 U.S. at 556, 127 S.Ct. at 1965).
“[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not ‘show[n]'-that
the pleader is entitled to relief.” Id. at
679, 129 S.Ct. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).
a court is generally limited to the pleadings in deciding a
motion to dismiss under Rule 12(b)(6), see Fed. R.
Civ. P. 12(d), a court may consider various documents without
converting the motion to a motion for summary judgment.
“When a court is presented with a Rule 12(b)(6) motion,
it may consider the Complaint and any exhibits attached
thereto, public records, items appearing in the record of the
case and exhibits attached to defendant's motion to
dismiss so long as they are referred to in the Complaint and
are central to the claims contained therein.”
Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008)
House Defendants' Motion
Eleventh Amendment Immunity
individual House Defendants argue that they are entitled to
sovereign immunity under the Eleventh Amendment. Because the
Court concludes that Gamrat's § 1983 claim is barred
by absolute legislative immunity and qualified immunity, the
Court need not address this argument as it pertains to the
individual House Defendants sued in their individual
capacities. As for the House, however, Eleventh Amendment
immunity applies to all claims. Under the Eleventh Amendment,
a state and its agencies generally are immune from private
lawsuits in federal court. Mt. Healthy City Sch. Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568
(1977). “This immunity is far reaching. It bars all
suits, whether for injunctive, declaratory or monetary
relief, against the state and its departments.”
Thiokol Corp. v. Dep't of Treasury, 987 F.2d
376, 381 (6th Cir. 1993) (citing Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 100-01, 104 S.Ct.
900, 908 (1984)). Accordingly, Gamrat's claims against
the House will be dismissed.
Due Process Claim
alleges that the House Defendants violated Gamrat's right
to procedural due process in connection with the
investigation and her expulsion. Although Gamrat alleges that
she had a constitutionally-protected interest in state
employment, by her own admission, Gamrat was an elected
official, not a state employee, and her claim will be
analyzed as such. The House Defendants argue that they are
entitled to both absolute legislative immunity and qualified
immunity on Gamrat's § 1983 due process claim.
to the Speech or Debate Clause, defendants who engage in
legislative activities are absolutely immune from suit in
their individual capacities. The Speech or Debate Clause
provides that “for any Speech or Debate in either
House, [members of Congress] shall not be questioned in any
other place.” The Speech or Debate Clause serves
“to prevent intimidation by the executive and
accountability before a possibly hostile judiciary.”
United States v. Johnson, 383 U.S. 169, 181, 86
S.Ct. 749, 755 (1966). The clause provides protection not
“simply for the personal or private benefit of Members
of Congress, but to protect the integrity of the legislative
process by insuring the independence of individual
legislators.” United States v. Brewster, 408
U.S. 501, 507, 92 S.Ct. 2531, 2535 (1972). Although the
federal Speech or Debate Clause does not protect state
legislators, Michigan has such a clause in its Constitution,
and the Supreme Court has extended legislative immunity to
state and local legislative bodies. Tenney v.
Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788 (1951).
legislative immunity attaches to all actions taken in the
sphere of legitimate legislative activity.” Bogan
v. Scott-Harris, 523 U.S. 44, 54, 119 S.Ct. 966, 972
(1998) (internal quotation marks omitted). To determine
whether an act falls within this sphere, a court must examine
“the nature of the act, rather than . . . the motive or
intent of the official performing it.” Id. at
54, 118 S.Ct. at 973. The question is whether the activity is
‘an integral part of the deliberative and communicative
processes by which Members participate in committee and House
proceedings with respect to the consideration and passage or
rejection of proposed legislation or with respect to other
matters which the Constitution places within the jurisdiction
of either House.'
Eastland v. U.S. Servicemen's Fund, 421 U.S.
491, 504, 95 S.Ct. 1813, 1821-22 (1975) (quoting Gravel
v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627
from words spoken in a debate, the Speech or Debate clause
extends to “written reports presented in that body by
its committees, to resolutions offered, which, though in
writing, must be reproduced in speech, and to the act of
voting.” Kilbourn v. Thompson, 103 U.S. 168,
204 (1880). In addition, “committee hearings are
protected, even if held outside the Chambers.”
Hutchinson v. Proxmire, 443 U.S. 111, 124, 88 S.Ct.
2675, 2683 (1979); see Walker v. Jones, 733 F.2d
923, 929 (D.C. Cir. 1984) (noting that legislative activity
includes “participation in committee investigations,
proceedings, and reports”). Legislative immunity
extends beyond legislators to legislative aides and counsel.
Eastland, 421 U.S. at 507, 95 S.Ct. at 1823; see
Ellis v. Coffee Cnty. Bd. of Registrars, 981 F.2d 1185,
1192 (11th Cir. 1993) (noting that ...