Collateral-Order Appealability of Florida’s Absolute Litigation Privilege; No Immediate Appeal for Qualified Privilege; Narrow Limits on Extra‑Judicial Republication of Pleadings

Introduction

In a published, first‑impression decision, the Eleventh Circuit in Kimberly Grippa v. Ronald Rubin clarifies when a party can immediately appeal a federal district court’s denial of Florida’s litigation privileges in a defamation suit removed to federal court. The case arises from letters Rubin’s attorney sent to high‑ranking Florida officials during an internal investigation, enclosing Rubin’s civil complaint and accusing a purported “enterprise” (naming, among others, non‑party Grippa) of misconduct. Grippa sued Rubin for defamation based on those letters.

The district court denied Rubin’s summary‑judgment motion asserting (1) Florida’s absolute litigation privilege, (2) Florida’s qualified litigation privilege, and (3) no vicarious liability for the attorney’s letters. Rubin took an interlocutory appeal. The Eleventh Circuit holds:

• The denial of Florida’s absolute litigation privilege is immediately appealable under the collateral order doctrine.
• The denial of Florida’s qualified litigation privilege is not immediately appealable.
• No pendent appellate jurisdiction exists over the qualified privilege or vicarious‑liability issues in this posture, and the vicarious‑liability denial is itself nonappealable at this stage.

On the merits of the absolute privilege, the court affirms the district court: the letters were sent outside the judicial process and contained additional commentary beyond the public complaint; therefore, Florida’s absolute litigation privilege does not apply. The court dismisses the remainder of the appeal for lack of jurisdiction.

Summary of the Opinion

• Jurisdiction:
  • Absolute litigation privilege: Denial is immediately appealable as a collateral order because (1) the district court conclusively rejected the privilege, (2) the privilege is separate from defamation merits, and (3) it is effectively unreviewable after final judgment given its status as an immunity from suit.
  • Qualified litigation privilege: Denial is not immediately appealable because it depends on fact issues (express malice), intertwines with the merits (mens rea), and can be reviewed after final judgment.
  • Vicarious liability: Denial of summary judgment is neither a final nor a collateral order and is not reviewable now; pendent appellate jurisdiction is declined.
• Merits (absolute privilege): The letters fall outside Florida’s absolute litigation privilege. They were not made before a judicial officer or in documents filed with a court or quasi‑judicial body, and they included extra‑judicial commentary beyond merely transmitting public filings. Even assuming Florida would recognize the narrow Stewart exception (privilege for republication of filed public documents), the letters exceeded that narrow safe harbor.
• Disposition: Affirmed in part (denial of absolute privilege) and dismissed in part (qualified privilege and vicarious liability).

Detailed Analysis

Precedents Cited and How They Shaped the Decision

Florida’s Litigation Privileges

• Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994):
  • Establishes Florida’s absolute litigation privilege for “any act occurring during the course of a judicial proceeding” so long as related to the proceeding.
  • Crucially characterizes the privilege as an “absolute immunity,” protecting participants from suit—not merely liability—to avoid chilling advocacy.
  • Levin underpins both the merits (what is protected) and the jurisdictional conclusion (immunity from suit triggers collateral‑order appealability).
• DelMonico v. Traynor, 116 So. 3d 1205 (Fla. 2013), abrogated on other grounds by Askew v. Fla. Dep’t of Children & Families, 385 So. 3d 1034 (Fla. 2024):
  • Limits absolute privilege to statements made before a judicial officer or in court‑filed documents; ex parte, out‑of‑court statements lack the judicial safeguards justifying absolute immunity.
  • Recognizes a separate qualified privilege for out‑of‑court, litigation‑related statements absent express malice.
  • DelMonico supplies the framework for rejecting absolute immunity here and for describing the qualified privilege as fact‑dependent.
• Myers v. Hodges, 44 So. 357 (Fla. 1907):
  • Notes broad latitude in assessing whether statements relate to a judicial proceeding; also recognizes style and tone evidence for malice determinations.
  • Supports both the breadth of “relation” (on absolute privilege) and the jury’s role (on qualified privilege’s express malice).
• Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992):
  • Highlights the trial court’s supervisory safeguards as a key reason for absolute immunity; also anchors the notion that efforts to instigate litigation can fall outside absolute privilege.
• Anderson v. Shands, 570 So. 2d 1121 (Fla. 1st DCA 1990); Stucchio v. Tincher, 726 So. 2d 372 (Fla. 5th DCA 1999); Ange v. State, 123 So. 916 (Fla. 1929) (receded from by Fridovich):
  • These cases chart what counts as “within” the litigation process (e.g., depositions, discovery, witness interviews, settlement discussions), and what does not (statements designed to trigger litigation, extra‑judicial smear campaigns).
• Stewart v. Sun Sentinel Co., 695 So. 2d 360 (Fla. 4th DCA 1997), narrowed by Ball v. D’Lites Enters., Inc., 65 So. 3d 637 (Fla. 4th DCA 2011):
  • Stewart recognized an exception allowing a lawyer to share filed court documents with the press under absolute privilege; Ball restricted Stewart to a narrow context: republication of filed, public judicial records, not extra commentary.
  • In this case, even assuming Florida would adopt Stewart statewide, the letters included new accusatory commentary and fell outside any such narrow exception.
• Nodar v. Galbreath, 462 So. 2d 803 (Fla. 1984); Glickman v. Potamkin, 454 So. 2d 612 (Fla. 3d DCA 1984); Fariello v. Gavin, 873 So. 2d 1243 (Fla. 5th DCA 2004):
  • Define “express malice” (primary motive to injure) and treat qualified privilege as a fact question generally for the jury, sometimes resolvable pretrial only in exceptional cases.
  • These cases establish that qualified privilege is not immunity from suit.
• Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008):
  • States Florida defamation elements and fault requirements, relevant to distinguishing merits from collateral immunity issues.
• Griffith v. Investment Co., 110 So. 271 (Fla. 1926); Fields v. Devereux Found., Inc., 244 So. 3d 1193 (Fla. 2d DCA 2018):
  • Ground Florida principles of vicarious liability, including imputation to clients of counsel’s acts within scope and employers’ liability for certain intentional torts.

Federal Appellate Jurisdiction and the Collateral Order Doctrine

• Mitchell v. Forsyth, 472 U.S. 511 (1985); Abney v. United States, 431 U.S. 651 (1977); Will v. Hallock, 546 U.S. 345 (2006); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949):
  • Anchor the collateral order doctrine: immediate appeal is permitted for orders conclusively resolving important questions, separate from the merits, that would be effectively unreviewable after final judgment—particularly when the right asserted is immunity from suit.
• SmileDirectClub, LLC v. Battle, 4 F.4th 1274 (11th Cir. 2021); Diverse Power, Inc. v. City of LaGrange, 934 F.3d 1270 (11th Cir. 2019):
  • Reaffirm Eleventh Circuit practice that denials of immunity from suit are immediately appealable.
• Butler v. Gualtieri, 41 F.4th 1329 (11th Cir. 2022); Erie R. Co. v. Tompkins, 304 U.S. 64 (1938):
  • Explain that federal law governs appellate jurisdiction and timing, while state law supplies the substantive content of the asserted immunity.
• Shanks v. AlliedSignal, Inc., 169 F.3d 988 (5th Cir. 1999); Robinson v. Volkswagenwerk AG, 940 F.2d 1369 (10th Cir. 1991):
  • Persuasive sister-circuit authority allowing interlocutory appeals from denials of state absolute litigation privileges understood as immunities from suit.
• Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326 (11th Cir. 1999); Swint v. Chambers Cnty. Comm’n, 514 U.S. 35 (1995); Jackson v. City of Atlanta, 97 F.4th 1343 (11th Cir. 2024); Hartley v. Parnell, 193 F.3d 1263 (11th Cir. 1999):
  • Set the strict standard and discretionary nature of pendent appellate jurisdiction: courts may, but often decline to, reach nonappealable orders unless inextricably intertwined or necessary to ensure meaningful review of an appealable order.
• United States v. Hollywood Motor Car Co., 458 U.S. 263 (1982):
  • Emphasizes the difference between immunity from suit (which must be vindicated pretrial) and defenses to liability (which can await final judgment).
• Schmelz v. Monroe County, 954 F.2d 1540 (11th Cir. 1992); Plaintiff A v. Schair, 744 F.3d 1247 (11th Cir. 2014):
  • Confirm that summary‑judgment denials are typically nonappealable and restate the collateral‑order factors.

Legal Reasoning

1) Jurisdiction over Absolute Litigation Privilege (Collateral Order Doctrine)

The court applies federal appellate jurisdiction law and treats Florida’s absolute litigation privilege as a state substantive immunity. The order checked all three collateral‑order boxes:

• Conclusive determination: The district court definitively rejected Rubin’s absolute privilege at summary judgment, leaving no further steps to avoid trial on that issue, mirroring Abney’s immediate review of double‑jeopardy immunity denials.
• Important and separate from the merits: The privilege safeguards the truth‑seeking judicial process by protecting participants from fear of suit over litigation‑related speech (Levin). The question is collateral: even conceding the defamatory allegations, if the privilege applies, the defendant cannot be sued.
• Effectively unreviewable after final judgment: Because the privilege immunizes from suit (not merely liability), forcing trial destroys the very protection, requiring immediate review (Mitchell; Will; Diverse Power).

The panel rejects the argument that calling the privilege an “affirmative defense” in Florida practice defeats collateral appealability. Labels in state pleading practice do not control the immunity/defense distinction for federal jurisdiction. Many immunities are raised as affirmative defenses; what matters is the substance—Florida’s law treats absolute litigation privilege as immunity from suit (Levin).

2) Merits: Absolute Litigation Privilege Does Not Cover the Letters

Absolute privilege in Florida extends to statements made during the course of judicial proceedings, before a judicial officer, or in documents filed with the court or a quasi‑judicial body (DelMonico; Levin). While the law allows “much latitude” on whether statements relate to a case (Myers), it withholds absolute immunity from ex‑parte, out‑of‑court statements where judicial safeguards are absent (DelMonico), and from efforts to bring about judicial proceedings (Stucchio; Fridovich).

Rubin’s letters were sent to executive officials and investigators, not to a court or quasi‑judicial officer, and they sought intervention in an internal investigation and the opening of a new probe into alleged misconduct by others. They therefore fell outside the judicial process. Further, even assuming the narrow Stewart exception exists statewide (a point the Eleventh Circuit did not decide), the letters went beyond merely transmitting filed, public pleadings; they added fresh commentary asserting “improper, unethical, and perhaps unlawful” conduct and tied the allegations to Grippa. Ball’s limitation of Stewart confines any privilege to pure republication of filed documents; additional accusatory commentary forfeits absolute immunity. On these facts, no absolute privilege applies.

3) No Jurisdiction over Qualified Litigation Privilege

Florida’s qualified litigation privilege protects out‑of‑court, litigation‑related statements provided they were not made with express malice (DelMonico). It is a defense to liability, ordinarily for a jury to decide, often based on the “style and tone” and related evidence (Myers; Nodar; Glickman; Fariello). The district court identified a genuine dispute of material fact on express malice and reserved the issue for trial.

The denial therefore fails the collateral‑order test:

• No conclusive determination: The district court flagged factual disputes about Rubin’s mens rea; the matter remains for the jury.
• Not separate from the merits: Both defamation liability and the qualified privilege turn on the speaker’s mental state; the issues are intertwined.
• Not effectively unreviewable: Because it is a liability defense (not immunity from suit), review after final judgment is adequate (Hollywood Motor Car; Will).

4) No Pendent Appellate Jurisdiction over Qualified Privilege or Vicarious Liability

Though conceptually related to absolute privilege, qualified privilege involves a different, merits‑laden inquiry—express malice—that is neither inextricably intertwined with, nor necessary to the meaningful review of, the absolute‑privilege ruling (Summit Med.; Swint; Jackson; Hartley). The court prudently declines pendent jurisdiction.

The same result holds for vicarious liability. The denial of summary judgment on vicarious liability is a nonfinal, non‑collateral order that turns on merits issues and is fully reviewable after final judgment (Schmelz). It shares no necessary overlap with the absolute‑privilege question, so pendent review is declined.

Impact and Implications

Procedural Pathways Clarified

• Defendants invoking Florida’s absolute litigation privilege can immediately appeal a denial, preventing the loss of immunity from suit through forced litigation. This aligns Eleventh Circuit practice with other circuits regarding state absolute litigation immunities.
• By contrast, defendants relying on Florida’s qualified litigation privilege must ordinarily proceed to trial when factual disputes exist about express malice; immediate appeals will rarely be available.
• Attempts to bundle nonappealable issues (e.g., qualified privilege, vicarious liability) under pendent appellate jurisdiction will typically fail unless tightly tethered to the collateral‑order issue.

Substantive Guidance for Litigation Communications

• Stay within the judicial process to preserve absolute immunity. Communications in pleadings, filings, depositions, discovery, and other court‑supervised channels remain protected. Extra‑judicial, ex parte outreach—especially to executive officials or the press—risks forfeiting absolute privilege.
• Beware the narrowness of the Stewart exception. Even if Florida’s Supreme Court were to endorse it, absolute privilege for republication extends, at most, to pure dissemination of filed, public documents without editorial or accusatory elaboration. Adding commentary, context, or fresh allegations can destroy absolute immunity.
• Qualified privilege remains available for out‑of‑court, litigation‑related statements, but it turns on the speaker’s motives. Content, tone, audience, and purpose will inform a jury’s express‑malice assessment.
• Clients may be vicariously responsible for their attorneys’ extra‑judicial statements undertaken within the scope of representation and in furtherance of the client’s interests. Directional language in communications can support imputation.

Strategic Considerations

• Appellate strategy: If absolute privilege is a central defense, frame and preserve it for interlocutory review; segregate from fact‑dependent defenses to avoid jurisdictional entanglement.
• Reputation management: Using litigation filings as part of a public‑relations or governmental‑outreach campaign carries defamation risk. Counsel should weigh whether the goal can be achieved through court‑supervised channels or pure republication of filings, and avoid unnecessary commentary.
• Discovery and pretrial practice: Maintain communications within formal discovery and settlement processes to maximize absolute privilege protections.

Complex Concepts Simplified

• Absolute vs. Qualified Litigation Privilege (Florida):
  • Absolute privilege: Complete protection from being sued for litigation‑related statements made in court or court‑filed documents (or closely supervised equivalents). It is an immunity from suit.
  • Qualified privilege: Protection for out‑of‑court, litigation‑related statements if made without express malice (no primary intent to injure). It is a defense to liability, usually decided by a jury.
• Collateral Order Doctrine:
  • A narrow exception allowing immediate appeal of certain nonfinal orders that conclusively decide important questions, are separate from the merits, and would be effectively unreviewable after final judgment—especially denials of immunity from suit.
• Pendent Appellate Jurisdiction:
  • A discretionary tool allowing review of nonappealable orders only when they are tightly bound to an appealable order (inextricably intertwined or necessary for meaningful review). Courts use it sparingly.
• Express Malice (Florida):
  • Exists when the speaker’s primary motive is to harm the plaintiff. It can be inferred from context, tone, and circumstances; it defeats the qualified litigation privilege.
• Vicarious Liability (Florida):
  • Holds a principal (including a client) liable for an agent’s (including counsel’s) tort committed within the scope of agency and in furtherance of the principal’s interests.

Conclusion

The Eleventh Circuit’s decision sets two key precedents. First, it confirms that denials of Florida’s absolute litigation privilege are immediately appealable under the collateral order doctrine because the privilege is an immunity from suit, not merely a defense to liability. Second, it squarely holds that denials of Florida’s qualified litigation privilege—which turns on express malice and entangles with merits—are not immediately appealable.

On substance, the court constricts absolute litigation privilege to true judicial‑process communications. Extra‑judicial letters to government officials, even when enclosing public complaints, lose absolute protection when they add new accusatory commentary. Any narrow allowance for republication of filed, public documents (as suggested by Stewart) remains limited to pure republication, without embellishment.

Practically, the opinion encourages lawyers and clients to channel advocacy through court‑supervised mechanisms when they seek absolute protection, to treat out‑of‑court communications as potentially subject to a jury’s malice inquiry, and to be mindful that clients can be held responsible for counsel’s extra‑judicial actions. In the broader legal landscape, the ruling harmonizes Eleventh Circuit appellate procedure with the immunity‑from‑suit rationale and will guide litigants in structuring interlocutory appeals and litigation communications in defamation disputes arising from Florida proceedings.