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149222 - Rodriguez v FedEx Freight East

Jose A. Rodriguez,
Dewey Rick Martin
(Appeal from Ct of Appeals)
(Wayne – Ziolkowski, R.)
FedEx Freight East, Inc., Rodney Adkinson, Laura Brodeur, Matthew Disbrow, William D. Sargent and Honigman Miller Schwartz and Cohn, LLP,
Todd R. Mendel


In 2003, plaintiff Jose Rodriguez sued FedEx for discrimination in Wayne Circuit Court, alleging claims of wrongful discharge, retaliation, hostile work environment, and failure to promote in violation of the Elliott Larsen Civil Rights Act. Shortly after, the lawsuit was removed to federal district court. Rodriguez later filed a Chapter 7 bankruptcy petition, and the employment litigation became property of the bankruptcy estate. FedEx moved for summary judgment, supported by an affidavit from its human resources manager. The copy of the affidavit filed with the motion was signed, but not notarized. When plaintiff’s counsel objected to the lack of notarization at the hearing on the motion for summary judgment, FedEx’s attorney stated that the affidavit was notarized, and that an unnotarized version was filed by mistake. The court directed FedEx’s attorney to provide the notarized affidavit to Rodriguez’s attorney and to file it with the court.  FedEx’s counsel did provide a notarized affidavit to plaintiff’s counsel, but that version of the affidavit is not contained in the court file. Eventually, Rodriguez’s employment claims were found to lack merit, and were dismissed.
In 2009, Rodriguez himself filed suit in the Wayne Circuit Court against FedEx and its attorneys, alleging that defendants abused the judicial process and defrauded Rodriguez, his attorneys, and the courts by filing a false and unnotarized affidavit in the 2003 litigation. Defendants removed the case to federal district court, where plaintiff filed a complaint under federal law asserting a claim for “fraud on the courts.”  The district court granted defendants’ motion to dismiss for failure to state a claim under FRCP 12(b)(6), but also granted plaintiff’s motion to remand his state-law abuse of process and fraud claims to the Wayne Circuit Court. 
The case then returned to the Wayne Circuit Court, where Rodriguez filed an amended complaint alleging malicious abuse of process, fraud, and fraudulent misrepresentation based on the filing of the unnotarized affidavit in the 2003 litigation. Defendants moved for summary disposition on the basis of res judicata and collateral estoppel, arguing that plaintiff’s claims were decided against him in the federal litigation. The trial court granted the motion. 
Rodriguez appealed as of right, and in an unpublished per curiam opinion, the Court of Appeals affirmed in part, and reversed in part. The panel affirmed the circuit court’s decision to the extent that it barred Rodriguez from relitigating the fraud-on-the-court issue in the state law action, but reversed the lower court’s holding that his abuse-of-process and fraud-based claims were barred on grounds of res judicata and collateral estoppel. 
FedEx sought leave to appeal. On October 3, 2014, the Supreme Court ordered oral argument on whether to grant the application or take other action, and directing the parties to address the relevance to this case, if any, of this Court’s decision in Daoud v De Leau, 455 Mich 181 (1997) (“a second suit for fraud, based on perjury (‘intrinsic fraud’), may not be filed against a person involved in a first suit, if the statutes and court rules provide an avenue for bringing the fraud to the attention of the first court and asking for relief there.