Circuit Court LC No. 15-006618-CB
Before: Markey, P.J., and M. J. Kelly and Cameron, JJ.
Catherine Puetz, M.D., appeals by right the trial court order
dismissing her complaint under MCR 2.116(C)(7) (statute of
limitations) and MCR 2.116(C)(10) (no genuine issue of
material fact). For the reasons stated in this opinion, we
affirm in part and reverse in part.
1999, Puetz took a job with Emergency Care Specialists (ECS),
a physicians' group representing about 150 physicians and
about 70 physician's assistants. ECS exclusively staffs
its physicians at hospitals run by defendant, Spectrum Health
Hospitals (Spectrum). Through her relationship with ECS,
Puetz had admission privileges in emergency services and
observation medicine at Spectrum. In addition, Puetz was
appointed to serve as the associate medical director of
observation medicine, the associate medical director for ED
cardiovascular medicine, and the clinical advisor for
pediatrics at Spectrum. In connection with her role at
Spectrum, Puetz developed certain observation protocols,
which she admitted were created for Spectrum's use and
placed on Spectrum's intranet.
the observation program at Spectrum was considered a success,
individuals and organizations outside of Spectrum and ECS
were interested in it. As a result, in the summer of 2013,
ECS and Puetz decided to prepare a pamphlet on observation
medicine in an effort to start consulting on the subject.
When Spectrum learned about the pamphlet, it instructed ECS
that it had to work with Spectrum on any consulting or
observation work. Further, a meeting was held on the
pamphlet/consulting work in July 2013. At the meeting,
Spectrum claimed ownership of the observation materials. A
follow-up meeting was scheduled, but did not occur before
Puetz was, essentially, prohibited from working at Spectrum
in any capacity because of her comments on a Facebook page.
record reflects that on August 5, 2013, a Spectrum nurse
posted on a public Facebook page a photograph of the backside
of an overweight woman and the caption: "Don't judge
me. I like what I like." In response to the post, 12
Spectrum employees and 3 ECS employees commented on the
photograph on Facebook. Relevant to this appeal, Puetz was
the sixth person to comment, and she stated "OMG is that
[patient's initials]? You are soo naughty."
Spectrum staff member saw the post on Facebook, was
uncomfortable with the dialogue, and reported it to Spectrum.
Kevin Splaine, Spectrum's president, testified that the
decision was made to discipline those involved. Initially,
Spectrum decided to remove Puetz from her administrative
roles at the hospital. However, Splaine testified that as the
investigation into the incident continued, he decided that
additional discipline was warranted. According to Splaine,
"anyone with whom we could prove was part of this
dialogue knew that this was a patient, if they were an
employee of Spectrum Health, they would be terminated. If
they were contracting with Spectrum Health, the contract
would be terminated. And if they were privileged at Spectrum
Health, we would not allow them to practice at Spectrum
Health Hospitals." The other individuals involved
received a written reprimand. By August 19, 2013, Puetz was
informed that she was being removed from both her
"administrative leadership position and clinical"
because of the Facebook incident.
August 21, 2013, after making that decision, Splaine spoke at
an ECS meeting. Ostensibly, Splaine spoke at the meeting
because there was "a lot of angst and concern"
about the decision to remove Puetz, and ECS wanted to hear
Spectrum's side of it. Splaine apparently did not refer
to Puetz by name at the meeting; however, he allegedly told
everyone at the meeting that Puetz's comments on Facebook
violated HIPAA. In addition, Splaine sent ECS a letter
demanding that Puetz and another employee of ECS not be
scheduled at any hospital owned by Spectrum. In the letter,
Splaine referred to Puetz and the other employee's
conduct as reprehensible, unprofessional, and disturbing.
March 14, 2014, Puetz filed a complaint in the United Stated
District Court for the Western District of Michigan, alleging
defamation, false light invasion of privacy, breach of
contract, intellectual property ownership, and two counts of
tortious interference with a business expectancy. Only count
IV, the intellectual property ownership claim, arguably fell
within the federal court's original jurisdiction. After
discovery closed, the federal district court sua sponte
issued a show-cause order regarding subject-matter
jurisdiction. Thereafter, the court determined that it lacked
subject-matter jurisdiction over the intellectual property
claim and dismissed the entire complaint without prejudice.
30 days of her federal complaint being dismissed, Puetz filed
a claim in the Kent County Circuit Court. In response,
Spectrum moved for summary disposition under MCR 2.116(C)(7)
with regard to the defamation claim and for summary
disposition under MCR 2.116(C)(10) for the remaining claims.
Puetz also moved for partial summary disposition on the
defamation claim, asserting that Splaine's comments were
defamation per se, and she asked the court to rule as a
matter of law that her comments on Facebook did not
constitute a violation of HIPAA. After oral argument, the
trial court entered a written opinion and order dismissing
the defamation claim under MCR 2.116(C)(7) and dismissing the
remaining claims under MCR 2.116(C)(10).
DISMISSAL UNDER MCR 2.116(C)(7)
STANDARD OF REVIEW
first argues that the trial court erred by dismissing her
defamation claim under MCR 2.116(C)(7). Whether a trial court
properly granted summary disposition on statute of
limitations grounds is reviewed de novo. Barnard Mfg Co,
Inc v Gates Performance Engineering, Inc, 285 Mich.App.
362, 369; 775 N.W.2d 618 (2009). "Summary disposition
under MCR 2.116(C)(7) is appropriate when the undisputed
facts establish that the plaintiff's claim is barred
under the applicable statute of limitations."
Kincaid v Cardwell, 300 Mich.App. 513, 522; 834
N.W.2d 122 (2013). In addition, issues regarding the proper
interpretation and application of statutes are reviewed de
novo. Petersen v Magna Corp, 484 Mich. 300, 306; 773
N.W.2d 564 (2009).
Michigan, the period of limitations for a defamation claim is
one year. MCL 600.5805(9). "A defamation claim accrues
when 'the wrong upon which the claim is based was done
regardless of the time when damage results.' "
Mitan v Campbell, 474 Mich. 21, 24; 706 N.W.2d 420
(2005), quoting MCL 600.5827. Here, the allegedly defamatory
statements were made on August 21, 2013 and August 22, 2013.
Puetz timely filed her complaint in federal court, but her
federal complaint was dismissed for lack of subject-matter
jurisdiction in June 2015. Puetz declined to appeal the
dismissal from federal district court. Subsequently, on July
21, 2015, she filed suit in Michigan, again raising her
defamation claim based on Splaine's August 21 and August
22, 2013 statements to ECS. Because her defamation claim was
filed more than a year after her claim accrued, it is
time-barred unless a tolling provision applies.
order to bring a state-law claim in federal court, a
plaintiff must assert his or her claim under the supplemental
jurisdiction statute, 28 USC 1367. Section 1367(a) provides:
(a) Except as provided in subsections (b) and (c) or as
expressly provided otherwise by Federal statute, in any
civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that
they form part of the same case or controversy under Article
III of the United States Constitution. Such supplemental
jurisdiction shall include claims that involve the joinder or
intervention of additional parties. [28 USC 1367(a) (emphasis
before a federal court may exercise supplemental jurisdiction
over a state-law claim, two requirements must be met. First,
there must be a civil action that the federal district court
has original jurisdiction over. Second, the state-law claim
must be "so related" to the federal claim that it
forms "part of the same case or controversy under
Article III of the United States Constitution." 28 USC
§ 1367(a). In this case, the federal district court
concluded that Puetz's complaint failed to satisfy the
first requirement, i.e., the federal district court lacked
original jurisdiction over any of the claims raised in the
complaint. Accordingly, because there was no claim
over which the federal court had original jurisdiction, the
court had no authority under § 1367(a) to exercise
supplemental jurisdiction over Puetz's state-law claims.
supplemental jurisdiction statute does not contain a
provision expressly addressing what happens when a state-law
claim is dismissed for lack of subject matter jurisdiction
under § 1367(a). Instead, "[s]ubsection (b) places
limits on supplemental jurisdiction when the district
court's original jurisdiction is based only on diversity
of citizenship jurisdiction . . . ." Raygor v
Regents of Univ of Minnesota, 534 U.S. 533, 540; 122
S.Ct. 999; 152 L.Ed.2d 27 (2002). "Subsection (c) allows
district courts to decline to exercise supplemental
jurisdiction in certain situations" that are not
applicable under the facts in this case. Id. In
addition, subsection (d) appears to toll the limitations
period for any claim asserted under subsection (a)
regardless of whether the plaintiff was successful in
asserting that claim. See Raygor v, 534 U.S. at 542.
Section 1367(d) provides:
(d) The period of limitations for any claim asserted under
subsection (a), and for any other claim in the same action
that is voluntarily dismissed at the same time as or after
the dismissal of the claim under subsection (a), shall be
tolled while the claim is pending and for a period of 30 days
after it is dismissed unless State law provides for a longer
an issue of first impression in Michigan whether 28 USC
1367(d) tolls a state-law claim filed in federal court that
is later dismissed for lack of subject-matter jurisdiction.
Further, the United States Supreme Court has not addressed
this issue, and, although there are a number of state courts
and lower federal courts that have addressed the issue, those
decisions are not binding on this Court.
absence of binding authority interpreting 28 USC 1367(d), we
first address the United States Supreme Court decision in
Raygor. The Raygor Court addressed the
narrow issue of whether it was constitutionally permissible
to apply the tolling provision in § 1367(d) to state-law
claims dismissed on Eleventh Amendment grounds.
Raygor, 534 U.S. at 539, 544. In answering this
question, the Raygor Court acknowledged that
facially § 1367(d) applied to any claim
asserted under subsection (a). Id. at 542. However,
the Court stated that "reading subsection (d) to apply
when state law claims against nonconsenting States are
dismissed on Eleventh Amendment grounds raises serious doubts
about the constitutionality of the provision given principles
of state sovereign immunity." Id. The Court
considered it a constitutional question given that a
limitations period may be a central condition of a
state's decision to waive immunity and given that a state
can "prescribe the terms and conditions on which it
consents to be sued." Id. at 542-543 (citation
omitted). As a result, the Raygor Court relied on
the following principle of ...