           Case: 11-15337   Date Filed: 09/18/2012   Page: 1 of 19



                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                       ________________________

                             No. 11-15337
                       ________________________

                D. C. Docket No. 8:09-cv-02539-EAK-TGW


LARRY BORNEISEN,
SHERRY BORNEISEN,

                                                          Plaintiffs-Appellants,

                                   versus

CAPITAL ONE FINANCIAL CORPORATION,
d.b.a. Capital One Bank,

                                                           Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                            (September 18, 2012)

Before HULL, MARCUS and HILL, Circuit Judges.

PER CURIAM:
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      Plaintiffs Larry and Sherry Borneisen appeal the district court’s summary

judgment in favor of Defendant Capital One Financial Corporation (“Capital

One”) on the Borneisens’ state-law civil claims for trespass, invasion of privacy,

intentional infliction of emotional distress, assault, battery, false imprisonment,

malicious prosecution, and abuse of process. After review of the record and with

the benefit of oral argument, we affirm.

                                I. BACKGROUND

A. The Borneisens’ Delinquent Accounts

      Plaintiffs Larry and Sherry Borneisen each had two separate credit card

accounts with Defendant Capital One. The Borneisens failed to make their

minimum monthly payments on those accounts.

      On April 12, 2008, Larry Borneisen received a call from Capital One about

his delinquent accounts. Larry Borneisen demanded that Capital One cease calling

him and alleged that the Capital One representative responded that Capital One

would call “as many times per day as wanted” and would call “all day every day

until you pay this.” Larry Borneisen did not dispute that he owed Capital One the

amount it sought to collect from him.

B. Larry Borneisen’s Threatening Phone Call




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      Five minutes after receiving the call from Capital One, Larry Borneisen

called Capital One’s customer call center in Virginia. The call was transferred to

Alexandria Wilson, a “Risk Specialist” at the call center. This phone call was not

recorded, and the course of the conversation between Wilson and Larry Borneisen

is the subject of some dispute. However, the following details are not disputed.

      Wilson first verified Larry Borneisen’s identity. At one point during the

call, Larry Borneisen said to Wilson, “What, you dumb bitch, . . . you think I don’t

know where Glen Allen, Virginia, is?” In his deposition, Borneisen admitted that

he said this to Wilson, and he explained that he knew where Glen Allen, Virginia

was “[b]ecause I grew up there. My first apartment was right next door.” In his

deposition, Borneisen also admitted asking Wilson, “What do I got to do, come up

there and put my foot in your ass for you to stop calling me 8, 10 times a day?”

      In her contemporaneous notes from the phone call, Wilson noted that

Borneisen threatened to “walk into Glen Allen and shoot everybody in there and

stated that he is not paying” on his account. In a written statement prepared the

same day, Wilson summarized the call, and Larry Borneisen’s threats, as follows:

      Primary card holder called around 12:00 pm noon on 04/12/2008 and
      stated that we continue to call him and we need to stop because he is not
      making a payment on the account that he has with Capital One. He
      proceeded to talk about this lump sum of money that he was getting
      from his previous employer and that he could leave the states and that

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       he could buy Capital One. Card holder started to curse at me, [I]
       informed him that I would disconnect the call if he continued[.] I was
       called every name but my name [and] then he stated that he knew where
       Glen Allen was located and that he was going to blow the place up.

(emphasis added).

       About 40 minutes after receiving Larry Borneisen’s threatening phone call,

Wilson reported to her supervisor that an upset customer had threatened to blow

up the call center.1 Wilson’s supervisor recalled that Wilson was worried about

the call because “she didn’t know what [Borneisen] would be capable of.”

Wilson’s supervisor duly notified Capital One’s security personnel of the threat,

and, pursuant to Capital One’s policy for handling threatening phone calls,

security personnel informed the local police department.

C. Local Police Investigation

       Corporal David E. Ford of the Chesterfield County Police Department

responded to the call for service at the call center. Corporal Ford interviewed

Wilson, who stated that Larry Borneisen “was upset because of some

correspondence he had received from Capital One and some phone calls about a

delinquent account of his; that he had made some statements that—to the effect of

he knew where Glen Allen was located and that he would come up there and blow


       1
         Another customer call was automatically forwarded to Wilson after she terminated the
call with Borneisen, but she reported the incident to her supervisor promptly after that next call.

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the place up.” Corporal Ford told Wilson that it was important that she recall

Borneisen’s words as accurately as she could, and Wilson “repeated that statement

to [Corporal Ford] again, and then she stated that she . . . could not say that was

his words word-for-word but that that was what he said.”

      Corporal Ford prepared a detailed report of his investigation. In his report,

Corporal Ford stated that he asked Wilson why Borneisen would mention Capital

One’s office in Glen Allen, Virginia, when the call center where she worked was

in Chester, Virginia. Wilson responded that the Glen Allen office was listed on all

letter correspondence that Borneisen would have received from Capital One.

Wilson believed that Borneisen did not realize that he was speaking to an

employee at a different location.

      At the request of his police department, Corporal Ford relayed the results of

his investigation to Special Agent Eric Morefield, a bomb technician at a

Richmond, Virginia field office of the Federal Bureau of Investigation (“FBI”).

Corporal Ford testified that no one at Capital One ever requested that Borneisen be

arrested or prosecuted, and no one at Capital One requested Corporal Ford to

contact the FBI. In fact, after completing his initial investigation, the only contact

that Corporal Ford had with Capital One was when Capital One contacted him




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several days later to inform him that the phone call between Borneisen and Wilson

had not been recorded.

D. FBI Investigation

      After receiving Corporal Ford’s report, Agent Morefield began his own

investigation. In determining whether there was probable cause for Borneisen’s

arrest, Agent Morefield “carefully reviewed the written statement that Ms. Wilson

gave to the Chesterfield Police as part of the totality of the circumstances

surrounding the threatening phone call from Mr. Borneisen.”

      Agent Morefield “found no reason to doubt Ms. Wilson’s veracity in the

statement given to the police, nor did [he] find any grounds to suspect that she

intended to give a false report to law enforcement regarding Mr. Borneisen.”

Agent Morefield specifically noted that there was no evidence of a pre-existing

relationship between Wilson and Borneisen and that “private citizens rarely make

a random criminal report against a stranger, or give sworn statements to law

enforcement against a stranger without facts.” Furthermore, Agent Morefield

noted that Wilson did not report the call directly to law enforcement and did not

complete a police report. She reported the matter to her supervisor as work-

related, and her only interaction with law enforcement was her responding to

questions by Corporal Ford. Additionally, “it did not appear that Ms. Wilson

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stood to gain anything by reporting the telephone call to her supervisor at Capital

One.” Accordingly, Agent Morefield considered the statements provided to the

Chesterfield Police Department as a “good-citizen report,” a term of art used by

law enforcement to describe “reliable reports of information provided to law

enforcement made by a private citizen regarding possible criminal activity.”

      As part of his investigation, Agent Morefield also reviewed Larry

Borneisen’s criminal history, which spanned three decades between 1976 and

2004. Borneisen’s criminal history included, inter alia, several misdemeanor

assault convictions, a charge for felony breaking and entering, and two charges for

aggravated assault with a firearm. Agent Morefield “considered Mr. Borneisen’s

history of arrests for violent crimes, continuing over several decades, to contribute

to a finding of probable cause for his arrest on suspicion of making a bomb threat

to Capital One.”

      During his investigation, Agent Morefield’s only communication with

Capital One was a telephone call to determine whether Borneisen’s threatening

phone call was recorded. Capital One confirmed that the phone call was not

recorded. Agent Morefield averred that Capital One “had no other input into [his]

investigation” and “did not request that [he] seek Mr. Borneisen’s arrest or take

any other action of any kind.”

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E. Borneisen is Charged and Arrested

       On April 14, 2008, Agent Morefield filed a criminal complaint in the U.S.

District Court for the Eastern District of Virginia. The complaint and

accompanying “Affidavit in Support of Complaint and Arrest Warrant” alleged

that Borneisen made a “telephonic bomb threat” in violation of 18 U.S.C.

§ 844(e).2 After reviewing the complaint and affidavit, a U.S. magistrate judge

found probable cause and issued a warrant for Borneisen’s arrest.

       On the morning of April 15, 2008, three days after Borneisen’s threatening

phone call, the FBI arrived at the Borneisens’ residence in Tampa, Florida, to

effect Larry Borneisen’s arrest. When law enforcement arrived, Borneisen came

outside and told law enforcement “that they were armed trespassers and that they

needed to remove themselves from my property.” The officers stated that they had

a warrant for Larry Borneisen’s arrest, and Borneisen warned them not to

“manhandle me” because he had shoulder and back problems. Law enforcement

officers arrested Borneisen without incident. In his deposition, Borneisen

conceded that the officers “actually . . . were very gentle with me.” No one from


       2
         Section 844(e) provides: “Whoever, through the use of the . . . telephone . . . willfully
makes any threat . . . to kill, injure, or intimidate any individual or unlawfully to damage or
destroy any building, vehicle, or other real or personal property by means of fire or an explosive
shall be imprisoned for not more than 10 years or fined under this title, or both.” 18 U.S.C.
§ 844(e).

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Capital One was present at the scene or even aware that Larry Borneisen had been

arrested.

      While effecting Larry Borneisen’s arrest, the law enforcement officers also

asked Sherry Borneisen for consent to search the Borneisens’ home and vehicles.

Sherry Borneisen signed a consent-to-search form allowing the officers to search

the Borneisens’ home and vehicles.

F. Indictment and Dismissal of Indictment

      On May 7, 2008, a grand jury in the Eastern District of Virginia indicted

Larry Borneisen for violating 18 U.S.C. § 844(e) by using a telephone to “willfully

threaten[] to blow up the Capital One facility . . . by means of fire and explosives.”

      In September 2008, the United States moved to dismiss the indictment

under Federal Rule of Criminal Procedure 48(a). The district court dismissed the

indictment on September 8, 2008.

G. The Borneisens Sue Capital One

      In December 2008, the Borneisens sued Capital One in state court for

trespass, invasion of privacy, intentional infliction of emotional distress, assault,




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battery, false imprisonment, malicious prosecution, and abuse of process.3 In

December 2009, Capital One removed the action to federal court.

       In January 2011, Capital One moved for summary judgment on all of the

claims. On September 13, 2011, the district court entered a thorough order

granting summary judgment for Capital One and against the Borneisens on each of

the claims. On October 13, 2011, the district court entered a final judgment in

favor of Capital One and against the Borneisens. The Borneisens now appeal.

                                    II. DISCUSSION

       On appeal, the Borneisens argue that there was “sufficient evidence . . . to

withstand Capital One’s motion for summary judgment” as to each of their

claims.4 We address these claims in turn.

A. Claims for Trespass, Invasion of Privacy, Assault, Battery, and False
Imprisonment




       3
         The Borneisens also brought a claim for unlawful debt collection in violation of the
Florida Consumer Collection Practices Act (“FCCPA”), §§ 559.55 to 559.785, Florida Statutes.
Although the district court denied summary judgment on the Borneisens’ FCCPA claim, the
parties subsequently moved to dismiss the FCCPA claim with prejudice. The district court
dismissed the claim, and it is not before us on appeal.
       4
       We review de novo the district court’s grant of summary judgment. Jones v. UPS
Ground Freight, 683 F.3d 1283, 1291–92 (11th Cir. 2012).

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       The gravamen of the Borneisens’ claims for trespass, invasion of privacy,5

assault, battery, and false imprisonment is that Wilson falsely reported a bomb

threat and that this false report caused the Borneisens’ harm at the hands of the

law enforcement officers that arrested Borneisen at his home in Florida.

       The Borneisens’ theory of liability would require a finding that the law

enforcement officers—who were serving a valid arrest warrant issued following a

probable-cause finding by a U.S. magistrate judge in Virginia—were acting as

agents of Capital One. As the district court noted, there is no evidence that any

agent of Capital One has ever entered the Borneisens’ property, and no one from

Capital One was present or participated in the arrest. There is no evidence that

anyone from Capital One ever requested that Borneisen be charged or arrested.

       Indeed, the only people to enter the Borneisens’ property were law

enforcement officers, and those officers were acting pursuant to a warrant issued

following independent investigations by the local police and the FBI. And the

issuance of the warrant precluded any action against the law enforcement officers.6


       5
        The Borneisens’ sole ground for their invasion of privacy claim is that “an invasion of
privacy “was substantially certain to result from the false report[s]” of Capital One employees.
       6
         See Guin v. City of Riviera Beach, 388 So. 2d 604, 606 (Fla. 4th DCA 1980) (rejecting
trespass claim because “law enforcement personnel have a right, under appropriate
circumstances, to enter upon private property”); City of St. Petersburg v. Reed, 330 So. 2d 256,
257 (Fla. 2d DCA 1976) (rejecting assault and battery claims against a police officer because,
“when an officer has reasonable grounds to believe one has committed a felony, the officer is

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The law enforcement officers acted independently and without the instigation (or

even knowledge) of anyone at Capital One.

       Furthermore, the Borneisens’ theory of liability would also discourage

private citizens from reporting criminal activity to law enforcement. For this

reason, Florida recognizes a “privilege of private citizens to provide, without fear

of subsequent tort liability, information about suspected criminal activities to law

enforcement officials, even where the information was mistaken, and the

providing of such information constituted the principal cause of imprisonment.”

Pokorkny v. First Fed. Savs. & Loan Ass’n of Largo, 382 So. 2d 678, 682 (Fla.

1980). Thus, “under Florida law a private citizen may not be held liable in tort

where he neither actually detained another nor instigated the other’s arrest by law

enforcement officers.” Id. “If the private citizen makes an honest, good faith

mistake in reporting an incident, the mere fact that his communication to an officer

may have caused the victim’s arrest does not make him liable when he did not in

fact request any detention.” Id. To recover for false imprisonment, the Borneisens

must also show that Capital One “was personally involved in detaining the

victim.” Id.


entitled to use force which is reasonably necessary to capture him, even to the extent of killing or
wounding him”); Jackson v. Navarro, 665 So. 2d 340, 341-42 (Fla. 4th DCA 1995) (rejecting
false-imprisonment claim based on officer’s arrest pursuant to a valid warrant).

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        Here, Wilson undoubtedly acted reasonably in reporting Larry Borneisen’s

threatening phone call to her supervisor, and Capital One undoubtedly acted

reasonably in reporting the threat to law enforcement. Although Larry Borneisen

disputes that he made a bomb threat specifically, he admitted in his deposition to

making the following statement during the phone call: “What, you dumb

bitch, . . . you think I don’t know where Glen Allen, Virginia is?” Borneisen

explained that he knew where Glen Allen was “[b]ecause I grew up there. My first

apartment was right next door.” In his deposition, Borneisen also admitted asking,

“What do I got to do, come up there and put my foot in your ass for you to stop

calling me 8, 10 times a day?” The combination of these two statements—one

noting his knowledge of where to find Wilson and one threatening to come to the

call center to put a “foot in your ass”—were sufficiently menacing to warrant

reporting the threatening call to law enforcement irrespective of whether the threat

was a “bomb threat” or a veiled threat to beat a Capital One employee. And even

if Wilson incorrectly reported a bomb threat instead of Borneisen’s personal threat

to beat her, no Capital One employee or agent “was personally involved in

detaining” Borneisen. See Pokorny, 382 So. 2d at 682. Accordingly, these claims

fail.

B. Intentional Infliction of Emotional Distress

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      The Borneisens’ intentional infliction of emotional distress claim is also

based on Wilson’s allegedly false report that Borneisen threatened to blow up the

Capital One facility.

      The Borneisens may recover for intentional infliction of emotional distress

only if Capital One’s conduct was “so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious and utterly intolerable in a civilized community.” Johnson v. Thigpen,

788 So. 2d 410, 412–13 (Fla. 1st DCA 2001). “Generally, the case is one in which

the recitation of facts to an average member of the community would arouse his

resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Id. Whether

alleged conduct rises to this level is a question of law. Gandy v. Trans World

Computer Tech. Grp., 787 So. 2d 116, 119 (Fla. 2d DCA 2001).

      We agree with the district court that Capital One did not act outrageously.

As a Capital One employee, Wilson notified her supervisor that she had received a

threatening phone call, and Capital One notified the police that it had received the

call. Even if Larry Borneisen never made a bomb threat, he admitted that he was

threatening in the phone call, Wilson perceived Borneisen’s words as threatening,

and it was therefore eminently reasonable (and certainly not outrageous) for




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Capital One to report Borneisen’s behavior to law enforcement. The Borneisens’

claim for intentional infliction of emotional distress fails.

C. Malicious Prosecution

      The Borneisens next argue that the district court erred in rejecting their

claim for malicious prosecution. To establish a claim for malicious prosecution,

the Borneisens must show that: (1) “an original criminal or civil judicial

proceeding against [Larry Borneisen] was commenced or continued”; (2) Capital

One “was the legal cause of the original proceeding against [Borneisen] as the

defendant in the original proceeding”; (3) the termination of the original

proceeding constituted a bona fide termination of that proceeding in favor of

Borneisen; (4) there was no probable cause for the original proceeding; (5) Capital

One acted with malice; and (6) Borneisen suffered damage as a result of the

original proceeding. Alterra Healthcare Corp. v. Campbell, 78 So. 3d 595, 602

(Fla. 2d DCA 2011).

      The Borneisens’ malicious prosecution claim fails because they cannot

show that Capital One was the legal cause of Borneisen’s prosecution. To make

such a showing, Borneisen had to show that Capital One “instigated” the

prosecution. Orr v. Belk Lindsey Stores, Inc., 462 So. 2d 112, 114 (Fla. 5th DCA

1985). “The general rule is that if the defendant merely gives a statement to the

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proper authorities, leaving the decision to prosecute entirely to the uncontrolled

discretion of the officer or if the officer makes an independent investigation, the

defendant is not regarded as having instigated the proceeding.” Id. Nevertheless,

if “the defendant’s persuasion is the determining factor in inducing the officer’s

decision or if he gives information which he knew to be false and so unduly

influences the authorities, then the defendant may be held liable.” Id.

      Here, Wilson reported to her supervisor that Borneisen had called in a bomb

threat, Wilson’s supervisor reported the threat to Capital One’s security team, and

Capital One’s security team reported the threat to the local police, who conducted

an independent investigation and then spoke to the FBI. The FBI then conducted

its own independent investigation, which included a review of Borneisen’s

extensive criminal history, and concluded that there was probable cause for

Borneisen’s arrest. After Borneisen’s arrest, a grand jury found probable cause to

indict him. At no point did anyone from Capital One contact the FBI or urge

Borneisen’s prosecution. Rather, the record contains no evidence that anyone at

Capital One even knew the federal government planned to prosecute Borneisen.

Under these circumstances, where Capital One merely relayed Wilson’s report of

criminal activity (and no one at Capital One had any reason to doubt Wilson’s

report), Capital One was not the legal cause of Borneisen’s prosecution.

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      Additionally, although Larry Borneisen denies making the bomb threat, this

denial does not necessarily establish that Wilson knew that her report of a bomb

threat was false. As explained above, Borneisen made, at minimum, veiled threats

to Wilson that included an express statement that Borneisen knew where she was

located. There is no evidence in the record showing that Wilson knew any of her

statements were false. But even if Borneisen’s denial creates an issue of Wilson’s

knowledge, there is, importantly, no evidence that Wilson’s superiors at Capital

One knew that Wilson’s report was false and knowingly passed on false

information. And there is also no evidence that anyone else at Capital One

knowingly gave false information to the authorities. In sum, Borneisen’s

prosecution resulted from the independent investigation of an FBI agent and a

probable-cause determination by a U.S. magistrate judge in Virginia, not from any

action by Capital One. Accordingly, the malicious prosecution claim fails.

D. Abuse of Process

      Finally, the Borneisens argue that the district court erred in rejecting their

claim for abuse of process. “A cause of action for abuse of process requires proof

that: (1) the defendant made an illegal, improper, or perverted use of process; (2)

the defendant had an ulterior motive or purpose in exercising the illegal, improper

or perverted process; and (3) the plaintiff was injured as a result of defendant’s

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action.” Thomson McKinnon Sec., Inc. v. Light, 534 So. 2d 757, 760 (Fla. 3d

DCA 1988).

      As the district court noted, the record is devoid of any evidence that Capital

One “made an illegal, improper, or perverted use of process.” See id. In fact,

there is no evidence that Capital One made any use of process at all. The only

“process” that Capital One possibly could have abused were the arrest-warrant

proceedings, the grand-jury proceedings, or the criminal proceedings. But there is

no evidence that Capital One initiated, supported, or maintained any of those

proceedings. The record shows that Capital One was unaware that those

proceedings were even occurring. See U.S. Steel, LLC v. Tieco, Inc., 261 F.3d

1275, 1292 (11th Cir. 2001) (rejecting abuse-of-process claim because there was

no evidence that the defendant “controlled or influenced, or even participated in,

the decision to seek and execute the warrant”).

      Furthermore, “abuse of process requires an act constituting the misuse of

process after it issues. The maliciousness or lack of foundation of the asserted

cause of action itself is actually irrelevant to the tort of abuse of process.” Cazares

v. Church of Scientology of Cal., Inc., 444 So. 2d 442, 444 (Fla. 5th DCA 1983).

The Borneisens failed to present any evidence of any improper action by Capital

One after process issued. The alleged misconduct—the allegedly false report of a

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bomb threat—occurred prior to the commencement of the criminal proceedings.

Accordingly, the Borneisens’ abuse-of-process claim fails.

      AFFIRMED.




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