                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0413n.06
                             Filed: June 19, 2006

                                           No. 05-3318

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


HERBERT DELAWDER,                                        )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellee,                               )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE SOUTHERN
v.                                                       )         DISTRICT OF OHIO
                                                         )
PLATINUM FINANCIAL SERVICES CORP., et                    )                           OPINION
al.,                                                     )
                                                         )
       Defendants-Appellants.




BEFORE:        COLE, GIBBONS, and ROGERS, Circuit Judges.

       R. GUY COLE, JR., Circuit Judge.

       Defendants, a debt collection agency and its attorneys, seek collateral review of a district

court order rejecting their claim of absolute immunity from suit for statements they made as

“participants in the judicial process.” For the following reasons, we dismiss this appeal for lack of

jurisdiction, and we decline to grant mandamus relief.

                                                 I.

       Defendant-Appellant Platinum Financial Services, Inc. (“Platinum Financial”) is a company

that specializes in the purchase and collection of distressed consumer debt. Through its counsel,

Javitch, Block & Rathbone LLP (“JB&R”), also a defendant in this matter, Platinum Financial

brought a debt collection action against Plaintiff-Appellee Herbert Delawder in 2003 in municipal
No. 05-3318
Delawder v. Platinum Fin. Servs. et al.

court in Lawrence County, Ohio. Nena Pavlovic, also a defendant, is an attorney at JB&R who

participated in the representation of Platinum Financial in its suit against Delawder. Attached to the

complaint served upon Delawder was a notarized affidavit representing that Delawder owed

$5,355.60. Delawder filed a timely answer and sought discovery from Platinum Financial. Having

received no response to a deposition notice, Delawder threatened to move for sanctions if Platinum

Financial did not comply with discovery obligations. Platinum Financial voluntarily dismissed its

suit against Delawder before any discovery was conducted.

       Delawder brought suit against the defendants, alleging that the affidavit accompanying the

defendants’ complaint had falsely stated that he owed $5,355.60, in violation of the Fair Debt

Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692–1692o, and the Ohio Consumer Sales

Practices Act (CSPA), Ohio Rev. Code § 1345.01–.99. The defendants sought dismissal of all of

Delawder’s claims, arguing, among other things, that attorneys and their clients are shielded by

absolute immunity under both federal and state law for statements made in the course of judicial

proceedings. The court granted in part the defendants’ motion to dismiss, finding that Delawder had

failed to state a claim under several provisions of the FDCPA and CPSA, but rejected the

defendants’ absolute immunity arguments and denied the defendants’ motion to dismiss as to

Delawder’s claims under 15 U.S.C. §§ 1692e(2), 1692e(10), and 1692f(1), and Ohio Rev. Code §

1345.02(B)(10).

       The defendants appeal the district court’s partial denial of their motion. They reassert their

argument for absolute immunity, and assert that this Court has jurisdiction to consider their

immunity argument under the collateral order doctrine. They also reassert various First Amendment,

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Delawder v. Platinum Fin. Servs. et al.

Tenth Amendment, and statutory interpretation defenses that they claim are “inextricably

intertwined with their claims of immunity.” In the alternative, the defendants seek a writ of

mandamus ordering the same remedy sought in their appeal.

                                                   II.

        This court has appellate jurisdiction over “final decisions” of the district courts, except those

that are appealable directly to the Supreme Court. 28 U.S.C. §1291. “Final decisions” include a

“small class” of orders that, while not finally resolving the entire litigation, “finally determine claims

of right separable from, and collateral to, rights asserted in the action, too important to be denied

review and too independent of the cause itself to require that appellate consideration be deferred

until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546

(1949). This rule, frequently referred to as the “collateral order doctrine,” has been applied to permit

interlocutory appeals from denials of “substantial claim[s]” of absolute immunity, Mitchell v.

Forsyth, 472 U.S. 511, 525-26 (1985), in circumstances where the party claiming immunity seeks

“avoidance of a trial that would imperil a substantial public interest,” Will v. Hallock, 126 S. Ct. 952,

959 (2006).

        The defendants argue that all necessary participants in a judicial proceeding enjoy absolute

immunity from suit for statements made in and pertaining to the proceeding, and that this immunity

extends to private attorneys and civil plaintiffs such as themselves. The defendants rely upon

Supreme Court cases that have recognized immunity from suit in certain circumstances for judges,

see Stump v. Sparkman, 435 U.S. 349, 355-56 (1978); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351

(1871), for prosecutors, see Burns v. Reed, 500 U.S. 478, 484-85 (1991), and for third party

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Delawder v. Platinum Fin. Servs. et al.

witnesses, see Briscoe v. LaHue, 460 U.S. 325, 330-34 (1983), as well as cases that acknowledge

an English common law protection for private attorneys from damages liability, Burns, 500 U.S. at

490 (quoting King v. Skinner, (1772) 98 Eng. Rep. 529, 530 (K.B.)); Briscoe, 460 U.S. at 330-31,

335. Consistent with their position in district court, see JA 58-59, the defendants at oral argument

explicitly disclaimed reliance upon the doctrine of witness immunity, and instead characterized their

defense as an argument for “advocacy immunity.” They argue that this theory of immunity provides

jurisdiction for an interlocutory appeal under the collateral order doctrine.

       In Kelly v. Great Seneca Financial Corp., 447 F.3d. 944, 949-51 (6th Cir. 2006), we rejected

the defendants’ arguments for the existence of an absolute advocacy immunity that would provide

the basis for an interlocutory appeal. As Kelly makes clear, we have no jurisdiction to consider the

defendants’ interlocutory appeal in this case. Because we lack jurisdiction to consider the

defendants’ immunity claim, we also lack pendent appellate jurisdiction over the defendants’ other

“inextricably intertwined” defenses. See id. at 951.

                                                 III.

       By letter filed with this Court on April 26, 2006, pursuant to Federal Rule of Appellate

Procedure 28(j), the defendants also request, in the event that we find jurisdiction lacking under the

collateral order doctrine, that we construe the defendants’ notice of appeal as an application for a

writ of mandamus. Mandamus relief is appropriate only in “extraordinary situations.” Kelly, 447

F.3d at 951 (quoting Kerr v. U.S. Dist. Ct. for the N. Dist. of Cal., 426 U.S. 394, 402 (1976)). When

considering whether to grant mandamus relief, we look to whether: (1) the party has no other

adequate means to attain the relief desired, (2) the party will be damaged or prejudiced in a way not

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Delawder v. Platinum Fin. Servs. et al.

correctable on appeal, (3) the district court’s order is clearly erroneous, (4) the district court’s order

demonstrates an oft-repeated error or persistent disregard for federal law or procedure, or (5) the

district court’s order raises new and important problems or issues of first impression. Id. (citing

United States v. Diabetes Treatment Ctrs. of Am., Inc., 444 F.3d 462, 473 (6th Cir. 2006)).

Consideration of each of these factors leads us to conclude that mandamus relief is not warranted.

                                                   IV.

        For the preceding reasons, this appeal is dismissed for lack of jurisdiction.




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