KIMBERLY GRIPPA

v.

RONALD RUBIN

BRASHER, Circuit Judge:

This case raises questions of first impression about the appealability of an interlocutory order denying Florida's absolute and qualified litigation privileges in a defamation action. Ronald Rubin filed a lawsuit that named Kimberly Grippa as a member of a criminal enterprise. His lawyer mailed allegedly defamatory letters to state officials, asking them to investigate this alleged criminal enterprise and including copies of the complaint.

Grippa sued Rubin for defaming her through these letters, and Rubin moved for summary judgment. He argued that the letters were protected by Florida's absolute litigation privilege. In the alternative, he argued that, even if the letters were not protected by the absolute privilege, they were protected by Florida's qualified litigation privilege. He also claimed that he could not be held vicariously liable for his lawyer's letters.

The district court denied Rubin's motion for summary judgment on each ground, and he immediately appealed. We hold that the denial of Florida's absolute litigation privilege is immediately appealable under the collateral order doctrine, but we lack jurisdiction to consider the denial of the qualified litigation privilege or the remaining vicarious liability issue. We believe the district court correctly denied the absolute litigation privilege because the letters were sent outside the litigation process and included additional statements beyond those in the complaint. Accordingly, we affirm in part and dismiss in part.

23-11714 3

I.

In March 2019, Grippa interviewed for a job in the Florida government with Rubin. Ultimately, Rubin determined that Grippa was unqualified for the position and refused to hire her. Grippa alleged that Rubin made several discriminatory statements and behaved inappropriately based on her gender during the interview, which she reported. Due to these reports, Rubin was subject to an internal investigation.

As the investigation unfolded, Rubin sued various officials in the Florida government for orchestrating an allegedly sham complaint and investigation against him because he “refuse[d] to fall in line" with their criminal “enterprise." According to the complaint, these officials rely on a "system of blackmail and intimidation" to "consolidate their political power and advance their financial interests." When state employees refuse to cooperate, the enterprise uses the media to "extort their resignations with defamatory allegations or fires them outright so they can be replaced with obedient foot soldiers." In furtherance of the enterprise's goals, Rubin was asked to hire Grippa because her ex-husband was friends with a lobbyist and donated money to an official's election campaign, both of whom were enterprise members. Because Rubin refused to cooperate, the officials “blackmailed Rubin, threatening to publicly accuse him of sexual harassment if he did not immediately resign." Rubin refused to resign, which invited the allegedly false accusations from Grippa and others, as well as the ensuing investigation.

Although Grippa was not a party to the suit, Rubin named her as part of this criminal enterprise in his complaint.

Rubin's lawyer then wrote to high-ranking government officials and state investigators asking them to intercede in the internal investigation into Rubin and open a separate investigation into the accused officials' alleged misconduct. These letters specifically refer to the "improper, unethical[,] and perhaps unlawful conduct on the part of . . . [the] enterprise, including the orchestration and publication of allegations against Rubin.” Additionally, the letters included copies of Rubin's complaint to support his accusations and requests.

Because of these letters and the media attention they garnered, Grippa claimed to suffer several injuries. Specifically, her reputation was harmed, she could not show up to work, she lost credibility with her coworkers, and she was professionally prejudiced. As a result, she sued Rubin for defamation in state court; Rubin then removed the case to federal court.

Rubin moved for summary judgment on several theories. He argued that he could not be held liable because the allegedly defamatory statements were privileged under either Florida's absolute or qualified litigation privileges and that he could not be vicariously liable for his attorney's conduct. The district court denied the motion, finding that the letters were not absolutely privileged because Rubin's attorney sent them outside the course of a judicial proceeding. The district court also determined that it could not recognize the qualified privilege because there was a genuine dispute

23-11714 5

of material fact as to whether the statements were made with express malice. Last, the district court rejected the vicarious liability argument because the language in the letters suggested that Rubin directed his lawyer's actions.

Rubin then commenced this interlocutory appeal, challenging the district court's denial of summary judgment.

II.

We review the denial of an immunity defense as well as appellate jurisdictional issues de novo. Patel v. City of Madison, 959 F. 3d 1330, 1336-37 (11th Cir. 2020).

III.

Rubin argues that the district court should have granted summary judgment for three reasons. First, he says that the statements in the letters were protected by Florida's absolute litigation privilege. Second, he argues that they were protected by the qualified litigation privilege. And third, Rubin argues that he cannot be held vicariously liable for his attorney's conduct.

Rubin argues that he can appeal the denial of summary judgment without waiting for the end of the litigation in the district court. He says that the Florida litigation privileges are immunities from suit, the denial of which “falls within the collateral order doctrine." SmileDirectClub, LLC v. Battle,⁴ F. 4th 1274, 1279 (11th Cir. 2021) (citing Mitchell v. Forsyth, 472 U.S. 511, 525, 529–30 & n.10 (1985)). And Rubin argues that, because we have jurisdiction over

the denial of these immunities, we can exercise pendent appellate jurisdiction over the issue of vicarious liability.

We address, in order, our jurisdiction over each issue Rubin has raised before turning to the merits.

A.

We start with the absolute litigation privilege. Florida law recognizes an absolute privilege for conduct occurring during the course of a judicial proceeding. The Florida Supreme Court has explained that "absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement . so long as the act has some relation to the proceeding.” Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994). We are familiar with this privilege and have dutifully enforced it in the past when applying Florida law. See Jackson v. BellSouth Telecomms., 372 F. 3d 1250, 1274 (11th Cir. 2004) (applying Florida's absolute litigation privilege which "affords absolute immunity for acts occurring during the course of judicial proceedings"). When evaluating whether the statement relates to a judicial proceeding, “much latitude must be allowed to the judgment and discretion of those who maintain a cause in court." Myers v. Hodges, 44 So. 357, 362 (Fla. 1907). This privilege provides an immunity from suit, not just a defense to liability, as litigants must be free to litigate “without fear of having to defend their actions in a subsequent civil action for misconduct.” Levin, 639 So. 2d at 608.

23-11714 7

Applying the privilege requires balancing two competing interests: the public interest in allowing litigants to zealously advocate for their causes and the individual interest in avoiding slander. DelMonico v. Traynor, 116 So. 3d 1205, 1217 (Fla. 2013), abrogated on other grounds by Askew v. Fla. Dep't of Child. & Fams., 385 So. 3d 1034, 1036 n.2 (Fla. 2024). Whenever the Florida Supreme Court has applied the absolute litigation privilege, the relevant statements were made "either in front of a judicial officer or in pleadings or documents filed with the court or quasi-judicial body” because these settings were uniquely equipped with "safeguards" that protected both interests. Id. These safeguards arose from "the 'comprehensive control exercised by the trial judge whose action is reviewable on appeal' and the availability of other remedies through which the trial court could mitigate the harm" that may occur. Id. at 1215 (quoting Fridovich v. Fridovich, 598 So. 2d 65, 69 n.5 (Fla. 1992)). Conversely, "ex-parte, out-of-court statements” that are related to the underlying lawsuit are not entitled to absolute immunity because the safeguards are “either unavailable or far less effective." Id. at 1211, 1218.

Given the nature of the absolute litigation privilege as an immunity from suit, and its necessary connection to judicial proceedings, we conclude that we have jurisdiction to review this issue and that the privilege does not apply to the statements found in the letters.

1.

We begin with jurisdiction. We must not “exercise power we do not have over disputes Congress has not given us authority to decide." United States v. Rojas, 429 F. 3d 1317, 1320 (11th Cir. 2005). Because Rubin raises a state law immunity issue, we must apply federal law to assess our jurisdiction and state law to determine the substance of the privilege. See Butler v. Gualtieri, 41 F. 4th 1329, 1335 (11th Cir. 2022).

Rubin has appealed from the denial of his summary judgment motion and, usually, we would lack jurisdiction to review that kind of order. We are a court of limited jurisdiction and, in general, we are “barred from entertaining appeals of non-final orders because we have no congressional grant to do so.” Hall v. Flournoy, 975 F. 3d 1269, 1274 (11th Cir. 2020); see 28 U.S.C. § 1291. But we may nonetheless immediately review orders that "fall into a specific class of interlocutory orders that are made appealable by statute or jurisprudential exception.” CSX Transp., Inc. v. City of Garden City, 235 F. 3d 1325, 1327 (11th Cir. 2000); see 28 U.S.C. § 1292; Atl. Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F. 2d 371, 375–76 (11th Cir. 1989).

As relevant here, Rubin argues that we can consider this appeal because the denial of Florida's absolute litigation immunity falls within the collateral order doctrine. To be immediately appealable under this doctrine, the order must satisfy three conditions. Plaintiff A v. Schair, 744 F. 3d 1247, 1253 (11th Cir. 2014) (citing Will v. Hallock, 546 U.S. 345, 349 (2006)). The order must "(1)

23-11714 9

conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment." Id. (quoting Will, 546 U.S. at 349). Because the denial of the absolute litigation privilege in this instance meets all three criteria, we conclude that we have jurisdiction to review the district court's decision. See Diverse Power, Inc. v. City of LaGrange, 934 F. 3d 1270, 1272 n.1 (11th Cir. 2019) (“[D]enials of immunity from suit . are immediately appealable under the collateral order doctrine.").

First, the district court's denial of summary judgment unquestionably constituted a conclusive determination on the absolute litigation privilege issue. Although denials of summary judgment may not ordinarily exhibit the finality necessary to trigger an immediate appeal, “there can be no doubt that such orders constitute a complete, formal, and, in the trial court, final rejection" of the absolute litigation privilege. See Abney v. United States, 431 U.S. 651, 659 (1977) (immediately reviewing denial of defendant's motion to dismiss indictment where defendant claimed prosecution was barred by the Fifth Amendment's double jeopardy immunity). Once the district court denied Rubin's motion for summary judgment, "[t]here [were] simply no further steps that [could] be taken in the District Court to avoid the trial” that Rubin insists was precluded by the absolute litigation privilege. Id.

Second, the availability of the absolute litigation privilege is critically important to the continued functionality of the judicial process and entirely distinct from the merits of the case. As the

Florida Supreme Court explained, litigants "must be free from the fear of later civil liability” based on what they say during litigation "so as not to chill the actions of the participants in the immediate claim." Levin, 639 So. 2d at 608. Without this protection, “the chilling effect on free testimony would seriously hamper the adversary system." Id. We agree. The judicial process requires that one party accuse another party of some wrong. As “adversarial” may imply, this process can be personal, uncomfortable, and hostile. It is a system predicated on differences, whether those differences relate to positions, perspectives, interpretations, or understandings of fact and law. By bringing a dispute to court, we try to resolve those differences and discover truth. But we cannot arrive at the ultimate answer without first asking difficult questions. And a system in which parties cannot freely identify these differences or present challenging questions—without fear of defamation litigation—is incompatible with this pursuit.

Not only is the absolute litigation privilege important, but it is also separate from the underlying dispute over whether Rubin defamed Grippa. In arguing that he is entitled to the privilege, Rubin does not engage with the merits of Grippa's claim. In fact, if he were immune from suit, he could admit to the underlying allegations against him and still avoid liability. This dynamic captures what it means for an order to be collateral to the core issue. As the Supreme Court explained in the double jeopardy context, absolute immunity is "collateral to, and separable from the principal issue" because "the defendant makes no challenge whatsoever to the merits of the charge against him” but instead “contest[s] the very

23-11714 11

authority" of the opposing party to prosecute him. Abney, 431 U.S. at 659. Truth, falsity, intent, and harm-although relevant in a defamation action-have no impact on the applicability of the absolute privilege. See Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008) (listing the elements of defamation under Florida law). All that matters is whether the statement was made in the course of judicial proceedings and was related to those proceedings. Levin, 639 So. 2d at 608. Therefore, the privilege is separate from the merits of Grippa's claim and satisfies the second requirement of the collateral order doctrine.

Third, the district court's denial is effectively unreviewable on appeal from final judgment because the absolute litigation privilege is an immunity from suit. In diversity cases, we are bound by state substantive law on the issue of immunity. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Butler, 41 F. 4th at 1335. Therefore, Florida courts' description of the privilege binds us on the collateral order doctrine's third prong. They have said, and we have recognized, that “Florida's litigation privilege affords absolute immunity for acts occurring during the course of judicial proceedings." Bell- South Telecomms., 372 F. 3d at 1274; Levin, 639 So. 2d at 608 (Florida Supreme Court referring to the privilege as an "absolute immunity"). And as the Florida Supreme Court made clear, an absolute immunity is intended to protect parties from the "fear of having to defend their actions in a subsequent civil action.” Levin, 639 So. 2d at 608. An immunity from defending one's actions in a lawsuit cannot be vindicated on appeal after a judgment. The only way Rubin can preserve that interest is by commencing an immediate appeal.

Grippa notes that the Florida courts have described this litigation privilege as an “affirmative defense” and argues that this distinction precludes our jurisdiction. We disagree. True, Florida courts have described the privilege as an affirmative defense. See Am. Nat. Title & Escrow of Fla., Inc. v. Guarantee Title & Tr. Co., 810 So. 2d 996, 998 (Fla. 4th Dist. Ct. App. 2002). But an "affirmative defense" for purposes of pleading is not necessarily a “defense to liability" that can be addressed on appeal at the conclusion of the litigation. See Parker v. Am. Traffic Sols., Inc., 835 F. 3d 1363, 1367 (11th Cir. 2016). An affirmative defense is one that, “if established, requires judgment for the defendant even if the plaintiff can prove his case by a preponderance of the evidence.” Wright v. Southland Corp., 187 F. 3d 1287, 1303 (11th Cir. 1999). Many kinds of immunity are routinely pleaded as affirmative defenses. See, e.g., Moore v. Morgan, 922 F. 2d 1553, 1557 (11th Cir. 1991) (“Qualified immunity is an affirmative defense to personal liability that the defendant has the burden of pleading."). The tendency of the Florida courts to describe the absolute litigation privilege as an affirmative defense is not dispositive to whether the denial of that privilege is immediately appealable.

Our conclusion is consistent with those of our sister circuits. In Shanks v. AlliedSignal, Inc., the Fifth Circuit reviewed a collateral appeal of Texas's own absolute litigation privilege. 169 F. 3d 988 (5th Cir. 1999). Similar to Florida's privilege, Texas law protects "communications made during the course of judicial, quasi-judicial, or legislative proceedings" and prohibits them from “constitut[ing] the basis of a civil action." Id. at 992 (quoting Reagan v.

23-11714 13

Guardian Life Ins. Co., 166 S.W. 2d 909, 912 (Tex. 1942)). The Fifth Circuit explained that requiring the defendant to proceed to final judgment before reviewing a denial of absolute immunity “could deprive [the defendant] of [his] entitlement to avoid the burdens of trial." Id.

The Tenth Circuit reached a similar conclusion in Robinson v. Volkswagenwerk AG, 940 F. 2d 1369 (10th Cir. 1991). There, the Tenth Circuit considered a collateral appeal in which the defendant argued that it was entitled to the Oklahoma absolute litigation privilege. Id. at 1370. Oklahoma's privilege protects lawyers from “defamation actions based upon litigation conduct in judicial proceedings." Id. at 1372. Citing Cohen, from which the collateral order test is derived, the Tenth Circuit determined that it had "jurisdiction based on the collateral order doctrine as applied to a denial of absolute immunity.” Id. at 1370 (citing Cohen, 337 U.S. at 546–47).

Because the denial of Florida's absolute litigation privilege conclusively determines a distinct and important issue which is effectively unreviewable on appeal from final judgment, we have jurisdiction to consider this appeal under the collateral order doctrine.