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

                                                                                  FILED
                                     No. 13-30178                             July 18, 2014
                                                                             Lyle W. Cayce
SCOTT D. LEMOINE; BEVERLY P. LEMOINE,                                             Clerk


                                                Plaintiffs–Appellants,
v.

ELIZABETH P. WOLFE,

                                                Defendant–Appellee.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CV-1377


Before JONES, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
      This malicious prosecution claim, brought by Scott and Beverly Lemoine,
arises out of the criminal cyberstalking prosecution of Scott Lemoine for
posting internet messages that were critical of his friend Daniel Hoover’s
sister; Hoover’s former wife, Kelly Wolfe; and Kelly Wolfe’s mother-in-law,
Judge Elizabeth P. Wolfe. The district court granted summary judgment on
the basis that the Lemoines had failed to demonstrate that Elizabeth P. Wolfe




*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 13-30178
was a legal cause of his prosecution.        We reverse in part and certify an
unresolved question to the Louisiana Supreme Court.
                                         I
        Because the Lemoines were the non-movants in summary judgment
proceedings, we consider the facts in a light most favorable to them. Scott
Lemoine reconnected with his childhood friend Daniel Hoover (Daniel) in late
2008.     Daniel had suffered an aneurysm four years earlier and was a
quadriplegic without the ability to speak. Kelly Wolfe (Kelly) had divorced
Daniel on January 1, 2007.        After communicating with Daniel, Lemoine
authored posts on a local television news website and on Daniel’s Facebook
page that criticized Kelly concerning certain financial matters, referred to
Daniel’s complaint that Kelly had denied him access to their child, and
included a vague suggestion that Kelly’s mother-in-law, Judge Elizabeth P.
Wolfe (Judge Wolfe), a Louisiana state district judge, had manipulated the
judicial system for the benefit of Kelly. The posts said with regard to Judge
Wolfe:
        [W]hen she said ‘I do’ to her third husband, a fireman, she also
        became the daughter-in-law of a state district judge.
              ....
              . . . Ultimately, we hope that by exposing this story it will
        attract the attention of someone who’s willing and able to fight for
        Daniel’s best interest, which considers the involvement of a few
        crooked district judges . . . .

        After the publication of these posts, Lemoine and Lori Hoover Barrient
(Lori) engaged in an internet dialogue in which they debated the propriety of
Kelly’s actions.    In September 2009, Lori complained about Lemoine to
Detective Toby Aguillard of the Tangipahoa Parish Sheriff’s Office, stating that
she felt harassed. In November 2009, Kelly also contacted Aguillard, telling
him that she “was being threatened and harassed by Internet postings that

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                                  No. 13-30178
were authored by Scott Lemoine and others.” Aguillard called Lemoine, who
lived in Arizona, and directed Lemoine to stop posting on the internet and
inquired when Lemoine would be in Louisiana. Lemoine told him that he
might travel there in December.
      Later that month, Judge Wolfe contacted Detective Aguillard to arrange
a meeting. At the meeting she expressed that she was upset by Lemoine’s posts
on the internet.     She also suggested to Aguillard that Lemoine’s conduct
satisfied the elements of the misdemeanor of cyberstalking.           Judge Wolfe
indicated that Aguillard had probable cause to arrest Lemoine and suggested
that he do so. In Aguillard’s deposition, he was asked,
      Q. But you are now talking to a state judge, in her office, and she
      is letting you know, she thinks there is probable cause to arrest
      him?
      A. Yes.
      Q. And—in no uncertain terms?
      A. Yes.
      ....
      Q. You came away from that meeting knowing Judge Wolfe wanted
      Scott Lemoine arrested for cyberstalking?
      A. Yes, As—as was the case with all the victims.
      In December, Detective Aguillard secured an arrest warrant for Lemoine
for violations of Louisiana’s cyberstalking statute and invited Lemoine, who
had returned to Louisiana to see his family, to visit the police station. Upon
arrival, Aguillard placed Lemoine under arrest. He asked Lemoine to execute
a waiver of his rights but Lemoine refused.        Aguillard then interrogated
Lemoine. Lemoine recorded this conversation with a recorder concealed on his
person. During the interrogation, Aguillard stated, “I’ve looked into a lot of
this, much more than you could imagine. . . . Because you’ve involved these
judges, you see, and that puts pressure on me.”            Aguillard also rebuked
Lemoine for his posts on Facebook and warned him not to post further.
Aguillard stated that Lemoine could understand these admonishments as “an
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                                 No. 13-30178
order from the Court.” Aguillard later discounted some of these statements by
claiming that he had been lying during the conversation as part of an
interrogation strategy. He also later stated that the decision to arrest Lemoine
was his decision alone.
      After Aguillard had interrogated Lemoine, Aguillard called David Wolfe,
the husband of Judge Wolfe, requesting that he ask his wife to assist the
Detective in setting bail for Lemoine. Aguillard said:
      Listen, we’ve got this guy in custody now . . . . Well, I was hoping
      that maybe your wife could assist with something, maybe make a
      call to somebody for that.

Aguillard discussed the case with David Wolfe explaining that it was “just one
count of cyber stalking is what I’ve got him on.” In his deposition, Aguillard
admitted that he “wanted [the husband] to transmit a message to the Judge.”
The conversation between Aguillard and David Wolfe ended with Aguillard
saying that “Well, whenever I get him booked in and into the jail and I figure
out who the duty judge is, I’ll give you a call back.” Once Aguillard learned the
identity of the duty judge, Aguillard called David Wolfe to relay the
information, with the understanding that Judge Wolfe could contact the duty
judge. At his deposition, Aguillard said that his purpose in calling David Wolfe
was “to see if his wife could get a higher bond put on [Lemoine].”
      The duty judge, Robert Morrison, initially set Lemoine’s bail for the
misdemeanor charge at $25,000. Judge Morrison then quadrupled the bail
amount after receiving a phone call from a person whose identity he could not
remember, though he stated that he “would have remembered” if the identify
of that caller had been Judge Wolfe.       Judge Morrison also imposed the
additional bail requirement that Lemoine wear a GPS tracking bracelet.
Lemoine alleges that he would have been able to post bail but instead was
indefinitely incarcerated because there were no GPS tracking bracelets

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                                  No. 13-30178
available.     Following his arrest, Lemoine, who had been under federal
supervised release on an earlier, unrelated charge, had his conditional
discharge revoked and was recommitted to the custody of a federal medical
center for the next ten months.
      Two days after his arrest for cyberstalking, Lemoine was also charged
with the additional count of soliciting Judge Wolfe’s murder. The charge for
solicitation of murder was based on an accusation by another inmate at the
jail, Brian Register. Register told jail authorities that Lemoine had solicited
Judge Wolfe’s murder and produced fabricated drawings and letters that he
ascribed to Lemoine. After giving these materials to authorities, Register
wrote a letter to Judge Wolfe, on January 5, 2010, identifying himself as the
person who “set up” Lemoine. In this letter, Register asked Judge Wolfe,
“What should [I] tell [the police]?” Register had a criminal case pending in
Judge Wolfe’s court at the time. It is disputed what action Judge Wolfe took
after receiving this letter.   Lemoine alleges that Judge Wolfe sent Nick
Muscarello, a federal public defender, to meet with Register about these
allegations. Judge Wolfe denies this, stating that she only told Muscarello to
advise his client not to write her again. On January 11, 2010, Register sent a
second letter to Judge Wolfe thanking her for sending Muscarello to meet with
him, requesting Judge Wolfe’s assistance in having his bond reduced, and
stating that he could “prove a murder that happened a few years ago.” Judge
Wolfe avers that she gave copies of both letters to the District Attorney. The
originals of the letters were placed at some point into Register’s criminal file,
but no copies of the letters were incorporated into Lemoine’s solicitation for
murder file.    Lemoine’s stepfather found the letters in Register’s file and
provided copies to Lemoine’s attorney. That attorney provided them to the
prosecutor.     Additionally, in the solicitation of murder prosecution, the
incriminating drawings and letters produced to authorities by Register were
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                                          No. 13-30178
subsequently determined by two handwriting experts, one retained by
Lemoine and one retained by the District Attorney, to have been authored by
Register and not Lemoine.
       Lemoine was formally charged by information with cyberstalking and
solicitation of murder on March 12, 2010. Lemoine’s counsel filed a motion of
discovery in the cyberstalking case, and Judge Wolfe signed the order setting
a hearing on the motion. She maintains that she signed this order in error.
On August 24, 2010, a probable cause hearing was held on the solicitation of
murder charge, and the presiding judge found that there was no probable cause
to believe Lemoine committed the charged offense. The presiding judge also
reduced the bail on the cyberstalking charge to the original amount of $25,000
and removed the GPS bracelet condition. In September 2010, the District
Attorney dismissed the cyberstalking charge. 1                    As a result, Lemoine was
released from custody on October 13, 2010.
       The Lemoines brought suit in federal court raising multiple claims
against multiple defendants arising out of these events. The claims included
a Louisiana tort claim for malicious prosecution against Judge Wolfe. Judge
Wolfe moved for summary judgment on the ground that the Lemoines had
failed to establish all of the elements of the malicious prosecution cause of
action. The district court granted summary judgment for Wolfe on the basis
that the Lemoines had failed to show that there was a genuine issue of material
fact on the element of legal causation. The Lemoines filed a Rule 59(e) motion
to alter or amend the judgment contending that the district court had granted
summary judgment on a basis not sufficiently raised by the moving party



1 Citing LA. CODE CRIM. PROC. ANN. art. 691, the motion to dismiss stated, “Due to
information received since the filing of the bill of information . . . there is insufficient credible,
admissible, reliable evidence remaining to support a continuation of [this prosecution].”
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                                         No. 13-30178
because Judge Wolfe had primarily moved for summary judgment on the issue
of bona fide termination and not causation. The district court denied this
motion. The Lemoines filed a timely notice of appeal.
                                                II
           We review the grant or denial of a motion for summary judgment de
novo, applying the same standard as the district court. 2 Summary judgment
is only appropriate “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” 3
“When assessing whether a dispute [as] to any material fact exists, we consider
all of the evidence in the record but refrain from making credibility
determinations or weighing the evidence.” 4 All evidence is reviewed in a light
most favorable to the non-moving party, and all reasonable inferences are
drawn in their favor. 5
           As a federal court sitting in diversity, we look to the final decisions of the
state’s highest court to determine state substantive law. 6 “If a state’s high
court has not spoken on a state-law issue, we defer to intermediate state
appellate court decisions, unless convinced by other persuasive data that the
higher court of the state would decide otherwise.” 7 We review a federal district
court’s determination of state law de novo. 8



2   Trinity Universal Ins. Co. v. Emp’rs Mut. Cas. Co., 592 F.3d 687, 690 (5th Cir. 2010).
3   FED. R. CIV. P. 56(a).
4   Lawyers Title Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d 848, 856 (5th Cir. 2014).
5   Id.
6   Am. Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir. 2003).
7Learmonth v. Sears, Roebuck & Co., 710 F.3d 249, 258 (5th Cir. 2013) (internal quotation
marks omitted).
8Johnston & Johnston v. Conseco Life Ins. Co., 732 F.3d 555, 562 (5th Cir. 2013), cert. denied,
134 S. Ct. 1892 (2014).
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                                        No. 13-30178
                                              III
         The Lemoines first argue that the district court improperly granted
summary judgment sua sponte, on an issue not properly presented to the
district court. The district court granted summary judgment on the basis that
the Lemoines had not shown the existence of a genuine issue of material fact
as to whether Judge Wolfe was a legal cause of the criminal prosecution, one
of the elements of a malicious prosecution claim. The Lemoines argue that
Judge Wolfe did not move for summary judgment on this basis. They contend
that Judge Wolfe moved for summary judgment solely on the ground that the
Lemoines had failed to satisfy a separate element of their claim: bona fide
termination in Scott Lemoine’s favor. The Lemoines raised this issue before
the district court in a Rule 59(e) motion to amend or alter the judgment. The
district court rejected this motion because “[p]laintiffs were on notice that they
needed to respond to each element of the malicious prosecution claim in order
to survive summary judgment.”
         Generally, if a district court “relie[s] on grounds not advanced by the
moving party as a basis for granting summary judgment . . . its judgment
cannot be upheld on appeal.” 9 An exception exists when the district court gives
the non-moving party ten days’ notice that it is considering granting summary
judgment on those grounds. 10 The district court did not give the Lemoines any
notice of its intent to grant summary judgment on the issue of legal causation.
Accordingly, the issue of legal causation must have been raised in a manner




9   John Deere Co. v. Am. Nat’l Bank, Stafford, 809 F.2d 1190, 1191-92 (5th Cir. 1987).
10   Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 641 (5th Cir. 2007).

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                                      No. 13-30178
sufficient to put the Lemoines on notice that failure to present evidence on the
issue could be grounds for summary judgment. 11
            In her motion for summary judgment, Judge Wolfe set forth the six
elements of a Louisiana malicious prosecution claim that the Lemoines would
need to prove at trial. After conceding the first element, that Scott Lemoine
was arrested, the motion states that, “[t]he defendant sets forth that the
plaintiffs lack competent evidence to show proof of the remaining [five]
elements.” The motion then states that “it is most clear that plaintiff cannot
establish the third element of the claim—that there was a ‘bona fide
termination in favor of the present plaintiff.’” The rest of the motion discusses
only the “bona fide termination” element and does not discuss the other four
elements.
            This passing discussion was sufficient to put the Lemoines on notice that
they needed to bring forth evidence on every element of their claim. The
Lemoines rely primarily on John Deere Co. v. American National Bank,
Stafford. 12 In John Deere, a defendant moved for summary judgment solely on
the theory that a prior court judgment had a res judicata effect, barring the
plaintiff’s claims. 13 But the district court granted summary judgment on an
unargued theory: that the plaintiff had produced no evidence of damages. 14 On




11See John Deere, 809 F.2d at 1191-92; see also Celotex Corp. v. Catrett, 477 U.S. 317, 326
(1986) (“[D]istrict courts are widely acknowledged to possess the power to enter summary
judgments sua sponte, so long as the losing party was on notice that she had to come forward
with all of her evidence.”).
12   809 F.2d 1190 (5th Cir. 1987).
13   John Deere, 809 F.2d at 1191.
14   Id.

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                                      No. 13-30178
appeal, this court reversed the summary judgment because the damages issue
“certainly was not raised by the [defendant].” 15
           The present case is not analogous. In John Deere, the district court
granted summary judgment on a tangential theory that neither party had even
cursorily asserted. Here the court granted summary judgment on the basis
that the Lemoines had failed to produce evidence on an essential element of
their claim. Further, this was a ground that the moving party briefed, even if
it was a theory that was only scarcely briefed. While the bulk of the motion
focused on the termination element, the motion stated that the Lemoines had
failed to present competent evidence to show proof of five of the six elements,
including causation. This put the Lemoines “on notice that [they] had to come
forward with [their] evidence.” 16 The district court did not err by granting
summary judgment on a legal basis that was different from the one primarily
advanced by Judge Wolfe.
                                           IV
           The Lemoines’ second argument on appeal is that the district court erred
in granting summary judgment because they produced sufficient evidence to
raise genuine issues of material fact on each element of a Louisiana malicious
prosecution claim. Under Louisiana law, a malicious prosecution claim arising
from a criminal proceeding has six elements: (1) the commencement or
continuance of an original criminal proceeding; (2) its legal causation by the
present defendant against the plaintiff who was the defendant in the original
proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the
absence of probable cause for such proceeding; (5) the presence of malice




15   Id.
16   Catrett, 477 U.S. at 326.

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                                          No. 13-30178
therein; and (6) damages to the plaintiff. 17 Judge Wolfe concedes that the first
element is satisfied, but contests the remaining five elements. We conclude
that the Lemoines have presented sufficient evidence on four of those five
elements to avoid summary judgment and certify a question to the Louisiana
Supreme Court on the remaining element: whether the dismissal of Scott
Lemoine’s prosecution constituted a bona fide termination in his favor. Before
addressing the issue of certification we resolve the legal contentions regarding
the other elements of the claim.
                                                 A
          The district court held that the Lemoines had failed to raise a genuine
issue of material fact as to whether Judge Wolfe was a legal cause of the
commencement of the criminal proceeding against Scott Lemoine.                                 In
discussing this issue, the district court simply stated that, “Judge Wolfe’s
actions with regard to malicious prosecution did not meet the second element
[legal causation].”
          Under Louisiana law, when a malicious prosecution claim is brought
against a civilian–complainant, “[a]n independent investigation by law
enforcement of [the complaint] may break the chain of causation between the
complaint and the ultimate commencement of a criminal proceeding.” 18
Accordingly, citizens who “merely report[] their observations to police officers,”
spurring the police officers to conduct their own investigation, are not usually
the legal cause of criminal prosecution. 19 But if the “record shows broad




17   Miller v. E. Baton Rouge Parish Sheriff’s Dep’t, 511 So. 2d 446, 452 (La. 1987).
18 LeBlanc v. Pynes, 46,393 (La. App. 2 Cir. 7/13/11); 69 So. 3d 1273, 1281; see also Kennedy
v. Sheriff of E. Baton Rouge, 2005-1418 (La. 7/10/06); 935 So. 2d 669, 690 n.20.
19   Banks v. Brookshire Bros., Inc., 93-1616 (La. App. 3 Cir. 6/1/94); 640 So. 2d 680, 682.

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                                          No. 13-30178
reliance on the facts provided by the [civilian–complainant] and only limited
independent inquiry by the police,” that is enough to show legal causation. 20
          If Judge Wolfe were situated merely as an ordinary civilian in this case,
she could not be sued for malicious prosecution under Louisiana law. There
was not broad reliance on the facts provided by Judge Wolfe. Judge Wolfe was
one of three individuals who complained to Detective Aguillard about
Lemoine’s internet posts. Further, Aguillard had the opportunity to review the
internet posts himself and admitted that he conducted his own investigation
and made the decision to arrest Lemoine on his own.
          But Judge Wolfe did not act as an ordinary civilian in this case. Rather,
the Lemoines have presented substantial circumstantial evidence that Judge
Wolfe used her position as a state court judge to influence the direction and
scope of the police investigation and to ensure that Lemoine was not only
arrested but was hampered in making bail. During his interrogation of Scott
Lemoine, Aguillard admitted that Lemoine’s actions “put pressure on
[Aguillard]” because he had “involved these judges.” Aguillard also testified
that Judge Wolfe made it clear to him, “in no uncertain terms” that (1) she
wanted Lemoine arrested; and that (2) in her judgment as an officer of the law,
there was probable cause to charge him. Once Aguillard arrested Lemoine, he
called Judge Wolfe’s husband twice to inform him of the status of the case and
to seek assistance in setting a bond that would make it more difficult for
Lemoine to make bail. Aguillard also warned Lemoine that he needed to
refrain from posting internet messages on Daniel’s behalf and could interpret
this warning as an “order from the Court.” At that time, the only court he could
have possibly been referring to was the one presided over by Judge Wolfe.



20   Craig v. Carter, 30,625 (La. App. 2 Cir. 9/23/98); 718 So. 2d 1068, 1070-71.

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                                       No. 13-30178
       Read together, there is at least a plausible understanding of the facts
that absent Judge Wolfe’s active involvement in the investigation and
prosecution of Scott Lemoine, as well as the perceived pressure applied by
Judge Wolfe, Aguillard would not have prosecuted this case. It is true that
Aguillard may have conducted a “limited independent inquiry” into the facts of
the case. But it is only an independent investigation that severs the chain of
causation that links a complainant to a prosecution. Here, the evidence—from
the determination of probable cause to the interrogation to the setting of the
bail—creates a genuine issue of material fact as to whether Aguillard’s
investigation was independent of Judge Wolfe’s influence. Complainants may
be liable under a theory of malicious prosecution if they improperly motivate a
prosecution without probable cause or apply political pressure to bring about
such a wrongful prosecution. 21 The Lemoines have presented such evidence.
The Lemoines have presented sufficient evidence to cast doubt on the
independence of Aguillard’s investigation in order to avoid judgment as a
matter of law on this issue. 22




21 See, e.g., Hartman v. Moore, 547 U.S. 250, 262-63 (2006) (stating that plaintiff could
overcome presumption of independent judgment by prosecutor by showing pressure by police
and citing favorably Barts v. Joyner, 865 F.2d 1187, 1195 (11th Cir. 1989) (plaintiff seeking
damages incident to her criminal prosecution would have to show that police unduly
pressured or deceived prosecutors), Dellums v. Powell, 566 F.2d 167, 192-93 (D.C. Cir. 1977)
(where allegation of misconduct is directed at police, a malicious prosecution claim cannot
stand if the decision made by the prosecutor to bring criminal charges was independent of
any pressure exerted by police)); Whittington v. Maxwell, No. 08-1418, 2011 WL 1304468, at
*1, *5 (W.D. La. Mar. 31, 2011) (denying summary judgment on a malicious prosecution claim
because there was evidence that the defendant used his influence as the sheriff to get the
plaintiff, a former political opponent, arrested).
22See Lawyers Title Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d 848, 856 (5th Cir. 2014)
(“When assessing whether a dispute [as] to any material fact exists, we consider all of the
evidence in the record but refrain from making credibility determinations or weighing the
evidence.”).

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                                         No. 13-30178
                                                B
          The Lemoines have presented sufficient evidence to avoid summary
judgment on the issue of whether the investigation and arrest of Scott Lemoine
lacked probable cause. “[T]he crucial determination in regard to the absence
of probable cause is whether the defendant had an honest and reasonable belief
in the guilt of the plaintiff.” 23 “The appearances must be such as to lead a
reasonable person to set the criminal process in motion; unfounded suspicion
and conjecture will not suffice.” 24 “When determining whether a reasonably
cautious person would have believed that a violation occurred, we consider the
expertise and experience of law enforcement officials.” 25                   Finally, if “the
prosecuting officer has dismissed the charge . . . there is a presumption of want
of probable cause with the result that, in a suit for malicious prosecution based
on that discharge, the burden of showing that he acted on probable cause and
without malice is upon the defendant.” 26
          The district attorney dismissed the cyberstalking charge because there
was “insufficient credible, admissible, reliable evidence remaining to support
a continuation of the prosecution.” 27 This creates a presumption that the
prosecution was without probable cause, a presumption that Judge Wolfe has
failed to rebut. In her briefing and at oral argument, Judge Wolfe focused



23Smith v. State ex rel. Dep’t of Admin., 96-0432 (La. App. 1 Cir. 5/9/97); 694 So. 2d 1184,
1188.
24   Miller v. E. Baton Rouge Parish Sherriff’s Dep’t, 511 So. 2d 446, 452-54 (La. 1987).
25Piazza v. Mayne, 217 F.3d 239, 246 (5th Cir. 2000) (evaluating probable cause in a
Louisiana malicious prosecution claim).
26 Hope v. City of Shreveport, 37,759 (La. App. 2 Cir. 12/17/03); 862 So. 2d 1139, 1143; see also
Keppard v. AFC Enters., Inc., 2000-2474 (La. App. 4 Cir. 11/28/01); 802 So. 2d 959, 965
(“[W]hen the prosecution dismisses a charge, there is a presumption of want of probable
cause . . . .”).
27   See LA. CODE CRIM. PROC. ANN. art. 691.

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                                    No. 13-30178
solely on the fact that an independent magistrate signed the arrest warrant.
But an arrest warrant is not a cloak of invulnerability for a complainant in a
malicious prosecution case. If the existence of an arrest warrant immunized a
wrongful complainant then there would be extremely few viable malicious
prosecution cases. The issuance of the arrest warrant, by itself, is insufficient
to rebut the Louisiana presumption that there was not probable cause when
Judge Wolfe recommended to Detective Aguillard that he arrest Scott
Lemoine.
       But even if we agreed that the issuance of an arrest warrant rebutted
the presumption of a lack of probable cause, there is ample evidence in the
record to create a genuine issue of material fact as to whether Judge Wolfe
acted unreasonably and without an honest belief of the guilt of Scott Lemoine.
As a state court judge, we consider Judge Wolfe’s expertise and experience in
determining whether a reasonable person in her position would have believed
there was probable cause. 28 Detective Aguillard testified in his deposition that
Judge Wolfe made it plain to him, “in no uncertain terms,” that she believed
there was probable cause to arrest Scott Lemoine. 29 Yet in her deposition,
Judge Wolfe was unable to articulate which count of cyberstalking that she
believed Lemoine had committed nor was she able to point to a single, specific
statement that she thought violated that statute.
       Further, looking at the statute and Louisiana case law, it is clear that
none of the allegedly harassing statements could satisfy counts of conviction
under the statute:


28Piazza, 217 F.3d at 246 (“When determining whether a reasonably cautious person would
have believed that a violation occurred, we consider the expertise and experience of law
enforcement officials.”).
29Judge Wolfe only admits that she “may have” discussed probable cause with Detective
Aguillard.

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                                     No. 13-30178
       B. Cyberstalking is action of any person to accomplish any of the
       following:
       ...
       (2) Electronically mail or electronically communicate to another
       repeatedly, whether or not conversation ensues, for the purpose of
       threatening, terrifying, or harassing any person.

       (3) Electronically mail or electronically communicate to another
       and to knowingly make any false statement concerning death,
       injury, illness, disfigurement, indecent conduct, or criminal
       conduct of the person electronically mailed or of any member of the
       person’s family or household with the intent to threaten, terrify, or
       harass. 30

       Only one statement arguably violated this statute.                  Most of the
statements concern Daniel Hoover’s visitation rights and financial concerns
and obligations.      The only potentially incriminating language was in a
communication sent by Scott Lemoine to third parties which stated that he
wanted to “tie [Lori] down and call an exorcist.” While inconsiderate, such a
childish insult cannot form the foundation of a criminal charge. The Lemoines
have produced sufficient evidence that Judge Wolfe, a state court judge,
encouraged the prosecution and informed the investigating detective that
there was probable cause to arrest Scott Lemoine despite the fact that she
could not point to a single statement that allegedly violated the statute. The
evidence creates a genuine issue of material fact as to whether Judge Wolfe
had an “honest and reasonable belief” that there was probable cause to arrest
Scott Lemoine.




30LA. REV. STAT. ANN. § 14:40.3. Based on the text and the record neither subsection (1) or
(4) would seem to be applicable in this case.

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                                          No. 13-30178
                                                 C
          Similar to probable cause, Louisiana creates a presumption of malice if
a prosecutor has dismissed the charges. 31 “Any feeling of hatred, animosity, or
ill will toward the plaintiff . . . amounts to malice. But it is not essential to
prove such ill will.” 32 Malice may be inferred when there is a lack of probable
cause or when the defendant acted in reckless disregard of the other person’s
rights. 33      Further, malice may also be found if “the defendant uses the
prosecution for the purpose of obtaining any private advantage.” 34                          Like
probable cause, since the determination of malice is a question of fact, the issue
should be determined by the trier of fact unless only one conclusion may be
reasonably drawn from the evidence. 35
          The Lemoines argue that they have satisfied the element of malice.
First, there is the presumption of malice that arises if there is no probable
cause. Second, they argue that there was evidence of Judge Wolfe’s ill will or
bad faith. Judge Wolfe initially pressed for the prosecution of Scott Lemoine
on dubious charges, and she protested when the prosecutor decided to dismiss
the case.       After the District Attorney told Judge Wolfe that he would be
dismissing the charges, Judge Wolfe admitted that she was upset—not
necessarily because she thought he was guilty—but because, “I felt like we




31Hope, 862 So. 2d at 1143 (“[T]he dismissal of the prosecution gives rise to the presumption
of a lack of probable cause and shifts [the] burden to the defendants to show that [the
defendant] acted on probable cause and without malice . . . .”).
32 Miller v. E. Baton Rouge Parish Sheriff’s Dep’t, 511 So. 2d 446, 453 (La. 1987) (internal
citations omitted).
33   Id.; see also Morin v. Caire, 77 F.3d 116, 122 (5th Cir. 1996).
34Jalou II, Inc. v. Liner, 2010-0048 (La. App. 1 Cir. 6/6/10); 43 So. 3d 1023, 1040 (citing Miller,
511 So. 2d at 452).
35   Miller, 511 So. 2d at 453.

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                                      No. 13-30178
were going to be in a federal lawsuit if they didn’t do something . . . . I thought
we were going to be in a federal lawsuit, just as we are today, if they just
dismissed the case without going forward.”              Urging the continuation of a
prosecution for this purely private benefit satisfies the element of malice.
       Finally, there is circumstantial evidence that Judge Wolfe may have
intervened in changing the bail conditions for Scott Lemoine to imprison him
indefinitely. Scott Lemoine’s bail was quadrupled after Detective Aguillard
placed a phone call to Judge Wolfe’s husband to discuss setting a higher bail.
The magistrate also imposed the GPS bracelet condition when he increased the
amount of bail. Since no GPS tracking bracelet was available, this effectively
meant that Scott Lemoine was held without bond. The magistrate judge stated
that his decision to impose these requirements was not the result of Judge
Wolfe’s influence, but there is enough evidence to raise a genuine issue of
material fact on this issue. This does not seem to be a case where Judge Wolfe
“merely reported” suspected criminal activity to law enforcement. 36 Rather,
there is circumstantial evidence that she was involved in the prosecution and
imprisonment of Scott Lemoine in a personal and direct way. The evidence
presented “does not preclude the determination that . . . malice was present.” 37
Nor has Judge Wolfe presented any evidence that rebuts the presumption of
malice under Louisiana law. Therefore, summary judgment on this element
would be inappropriate as well.




36Jalou II, Inc., 43 So. 3d at 1040 (no malice where defendants “merely reported their
suspicions to law enforcement personnel”).
37Smith v. State ex rel. Dep’t of Admin., 96-0432 (La. App. 1 Cir. 5/9/97); 694 So. 2d 1184,
1188-89.

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                                          No. 13-30178
                                                D
          The Lemoines have created a genuine issue of fact regarding damages.
Scott Lemoine was arrested for cyberstalking as a result of this prosecution.
The portion of his incarceration in state custody was solely due to the
prosecution of his cyberstalking charge. This represents sufficient evidence of
damages to avoid summary judgment. 38
                                                E
          This leaves one remaining element that the Lemoines must satisfy to
avoid summary judgment: whether the dismissal of his charge counts as a bona
fide termination of the prosecution in his favor. As this question presents an
issue of state law that is unanswered by the Louisiana Supreme Court, the
United States Court of Appeals for the Fifth Circuit, on its own motion, invokes
Louisiana Supreme Court Rule XII.                    Louisiana Supreme Court Rule XII
provides for certification to that court when there are “questions or
propositions of law of [Louisiana] which are determinative of said cause . . .
[and] there are no clear controlling precedents in the decisions of the supreme
court of [Louisiana].” 39 Certification may be invoked by “any circuit court of
appeal of the United States upon its own motion.” 40 While we are aware that
“[c]ertification is not a panacea for resolution of those complex or difficult state
law questions which have not been answered by the highest court of the
state,” 41 we nevertheless conclude that certification is advisable in this case




38   E.g., Watson v. Church’s Fried Chicken, Inc., 527 So. 2d 979, 980 (La. Ct. App. 1988).
39   LA. SUP. CT. R. XII § 1.
40   Id. § 2.
41 In re Katrina Canal Breaches Litig., 613 F.3d 504, 509 (5th Cir. 2009) (alteration in
original) (quoting Transcon. Gas Pipeline Corp. v. Transp. Ins. Co., 958 F.2d 622, 623 (5th
Cir. 1992)).

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                                          No. 13-30178
because “important state interests are at stake and the state courts have not
provided clear guidance on how to proceed.” 42
          Because we have held that the Lemoines have produced sufficient
evidence of every other element of a malicious prosecution action to avoid
summary judgment, the dispositive issue in this case is whether the dismissal
of Scott Lemoine’s criminal cyberstalking prosecution under Louisiana Code of
Criminal Procedure article 691 constituted a bona fide termination in his favor.
The Louisiana Supreme Court has not answered this question directly. There
are conflicting cases from the turn of the twentieth century that suggest
opposite conclusions. 43 This Court did hold in Deville v. Marcantel 44 that a
“procedural dismissal of the charges, even if the dismissal is with prejudice,
does not satisfy [the bona fide termination] element of the cause of action.” 45
This conclusion constituted an Erie guess that relied upon and extended the
holding of the Louisiana Supreme Court case of Savoie v. Rubin. 46 Savoie did
not state that a nolle prosse could not function as a bona fide termination.
Rather, Savoie held that a dismissal with prejudice for improper venue could
not be “equated to a bona fide termination of the underlying litigation.” 47 The
court reached this result because it found that the “obvious purpose of the bona
fide termination requirement” was that the “underlying litigation . . . be


42   Id. (quoting Free v. Abbott Labs., Inc., 164 F.3d 270, 274 (5th Cir. 1999)).
43Compare Banken v. Locke, 66 So. 763, 764 (La. 1914) (“In this instance it appears that the
prosecution had terminated in a nolle prosequi entered by the district attorney; and plaintiff
therefore had the right to institute this suit in damages.”), with Irby v. Harrell, 74 So. 163,
163 (La. 1917) (holding that a procedural dismissal, which does not bar subsequent
prosecution, does not satisfy bona fide termination requirement).
44   567 F.3d 156 (5th Cir. 2009) (per curiam).
45   Deville, 567 F.3d at 173.
46   2001-3275 (La. 6/21/02); 820 So. 2d 486.
47   Savoie, 820 So. 2d at 489 (internal quotation marks omitted).

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                                         No. 13-30178
brought to a conclusion on the merits before a malicious prosecution suit . . . is
allowed to proceed.” 48 In Deville, we understood this language to intimate that
only a judgment on the merits could serve as a bona fide termination and a
nolle prosse was not judgment on the merits but simply a unilateral dismissal
of the charge by the prosecutor. 49
          But the Erie guess ventured by the panel in Deville is problematic. First,
it contradicts the conclusions of a number of Louisiana circuit courts.
Louisiana circuit courts have repeatedly found that a district attorney’s
dismissal of a prosecution under article 691 satisfies the bona fide termination
element of a malicious prosecution claim. 50 These cases both predate and
postdate the Louisiana Supreme Court’s decision in Savoie and our decision in
Deville. 51 While interpretations of Louisiana law by state circuit courts are not
binding on this circuit if we find them unpersuasive or determine that the
state’s high court would decide the issue differently, 52 the amount of contrary



48   Id. at 488 (internal quotation marks omitted).
49   Deville, 567 F.3d at 173.
50E.g., LeBlanc v. Pynes, 46,393 (La. App. 2 Cir. 7/13/11); 69 So. 3d 1273, 1281 (“A nolle
prosequi has been held to constitute a bona fide termination.”); Hope v. City of Shreveport,
37,759 (La. App. 2 Cir. 12/17/03); 862 So. 2d 1139, 1143 (“There was also a bona fide
termination of the criminal proceedings in favor of Hope as a result of the dismissal of the
prosecution against Hope by the district attorney.”); Amos v. Brown, 36,338 (La. App. 2 Cir.
9/18/02); 828 So. 2d 138, 142-43 (holding that a nol pros because of abandonment by the
complainant/victim was a bona fide termination after Savoie); Watson v. Church’s Fried
Chicken, Inc., 527 So. 2d 979, 981 (La. Ct. App. 1988) (Williams, J., concurring) (“[T]he
charges were dismissed. This constituted a termination, indeed a bona fide termination, of
the proceedings against him.”); Allen v. State, 456 So. 2d 679, 683 (La. Ct. App. 1984) (stating
that “the evidence clearly reveals that the charges were dismissed by the district attorney
prior to trial” and that this met the element of bona fide termination).
51Compare LeBlanc, 69 So. 3d at 1281 (decided after both Savoie and Deville), Hope, 862 So.
2d at 1143 (decided after Savoie but before Deville), and Amos, 828 So. 2d at 142 (same), with
Watson, 527 So. 2d at 981 (decided before both), and Allen, 456 So. 2d at 683 (same).
52See Learmonth v. Sears, Roebuck & Co., 710 F.3d 249, 258 (5th Cir. 2013) (“If a state’s high
court has not spoken on a state-law issue, we defer to intermediate state appellate court
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                                         No. 13-30178
circuit precedent in Louisiana brings into question the integrity of our holding
in Deville.
          Not only is the wealth of contradictory circuit precedent troubling, but
so too are the consequences of a conclusion that only a judgment on the merits
can serve as the basis of a malicious prosecution claim. While it is true that
not all frivolous prosecutions are terminated before reaching trial, it is
reasonable to suspect that a number of malicious prosecutions are dismissed
once the district attorney realizes the weaknesses of the case. To say that such
a dismissal can never form the basis of a malicious prosecution claim simply
because the prosecutor elected to dismiss the groundless prosecution rather
than proceed with a fruitless trial would cut off the right of recovery from a
great number of wrongfully prosecuted defendants. For example, in a case
such as this one, the dismissal served almost as a determination of the merits.
The dismissal of Scott Lemoine’s cyberstalking charge was expressly based on
the fact that the district attorney had determined that there was “insufficient
credible, admissible, reliable evidence remaining to support a continuation of
the prosecution.” 53
          We have previously held that intervening circuit court opinions may, in
certain situations, permit one panel of the court to overrule a prior panel’s
interpretation of state law. 54 However, rather than perform a second Erie
guess based on these circuit cases, given that this case presents an issue of
Louisiana law that will be dispositive in this appeal and that has not yet been




decisions, unless convinced by other persuasive data that the higher court of the state would
decide otherwise.”) (internal quotation marks omitted).
53   See LA. CODE CRIM. PROC. ANN. art. 691.
54   See, e.g., Farnham v. Bristow Helicopters, 776 F.2d 535, 537-38 (5th Cir. 1985).

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                                No. 13-30178
determined by the Louisiana Supreme Court, we elect instead to invoke the
certification privilege granted to us by Louisiana Supreme Court Rule XII.
      We certify the following question to the Louisiana Supreme Court:
      1. 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?

      If the Louisiana Supreme Court accepts this certificate, its answer will
determine the outcome of this appeal. We do not intend to confine the reply of
Louisiana Supreme Court to the precise form or scope of the legal question
certified. We retain cognizance of this appeal while it is pending before the
Louisiana Supreme Court and transfer the record and appellate briefs with our
certification to the Supreme Court of Louisiana.
                                *     *      *
      QUESTION CERTIFIED.




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