In Kimberly Regenesis, LLC v. Lee County, No 21-13880 (11th Cir. Apr. 10, 2023) (per curiam), the Eleventh Circuit dismisses the appeal of a county and a country commissioner of an order denying absolute quasi-judicial immunity from sitting for a deposition, holding that the commissioner forfeited the right to appeal by neither opposing the deposition notice nor otherwise appearing in the action below.
“This case arises out of a sober home’s battle to rezone its property. When its efforts came up short, the sober home sued the county in federal court, alleging disability discrimination. As discovery got underway, the sober home served a notice of deposition in which it sought to depose one of the county commissioners who voted down its rezoning request. The county opposed the deposition, arguing that the commissioner was shielded from discovery by absolute quasi-judicial immunity. But the commissioner never objected to the deposition request or otherwise appeared before the district court. The district court found that the immunity didn’t apply.” Both the defendant county and the non-party commissioner appealed the order.
The Eleventh Circuit dismisses the appeal. It quickly dispenses with the county’s appeal, holding that the county itself had no claim of immunity on its own and thus lacked appellate standing to challenge the order. “The county lacks standing to appeal because it was not aggrieved by the district court’s order denying immunity. That’s because what’s at stake in this appeal is the commissioner’s quasi-judicial immunity, not the county’s immunity—and so the county cannot be aggrieved by the district court’s denial of the immunity. In other words, the county’s main argument before the district court—and its only argument on appeal—is that the commissioners were shielded from discovery by absolute quasi-judicial immunity. But official immunities (like quasi-judicial immunity) belong to the official, not the county.”
It then addresses the commissioner’s appellate standing, which founders on the principal that “only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment.” Here, the commissioner was neither name as a defendant, nor did he seek to intervene in the action. And while “there’s an exception where a nonparty—who has not, for example, intervened—may still be considered a party who can appeal,” the panel holds that the commissioner did not fall into that bucket, either, because he did not participate in the action below.
“Our sister circuits have adopted various tests for assessing when it is that a nonparty (who hasn’t intervened) may appeal. But, whatever the test, those courts have consistently required the nonparty to have participated in the case before the district court . . . . While we need not decide here the precise contours of when it is that someone not named a party to a suit (who hasn’t become a party) may appeal, we agree with our sister circuits that the non-party must have at least participated in the district court.”
“Here, the commissioner didn’t participate in the district court. The sober home served a notice of deposition seeking to depose the commissioner. But the county—not the commissioner—moved for a protective order. The county appeared at hearings on that motion. The county filed a notice of supplemental authority in support of the protective order. And the county then objected to the magistrate judge’s order. The commissioner didn’t do any of these things. Indeed, both the magistrate judge and the district court were clear that it was the county’s motion for a protective order, not the commissioner’s. The commissioner finally appeared in the case—for the first time—in the notice of appeal. Because the commissioner wasn’t a party, didn’t intervene, and didn’t participate in the district court, he cannot appeal the district court’s order.”
The commissioner finally argued that the practical effect of allowing no appeal was that he would have to appear at a deposition despite a facially valid claim of absolute quasi-judicial immunity. But the panel responds that the commissioner could have filed for a protective order under Fed. R. Civ. P. 26(c)(1) or even declined to answer depositions questions and taken an appeal from a contempt citation. But “[t]he commissioner never got involved in the district court and so we’ll stay our hand.”
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