                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0369n.06

                                          No. 11-1644

                              UNITED STATES COURT OF APPEALS                             FILED
                                   FOR THE SIXTH CIRCUIT                            Apr 05, 2012
                                                                              LEONARD GREEN, Clerk
SURESH DAKSHINAMOORTHY, R.PH.,                      )
                                                    )
       Plaintiff-Appellant,                         )
                                                    )
v.                                                  )       ON APPEAL FROM THE UNITED
                                                    )       STATES DISTRICT COURT FOR
NATIONAL ASSOCIATION OF BOARDS                      )       THE EASTERN DISTRICT OF
OF PHARMACY; CARMEN CATIZONE,                       )       MICHIGAN
                                                    )
       Defendants-Appellees,                        )
                                                    )
and                                                 )
                                                    )
PROMETRIC; EDUCATIONAL TESTING                      )
SERVICE; THOMSON REUTERS CORP.,                     )
                                                    )
       Defendants.                                  )




       Before: KEITH, MARTIN, and GIBBONS, Circuit Judges.


       PER CURIAM. Suresh Dakshinamoorthy, a Michigan resident who is represented by

counsel, appeals a district court judgment granting defendants’ motion for summary judgment in this

diversity of citizenship action.

       Dakshinamoorthy’s suit stems from a decision by the National Association of Boards of

Pharmacy to invalidate Dakshinamoorthy’s June 12, 2007, North American Pharmacist Licensure

Examination score. The Association initiated an investigation concerning Dakshinamoorthy’s score

after Meenakshisundaram Paramasivam, Dakshinamoorthy’s brother-in-law, informed the

Association that someone else may have taken Dakshinamoorthy’s exam for him. The Association
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was also alerted by the fact that Dakshinamoorthy’s most recent exam score was remarkably higher

than his two previous failing scores. Following its investigation, the Association concluded that

another individual may have taken the June 12, 2007, exam for Dakshinamoorthy and, in any event,

that Dakshinamoorthy did not achieve the score on his own merits.

       The Association notified the Michigan Board of Pharmacy that it had invalidated

Dakshinamoorthy’s June 12, 2007, score. In March 2008, the Board suspended Dakshinamoorthy’s

license and held an administrative hearing to determine whether disciplinary action should be taken

against Dakshinamoorthy. In April 2008, the Board reinstated Dakshinamoorthy’s license, finding

that the Association’s invalidation of Dakshinamoorthy’s score was based upon mere speculation

and conjecture.    Despite the Board’s ruling, the Association affirmed its invalidation of

Dakshinamoorthy’s score because it could not “verify that Mr. Dakshinamoorthy passed the June

12, 2007, [exam] on his own merits.”

       In March 2009, Dakshinamoorthy filed a complaint in the Macomb County (Michigan)

Circuit Court asserting claims of negligence, libel, defamation, intentional infliction of emotional

distress, and breach of contract. The case was removed to federal court on the basis of diversity of

citizenship. The Association and Carmen Catizone, the Association’s executive director, became

the remaining defendants in this case after all other defendants were dismissed. In October 2010,

the Association and Catizone moved for summary judgment, which the district court granted.

       “We review de novo a district court’s grant of summary judgment.” Spees v. James Marine,

Inc., 617 F.3d 380, 388 (6th Cir. 2010). Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a).
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                                                 -3-

        Michigan provides immunity from civil or criminal liability to “[a] person . . . acting in good

faith who makes a report; assists in originating, investigating, or preparing a report; or assists a board

or task force, a disciplinary subcommittee, a hearings examiner, the committee, or the department

in carrying out its duties under [Article 15 of Michigan’s Compiled Laws].” Mich. Comp. Laws

§ 333.16244. Persons acting pursuant to Section 333.16244 are “presumed to have acted in good

faith.” Id. Article 15 includes all activities involving the Board and pharmacist licensing. See Mich.

Comp. Laws § 333.17701 et seq. The actions of the Association and Catizone were taken to assist

the Board in carrying out its duties. Dakshinamoorthy has failed to rebut the presumption of good

faith afforded the Association and Catizone. Thus, the Association and Catizone are immune under

Michigan law from Dakshinamoorthy’s lawsuit.

        Dakshinamoorthy argues that the affirmative defense of statutory immunity pursuant to

Section 333.16244 was not adequately pled. In their answer to Dakshinamoorthy’s complaint, the

Association and Catizone based their tenth asserted affirmative defense on immunity. While the

defendants could have pled the defense more precisely, the pleading was sufficient to provide

Dakshinamoorthy adequate notice that the defendants may rely on a defense of statutory immunity.

See Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997). Accordingly, the affirmative defense of

statutory immunity was not waived.

        The district court’s judgment is affirmed. A pending motion to strike by the Association and

Catizone is denied as moot.
