     Case: 13-30178        Document: 00513372827         Page: 1    Date Filed: 02/08/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals

                                       No. 13-30178
                                                                                      Fifth Circuit

                                                                                    FILED
                                                                              February 8, 2016

SCOTT D. LEMOINE; BEVERLY P. LEMOINE,                                          Lyle W. Cayce
                                                                                    Clerk
                Plaintiffs–Appellants,

v.

ELIZABETH P. WOLFE,

                Defendant–Appellee.




                    Appeal from the United States District Court
                       for the Eastern District of Louisiana


Before JONES, SMITH, and OWEN, Circuit Judges.
OWEN, Circuit Judge:
      In a prior opinion and order, we certified a question to the Supreme
Court of Louisiana pertaining to the bona fide termination prong of the
Lemoines’ malicious prosecution claim. 1 In light of the explication of Louisiana
law in the Louisiana Supreme Court’s decision, we conclude that the Lemoines
raised a genuine issue of material fact as to whether there was a bona fide
termination of the cyberstalking charges against Scott Lemoine.                               We
accordingly reverse the summary judgment granted by the district court and
remand for further proceedings.


      1   Lemoine v. Wolfe, 575 F. App’x 449 (5th Cir. 2014) (per curiam).
    Case: 13-30178         Document: 00513372827         Page: 2    Date Filed: 02/08/2016


                                       No. 13-30178

                                               I
      We certified the following question to the Louisiana Supreme Court:
             Did the dismissal of Scott Lemoine’s criminal cyberstalking
      prosecution pursuant to Louisiana Code of Criminal Procedure
      article 691 constitute a bona fide termination in his favor for the
      purposes of this Louisiana malicious prosecution suit? 2
The Louisiana court accepted the certification and answered the question as
follows:
      A dismissal of a criminal prosecution pursuant to La.C.Cr.P. art.
      691 will constitute a bona fide termination in favor of the malicious
      prosecution plaintiff unless the charge is dismissed pursuant to an
      agreement of compromise, because of misconduct on the part of the
      accused or in his behalf for the purpose of preventing trial, out of
      mercy requested or accepted by the accused, because new
      proceedings for the same offense have been instituted and have not
      been terminated favorably to the accused, or when the dismissal is
      due to the impossibility or impracticality of bringing the accused
      to trial. Guided by these principles, we leave it for the Fifth Circuit
      to resolve whether there is sufficient evidence of a factual dispute
      as to the circumstances surrounding the dismissal of Scott
      Lemoine’s criminal cyberstalking charge to preclude summary
      judgment on this element of a malicious prosecution cause of
      action. 3
The Supreme Court of Louisiana concluded that Louisiana law is consistent
with “the rule followed in a majority of jurisdictions and set forth in the
American Law Institute’s Restatement (Second) of Torts.” 4
      In answering the certified question, the Louisiana Supreme Court
explained that once a malicious prosecution plaintiff has established that the
charges were dismissed, and “if the circumstances surrounding the entering of



      2   Id. at 463.
      3   Lemoine v. Wolfe, 2014-1546 (La. 3/17/15), 168 So. 3d 362, 364.
      4   Id. at 370 (citing RESTATEMENT (SECOND) OF TORTS §§ 659-661 (1977)).


                                               2
        Case: 13-30178        Document: 00513372827         Page: 3     Date Filed: 02/08/2016


                                            No. 13-30178

the nolle prosequi are consistent with a conclusion that there was a lack of
reasonable grounds for pursuing the criminal prosecution,” 5 then “the burden
shift[s] to the defendant to present evidence to the contrary, and ‘the issue
became one for the trier of fact to decide.’” 6
         The nolle prosequi of Lemoine’s cyberstalking charge did not provide a
reason for the dismissal. But two years after the dismissal and after the
Lemoines had filed suit against Judge Wolfe, Wolfe obtained the affidavit of
Donald Wall, the assistant district attorney who filed the nolle prosequi. That
affidavit states that the cyberstalking charge was dismissed because Scott
Lemoine was outside Tangipahoa Parish and the District Attorney’s policy was
not to seek extradition for misdemeanor offenses. Wall further stated in the
affidavit that “[h]ad Mr. Lemoine been in Tangipahoa Parish, the District
Attorney’s office would have moved forward with putting Mr. Lemoine on
trial.” During the pendency of the charges against Lemoine, his supervised
release was revoked by a federal court based on a conviction unrelated to the
present case, and Lemoine was confined in a federal medical center from March
2010 until his release on October 12, 2010. The cyberstalking charges were
dismissed in September 2010. A nolle prosequi based on an extradition policy
cannot constitute a bona fide termination because such a dismissal is not
indicative         of   innocence     but    instead     reflects     the   “impossibility    or
impracticability” of bringing a defendant to trial. 7



        Id. at 373 and n.19 (citing LeBlanc v. Pynes, 46,393 (La. App. 2 Cir. 7/13/13), 69 So.
         5

3d 1273, 1282).
         6   Id. at 373 (quoting Amos v. Brown, 36,338 (La. App. 2 Cir. 9/18/02), 828 So. 2d 138,
142).
         Id. at 364; accord RESTATEMENT (SECOND) OF TORTS, supra, § 661 & cmt. a (“The rule
         7

stated in this Section is most commonly applied when the impossibility of bringing the
accused to trial is due to his absence from the jurisdiction. In this case the remedy of
extradition may not be available, as when the offense is one that is not extraditable or when
for other reasons, extradition is so difficult as to be impracticable.”).
                                                  3
    Case: 13-30178         Document: 00513372827        Page: 4     Date Filed: 02/08/2016


                                       No. 13-30178

      Wall’s affidavit is the only direct evidence in the record that reflects the
reason for dismissing Lemoine’s cyberstalking charge. The question is whether
there is evidence that nevertheless raises a fact question as to whether the
nolle prosequi was filed due to Scott Lemoine’s absence from the jurisdiction or
because there was a lack of reasonable grounds for pursuing the criminal
prosecution. We conclude that, based on the present record, there is at least a
modicum of evidence from which a factfinder could conclude that the
cyberstalking charge against Lemoine was dismissed due to a lack of
reasonable grounds to pursue the charges.
      The decision of the Supreme Court of Louisiana notes that under
Louisiana law, a prosecutor may commence a new prosecution for the same
offense within certain time limits after dismissing a charge. 8 In the present
case, Lemoine returned from federal confinement in October 2010.                         The
prosecutor could have pursued the cyberstalking charges against him during
the five months following his return. The prosecutor did not do so. The record
is silent as to whether the prosecutor’s office was aware of Lemoine’s return
within the time that charges could have been refiled, but considering the record
before us in the light most favorable to the Lemoines, who were the non-moving
parties, we will assume that the prosecutor’s office was aware of Scott
Lemoine’s return.
      Lemoine contends that because he filed a motion to quash the charge in
August 2010, the fact that the charge was dismissed the following month
suggests that the nolle prosequi may have been motivated by the merits of the
motion. However, this timing alone does not cast doubt on the veracity of the
district attorney’s affidavit. The charge against Lemoine for solicitation of
murder was also dismissed by nolle prosequi in September 2010, one day before


      8   Lemoine, 168 So. 3d at 374 n.21 (citing LA. CODE CRIM. PROC. ANN. art. 576).
                                              4
     Case: 13-30178         Document: 00513372827        Page: 5     Date Filed: 02/08/2016


                                        No. 13-30178

the cyberstalking charge was dismissed, and the record does not indicate that
it was preceded by a motion to quash. Additionally, the nolle prosequi of the
solicitation charge stated that the charge was being dismissed because “there
is insufficient credible, admissible, reliable evidence” supporting the charge.
The Supreme Court of Louisiana noted that this “is precisely the type of
averment that evidences a dismissal on grounds consistent with the
defendant’s innocence.” 9 The nolle prosequi of the cyberstalking charge, on the
other hand, did not state that there was insufficient evidence but stated
only: “In accordance with article 691 of the code of criminal procedure, the
above numbered and entitled cause is dismissed without cost.” 10 The fact that
Wall provided this explanation for the dismissal of the solicitation charge in
the nolle prosequi for that charge but not in the nolle prosequi for the
cyberstalking charge supports Wall’s statement in his affidavit that the
cyberstalking prosecution would have continued but for the extradition policy.
       But other evidence might support at least an inference that the
statements in Wall’s affidavit were made to shield Judge Wolfe from civil
liability and were not an accurate reflection of Wall’s thought process at the
time the cyberstalking charge was dismissed. In her deposition, Judge Wolfe
testified that she had a conversation with Wall in which they discussed his
intent to dismiss the cyberstalking charges. She told him that a federal lawsuit
would likely be filed if the charge were dismissed. 11 One view of this evidence
and the affidavit that Wall gave two years later in this litigation is that Judge
Wolfe’s statement about a possible federal lawsuit was an attempt to stop the



       9   Id. at 374.
       10 See LA. CODE CRIM. PROC. art. 691 (“The district attorney has the power, in his
discretion, to dismiss an indictment or a count in an indictment, and in order to exercise that
power it is not necessary that he obtain consent of the court.”).
       11   See Lemoine, 168 So. 3d at 374.
                                              5
     Case: 13-30178       Document: 00513372827         Page: 6    Date Filed: 02/08/2016


                                      No. 13-30178

district attorney from dismissing the case, but Wall dismissed the
cyberstalking charge notwithstanding Judge Wolfe’s concerns because of
Lemoine’s absence from the jurisdiction.              However, another view of this
evidence is that Wall dismissed the charges against Lemoine due to a lack of
evidence that Louisiana law was violated and that the affidavit given two years
later was to assist Judge Wolfe in this suit.
       A factfinder is entitled to consider the evidence against Lemoine as to
the cyberstalking charge. As we noted in our earlier decision and order in this
case, there was no evidence that Scott Lemoine made any statements that
violated the Louisiana cyberstalking statute. 12
       Because Lemoine has raised a genuine dispute of material fact regarding
the bona fide termination prong, we REVERSE the judgment of the district
court and remand for further proceedings. We place no limitation on the
matters the district court can consider or decide on remand.




       12Lemoine v. Wolfe, 575 F. App’x 449, 459 (5th Cir. 2014) (per curiam) (“[I]t is clear
that none of [Lemoine’s] allegedly harassing statements could satisfy counts of conviction
under the [cyberstalking] statute.”).
                                             6
