                            NOT RECOMMENDED FOR PUBLICATION
                                   File Name: 20a0441n.06

                                           No. 19-2364

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

 CINDY GAMRAT,                                           )                      FILED
                                                         )                 Jul 29, 2020
        Plaintiff-Appellant,                             )            DEBORAH S. HUNT, Clerk
                                                         )
 v.                                                      )
                                                         )
 EDWARD MCBROOM; TIM L. BOWLIN; KEITH                    )     ON APPEAL FROM THE
 ALLARD; BENJAMIN GRAHAM; JOSHUA                         )     UNITED STATES DISTRICT
 CLINE; KEVIN G. COTTER; BROCK ALLEN                     )     COURT FOR THE WESTERN
 SWARTZLE;     NORM         SAARI;        HASSAN         )     DISTRICT OF MICHIGAN
 BEYDOUN, in their individual capacities,                )
                                                         )
        Defendants-Appellees.                            )
                                                         )


       Before: GRIFFIN, KETHLEDGE, and THAPAR, Circuit Judges.

       KETHLEDGE, Circuit Judge. The Michigan House of Representatives expelled one of its

members, Cindy Gamrat, from office. Gamrat thereafter sued several people involved in that

process. The district court dismissed her suit for failure to state a claim. For substantially the

same reasons stated by the district court, we affirm.

       We accept as true all factual allegations in Gamrat’s complaint.         See DiGeronimo

Aggregates, LLC v. Zemla, 763 F.3d 506, 509 (6th Cir. 2014). In January 2015, Cindy Gamrat

began a term as a member of the Michigan House of Representatives. She agreed to share three

employees—Keith Allard, Benjamin Graham, and Joshua Cline (referred to here as the staff

members)—with Todd Courser, a fellow representative. At some point, Gamrat and Courser, both

married, began an affair.
No. 19-2364, Gamrat v. McBroom, et al.


        The staff members soon reported that there were problems with Gamrat and Courser’s

combined office to the Speaker of the House (Kevin Cotter) and two of his staff (Norm Saari and

Brock Swartzle). Cline quit in April. Over the next two months, Graham secretly recorded several

conversations between himself, Gamrat, and Courser, in which the representatives discussed their

affair and strategies to cover it up.

        The House fired Allard and Graham on July 6. Later that day, they reported their concerns

about Gamrat and Courser’s behavior to the Business Director for the House, Tim Bowlin. When

the House leadership did not act, the staff members then went to the Detroit News, which published

a story about the affair and Courser’s attempted cover-up. Immediately thereafter, Speaker Cotter

directed Bowlin to investigate Gamrat and Courser’s misconduct. The House also formed a Select

Committee, chaired by Representative Edward McBroom, to investigate. Before the committee

hearings started, Gamrat met with Majority Legal Counsel Hassan Beydoun, who opined that

censure (rather than expulsion) would be appropriate. But on September 10, the Select Committee

nonetheless recommended expulsion, and the next morning the House expelled Gamrat.

        Gamrat thereafter sued the staff members; Beydoun, Bowlin, Cotter, McBroom, Saari, and

Swartzle (referred to here as the House Defendants); her ex-husband; and two of his associates.

She claimed, among other things, that the House Defendants had violated her due process rights,

and that all the defendants violated eavesdropping, civil-stalking, and civil-conspiracy statutes.

On March 15, 2018, the district court dismissed Gamrat’s claims against the House Defendants

and staff members Allard and Graham. Over a year later, the district court granted Cline’s motion

for judgment on the pleadings. The court also denied Gamrat’s motions to amend her complaint

for the second time and for relief from judgment. (The other defendants in the case were also

dismissed, in separate orders.) This appeal followed.



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No. 19-2364, Gamrat v. McBroom, et al.


       We review de novo the district court’s dismissals under Civil Rules 12(b)(6) and 12(c).

See Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 761 (6th Cir. 2006). To survive a motion to

dismiss, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

       Gamrat argues that the House Defendants are not entitled to legislative immunity on her

procedural due process claim. State legislators, as well as their aides and counsel, are immune

from suit for “all actions taken in the sphere of legitimate legislative activity.” Bogan v. Scott-

Harris, 523 U.S. 44, 54 (1998); Eastland v. U. S. Servicemen’s Fund, 421 U.S. 491, 507 (1975);

see also U.S. Const. art. I, § 6, cl. 1; Mich. Const. 1963 art. IV, § 11. That activity includes actions

that are “an integral part of the deliberative and communicative processes” by which lawmakers

participate in matters within their jurisdiction. Gravel v. United States, 408 U.S. 606, 625 (1972).

       Here, the House Defendants investigated Gamrat, recommended expelling her, and then

voted to do so—all of which are integral parts of the expulsion process. See id. at 624–25. And

that process is within the legislature’s sole jurisdiction. See Mich. Const. 1963 art IV, § 16.

Gamrat says that the House Defendants acted in bad faith, but “whether an act is legislative turns

on the nature of the act,” rather than on motive or intent. Bogan, 523 U.S. at 54. The House’s

expulsion of Gamrat was legislative activity, regardless of any bad faith, and Gamrat cannot sue

the House Defendants for participating in that process. Accord Whitener v. McWatters, 112 F.3d

740, 742–44 (4th Cir. 1997).

       Gamrat also argues that the district court should not have dismissed her wiretapping,

eavesdropping, civil-stalking, and civil-conspiracy claims against the House Defendants and the

staff members. Gamrat must put forth more than “[t]hreadbare recitals of the elements of a cause

of action, supported by mere conclusory statements[.]” Iqbal, 556 U.S. at 678. For each of



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No. 19-2364, Gamrat v. McBroom, et al.


Gamrat’s claims, we take as true the facts alleged in both the amended and the proposed second

amended complaint, for neither states a claim upon which relief may be granted.

       Gamrat’s first claim is that the defendants violated 18 U.S.C. § 2511, which “criminalizes

the intentional interception of an electronic communication.” Luis v. Zang, 833 F.3d 619, 626 (6th

Cir. 2016). Federal law provides a cause of action for “any person whose wire, oral, or electronic

communication is intercepted, disclosed, or intentionally used in violation” of § 2511. 18 U.S.C.

§ 2520. Gamrat alleged nowhere that any House Defendant acquired one of her communications

during transmission; she made only the conclusory allegation that they received recordings that

violated § 2511. That does not give rise to a claim under § 2520. See Luis, 833 F.3d at 629. For

the staff members, the only specific, relevant allegation is that Graham illegally recorded private

conversations between Gamrat and Courser. Gamrat points to her exhibits for support, and they

suggest that she is referring to recordings that Graham made of several meetings between himself,

Courser, and Gamrat in May and June 2015. The recordings’ transcripts, however, show that

Graham participated in all those conversations. As a participant, he did not violate the law by

recording the conversations. See 18 U.S.C. § 2511(2)(d). The exhibits do not show that Graham

recorded any other conversations. Thus, Gamrat fails to allege that any defendant violated the

federal law against wiretapping.

       Gamrat also claims that the defendants violated Michigan’s eavesdropping laws, which

prohibit using a device to eavesdrop on a conversation. See Mich. Comp. L. § 750.539 et seq. But

under that law, participants in private conversations likewise may record those conversations. See

Sullivan v. Gray, 324 N.W.2d 58, 60 (Mich. App. 1982) (per curiam). Her claims under this law

fail for the same reasons as her claims under the federal law.




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No. 19-2364, Gamrat v. McBroom, et al.


       Gamrat’s next claim is that the defendants stalked her. See Mich. Comp. L. § 600.2954(2).

To state a civil-stalking claim, “there must be two or more acts of unconsented contact that actually

cause emotional distress to the victim and would also cause a reasonable person such distress.”

Nastal v. Henderson & Assocs. Investigations, Inc., 691 N.W.2d 1, 7 (Mich. 2005). Most of

Gamrat’s allegations do not actually assert that the defendants contacted her. See Mich. Comp.

Laws § 750.411h. Gamrat says that she received anonymous threatening texts, but none of the

House Defendants or staff members sent those texts. She also alleges that the staff members

followed her, but she does not allege that this caused her emotional distress. Thus, Gamrat does

not plausibly allege a violation of Michigan’s civil-stalking law.

       Gamrat’s final claim is for civil conspiracy. “[A] claim for civil conspiracy may not exist

in the air; rather, it is necessary to prove a separate, actionable tort.” Early Detection Ctr., PC v.

N.Y. Life Ins. Co., 403 N.W.2d 830, 836 (Mich. App. 1986) (per curiam). Gamrat fails to state a

plausible claim for any other actionable tort, so she also fails to state a claim for civil conspiracy.

       Gamrat argues that the district court erred when it denied her motion for leave to file a

second amended complaint on the ground that the amended complaint still failed to state a claim.

We review that legal conclusion de novo. See Crawford v. U.S. Dep’t of Treasury, 868 F.3d 438,

461 (6th Cir. 2017). Gamrat moved to file a second amended complaint five months after the

court’s deadline to amend the pleadings, and ten months after the March 15 dismissal. Despite

this delay, the motion merely repeated conclusory statements and cited entire lengthy documents

(with scant reference to specific statements therein) in an attempt to revive claims that the district

court had dismissed ten months prior. That information gave the court no cause to allow Gamrat

to amend her complaint.




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No. 19-2364, Gamrat v. McBroom, et al.


        Finally, Gamrat asserts that the district court abused its discretion because it refused to

revise its March 15 order under Civil Rule 54(b).        That Rule allows a court to revise an

interlocutory order “at any time” if, among other things, “new evidence” is available. Luna v. Bell,

887 F.3d 290, 297 (6th Cir. 2018). The district court recognized that it had the authority to revise

its order, but it chose not to do so for the same reason that it denied Gamrat leave to amend her

complaint: the allegedly new information was conclusory. The court was well within its discretion

to decline to revise its order.

        The district court’s judgment is affirmed.




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