Courser v. Mich. House of Representatives, Case No. 19-1840

TODD COURSER, Plaintiff-Appellant, v. MICHIGAN HOUSE OF REPRESENTATIVES; KEVIN COTTER; TIM BOWLIN; BROCK SWARTZLE;NORM SAARI; EDWARD MCBROOM; HASSAN BEYDOUN,in their official and individual capacities, Defendants-Appellees.

Case No. 19-1840

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

October 6, 2020

NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0570n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

OPINION

BEFORE: GIBBONS, LARSEN, and NALBANDIAN, Circuit Judges.

NALBANDIAN, Circuit Judge. Parties often raise a large number of claims on appeal. But that does not mean that they should. Especially when, as here, Plaintiff, Todd Courser, spends more time enumerating claims than developing arguments. Despite filing an eighteen-count complaint and moving for sanctions, Courser has still failed to state any claim on which relief can be granted. We AFFIRM.¹

I.

This court has twice already outlined the relevant facts giving rise to this case in Courser v. Allard, 969 F.3d 604 (6th Cir. 2020) and Gamrat v. McBroom, No. 19-2364, 2020 WL 4346677(6th Cir. 2020). We briefly explain for a third time the facts prompting this lawsuit, since Defendants here are different from the other cases. Given the posture of this appeal, we recite the facts as they are stated in the complaint, without evaluating their truth. Solo v. United Parcel Serv. Co., 819 F.3d 788, 793 (6th Cir. 2016).

Courser is a lawyer and former member of the Michigan House of Representatives. Keith Allard, Josh Cline, and Benjamin Graham all helped with Courser's successful 2014 campaign. The House then hired these three men in January 2015 and assigned them to work jointly for Courser and Representative Cindy Gamrat. Courser and Gamrat had chosen to follow a joint-staffing arrangement. The two were also engaged in an extramarital, sexual relationship when their roles as representatives began in 2015.

At that time, the Speaker of the House was Defendant Kevin Cotter. He made Republican members sign a Caucus Pledge. This pledge, which Cotter asked Courser to sign the day after Courser's swearing in, required signers to pledge to "[s]tand together with [the] caucus on difficult votes and issues" and if unable to do so, the signer should "inform the [House] Whip personally." (R. 33-9, PageID 1385.) Courser refused to sign the pledge. His complaint seems to imply that the alleged conspiracy to get him out of office resulted, at least in part, because of this refusal.

Around the same time, Allard, Cline, and Graham met with Defendants Norm Saari (Cotter's Chief of Staff) and Brock Swartzle (Cotter's Chief of Staff/House General Counsel)² about Courser. Saari and Swartzle wanted the three men to gather information on Courser. So the trio began surveilling Courser and giving Saari and Swartzle reports. Courser says this was "to injure and erode [his] credibility and effectiveness as a State Representative, and to force his vote according to COTTER's wishes." (R.33, PID405.)

Dozens of pages in the complaint detail the collected recordings and surveillance information that the three men gathered. The surveillants bugged rooms, listened to Courser and Gamrat's intimate encounters, and followed them while driving, to list a few examples. They gained access to Courser's passwords and looked at his private emails. Graham also recorded at least one conversation he had with Courser. The men worked with Joe Gamrat, Cindy Gamrat's now ex-husband, and two others whom Courser only identifies by name (without description) in the complaint: David Horr and Vincent Krell.

But the most relevant activity occurred on May 19, 2015. Courser had been receiving extortive texts on his phone, insisting that he step down as a representative, or else the sender would release "specific information" about his "private life" to the public. (Id. at 439.) On the evening of May 19, Courser asked Graham to send a coverup email that would act as a "controlled burn" to "inoculate the herd." Allard, 696 F.3d at 613. By sending such an email, Courser seemed to hope that the real story about his and Gamrat's affair would get lost in the shuffle. Id. Graham recorded this conversation, and he and Allard sent it to The Detroit News, which published a story about the recording on August 7, 2015.

Right after the article came out, Cotter directed Defendant Tim Bowlin, the Business Director and Chief Financial Officer for the House, to investigate and prepare a report about Courser and Gamrat's alleged misuse of taxpayer funds. Courser says that at the end of August, Cotter, Bowlin, Swartzle, Saari, and Defendant Hassan Beydoun, the House Majority Legal Counsel, issued a "Report on the Investigation of Alleged Misconduct by Representative Todd Courser and Representative Cindy Gamrat." (R. 33, PID 451.) Soon after, the House adopted a resolution to form a Select Committee to look into Courser and Gamrat's fitness for office. Cotterpicked six committee members: four Republicans and two Democrats. Defendant and Representative Edward McBroom chaired the committee.

Before the committee meeting, Courser met with Swartzle and Beydoun who told him that he would only be censured, and not expelled, if he participated in the committee hearing. On September 8, 2015, the Select Committee hearings began. Courser says Cotter's Caucus Pledge bound the Republican members of the committee to vote as Cotter wanted. He also claims that the House should have let him present evidence or thoroughly defend his case, allow him enough time to look at exhibits, and so on. The committee heard the May 19 recording during this hearing. On September 11, Courser resigned, because it was clear by that point that the House planned to vote to expel him.

Courser first sued the House, Bowlin, Beydoun, Cotter, McBroom, Saari, Swartzle, Cline, Allard, Graham, and others in 2016. He voluntarily dismissed his complaint a few months later. He later split up his lawsuits, suing only the House, Bowlin, Beydoun, Cotter, McBroom, Saari, and Swartzle in this case on August 7, 2018. Then he sued Allard, Cline, Graham, and others in several separate lawsuits. He amended his complaint in this case in December 2018, and it now includes eighteen total counts.

The House, Beydoun, Bowlin, Cotter, McBroom, and Swartzle moved to dismiss all claims, and Saari filed a separate motion to dismiss all claims. Courser opposed the motions and filed a motion for Rule 37 sanctions based on spoliation of evidence. He alleged that Defendants deleted and modified files and programs on his computer after they seized it.

The district court granted Defendants' motions on all claims and denied Courser's motion for sanctions. This appeal followed.

II.

Courser claims that the district court should have converted Defendants' motions to dismiss into motions for summary judgment. So we analyze that question first. Second, we look at various immunities raised by Defendants. Third, we assess whether Courser has plausibly alleged any claims against the Defendants. And fourth, we examine Courser's motion for sanctions.

A. Conversion to a Rule 56 Motion

Courser argues that the district court should have converted Defendants' Rule 12(b)(6) motions into motions for summary judgment because Defendants attached exhibits and referenced materials outside his complaint. Under Rule 12 of the Federal Rules of Civil Procedure:

If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

Fed. R. Civ. P. 12(d). But when reviewing a 12(b)(6) motion, a district court "may consider"—without converting the motion to a Rule 56 motion—"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. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008) (citing Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)).

This court has interpreted the text of Rule 12(d) to mean that a district court must either (1) expressly reject evidence outside the complaint that is attached to a 12(b)(6) motion or an opposition to such motion, or (2) treat the motion to dismiss as a motion for summary judgment. See Bates v. Green Farms Condo. Ass'n, 958 F.3d 470, 484 (6th Cir. 2020) (citing Max Arnold & Sons, LLC v. W.L. Hailey & Co., 452 F.3d 494, 502-04 (6th Cir. 2006)) (discussing these two options in the context of materials attached to an opposition to a 12(b)(6) motion). If a districtcourt fails to expressly reject such exhibits and materials, though, "we have held that the failure to convert the motion to a motion for summary judgment is not reversible error if the court's 'rationale' in no way 'hinged on the additional information provided there.'" Id. (quoting Yeary v. Goodwill Indus.-Knoxville, Inc., 107 F.3d 443, 445 (6th Cir. 1997); Song v. City of Elyria, 985 F.2d 840, 842 (6th Cir. 1993)). "That is, this 'error will be treated as harmless if the dismissal can be justified without reference to any extraneous matters.'" Id. (citing 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1364 (3d ed. Supp. 2019)).

Defendants attached several exhibits to their motions to dismiss.³ At least some of these exhibits were neither referenced in the complaint nor "central to the claims contained therein." Bassett, 528 F.3d at 430. But in its rationale for dismissing all the counts in Courser's complaint, the district court did not rely on any of the allegedly prohibited exhibits that Defendants attached. So under Bates, even if the district court should have expressly rejected these exhibits (or else...