UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CATE JENKINS,
Plaintiff-Appellant,

v.

WANDA LEBLEU LEVINE,
                                                               No. 98-1905
Defendant-Appellee,

MAXIMO DIAZ; THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY,
Parties in Interest.

CATE JENKINS,
Plaintiff-Appellee,

v.

WANDA LEBLEU LEVINE,
                                                               No. 98-1951
Defendant-Appellant,

MAXIMO DIAZ; THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY,
Parties in Interest.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-97-3250-AW)

Submitted: May 28, 1999

Decided: June 29, 1999

Before MURNAGHAN and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________
No. 98-1905 affirmed and No. 98-1951 dismissed by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

Athan T. Tsimpedes, MCFADDEN, SHOREMAN & TSIMPEDES,
P.C., Washington, D.C., for Appellant. Neil D. Intrater, Silver Spring,
Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

In No. 98-1905, Cate Jenkins appeals from the district court's order
granting summary judgment to Wanda Levine in a diversity action
alleging malicious prosecution. In No. 98-1951, Levine appeals the
district court's order dismissing her counterclaim for assault and
intentional infliction of emotional distress. We affirm the district
court's decision in No. 98-1905 and dismiss No. 98-1951.

I

Jenkins and Levine are employed by the Environmental Protection
Agency in Crystal City, Virginia. Her coworkers know that Jenkins
suffers from allergies and is unusually sensitive to many odors. Simi-
larly, coworkers know that Levine has what she describes as a "pho-
bia" of fish.

On October 3, 1996, Levine was talking to a coworker who occu-
pies the cubicle next to Jenkins'. Levine was wearing strong perfume
which was offensive to Jenkins, who previously had complained

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about the perfume to Levine. In an effort to have Levine leave the
area, Jenkins removed a package of dried fish from her desk drawer
and showed it to Levine. Levine began backing up, shouting obsceni-
ties. A supervisor exited his office, told the women that their conduct
was unprofessional, and broke up the confrontation. Levine allegedly
became ill following this incident.

On October 7, Levine called the police to report the incident.
Because the officer who responded did not know if Jenkins' behavior
was criminal, she contacted a magistrate. At the magistrate's direc-
tion, the officer drove Levine to the magistrate's office. It is uncontro-
verted that Levine told the magistrate that Jenkins began victimizing
her in 1992 and that the behavior had escalated since then, culminat-
ing in the events of October 3. It is equally uncontroverted that
Levine never asked that Jenkins be arrested, nor did she use the term
"stalking" when describing the situation to the magistrate.

The magistrate concluded that Jenkins' behavior constituted the
crime of stalking. He issued a warrant for Jenkins' arrest. Jenkins was
arrested at work on October 7. The charge ultimately was nolle
prossed.

Jenkins filed this diversity action, alleging malicious prosecution,
false light, libel, and intentional infliction of emotional distress.
Levine answered and counterclaimed, alleging assault and intentional
infliction of emotional distress.

At a hearing on Levine's motion for summary judgment, Jenkins
dismissed all her claims except malicious prosecution. The district
court determined that Jenkins had not established malicious prosecu-
tion under Virginia law and granted summary judgment to Levine.
The court further found that it was without jurisdiction to entertain
Levine's counterclaim, which the court dismissed without prejudice.
In No. 98-1905, Jenkins appeals the district court's order. In No. 98-
1951, Levine cross-appeals from that order.

II

In this diversity action, it is Virginia's substantive law of malicious
prosecution that the district court in Maryland correctly applied. See

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Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); Motor
Club of Am. Ins. Co. v. Hanifi, 145 F.3d 170, 177 (4th Cir.), cert.
denied, ___ U.S. ___, 67 USLW 3175 (U.S. Nov. 16, 1998) (No. 98-
309); Naughton v. Bankier, 691 A.2d 712, 716 (Md. App. 1997). Vir-
ginia law requires that a plaintiff in a malicious prosecution case
prove "by a preponderance of the evidence that the prosecution was:
(1) malicious; (2) instituted by, or with the cooperation of, the defen-
dant; (3) without probable cause; and (4) terminated in a manner not
unfavorable to the plaintiff." Hudson v. Lanier, 497 S.E.2d 471, 473
(Va. 1998).

Our review of the record persuades us that Jenkins did not meet her
burden. It is undisputed that Levine called the police in a good-faith
effort to report the incident and to seek guidance as to what her
options were. She did not request the initiation of criminal proceed-
ings; the decision to issue the arrest warrant was made by the magis-
trate after his conversation with Levine. Under these circumstances,
we find that two elements of malicious prosecution, malice and prob-
able cause, were lacking. See id.; Bain v. Phillips, 228 S.E.2d 576,
581 (Va. 1976); Chipouras v. AJ&L Corp., 290 S.E.2d 859, 861 (Va.
1961).

We therefore affirm the district court's decision granting Levine's
motion for summary judgment in No. 98-1905. In light of this dispo-
sition, and Levine's representation to this court that she would dis-
miss her appeal in No. 98-1951 if we affirmed the order granting
summary judgment to Levine in No. 98-1905, we dismiss No. 98-
1951. We grant the motion to submit on the briefs and dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

No. 98-1905 - AFFIRMED
No. 98-1951 - DISMISSED

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