                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 10-2242


CLYDE L. BENNETT,

                 Plaintiff - Appellee,

           v.

R&L CARRIERS SHARED SERVICES, LLC; DAVID JOHN MCGINNIS, SR.,

                 Defendants - Appellants,

           and

R   L    CARRIERS,   INCORPORATED, a/k/a   R&L   Carriers,
Incorporated, a/k/a R L Carriers, a/k/a R&L Carriers;
FRANKLIN FINLEY; JAY BULLARD; DAVID LOWRY; GREENWOOD MOTOR
LINES, INCORPORATED,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   Robert E. Payne, Senior
District Judge. (3:08-cv-00498-REP)


Argued:   January 26, 2012                   Decided:   June 21, 2012


Before AGEE, DAVIS, and FLOYD, Circuit Judges.


Affirmed by unpublished opinion. Judge Davis wrote the majority
opinion, in which Judge Floyd joined. Judge Agee wrote a
dissenting opinion.
ARGUED: Daniel A. Pollack, MCCARTER & ENGLISH, LLP, New York,
New York, for Appellants.     John Barry Donohue, Jr., THE LAW
OFFICE OF JOHN BARRY DONOHUE, JR., Richmond, Virginia, for
Appellee.   ON BRIEF: Frank E. Ferruggia, Edward T. McDermott,
Steven A. Beckelman, Laura Leacy Kyler, MCCARTER & ENGLISH, LLP,
New York, New York, for Appellants. James B. Thorsen, MARCHANT,
THORSEN, HONEY, BALDWIN & MEYER, LLP, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
DAVIS, Circuit Judge:

      After      a    three-day    trial       in    the   Eastern     District    of

Virginia, a jury found Appellants R&L Carriers Shared Services,

LLC (R&L), and David J. McGinnis, Sr., liable to, and returned a

substantial damages verdict in favor of, Appellee Clyde Bennett

on Bennett’s claim for malicious prosecution. Bennett, a former

employee of R&L, had been arrested and indicted on a charge of

embezzlement based on Appellants’ allegations that he had stolen

three computers from the workplace, a trucking terminal.

      Bennett’s       claim    arose   under        Virginia    law,   pursuant   to

which, “[i]n an action for malicious prosecution, the plaintiff

has   the    burden    of    proving   four    essential       elements:   that   the

prosecution was (1) malicious, (2) instituted by or with the

cooperation of the defendant, (3) without probable cause, and

(4) terminated in a manner not unfavorable to the plaintiff.”

Reilly v. Shepard, 643 S.E.2d 216, 218 (Va. 2007). Appellants

contend before us that the evidence at trial was insufficient as

a matter of law to support the jury’s verdict as to elements

(1), (3), and (4). They contend, in the alternative, that the

amount of the verdict ($1,716,920 in compensatory damages and a

total,      as   remitted,    of   $350,000     in    punitive    damages)   is    so

excessive as to require, at a minimum, a new trial on damages.

      The district court rejected Appellants’ contentions as to

the sufficiency of the evidence at the close of plaintiff’s case


                                           3
and again, in a meticulously-reasoned and comprehensive opinion,

see Bennett v. R & L Carriers Shared Servs., LLC, 744 F. Supp.

2d 494 (E.D. Va. 2010), when they were renewed in a post-verdict

motion under Fed. R. Civ. P. 50(b). The district court remitted

the original punitive damages claim (as required by Virginia

law), but otherwise it also rejected Appellants’ motion for a

new trial under Fed. R. Civ. P. 59. We have carefully considered

Appellants’   contentions    and    discern    no   reversible    error.

Accordingly, we affirm the judgment.



                                   I.

     We first consider Appellants’ contention that the district

court erred in submitting this case to the jury, in light of

what they argue was insufficient evidence to support elements of

Bennett’s claim. We then examine Appellants’ contention that the

jury’s   damages   award   (as   remitted)    exceeds   the   bounds   of

propriety.

     Our approach to appellate challenges to a jury verdict and

a district court’s concomitant denial of a motion for judgment

is well-settled:

     We review de novo a district court’s denial of a Rule
     50 motion for judgment as a matter of law. Bryant v.
     Aiken Reg’l Med. Ctrs. Inc., 333 F.3d 536, 543 (4th
     Cir. 2003). Pursuant to Rule 50, the issue for
     assessment on appeal is whether there was a legally
     sufficient evidentiary basis for a reasonable jury,
     viewing the evidence in the light most favorable to


                                   4
       the prevailing party, to find for that party. Fed. R.
       Civ. P. 50(a); Bryant, 333 F.3d at 543. If reasonable
       minds could differ about the verdict, we are obliged
       to affirm. [Id.] As with other legal rulings, we
       review de novo the conclusions of law on which a trial
       court’s denial of judgment as a matter of law is
       premised. See Benner v. Nationwide Mut. Ins. Co., 93
       F.3d 1228, 1233 (4th Cir. 1996). And we are obliged to
       accord substantial deference to a district court’s
       interpretation of its own judgment. See Home Port
       Rentals, Inc. v. Ruben, 957 F.2d 126, 131 (4th Cir.
       1992).

ABT    Bldg.    Prods.      Corp.    v.       Nat'l    Union   Fire   Ins.   Co.    of

Pittsburgh, Pa., 472 F.3d 99, 113 (4th Cir. 2006). Guided by

these principles, and according “substantial deference,” id., as

we must, to the district court’s searching interpretation of the

record supporting the judgment, we are constrained to reject

Appellants’ contentions. In rejecting Appellants’ contentions,

we    fully    embrace,     and     quote      extensively,     the   comprehensive

opinion of the district court.

                                              A.

       Based on all the evidence admitted at trial, and drawing

all reasonable inferences in favor of Bennett as the prevailing

party, the jury was entitled to make the following findings.

       R&L Carriers is a national shipping company that, among

other services, manages and completes shipments of various goods

at trucking terminals throughout the country. As of March 2006,

Bennett, who was fifty-years-old, had been employed for more

than   two     years   by   R&L     as    a    night   shift   supervisor    at    the



                                              5
Colonial    Heights,       Virginia,     terminal,        located       outside    of

Richmond (the Richmond terminal). Bennett was responsible for

overseeing the proper loading and unloading of shipments into

and out of tractor trailers and other vehicles by dockworkers.

     On    Friday,    March    3,    2006,   R&L   discovered         that   thirteen

laptop    computers    had    gone   missing    while      passing     through    the

Richmond terminal en route to their final delivery in Miami,

Florida. Two dockworkers, Conan Spangler and Joseph Mitchell,

had handled the transfer of the laptop shipment from one tractor

trailer    to   another;     inexplicably,      they      completed     conflicting

records    as   to   whether   the    laptops      were    on   the    inbound    and

outbound trucks. Specifically, Spangler recorded the laptops as

not received on the inbound tractor trailer from Newark, New

Jersey, while Mitchell, essentially working alongside Spangler,

recorded the laptops as safely loaded on the sealed outbound

tractor    trailer.    When    the    tractor      trailer      was    unsealed    in

Jacksonville, Florida, the laptops were not onboard.

     A couple of weeks later, on March 17, 2006, another theft

occurred from the dock at the Richmond terminal. Six (of a total

of 96) Hewlett Packard computer towers that had been delivered

locally were returned to the terminal because their packaging

had been damaged and, although they were functionally sound, the

computers were rejected by the consignee. The towers were placed

in the “Over, Short, and Damaged” (OS&D) area of the dock. This


                                         6
was “an open area delineated by stanchions and rope.” J.A. 668.

By Sunday, March 19, 2006, two days after being placed there,

three of the six towers were missing from OS&D. (As explained

infra,     Appellants’         procured      Bennett’s        arrest      and    indictment

based on their contention that Bennett stole the three computer

towers.)

      Faced     with     two     apparent      thefts        within     two     weeks,     the

manager    of   the     Richmond       terminal,        Franklin       Finley,      contacted

R&L’s director of operations for the southeast United States,

Jay Bullard, and informed him that the company was “missing some

computers.” J.A. 668. Bullard directed Finley to confirm that

the   computers        could     not    be    accounted          for   anywhere      on    the

delivery line, and once Finley did so Bullard contacted R&L’s

regional security investigator, Appellant McGinnis. McGinnis had

retired in or about 2002 as a police officer after a 21 year

career with the Atlanta, Georgia, police department. Following

his   retirement,       he     had   joined       R&L   as   a    truck      driver.      After

working as a driver for two years, in light of his extensive law

enforcement background and his investigative experience, he was

named    regional       security       investigator          when      the    R&L   security

division expanded.

      McGinnis arrived at the terminal from Atlanta on Monday,

March 27, 2006, aware only of the first theft, i.e., the theft

of the thirteen laptops. His review of the shipping documents


                                              7
related to the laptops confirmed that they had been on the truck

inbound   to   Richmond   and   were   missing       after   the   shipment    was

supposed to be transferred from one truck to another by Spangler

and Mitchell. Understandably, McGinnis’s suspicions immediately

focused on “those two individuals right there [i.e., Spangler

and Mitchell].” J.A. 318. McGinnis asked Bullard and Finley ”who

they considered to be prime suspects,” J.A. 778, and the men

identified     dockworkers   Spangler,      Mitchell,        and   David     Lowrey

”because of their computer knowledge and activities and the fact

that two of the individuals had direct contact with . . . the

missing   shipments.” 1   J.A.    778.     It   is    unclear      exactly     when



     1
       In one of several telling aspects of these proceedings,
McGinnis prepared an investigative report for R&L in April 2006,
upon his return to his Atlanta office. The investigative report
was introduced at trial and thus amounted to substantive
evidence,   i.e.,   a  series  of  admissions,   by  Appellants.
Remarkably,   several  statements  made   by  McGinnis   in  the
investigative report deviated from, and indeed, contradicted,
McGinnis’s trial testimony.

     One of the most striking contradictions related to the
identity of those persons having “a lot of computer knowledge.”
Although McGinnis testified at trial that he had asked only for
the names of people who Bullard and Finley “might suspect. . .
that [have] a lot of computer knowledge,” J.A. 320, his
investigative report indicates that he asked only about who the
men “considered to be prime suspects.” J.A. 778. In any event,
the record shows that despite McGinnis’s testimony on direct
examination that Spangler, Lowrey and Bennett were named
initially, his own investigative report identified Spangler,
Mitchell and Lowrey (not Bennett). Plainly, as the district
court   observed,   the  jury   was   entitled   to  credit  the
investigative report rather than McGinnis’s trial testimony.




                                       8
McGinnis became aware of the missing computer towers, i.e., the

second incident of workplace theft, but after his arrival in

Richmond he was soon so. 2 As with the laptops, McGinnis confirmed

that the towers had in fact arrived at the terminal before their

disappearance.

      McGinnis     then       began   to    interview      employees.    First,       he

interviewed Lowrey, for “no more than ten minutes,” about the

missing computers. J.A. 323. Lowrey said he did not know where

the   computers        were    or   who    might   have    taken     them.    McGinnis

encouraged him to come forward with any information and informed

him that R&L’s “silent witness” program provided rewards for

tips that lead to arrests and convictions for employee theft. 3

      McGinnis also interviewed Bennett, who similarly denied any

knowledge of where the missing computers were or who might have

taken     them.   McGinnis      did   not   believe     that   Bennett       was   being

forthcoming       in    this    interview       based     on   his   assessment      of



      2
       Understandably, during the trial the district judge urged
defendants’ counsel to maintain clarity as to whether particular
testimony was being offered about the laptop computer theft or
the desktop computer tower theft. Counsel for R&L explained that
testimony about the laptops was important because at the
preliminary stage of the investigation, McGinnis “had no idea
whether the same people were involved in the 13 as the three.”
J.A. 331.
      3
       McGinnis’s investigative report indicates that Lowrey “was
questioned more intensely” than the others “because of his
reported computer knowledge.” J.A. 779.




                                            9
Bennett’s “mannerisms.” J.A. 324. He asserted that, “I could not

make eye contact with him. It was like he was just a robot. Just

his answers were just, I don’t know, I just had a bad feeling

that he wasn’t tell me everything that he knew.” J.A. 324-25.

      At   some    point    during    this   first   day   of   investigation,

McGinnis also interviewed Mitchell, one of the dockworkers who

completed conflicting records about the transfer of the thirteen

laptops from one trailer to another. Mitchell claimed to have

simply made a mistake on the paperwork and offered no further

explanation       or   information.     McGinnis’s      investigative     report

recorded that, “Of all the employees questioned that evening,

all denied any involvement. However, the mannerisms of Mitchell,

Lowrey, and Bennett left me with a feeling that they were not

being truthful.” J.A. 779-80.

      The next day, Tuesday, McGinnis interviewed Spangler, who

had worked with Mitchell handling the laptop shipment and whose

paperwork contradicted his. Spangler was “real, real evasive”

and “real arrogant” when questioned about the paperwork, and

claimed no knowledge of where the laptops or the towers might

be.   J.A.    327-28.      That   evening    McGinnis    questioned     Spangler

again, becoming “more intense” about the discrepancies between

his records and Mitchell’s records for the laptops. J.A. 330.

Ultimately, during this “intense” interrogation, McGinnis told

Spangler, “I feel like you and Mr. Mitchell took those laptops .


                                        10
. . . I can’t prove it, but I am going to stay here until I can,

because they went somewhere.” J.A. 332. McGinnis’s report noted

that Spangler was “definitely deceptive,” and that:

       Based on Spangler’s demeanor, I advised him that I
       felt he WAS involved, and further, I intended to
       pursue the matter until I could prove his involvement
       and have him arrested and placed in jail. I then
       advised him that when that happened, he would most
       certainly ask for consideration from me, which I would
       NOT offer him.

J.A. 780 (emphases in original).

       After       this   second     interrogation       of   Spangler,    McGinnis

received       a   call   from     Spangler’s    wife.    Spangler’s      wife   told

McGinnis that Spangler had come home and stated he was possibly

going to jail for stealing the three tower computers but she

said       nothing    about   the    thirteen    laptops      that   McGinnis     had

actually questioned Spangler about earlier that day. Further,

Mrs.       Spangler   told    McGinnis   that,    according     to   her   husband,

Spangler did not steal the tower computers but he knew that

Bennett and Lowrey did steal them. 4 McGinnis told Mrs. Spangler

to call her husband, who was then at work at the terminal, and

instruct him to leave under the pretense of a family emergency

and meet McGinnis at a nearby truck stop.

       4
        In an extended exchange with the court, Appellants’
counsel agreed that Mrs. Spangler’s statements to McGinnis could
not be treated by the jury as substantive evidence of Bennett’s
involvement in the theft of the tower computers. All agreed her
statements constituted “double hearsay.” J.A. 335.




                                          11
       Mrs. Spangler did as she was told and McGinnis met Spangler

at the truck stop. Spangler promptly told McGinnis that he had

withheld      information       during     the    Tuesday        interrogation       because

“he felt like he would be singled out” for his “background.”

J.A.       338.   Indeed,    Spangler      had    a   felony      larceny       conviction;

despite       Spangler’s     apparent       allusion        to    it,     McGinnis      later

claimed he did not learn that Spangler was a felon until after

Bennett had been arrested and indicted. 5 Spangler told McGinnis

that he       and    Mitchell      had   “observed      Clyde         Bennett   take   three

computers out the front door of the terminal in the dark while

David Lowrey . . . was down at the guard building distracting

the guard.” J.A. 339-40. McGinnis told Spangler that he wanted a

written version of Spangler’s statement, and Spangler agreed to

provide one. In fact, as McGinnis later learned, Spangler was

not    at    work    on   the    night     that   the    computer         terminals     went

missing.

       After      Spangler      told     McGinnis     that       he    and   Mitchell    had

observed Bennett and Lowrey acting together, McGinnis promptly

interviewed         Lowrey   for    a    second     time.    That       interview      lasted

around 45 minutes and “got a little heated” when Lowrey was

       5
       In his investigative report prepared just a few weeks
after the meeting, McGinnis wrote that Mrs. Spangler had told
him that Spangler had originally withheld information because he
was afraid that other employees would know he was the one
providing information about the theft of the computer towers.




                                            12
confronted with the information provided by Spangler. J.A. 346.

Indeed,    McGinnis     described    the    second   Lowrey   interview    as

“intense    and   heated.”    J.A.    781    (emphasis   added).   McGinnis

brought enormous pressure to bear on Lowrey, “advis[ing] Lowrey

that he WAS going to be arrested unless he cooperated.” J.A. 781

(emphasis in original). In both his trial testimony and in his

investigative report, McGinnis averred that he told Lowrey that

he knew Clyde Bennett had acted with him to steal the three

tower computers. 6 Eventually, after hearing Spangler’s version of

the alleged theft as recounted to him by McGinnis, Lowrey told

McGinnis that on the night of the theft he [Lowrey] was merely

talking to the terminal guard while Bennett stole the computers.

McGinnis    did   not     believe    this    account,    writing   in     his

investigative report that, “Lowrey was lying about this to take

the heat off him.” J.A. 781. Lowrey further told McGinnis that

the day after Bennett stole the three tower computers, Bennett

and Lowrey met at a 7-Eleven store and Lowrey purchased one of

the computer towers for $250.

     Lowrey, who unbeknownst to McGinnis at the time had prior

convictions for cocaine possession and writing bad checks, told

     6
       The district judge described the process by which McGinnis
shared   what  Spangler   already  told   him  as   “feeding  him
information and he is repeating it,” to which McGinnis replied,
“I’m not telling him what to say. Telling him what I heard and
he is agreeing that is the way it happened.” J.A. 350.




                                      13
McGinnis that the computer tower he purchased from Bennett was

at   his   home.     At    McGinnis’s       insistence,         Bullard    and     McGinnis

immediately accompanied Lowrey to the latter’s home to retrieve

the computer. Before Bullard, McGinnis, and Lowrey departed for

Lowrey’s     home,        however,        McGinnis       instructed        the     terminal

manager, Finley, to call the police to report the theft and to

request their presence upon McGinnis’s return, “when [he] would

press formal charges.” J.A. 781. At trial, McGinnis testified

that he was planning to press charges against Lowrey alone at

this point. Regional manager Bullard testified, however, that

McGinnis    told     him    that     he    had    also    decided    to    have     Bennett

arrested before the police arrived at the terminal that day.

Plainly,     the     jury    was     entitled      to     find,     as    it     did,    that

Bullard’s     testimony,        as        corroborated      by     the     investigative

report, 7 was accurate, and that McGinnis had determined to have

Bennett arrested before the trio departed for Lowrey’s home.

Tellingly,     when        Bullard,       McGinnis,       and     Lowrey       arrived    at

Lowrey’s home, Lowrey refused to permit Bullard and McGinnis to

enter.     Rather,    Lowrey       went     in    alone    and    returned        with    the

computer, still in its box.

      7
        McGinnis’s investigative report states that upon his
return to the terminal with the computer from Lowrey’s home, he
“explained what had transpired and notified the police that we
wanted to press formal charges against both Lowrey AND Bennett.”
J.A. 782 (emphasis in original).



                                             14
      When         Bullard,      McGinnis,        and     Lowrey    returned        with      the

computer tower to the terminal, Lowrey was questioned formally

by    a    property       detective        for    about     45     minutes.       The    police

determined         that    he    would     be    charged    with    Theft     by    Receiving

Stolen Goods. Lowrey consented to a search of his home and left

the terminal accompanied by a detective who would perform the

search.       No     seizures      resulted        from     a    subsequent        search     of

Lowrey’s home.

      Meanwhile, McGinnis informed the police that Bennett had

not been warned of any suspicion against him yet, and that his

only interview of Bennett was the preliminary one made before

the Spangler allegations. Bennett was brought into a manager’s

office and questioned by the police for about 12 minutes, with

McGinnis and Bullard present but apparently not participating.

McGinnis’s investigative report recounts that, “Bennett was . .

. notified that we KNEW how he had taken the items out of the

terminal and further that we knew how he had sold one of the

computers to Lowrey, which we had confiscated from Lowrey.” J.A.

782       (emphasis       in    original).       Bennett        continued    to     deny      any

knowledge       of    or       involvement       with     the     disappearance         of    any

computers. He was required to remain in the manager’s office

with Finley while the police officers and McGinnis left. The

officers      returned          35-40    minutes      later,     and     arrested       him   for

grand       larceny        (the         formal     charge        would      ultimately         be


                                                 15
embezzlement), placed him in handcuffs, and escorted him from

the premises “in full view of the dock employees.” J.A. 782.

Although the officer who made the formal arrest testified that

he was not influenced by any R&L employee in his decision to

arrest     Bennett     and     to    march      him,     handcuffed,      in    front    of

employees, the jury was entitled to reject this testimony. This

is particularly true in light of the fact that, as Bennett was

led out of the room, terminal manager Finley told him that he

was fired.

       The next day, Thursday, McGinnis interviewed Mitchell, the

dockworker      who    handled       the   shipment      of    missing    laptops      with

Spangler, for a second time. Mitchell told McGinnis that he had

not provided information earlier because his parents had advised

him to “stay out of the matter,” J.A. 783, but that Spangler had

convinced him to talk. At this second interview, after Bennett

had    already       been    arrested,       McGinnis’s         investigative         report

averred    that      Mitchell       “basically     stated      exact[ly]       what    Conan

Spangler      had    informed       me   of,”     J.A.   783,    i.e.,    that    he    and

Spangler had observed Bennett take the desktop computer towers

from the dock while Lowrey distracted the guard.

       Before       McGinnis    left       Richmond      for    Atlanta    on     Friday,

Spangler provided a written statement as he had agreed at their

last   meeting.       The    statement,         however,      differed    significantly

from   what     he    and   Mitchell       told    McGinnis      in   person    over    the


                                             16
previous couple of days. Rather than asserting that Bennett and

Lowrey had been seen by both men removing the computers and

distracting       the    guards,    Spangler’s     written       statement      reported

that, “Dave Lowrey has told me that he goes to the guard shack

and distracts the guard while Clyde takes stuff out the front

door to the vehicles.” J.A. 786. McGinnis did not mention the

statement in his investigative report, nor did he ever share it

with police or otherwise advise prosecutors of the discrepancies

in Spangler’s and Mitchell’s stories.

     After    initially         agreeing     to    take      lie     detector     tests,

Spangler    and     Mitchell       ultimately     refused       to   consent      to   the

tests. Both men failed to report to work after this refusal and

were terminated by R&L with no further investigation into their

conduct.

     A few months later, in November 2006, a preliminary hearing

in Bennett’s embezzlement case was held to determine probable

cause.    Finley,       Lowrey,    and   McGinnis      all     testified,    repeating

essentially       what    is   recounted     above.      McGinnis     was   not     asked

about, and did not offer, any of his observations about the

reliability of the information he had obtained from Mitchell and

Lowrey (although when describing his own understanding of how

Bennett    stole    the    computers,       he   did   mention       his   belief      that

Lowrey had purposefully distracted the guard). He also did not

mention    that    Spangler’s       story    –   which    he    shared     with   Lowrey


                                            17
during    his    second    interview       and    had     apparently         been    adopted

directly by Mitchell – was inconsistent with his interviews and

written statement.

     Finding      probable        cause,    the     preliminary         hearing           judge

certified    to    the    grand    jury     the    embezzlement         charge       against

Bennett, who was indicted and set for trial. The case was nolle

prossed,    however,      when     Lowrey        failed    to    appear       either       for

Bennett’s trial, where he was a material witness, or for his own

trial    (scheduled      for   the   same    day).        The   prosecutor          for   both

cases testified that Lowrey’s disappearance was the reason the

nolle prosequi was entered in Bennett’s case.

                                            B.

        In June 2008, about a year and half after the embezzlement

charge against him was dropped, Bennett initiated this action in

state    court    for     malicious       prosecution,          and    the    action       was

removed to federal district court on the basis of diversity of

citizenship      jurisdiction. 8      The    named      defendants       included          R&L,

terminal manager Finley, regional manager Bullard, and company

investigator      McGinnis.        Bennett        alleged       that    “the        criminal

prosecution brought against [him] was intentionally initiated,

     8
       Bennett, who is African-American, amended his complaint
after the case was removed to federal court to assert a racial
discrimination claim under 42 U.S.C. § 1981, but the district
court granted judgment as a matter of law in favor of all
defendants on this claim, which is not before us in this appeal.




                                            18
caused,     set    afoot,      instituted,       continued,         maintained       and/or

cooperated in by Defendants wholly without probable cause and

was malicious, done in bad faith, with actual malice and with

the intent to injure[.]” J.A. 18-19.

       After several days of trial testimony on liability only,

the jury returned a verdict against each of the defendants on

the malicious prosecution claim. At the subsequent damages phase

of   the    trial,    Bennett’s       brothers        testified     that     he   had    been

“isolated” since the arrest and “not the same at all.” J.A. 559.

He was also described as “very subdued” and “very withdrawn.”

J.A.    560-61.      Bennett        testified     that        the   arrest        made   him

“humiliated,       embarrassed”       and   that       he   felt    “betrayed       by    his

employer” for being “paraded in front of [his co-workers] like a

common criminal.” J.A. 562, 564.

       At    the     time      of     his     arrest,         Bennett      was      earning

approximately        $41,600    per    year      at    R&L.    After    he    was    fired,

Bennett applied for more than 100 jobs but was able to secure

only part-time employment with his brother, making around $8 per

hour. (Bennett testified that he would enter “accused of theft”

on applications that asked why he left his last job, J.A. 564.)

During this period he was also without medical insurance and was

unable to afford care for various conditions. To support himself

during this period, Bennett emptied a money market retirement




                                            19
account        of     approximately           $81,000          and      an     annuity         worth

approximately $28,000.

        The        jury    ultimately          awarded          Bennett        $1,716,920         in

compensatory          damages.         In    addition,          they     assessed         punitive

damages       of     $1,500,000        against         R&L,    $3,000        against      terminal

manager Finley, $15,000 against regional manager Bullard, and

$30,000 against McGinnis. The defendants renewed their motions

for judgment as a matter of law under Fed. R. Civ. P. 50(b), and

sought,       in    the    alternative,        a   new        trial    under       Rule   59.    The

district court considered the motions in a thorough opinion. The

court granted the motions for judgment as to Finley and Bullard,

and   it      remitted         the   punitive      damages        award       as    required      by

Virginia       law    to    $350,000.        In    all    other        respects,       the     court

denied     the      motions.         The    defendants         timely    appealed         to    this

Court.



                                               II.

      In denying the motions before us on review, the district

court    undertook         a    careful      evaluation         of     all    the    Appellants’

contentions raised now, and rejected their insistence that the

case should never have been submitted to the jury, and that the

damage award was unlawfully excessive. We can hardly improve

upon the district court’s analysis, and so we set it forth below

in detail.


                                                  20
                                           A.

      Appellants first argue that the district court improperly

denied their motion for judgment as a matter of law as to the

probable      cause    element    of     malicious      prosecution.     As     already

mentioned, denial of such a motion is reviewed de novo, with

this Court examining the evidence in the light most favorable to

the non-moving party to determine “whether a reasonable trier of

fact could draw only one conclusion from the evidence.” Brown v.

CSX Transp., Inc., 18 F.3d 245, 248 (4th Cir. 1994) (citing

Townley v. Norfolk & W. Ry., 887 F.2d 498, 499 (4th Cir. 1989)).

      Appellants       assert     that     the    following      undisputed       facts

compel the singular conclusion that there was probable cause to

call for Bennett’s arrest: the computer towers were missing from

the OS&D area, Bennett was the last person to leave the terminal

on the last night the towers were there, McGinnis interviewed

ten employees before calling the police, Spangler gave McGinnis

an   eyewitness       account    of    Bennett    and    Lowrey’s      theft,    Lowrey

confirmed      Spangler’s        story     and     added      further    information

implicating Bennett, and prior to the arrest McGinnis had been

given    no   information       suggesting       that   any    other    employee     had

taken the items. In addition to these facts, Appellants further

assert    that   the    district       court     misread   Virginia      law    on   the

informant accomplice rule, focusing on the reliability of the




                                           21
informant      rather   than   the       reliability            of   the   information

provided by him.

     As   to    both    probable       cause    and     the     application     of   the

informant   accomplice      doctrine,          we   find       the   district   court’s

reasoning to be rigorous and accurate, and its legal conclusions

sound. We therefore adopt the analysis set out below:

     The Defendants argue that Bennett failed to establish
     that the Defendants lacked probable cause at the time
     they instituted criminal proceedings against Bennett.
     In Virginia, in the context of a malicious prosecution
     action, probable cause is defined as “knowledge of
     such facts and circumstances to raise the belief in a
     reasonable   mind,   acting    on   those  facts   and
     circumstances, that the plaintiff is guilty of the
     crime of which he is suspected.” Andrews v. Ring, 585
     S.E.2d 780, 786 (Va. 2003). “The determination whether
     a defendant had probable cause to believe that a crime
     was committed is judged with reference to the time the
     defendant took the action initiating the criminal
     charges.” Stanley v. Webber, 531 S.E.2d 311, 314 (Va.
     2000). Thus, the relevant inquiry is whether the
     Defendants had probable cause to believe that a crime
     was committed by Bennett at the time McGinnis told
     Officer Deveney that “[R&L] wanted to press formal
     charges against both Lowrey AND Bennett.”

                           *       *      *         *      *

          The Defendants argue that, as a matter of law,
     their probable cause determination was sound because
     it was based on the confession of an alleged
     accomplice   of   Bennett’s—Lowrey.   The   Defendants
     correctly state that “information received from one
     admitting his participation in a crime is sufficient
     to create probable cause for prosecution, if there is
     no reason to doubt its truth.” So. Ry. Co. v. Mosby,
     70 S.E. 517, 521 (Va. 1911). Indeed, in Mosby, “there
     [wa]s no ground upon which it could be fairly
     concluded that [the investigator for the railroad
     whose shipments had been stolen] knew that the sources
     from which he got his information were not reliable


                                         22
before he instituted th[e] prosecution.” Id. The
Western District of Virginia, citing Mosby, echoed
this proposition, explaining that, “[i]f there is no
reason to doubt the truthfulness of the accomplice
when the prosecution was initiated, there is still
considered to be probable cause sufficient to negate a
malicious prosecution claim even if the witness was
later shown to be unworthy of belief.” Caldwell v.
Green, 451 F. Supp. 2d 811, 818 (W.D. Va. 2006).


      Bennett does not challenge that this is indeed
the law in Virginia, but, instead, he emphasizes
correctly that “Virginia courts will find probable
cause    only   if    the   informant     is   reliable    and
trustworthy,”     and he     contends    that    the   alleged
informants—Lowrey, Spangler, and Mitchell—“do not pass
the    reliability    requirement.”     The   discussion    of
Spangler    and    Mitchell    under   Mosby,    however,   is
misplaced    because    neither    Spangler    nor    Mitchell
implicated     themselves     as    Bennett's     accomplices.
Instead, Spangler and Mitchell implicated only Bennett
and Lowrey, and, therefore, Spangler and Mitchell did
not “confess” to anything that would make a probable
cause    determination     sound    under    the    “informant
accomplice” principle upon which the Defendants rely.
Accordingly, statements from Spangler and Mitchell do
not fall under the “informant accomplice” probable
cause rule. Nevertheless, Bennett’s discussion of the
application of the principle as to Lowrey under Mosby
is on point.

     McGinnis noted no less than four times in his
investigation report that, by the time prosecution was
initiated, there was serious reason to doubt Lowrey’s
truthfulness. Specifically, McGinnis noted that “the
mannerisms of ... Lowrey ... left [him] with a feeling
that [he was] not being truthful.” [J.A. 779-80.]
McGinnis noted also that “Lowrey was lying ... to take
the heat off of him.” [J.A. 781.] Additionally, when
Lowrey told McGinnis that he did not know that the
computer he allegedly purchased from Bennett was
stolen, McGinnis noted that “this was another lie.”
[J.A. 781] Similarly, when Lowrey told McGinnis that
he did not know where the other two computers were,
McGinnis noted that this, too, was “another lie.”
[J.A. 781] At trial, McGinnis tried to soften his


                             23
previously recorded statements by saying that Lowrey
was “deceptive in some of his answers.” [J.A. 104.]
But, McGinnis did not deny that, before he decided to
press charges against both Lowrey and Bennett, he
actually believed that Lowrey was an established liar
and that the lies related to important matters coming
from the person who was the key witness implicating
Bennett in the theft. More troubling still, Lowrey did
not implicate Bennett until McGinnis effectively fed
Lowrey the information that he had received from
Spangler-a man whom McGinnis also believed to be
untruthful—and only then did Lowrey implicate Bennett.
Therefore, Lowrey, the alleged informant accomplice,
appears only to have “confessed” and “informed” on
Bennett once McGinnis led him in that direction.
Moreover, even when Lowrey finally implicated Bennett
by agreeing with a story given to McGinnis by
Spangler, and then by McGinnis to Lowrey, McGinnis
still did not believe that Lowrey was telling him the
truth. Accordingly, McGinnis had every reason to, and
did in fact, “doubt the truthfulness of the accomplice
when the prosecution was initiated.” Caldwell, 451 F.
Supp. 2d at 818. Therefore, the information received
from Lowrey, the “one admitting his participation in a
crime,” was unreliable and was not legally sufficient
to create probable cause for prosecution. Indeed,
under the circumstances, Lowrey’s statement was so
tainted and unreliable that it was of no real
probative value even when considered with the other
information known to McGinnis.

     Even   without   the   aid   of   the   “informant
accomplice” rule, the Defendants assert that McGinnis
had probable cause when he “asked Finley to call the
authorities and/or at the time he said R & L would
press charges.” Defs.’ Mem. in Supp. of Defs.’ Mot. to
Dismiss (“Defs.’ Mem. Supp.”) at 17. The Defendants
argue that the following facts known to McGinnis at
the time he decided to have Bennett arrested gave him
probable cause to initiate Bennett's arrest:

     (1) Bennett, a supervisor, was responsible
     for theft prevention. (2) Lowrey and Bennett
     were the last to leave [so] Bennett had
     access to the stolen computers. (3) The OS &
     D was open [so] the three bulky boxes were
     likely in OS & D prior to the time that


                          24
    Lowrey and Bennett left. (4) [According to
    Spangler and Lowrey,] Lowrey was talking
    with the guard while Bennett took the
    computers   out   the  front  door....  (5)
    [According to Lowrey,] Lowrey had paid $250
    to Bennett for one of the stolen computers
    and that it was at his house. (6) Spangler
    had also implicated Bennett.

These    points,   individually    and   collectively,
misapprehend in a material way the evidence adduced at
trial and the inferences which the jury was entitled
to draw from that evidence about what the Defendants
knew at the time they request the police to arrest
Bennett.

     Thus, the evidence proved at trial that Bennett
was first implicated in the theft of the March 17,
2006, tower computers by Spangler, a man whom McGinnis
believed to be deceptive and untruthful from the very
beginning. Second, from the outset, McGinnis strongly
suspected that Spangler had been involved in the theft
of the March 3, 2006, shipment of 13 laptops. Then,
too, Spangler only came forward to implicate Bennett
in the March 17, 2006, theft after Spangler believed
(as relayed to McGinnis by Spangler’s wife), from his
two heated interviews with McGinnis, that he, himself,
would be going to jail for theft. The jury thus
reasonably could have found that McGinnis was not
entitled to, or, indeed, did not, rely on what
Spangler, whom McGinnis believed to be a liar, told
him in the third interview when he recited a story
implicating Bennett.

     McGinnis fed Spangler’s story to Lowrey, a man
McGinnis had also believed to be a liar from the very
beginning, and Lowrey, after a heated conversation,
agreed with the third Spangler story, simply by saying
that it was “the way it happened.” McGinnis, believing
that Lowrey was continuing to lie and that he also
knew where all three of the missing HP tower computers
were, then accompanied Lowrey to Lowrey’s home where
Lowrey refused to allow McGinnis into his home and
produced   only  one   of  the   three  missing  tower
computers. McGinnis returned to the Richmond Terminal
from Lowrey’s home and immediately asked to press
charges against Lowrey and Bennett.


                          25
     In   simple   terms,   then,   McGinnis   knew the
following when he made the decision to press charges
against Bennett: a liar, likely involved in a recent
company computer theft, who was admittedly concerned
about his own penological interests, changed his story
and told a company investigator that the liar’s shift
supervisor was involved in a second, more recent
company   computer   theft.   Later   that   night, the
investigator deliberately fed a second liar the first
liar’s story, and this second liar, who was also
implicated in the story, ultimately adopted the story,
but deflected all criminal blame onto the shift
supervisor. The second liar then, after refusing to
allow the investigator into his home, produced from
his home one of three missing computers, but the
investigator believed the second liar also knew where
the other two missing computers were located and was
continuing to lie on that point. Based on the first
and second liars’ stories, and a single ten minute
interview with the shift supervisor wherein the
supervisor protested his innocence, the investigator
decided to have the shift supervisor arrested. A jury
reasonably could have concluded from this record that
there was a lack of probable cause to believe that
Bennett committed the crime.

      The Defendants argue that “[w]hat McGinnis did
not know, even if from Bennett’s perspective he should
have known, is implicitly immaterial [to the probable
cause inquiry].” Defs.’ Mem. Supp. at 17. To that end,
the Defendants, though unarticulated precisely as
such, pose the following question to the Court: “Does
determining whether the Defendants had probable cause
to   initiate  the   Plaintiff’s  arrest  include  any
consideration of that which the Defendants did not
know or do, but purportedly should have known or
done?” Defs.’ Mem. Supp. at 2–3. While the Supreme
Court of Virginia has already answered this question
in the negative, the inquiry is irrelevant to this
case because a reasonable jury could have determined
that McGinnis did not have probable cause to have
Bennett arrested without consideration of facts that
he arguably should have discovered. In any event, the
Defendants’ argument is misdirected because the four
items of evidence to which it is directed are



                          26
     probative respecting the element of           malice    and    the
     propriety of a punitive damage award.

          However, as to the Defendants’ argument, they are
     correct in stating that, at the time the arrest
     decision was made, they did not yet know that: (1)
     Lowrey was a convicted felon, (2) shortly after the
     arrest,   Spangler   would    write   a   contradictory
     statement, (3) Spangler had not worked the night he
     claimed to have witnessed the theft, or (4) Bennett
     was financially comfortable. And, the Defendants are
     correct that such knowledge could not be considered by
     the jury in deciding the element of lack of probable
     cause. Indeed, the jury was properly instructed on
     this point by Jury Instruction 25. There is no reason
     to believe that the jury disregarded the instruction.

          While this knowledge certainly would have further
     informed the determination that probable cause did not
     exist, the record about knowledge that McGinnis did
     possess at the time of the arrest decision, as
     detailed above, without weighing the evidence or
     considering the credibility of the witnesses, clearly
     provided a legally sufficient evidentiary basis for a
     reasonable jury to find for Bennett as to the probable
     cause element of his malicious prosecution claim.
     Thus, Bennett did not fail to make a showing on this
     essential element of his case.

744 F. Supp. 2d at 514-18 (footnotes and some citations omitted

or altered; some punctuation altered).

     While Appellants correctly note that the Virginia Supreme

Court has been willing to reverse jury verdicts on review of the

probable cause issue in malicious prosecution cases, such cases

typically    involve   far   stronger   evidence    of      the    suspect’s

wrongdoing   than   the   record   before   this   Court     provides.    In

Reilly, for example, the court found probable cause where an

arrest was made after fingerprints were matched to the plaintiff



                                   27
and estimated by an expert to have been left around the time of

a robbery; the plaintiff had been sought out over a period of

months for interviews but could not be located; the plaintiff

matched the victim’s physical description with unusual accuracy;

and he lived close to where the crime was committed. Reilly, 643

S.E.2d    at   217-18,   219.    The    investigating     police    officer     in

Reilly had no reason to doubt the reliability of the information

he had received from the victim or experts consulted, and “there

were no circumstances know to [him] pointing to any person other

than [the plaintiff].” Id. at 219.

     In   Commissary     Concepts      Management   Corp.    v.    Mziguir,    594

S.E.2d 915 (Va. 2004), as well, probable cause was found where

an employer knew money had been missing from the plaintiff’s

shifts in the past; a bank teller reported that extra cash from

a deposit had been returned to the plaintiff; the money was

searched for in the workplace and in the safe where deposits

were stored and was not found; no report of the overage was

made;    and   the   plaintiff   had    not   mentioned     the   missing     cash

despite working shifts after he had received it. 594 S.E.2d at

918. Again, the employer in Mziguir had no reason whatsoever to

question the reliability of information from the bank teller,

and had observed what seemed to be a pattern of theft related to

the plaintiff’s access to cash on-site. See also Bill Edwards

Oldsmobile, Inc. v. Carey, 244 S.E.2d 767 (Va. 1978) (finding


                                        28
probable cause as a matter of law where the defendant had many

months of interactions with the plaintiff regarding unauthorized

and unpaid charges for car parts, the plaintiff had apparently

left town, the car with the embezzled parts was located at the

plaintiff’s friend’s house, and no reliability issues regarding

information or informants were ever raised).

       In contrast to these cases, the Appellants here had, from

the    beginning     of       their    brief     and    ham-handed          investigation,

strong reason to know, and indeed, actual knowledge, that their

informants were unreliable. McGinnis’s report indicates that he

found    Spangler       and     Mitchell     both      “deceptive,”          and    believed

Lowrey’s mannerisms indicated he was being “untruthful.” J.A.

779,    780.     When     Lowrey      was   questioned         most        intensely,    and

apparently     confirmed        that    Bennett        had    stolen       the     computers,

McGinnis believed his version of events still contained lies

about    his   own      involvement.        Furthermore,        unlike        in    Mziguir,

Reilly,    and     Bill       Edwards,      there      was     not     a    scintilla     of

corroborating       physical       evidence       or    any    pattern        of    behavior

already observed by the employer in the instant case to bolster

or confirm the accounts given by employees who McGinnis believed

were lying to him.

       McGinnis’s own admitted doubts about the reliability of his

informants, at the time he received their accounts implicating

Bennett, and a total lack of objective evidence to corroborate


                                            29
their claims support the district court’s denial of judgment as

a matter of law on probable cause. In so ruling, we agree with

the district court that to the degree the informant accomplice

doctrine       applies    to    informant       statements      from      Spangler     and

Lowrey, who never in fact admitted their role in the conduct at

issue, see 744 F. Supp. 2d at 515, those statements are properly

disregarded for the determination of probable cause where an

informant is so evidently unreliable. 9

                                           B.

     Appellants      next      argue     that    the   district       court    erred    in

denying judgment as a matter of law on the dispositive element

of   malice.      They    argue    that    no    evidence       was    offered    of     a

malicious motive on McGinnis’s part, and that the district court

improperly      inferred       malice    from    a   mere    failure      to   undertake

certain investigative steps.

     As    above,    we    find    the    district’s        court   analysis     on    the

issue     of     malice,       which     again       rejected       the     Appellants’

contentions, to be clearly-put, accurate and persuasive:

     9
       Appellants also argue that the district court erred by
giving a jury instruction that the statements of Lowrey and
Spangler could be considered only on the question of malice, and
not on the question of the existence of probable cause. Because
the limited use of the statements was conceded by Appellants
below and the record indicates that the limiting instruction to
the jury was in clear reference to these conceded uses, Federal
Rule of Civil Procedure 51(d)(2) concerning plain error does not
apply and we need not address this issue further.




                                           30
     The Defendants also assert that Bennett failed to
establish the element of “malice.” In Virginia,
“malice” means “any controlling motive other than a
good faith desire to further the ends of justice,
enforce obedience to the criminal laws, suppress
crime, or see that the guilty are punished.” Hudson v.
Lanier, 497 S.E.2d 471, 473. Virginia also recognizes
that “[m]alice may be inferred from a lack of probable
cause.” Reilly, 643 S.E.2d at 219. Malice can be
inferred from a lack of probable cause, however, only
when the circumstances of the case support the
inference. See Freezer v. Miller, 176 S.E. 159, 168
(Va. 1934); see also Giant of Virginia, Inc. v. Pigg,
152 S.E.2d 271, 276 (Va. 1967); Gaut v. Pyles, 181
S.E.2d 645, 647 (Va. 1971).

     The Defendants’ malice argument, though not
articulated precisely as such, is as follows: Bennett
did not adduce evidence of any improper controlling
motive, so the jury must have inferred malice from its
finding of a lack of probable cause; however, a lack
of probable cause alone does not support an inference
of malice, and the circumstances of the case do not
otherwise support the inference; thus, the jury
improperly presumed or imputed malice. For the reasons
set forth below, the Defendants’ argument fails.

     The Defendants are correct in arguing that, in
Virginia in a malicious prosecution suit, malice does
not attach automatically when the absence of probable
cause is shown. It is indeed well-established that the
“malice” required in a malicious prosecution case is
not imputed as a matter of law by a simple showing of
the absence of probable cause, but must be proven as a
separate and distinct element of the plaintiff’s
claim. Freezer, 176 S.E. at 168. It is equally well-
established, though, that legal malice may be proven
by inference from a lack of probable cause if the
circumstances of the case support the inference. Id.
In other words, the “[w]ant of probable cause is
evidence of malice.” Mosby, 70 S.E. at 520.
     The Defendants’ argument that the “[l]ack of
probable cause alone is insufficient to support an
inference of malice,” Defs.’ Mem. Supp. at 12, fails
as a matter of law. In Virginia, under certain
circumstances, the want of probable cause alone can
serve as legally sufficient evidence to support an


                          31
inference of malice. See Pigg, 152 S.E.2d at 276; see
also Oxenham v. Johnson, 402 S.E.2d 1, 2 (Va. 1991).
In these instances, “there [i]s such a want of
probable cause” that an inference of legal malice is
warranted. Pigg, 152 S.E.2d at 276 (The malicious
prosecution   defendant's   “disregard of  information
communicated    to   him  constituted   an  aggravated
circumstance which supports the finding of the jury
that there was such a want of probable cause as
warranted an inference of legal malice.”); Oxenham,
402 S.E.2d at 2 (The defendant’s “lack of probable
cause [alone] was sufficient to support an inference
of [the defendant’s] legal malice” where the defendant
had “caused [an] arrest warrant to issue” against the
plaintiff solely because the plaintiff had refused to
let the defendant search the plaintiff’s residence
without a search warrant.).

     As the controlling decisions are applied to this
record,   a  reasonable   jury  certainly   could have
determined that “there was such a want of probable
cause” at the time McGinnis told the police that he
wanted to press charges against Bennett as to warrant
an inference of legal malice. Pigg, 152 S.E.2d at 276.
The fact that McGinnis decided to have Bennett
arrested before the police were involved in any way
and based solely on the word of witnesses whom he
believed to be liars may reasonably be said to
constitute the type of “aggravated circumstance”
indicative of such a want of probable cause that an
inference of legal malice was warranted. Indeed, the
facts and circumstances behind the jury’s finding of
the want of probable cause are legally sufficient to
support an inference of legal malice. In other words,
the same facts and circumstances that counseled the
jury toward a determination that probable cause did
not exist may similarly have supported an inference
that the Defendants acted with legal malice.

     Again,   “legal  malice”  is   defined  as   “any
controlling motive other than a good faith desire to
further the ends of justice, enforce obedience to the
criminal laws, suppress crime, or see that the guilty
are punished.” Hudson, 497 S.E.2d at 473. The
Defendants argue that Bennett did not adduce “evidence
of any motive other than a desire to catch a thief.”
Defs.’ Reply Mem. at 4. The Defendants then ask, as a


                          32
matter of law, “May a plaintiff establish malice
without any evidence of a controlling motive and
purely rely on inferring motive from a lack of
probable cause?” While the Defendants answer the
question in the negative, Defs.’ Reply Mem. at 4, the
Court answers the question in the affirmative.

     As previously explained, legal malice may be
proven by inference from a lack of probable cause if
the circumstances of the case support the inference.
Put differently, any controlling motive other than a
good faith desire to further the ends of justice,
enforce obedience to the criminal laws, suppress
crime, or see that the guilty are punished may be
proven by inference from a lack of probable cause if
the circumstances of the case support the inference.
Thus, an improper motive—legal malice—may be inferred
where supported by the case’s facts and circumstances.
As such, the fact that Bennett did not label and
identify explicitly an alleged improper motive, and
the fact that the jury did not make an explicit
finding as to precisely what they believed the
Defendants’ improper motive was, is of no consequence.
The Court is not aware of any authority that requires
otherwise.

     Bennett showed facts and circumstances that were
legally sufficient to support an inference that the
Defendants acted with an improper motive based on the
lack of probable cause. For example, the evidence of
want of probable cause suggested that one such
improper motive may have been a desire to see not that
the guilty were punished, but that anyone was
punished. In other words, deciding to press charges
against the first man accused by men believed by
McGinnis to be untruthful criminals does not tend to
demonstrate a good faith desire to see that the truly
guilty individual is punished. It shows, instead, a
bare desire to punish in general and to put an end to
a frustrating investigation. That, of course, would be
an improper controlling motive which would support a
finding that the Defendants acted with legal malice.

     Moreover, the record shows additional evidence
probative of malice (apart from the want of probable
cause). For example, McGinnis decided to have Bennett
arrested without even examining Lowrey’s criminal


                          33
record (he was a convicted felon) and without
ascertaining whether Spangler even could have been
present to see what, on his third interview, he
claimed to have seen. In fact, a check of company
records would have disclosed that Spangler did not
work on the evening in question. And, a check of the
criminal records of the witnesses whom McGinnis
thought to be liars would have shown that Lowrey had a
felony conviction. And, the corroboration process
would have shown that Bennett had no criminal record
and     was      comfortably    situated     financially.
Corroboration is most important when dealing with the
testimony of known liars. Nor did McGinnis inform the
police that he thought Lowrey was a liar or that
Lowrey’s version of events was merely the adoption of
a story told by Spangler, another person McGinnis
thought to be a liar. And, McGinnis did not bring to
the attention of the prosecutor or the Virginia courts
the fact that Spangler’s written story differed
markedly on important points from the version adopted
by Lowrey or that Lowrey had a felony conviction or
that Spangler had not been at work on the evening at
issue. Although those events occurred after Bennett
had been arrested, the disclosure of all or any of
them would have been important in deciding whether the
arrest had been warranted. The failure to disclose
them, therefore, is probative of the existence of a
state of mind at the time of the arrest other than
seeing that the guilty person would be punished.
Furthermore, nothing in the record disclosed any
reason that would have warranted the rush to judgment
that was shown at trial. Nor was it shown that
checking     company   work   schedules   and    criminal
backgrounds would have been difficult in the least.
The failure to corroborate the evidence given by known
liars    and    the   failure  to   disclose    pertinent
information to the prosecutor or the courts, taken
together (as well as in perspective of the want of
probable cause), further support a finding that
Bennett proved the malice element.

     The jury may have inferred such a motive, or it
may have inferred a separate, similarly legally
sufficient motive from the underlying facts and
circumstances or from the absence of probable cause.
In either event, a legally sufficient basis existed
for the jury’s finding that the Defendants initiated


                           34
     the criminal proceedings with malice. Therefore,
     without weighing the evidence or considering the
     credibility of the witnesses, the Court concludes that
     Bennett did not fail to make a showing on this
     essential element of his case, and the Defendants are
     not entitled to judgment as a matter of law.

744 F. Supp. 2d at 521-24 (footnotes omitted; some citations

altered).

     We agree with the district court that McGinnis’s decision

to   press    charges        against     Bennett       solely     on     the    basis     of

information       from    informants        he        considered       unreliable        and

deceptive,     along     with      his   failure       to    seek      the     most   basic

corroborating information for these accounts, supports a jury

finding as to malice. At the very least, this evidence precludes

judgment     as   a    matter      of    law     in    favor      of     the    Defendant-

Appellants.

                                           C.

     The Appellants’ final argument as to judgment as a matter

of law is that the district court erred in ruling that a nolle

prosequi     entry     for     a   criminal      charge      is     an     outcome      “not

unfavorable to the plaintiff” in a malicious prosecution action.

They argue that Bennett had an affirmative burden to show that

the nolle prosequi was entered for reasons that imply innocence,

and that the entry in Bennett’s criminal trial was due only to

Lowrey’s     flight.     We    adopt,     again,       the   court’s         rejection    of

Appellants’ contention:



                                           35
     The Defendants argue that the Court erred in
determining   that  the  Commonwealth   of  Virginia’s
decision to nolle prosequi the embezzlement charge
against Bennett constituted a termination of the
prosecution “in a manner not unfavorable to” Bennett.
They argue also that the proceeding has not terminated
at all because the Commonwealth still has an intent to
prosecute Bennett for the embezzlement if Lowrey ever
surfaces. In their Rule 50(b) motion, the Defendants
rely on Nicholas v. Wal–Mart Stores, Inc., 33 Fed.
App’x 61 (4th Cir. 2002) and Niese v. Klos, 222 S.E.2d
798 (Va. 1976).

     In Nicholas, the plaintiff, a former Wal–Mart
cashier, had been arrested on the complaint of Wal–
Mart management, and charged with a breach of trust
for allowing a customer to leave the store without
paying for merchandise. The Fourth Circuit was tasked
with interpreting the South Carolina Supreme Court’s
holding in McKenney v. Jack Eckerd Co., 402 S.E.2d 887
(S.C. 1991) that, “where an accused established that
charges were nolle prossed for reasons which imply or
are consistent with innocence, an action for malicious
prosecution may be maintained.” In Nicholas, the
Fourth Circuit “predict[ed]” that the South Carolina
Supreme Court would find that plaintiffs asserting a
claim for malicious prosecution have the affirmative
burden of proving that the nolle prosequi was in fact
entered   under  circumstances   which  imply   or  are
consistent with innocence of the accused. Nicholas, 33
Fed. App’x at 64–65. Nicholas, is, however, an
unpublished Fourth Circuit case interpreting South
Carolina law, predicting what the South Carolina
Supreme Court would hold. Nicholas, therefore, is in
no way binding on this Court, and the Court does not
find it persuasive in the least as to Virginia law.

     In Niese, the Supreme Court of Virginia held
that, “upon entry of the Nolle prosequi order,
evidencing the unwillingness of the Commonwealth to
proceed, the prosecution terminated in a manner not
unfavorable to plaintiff for purposes of instituting a
malicious prosecution action.” Niese, 222 S.E.2d at
800–01 (citing Graves v. Scott, 51 S.E. 821 (Va. 1905)
and Keaton v. Balser, 340 F. Supp. 329 (W.D. Va.
1972)). The Defendants argue that, under Niese,
whether the Commonwealth’s decision not to proceed is


                          36
a “termination not unfavorable to the plaintiff” must
be determined by “whether there was evidence of the
Commonwealth's  ‘[un]willingness  ...  to  proceed.’”
Defs.’ Mem. Supp. at 21 (quoting Niese, supra, 222
S.E.2d at 801). The Defendants, however, misread
Niese.

     A proper reading of Niese reveals that the Court
believed that the entry of a nolle prosequi, in and of
itself, evidences the Commonwealth’s unwillingness to
proceed with the prosecution at that time. The context
of the Niese holding does not indicate that the
plaintiff has an affirmative burden to prove that the
nolle prosse in fact evidenced the Commonwealth’s
unwillingness to proceed, and an analysis of the cases
upon which Niese rests its holding—Graves and Keaton—
confirms this interpretation.

      In Keaton, the Western District of Virginia
stated   plainly  that,   “[s]ince  the    Commonwealth
Attorney nolle prossed the warrant for leaving the
scene   of  the  accident   on  which   the   malicious
prosecution claim in this action is based, it is
apparent that the second element requiring termination
in the plaintiff’s favor has also been established.”
Keaton, 340 F. Supp. at 332. In other words, the
simple fact that the Commonwealth had nolle prossed
the underlying criminal charge satisfied the element
requiring that the plaintiff show that the criminal
prosecution terminated in a manner not unfavorable to
him.

     More importantly, in Graves, the Supreme Court of
Virginia   expressly   considered   and   rejected  both
positions that the Defendants advance here. In Graves,
the Court acknowledged that a nolle prosse had at one
point been perceived as failing to satisfy the
“termination   in    a  manner    not   unfavorable  to”
requirement of a malicious prosecution case because it
“did not establish the innocence of the [malicious
prosecution] plaintiff, or show want of probable cause
on the part of the [malicious prosecution] defendant.”
Graves, 51 S.E. at 822. Indeed, a nolle prosse and
other forms of “termination” had been held not to have
actually “terminated” the prosecution because, if no
testimony had been heard that caused the criminal
defendant to be discharged, it was not a “final


                          37
     termination.” Id. However, the Supreme Court of
     Virginia expressly rejected that outdated reasoning
     and   agreed  with   the   more   modern  approach  in
     recognizing that “a nolle prosequi ends the indictment
     past recall, and thereupon the right to a malicious
     prosecution suit is perfected.” Id. at 823.

          Since Graves, the only time Virginia courts have
     acknowledged that a nolle prosse can defeat a
     subsequent suit for malicious prosecution is if the
     nolle prosse was the result of a voluntary compromise
     between    the    then-criminal    defendant    and   the
     Commonwealth. Andrews, 585 S.E.2d at 787 (“A voluntary
     compromise ending a criminal prosecution defeats a
     subsequent     suit   for    malicious    prosecution.”).
     Therefore,     as    Bennett's     underlying    criminal
     prosecution was not nolle prossed as a result of
     voluntary compromise, the termination of the criminal
     proceeding—the initial embezzlement charge—terminated
     the proceeding “past recall,” and it terminated the
     proceeding in a manner not unfavorable to Bennett as a
     matter of law.

Id. at 524-25 (footnotes omitted; some citations altered).

     To reiterate, Virginia has recognized only one exception to

the rule that an order of nolle prosequi permits a malicious

prosecution claim to go forward, namely cases where the order

was entered as a result of an agreement between the government

and defendant. See, e.g., Orndoff v. Bond, 39 S.E.2d 352 (Va.

1946); Synder v. City of Alexandria, 870 F. Supp. 672 (E.D. Va.

1994) (suggesting that agreements are an “example” of a non-

qualifying nolle prosequi situation, but declining to name any

others).   Because   the   order   entered   in   Bennett’s   embezzlement

case was not the result of an agreement with the government, the




                                    38
district court properly held under Niese that the outcome was

one “not unfavorable to him” as a matter of law.

                                             D.

       Notwithstanding our conclusions above as to the matters of

law, the Appellants finally appeal to this Court to vacate the

compensatory and punitive damages award and order a new trial,

on    the    grounds     that    the    amounts    were     “bizarrely      excessive.”

Appellants’ Br. 33. “A district court’s denial of a request for

a    new    trial   or   request       for   remittitur     rests    with     the   sound

discretion of the trial judge and will not be reversed absent an

abuse of discretion.” Stamathis v. Flying J, Inc., 389 F.3d 429,

436    (4th     Cir.     2004)     (affirming          $350,000    punitive     damages

judgment under Virginia law).

       Where    the      conduct       in    question     occurred     in     Virginia,

“[w]hether [a] verdict should be set aside as excessive is a

matter of Virginia law.” Id. at 438. This law compels a court to

set aside a verdict “if the amount awarded is so great as to

shock the conscience of the court and create the impression that

the    jury     has      been    motivated        by    passion,     corruption,      or

prejudice, or has misconceived or misconstrued the facts or the

law, or if the award is so out of proportion to the injuries

suffered as to suggest that it is not the product of a fair and

impartial      decision.”       Shepard      v.   Capitol    Foundry     of   Virginia,

Inc., 554 S.E.2d 72, 75 (Va. 2001).


                                             39
      Addressing first the punitive damages, the Appellants argue

that Bennett offered no evidence that McGinnis was motivated by

“personal animosity or hostility,” nor that he believed Bennett

to   be   innocent   or   “was      aware    of   any    explanation   potentially

exonerating Bennett.” Appellants’ Br. 36. They assert that in

the absence of any such evidence, the district court improperly

relied on its perception of McGinnis’s investigative failures or

mistakes to support a finding of actual malice.

      Our   decision      in    Stamathis         articulates    the   evidentiary

requirements of actual malice for punitive damage awards:

      In cases involving malicious prosecution or defamation
      claims, punitive damages may be awarded if the
      defendant   demonstrates,  by   clear  and  convincing
      evidence, that the defendant acted with actual or
      express malice . . . . Actual malice is defined as
      “conduct which is in conscious disregard of the rights
      of others and is wanton and oppressive.”

                                        ***

      While we acknowledge that lack of probable cause alone
      does not infer actual malice, . . . it does lend
      support to a finding that the defendants acted with
      actual malice.

389 F.3d at 440, 441 (internal citations omitted). The Virginia

Supreme Court has also explained, in somewhat nuanced terms,

that punitive damages are appropriate in malicious prosecution

cases where there is “evidence of misconduct or actual malice,

or   such   recklessness       or   negligence      as   to   evince   a   conscious




                                            40
disregard of the rights of others.” Oxenham, 402 S.E.2d at 5

(internal quotation marks and citation omitted).

      In   this    case,   the   district   court   clearly   relied     (for

purposes of Virginia law and Fed. R. Civ. P. 59) on the reckless

and negligent aspect of actual malice set out above, in holding

that there was a sufficient evidentiary basis for the jury’s

award. The court’s opinion on the whole carefully enumerated the

ways in which McGinnis failed to seek information from Bennett

personally,       failed   to    corroborate   information    provided     by

employees he believed to be deceptive, and failed to turn over

to   police   Spangler’s    written    statement    which   contradicted    a

crucial aspect of his initial story (i.e. that he had witnessed

the theft).    744 F. Supp. 2d at 523-24. Its conclusion was that,

      [T]he jury’s punitive damage award was not so
      excessive as to work an injustice. The facts and
      circumstances of this case, along with policy-related
      considerations,   warranted  a   return  of   punitive
      damages. The jury’s punitive award neither creates a
      miscarriage of justice nor offends any notion of
      fairness or justice. Hence, granting of a new trial is
      not justified.

      Indeed, the rush to judgment and the decisions to
      press an arrest on the uncorroborated evidence given
      by known liars, and the withholding of exonerating
      evidence from the police and the state court all
      support the imposition of punishment. And, the award
      also serves a deterrent purpose. Perhaps, in the
      future R & L and McGinnis will not be so quick to
      close   a  case,  and   perhaps  they  might  fairly,
      objectively and fully conduct an investigation before
      having someone arrested. In other words, the punitive
      award should also deter wrongful conduct on future
      theft investigations at R & L. And, if after checking


                                      41
       for corroborative evidence, they determine that the
       word of a witness is confirmed to be of no value, they
       perhaps will refrain from pressing charges. And, if
       they do press charges and then, shortly thereafter,
       come across exonerating evidence, they will share it
       with the police and the courts.

       This case clearly involved a miscarriage of justice
       but not the one of which the Defendants complain. The
       miscarriage, in fact, was visited on Clyde Bennett.
       The record shows clearly the miscarriage reflected in
       the jury’s verdicts. Counsel for the Defendants
       expressed profound, numbing shock when the verdict was
       returned. That may be how the defendants and counsel
       felt. But, that reflects that they were (and remain)
       tone deaf to the wrongs proved by the record and to
       the damage those wrongs visited upon Clyde Bennett.
       This record shows beyond question that the verdict of
       the jury visited no miscarriage of justice on the
       Defendants.

Id. at 538-39.

       The Appellants’ arguments seeking to minimize the evidence

adduced    at     trial    as     insufficient       or   improperly      considered

ignores    the    fact     that      under    Virginia    law,   recklessness       and

negligence -- the failure to take proper care when undertaking

an    investigation       --   can    establish     actual    malice.     See,   e.g.,

Oxenham,    402    S.E.2d       at    5.     The   district   court     cited    ample

evidence that McGinnis acted recklessly and/or negligently in

the    course     of     his    investigation,        evidence     from     which    a

reasonable jury could find actual malice. We therefore find no

abuse of discretion in the award of punitive damages.

       The real crux of the Appellants’ damages claim is that the

compensatory damages awarded –- including $1,159,698 for non-




                                             42
pecuniary injuries -- were so excessive as to warrant vacatur.

They argue that the verdict was contrary to Virginia law because

it was so large as to “‘shock the conscience’ and to suggest

that the jury was motivated by passion, and did not reach a fair

and impartial decision.” Appellants’ Br. 38. The non-pecuniary

award is shocking, they argue, in part because it is “far beyond

any prior award ever affirmed by the Virginia Supreme Court,”

Appellants’ Br. 38, as demonstrated by their table of cases on

point from 1911-2011. Appellants’ Br., Addendum A.

      The     district       court’s        reasoning         in         upholding       the

compensatory damage award was, in summary:

      The jury saw that Bennett had been humiliated and
      demoralized both on the day of his arrest and for
      years thereafter, and wrongfully so. It saw that
      Bennett had endured mental suffering and distress, and
      needlessly so. It saw that his ability to provide for
      basic needs such as housing and insurance had been
      severely    diminished,    and    that   his    personal
      relationships   had   been   seriously  altered   as   a
      consequence of the wrong done by the Defendants.

744 F. Supp. 2d at 535. In light of evidence of these injuries,

the   district     court   found      the   jury   within      the       bounds     of   its

proper judgment, and noted, “the verdict did not establish that

the   jury   included      in   its    damages     anything        not     awardable     in

Virginia     for   malicious       prosecution,”        nor        had     either    party

requested a special verdict form specifying amounts for various

types of injury. Id. at 536.




                                            43
       While the non-pecuniary award (to the degree that it is

distinct) appears to be a windfall by sheer virtue of its size,

we   defer   to    the    jury’s      conclusions    drawn       from    the   evidence

before them. Bennett experienced a drastic reversal of fortune

as a result of his arrest and termination, one that a jury might

reasonably    find       particularly     harsh     for     a    man    who    had   been

scrupulous    in    his    personal     savings     and   work     ethic.      The   jury

apparently    concluded        that    Bennett’s    arrest       and    its    lingering

effect on his ability to get a job and to present himself with

the dignity to which he was accustomed and habituated was a

profound injury to his well-being. Without evidence of any error

on their part, we decline to upset their decision.

       Turning     to    the   Appellants’       challenge       to     the    pecuniary

damages portion of the compensatory damages award, they argue

that   Bennett’s        projected     future     earnings       were    estimated     “by

speculation       and     conjecture     and     [were]     unsupported         by   any

evidence.” Appellants’ Br. 41. Bennett was an at-will employee,

they accurately note, whose employment with R&L was therefore

not guaranteed through his retirement age.

       This court has explained, in the context of “front pay” for

employment       discrimination        claims,     that     future      earnings      are

“nearly indeterminable” where an employee’s capacity for work

has not been “destroyed or damaged.” Duke v. Uniroyal, Inc., 928

F.2d 1413, 1423 (4th Cir. 1991). Duke also notes, however, that


                                          44
“If a plaintiff is close to retirement front pay may be the only

practical approach.” Id. at 1424. At the time of the trial,

Bennett     was    approximately            11    and        a    half     years       from    full

retirement age, had a high school education, and had 30 years

experience        in   the     freight           industry.          The       future     earnings

estimates provided to the jury were, of course, just that –

estimates. We do not discern an abuse of discretion in allowing

these    estimates     to     go     before       the        jury      when     Bennett’s     work

history indicated an employee who wanted to work, was competent,

and had every incentive to remain in good standing at R&L until

he was able to retire. See 744 F. Supp. 2d at 534 (“The lost

future     earnings          damages        awarded,             though         certainly          not

established       to   a     mathematical             certainty,         were    proven       to     a

reasonable certainty and were grounded upon facts specific to

Bennett.”).       Unlike     Baker     v.    Kroger,          784      F.2d    1172    (4th    Cir.

1986), in which we rejected a future earnings award estimated

for 35 remaining years of work as too speculative, Bennett was

facing just over ten years before Social Security eligibility.

There is no evidence in the record that he would have left R&L

before retirement or been forced out of a job that was in the

field of his expertise and that had afforded him great financial

security.     Under        these     circumstances,               we     conclude      that        the

district     court     did     not     abuse           its       discretion       in     allowing




                                                 45
estimated future earnings to be presented to the jury and taken

into account as to the compensatory damage award.



                                            III.

       For the forgoing reasons, we hold that the district court

did not err in denying the Appellants’ motions under Fed. R.

Civ.   P.   50(b)      and     59.   In    light    of    the    patent       and    admitted

unreliability of all informants who were questioned during the

Appellants’         brief,     indeed      pell-mell      investigation,            there    is

adequate evidence in the record supporting the jury’s findings

that the Appellants lacked probable cause to initiate a criminal

prosecution against Bennett, and that they undertook this act

with malice. In addition, we hold that the trial court properly

applied Virginia law as to the legal import of a nolle prosequi

order.

       Furthermore, we hold that the damages awarded to Bennett do

not    shock    the        conscience     because    they       rest    upon       reasonable

estimates of pecuniary and non-pecuniary loss and comport with

Virginia’s          statutory    limits      and     standards         as     to    punitive

damages.       To     be     sure,   the     jury    plainly,          even    generously,

expressed      its     belief    that      the    Appellants      visited      a     grievous

pecuniary and dignitary harm on Bennett, effectively wiping out

his    modest         retirement        savings,         consigning         him      to     the

unemployment rolls for an extended period of time and subjecting


                                             46
him to the proverbial “perp walk” before former subordinates in

the   work    place.        More    disturbing    still,    they       prompted    his

jailing, even if for only a brief time. For some people, Lowrey

and Spangler, for example, getting arrested might appear to be a

“no big deal” incident of adult life. But the jury was entitled

to consider, as it clearly did, that for some others, Bennett,

for example, it is just short of a psychic brutalization. Cf.

Florence v. Board of Chosen Freeholders of County of Burlington,

566   U.S.    ---,    2012     WL    1069092     (2012)    (holding      that     strip

searches of any and all arrestees housed in general population

of    local   detention        centers     and   jails     are   constitutionally

permissible);        id.,    slip    op.   at    1    (Alito,    J.,     concurring)

(describing     potential           “offensive       and   deeply       humiliating”

procedures facing those arrested for minor offenses); id., slip

op. at 3, 5 (Breyer, J., dissenting) (same).

      We cannot know, from the cold appellate record, what the

jury saw on the faces of Bennett or McGinnis and the other

witnesses, or what they heard in the tenor and tone of the

voices of Bennett or McGinnis or those other witnesses, or what

and how such demeanor evidence that is a part of every trial was

weighed and evaluated. The experienced, distinguished district

judge was a percipient witness of all that occurred before him.

The well-established limits to our institutional role requires

that, in the absence of a manifest abuse of the broad discretion


                                           47
the law accords to the judgment of the district court, we must

forebear. 10

     For the reasons set forth therefore, the judgment is

                                                        AFFIRMED.


     10
        We respect the conscientiously-held, contrary views as to
the weight, credibility and overall probative value of the
evidence in this case as well-stated by our good colleague in
dissent. For the reasons we express, however, in looking through
the trial court's assessment of the record to determine, for
ourselves, with appropriate deference, see ABT Bldg. Prods.
Corp., 472 F.3d at 113, whether substantial      evidence (direct
and   circumstantial)   supports   the   judgment,   we  perceive
rationality, not an exercise of arbitrary power, in the results
reached by jury.
     Three of the dissent's observations merit a brief response.
First, one will scan Appellants' briefs in vain for any mention
of "common carrier" or of the existence of any special public
policy of the Commonwealth that should have informed the trial
of this case. If the Commonwealth's public policy wrapped common
carriers in the kind of protective embrace from malicious
prosecution claims favored by the dissent, see Post at 49-50,
one would have thought that, rather than removing this case on
the basis of diversity of citizenship jurisdiction from state
court to federal court and then asking the district court to
certify questions to the Supreme Court of Virginia, as they did
here, Appellants would have chosen to try the case where it was
filed: in the courts of the Commonwealth. We do not believe
public policy contributes to the resolution of this appeal.
     Second, the dissent's assertion that the mere fact that
"Lowrey possessed one of the stolen computers confirmed his
statement that he was involved in the theft, and, by extension,
his version of the events," see Post at 55 (emphasis added),
simply defies what we know about human behavior, including the
human capacity for mendacity.
     Third, the dissent (weighing the trial evidence for itself)
is confident that the only "motive" harbored by McGinnis was "to
see the guilty punished." See Post at 60. To the contrary, we
are persuaded that the district court did not err in sustaining
the implicit finding of the jury, amply supported by the direct
and circumstantial evidence in the record, that McGinnis was
motivated to see someone punished.



                               48
AGEE, Circuit Judge:

       Virginia courts have long held, and continue to reaffirm,

that malicious prosecution actions are disfavored. As Virginia’s

highest    court   recently   explained,    “[a]ctions    for   malicious

prosecution arising from criminal proceedings are not favored in

Virginia and the requirements for maintaining such actions are

more stringent than those applied to other tort cases to ensure

that   criminal    prosecutions   are   brought   in   appropriate   cases

without fear of reprisal by civil actions.” Lewis v. Kei, 708

S.E.2d 884, 889 (Va. 2011); see also Reilly v. Shepherd, 643

S.E.2d 216, 218 (Va. 2007) (same); Bill Edwards Oldsmobile, Inc.

v. Carey, 244 S.E.2d 767, 771 (Va. 1978) (same). The reason for

this intentionally high bar is that “criminal prosecutions [are]

essential to the maintenance of an orderly society.” Reilly, 643

S.E.2d at 219 (citing Ayyildiz v. Kidd, 266 S.E.2d 108, 110-11

(Va. 1980)).

       Furthermore, malicious prosecution actions against common

carriers, like R&L here, are particularly problematic. As the

Supreme Court of Virginia recognized more than one hundred years

ago:

       [C]haracter [should not be] put lightly in jeopardy, .
       . . but it is to be borne in mind that in the interest
       of good order and society, and the upholding and
       enforcement  of   good  citizenship,   prosecutors  of
       wrongdoers are not to be deterred from doing their
       duty to the public by the fear of being mulcted in
       heavy damages because of honest mistakes made in

                                   49
       instituting criminal prosecutions. Public carriers of
       freight are held to be insurers of goods committed to
       them for shipment and, if they were lightly to be
       mulcted in damages in every case in which an attempt
       to punish and thereby stop theft fails, an intolerable
       burden would be added to those they are rightly called
       upon to bear.

So. Ry. Co. v. Mosby, 70 S.E. 517, 521 (Va. 1911) (emphasis

added).

       The    majority        fails    to    adhere    to—or       even    refer    to—these

long-standing and clearly-expressed principles of Virginia law.

Instead, it allows a jury verdict to stand that conflicts with

these principles.             Even    taken    in    the    light    most    favorable      to

Bennett,      the     prevailing       party    below,      the    facts    of     this   case

simply do not support the jury’s finding that Bennett met his

burden of showing two elements of his claim: a lack of probable

cause and malice. Accordingly, I would reverse the judgment of

the district court.

       Additionally,           I    disagree    with    the    majority’s         conclusion

that   the     damages        here    were     supported      by    the    evidence.      Most

notably, the record lacks any evidence supporting a finding of

actual       malice      as    required       for    the    imposition       of     punitive

damages. Likewise, as to the jury’s award of more than $1.1

million      in   non-pecuniary            compensatory     damages,       the     amount   is

unsupported         by   the       facts   adduced     at   trial,    unprecedented         in

Virginia for this type of claim, and clearly reflects that the

jury awarded damages based on “passion . . . or prejudice, or .

                                               50
. . that [the award] is not the product of a fair and impartial

decision.”    See   Shepard    v.   Capitol   Foundry    of   Va.,     Inc.,   554

S.E.2d 72, 75 (Va. 2001).

     For these reasons, I respectfully dissent.

I. Liability

     As correctly stated by the district court below and by the

majority   opinion,     a    malicious    prosecution   action    in    Virginia

requires the plaintiff to prove “four essential elements: that

the prosecution was (1) malicious, (2) instituted by or with the

cooperation of the defendant, (3) without probable cause, and

(4) terminated in a manner not unfavorable to the plaintiff.”

Maj. Op. at 3 (quoting Reilly, 643 S.E.2d at 218). Defendants

concede that the second element is established, and I agree with

the majority’s analysis in Section II-C regarding the fourth.

See Maj. Op. at 35-39. I part ways with the majority, however,

in its conclusions that there was sufficient evidence from which

the jury could find either a lack of probable cause or legal

malice.

A.   Probable Cause

     As to the element of probable cause, the majority quotes

extensively    from    the    district    court’s   opinion,     adopting      the

lower court’s analysis regarding both probable cause and the

application    of     the    informant-accomplice       doctrine.      Both    the



                                         51
district court’s opinion and the majority opinion err in several

critical respects.

      First, contrary to the majority’s reasoning, under Mosby,

McGinnis was permitted to credit Lowrey’s testimony that Bennett

was   involved    in   the    theft      of    the   computer     towers,      and   also

permitted    to   credit      Spangler        and    Mitchell’s       statements     that

Bennett was responsible for the theft.

      The district court and majority refer to the “accomplice”

rule, and further state that “[t]he discussion of Spangler and

Mitchell under Mosby . . . is misplaced because neither Spangler

nor   Mitchell    implicated       themselves        as    Bennett’s    accomplices.”

Maj. Op. at 23. But Mosby’s analysis was not so limited. In

Mosby,   there      were     two   individuals            who   reported    suspicious

behavior by Mosby to the company’s investigator. 70 S.E. at 518-

19. One directly accused Mosby of being involved in a theft

ring, and also admitted his own participation in the crime. Id.

at 518. As to him, the Mosby court stated what the district

court here referred to as the “accomplice” rule, i.e., “that

information received from one admitting his participation in a

crime is sufficient to create probable cause for prosecution, if

there is no reason to doubt its truth.” Id. at 521. But a second

individual    who      was   not    an        accomplice,       but   simply    another

employee, also gave information implicating Mosby. In referring

to the accomplice and the second individual, the Mosby court

                                              52
referred more generally to the fact that an investigator may

rely on “sources [of] information,” where he did not know that

the sources “were not reliable.” Id. This was true even though

the accomplice was a “notorious thief and wholly unworthy of

belief”       and     the      non-accomplice        company       employee      had     a

“treacherous memory.” Id. at 520. Thus, under Mosby, the mere

fact     that      Spangler     and      Mitchell    were    not     admitting    their

participation in a crime does not mean that McGinnis could not

credit their statements, or that their statements did not help

to establish probable cause. See also Lewis, 708 S.E.2d at 890

(“Police may rely on the statement of a reported eyewitness as

establishing probable cause to seek an arrest. See Reilly, 643

S.E.2d at 218-19 (finding that probable cause existed when the

arresting         officer     obtained     a    warrant     based      on   a   positive

identification of a suspect by an eyewitness). . . . ”). In

Lewis,       in     fact,    the     police     officer     relied     solely    on    an

eyewitness who reported that Lewis attempted to kidnap a child,

and    did    not    conduct       any   investigation      in   the   case.    Id.    The

Supreme       Court     of    Virginia        held   that    evidence       established

probable cause as a matter of law. Id.

       Second, I disagree with the majority’s conclusion that the

focus should be on the reliability vel non of an informant,

rather than the reliability of the information provided by him.

The majority suggests that none of the statements of any of

                                               53
these men could be reasonably relied on by McGinnis because he

already believed them to be “liars.” But even accepting, as we

must on appeal, that McGinnis thought Spangler, Mitchell, and

Lowrey were “liars” in general, or were minimizing their own

involvement in the thefts of either the laptops or the computer

towers, that is insufficient alone to negate the existence of

probable cause. The mere fact that an accomplice is lying about

some aspects of his own involvement in a crime does not render

his   statement        that    another        person    was    involved       necessarily

untrustworthy.       That     is,   it    is    entirely       possible     that    even    a

person who is generally untrustworthy in some endeavors will

give accurate and trustworthy information in another setting.

Cf. Mosby, 70 S.E. at 520-21. Indeed, if an individual had to be

absolutely     trustworthy          in    order      for      his   statement        to    be

credited, virtually no accomplice would ever qualify, since by

definition, an accomplice is a criminal.

      Both   of   these       errors     by    the     majority     distort    the    legal

significance      of    the    evidence        actually    before     the     jury.       That

evidence     shows      that    there         were     three    individuals        telling

McGinnis that Bennett perpetrated a theft. While there may have

been reasons to doubt the reliability of Lowery generally, there

was nothing known to McGinnis that should have caused him to

doubt      Lowrey’s       particular           accusations          against        Bennett.

Similarly, while McGinnis may have had reason to believe that

                                              54
Mitchell and Spangler were involved in the theft of laptops,

that    alone     is    insufficient       to       lead     him    to    believe     that      the

information they were providing about Bennett was necessarily

false or unreliable.

       Moreover, other Virginia cases bolster the conclusion that

there       was       probable         cause        here.     The         majority        opinion

unconvincingly attempts to distinguish Reilly, Bill Edwards, and

Commissary Concepts Mgmt. Corp. v. Mziguir, 594 S.E.2d 915 (Va.

2004), on the grounds that in the case at bar “there was not a

scintilla of corroborating physical evidence or any pattern of

behavior already observed by the employer . . . .” Maj. Op. at

29.    In     fact,     however,        McGinnis       had    “corroborating          physical

evidence”—he recovered one of the stolen computers from Lowrey.

The    fact    that     Lowrey     possessed          one    of     the    stolen    computers

confirmed his statement that he was involved in the theft, and,

by    extension,       his   version      of    the     events,       which    included         the

statement that Bennett was also involved.

       The majority dismisses these cases as ones that “involve

far    stronger        evidence    of     the       suspect’s       wrongdoing”       than      the

instant       case,       Maj.     Op.         at     27;         however,     that        is    a

mischaracterization.              In     Mziguir,           for     example,        the     court

concluded that probable cause existed to believe an employee was

embezzling despite the fact that the supposedly “missing” money

had actually been placed by the employee in the restaurant safe,

                                                55
and simply had not been discovered by management. 594 S.E.2d at

917-18. Indeed, rather than asking the employee where the money

was, the company simply asked the police to arrest him. Id. at

917. After he was arrested, he was able to explain to company

employees     exactly    where      in    the       safe    the    money    was,       and    the

charges    were      dismissed.     Id.    Despite          the    fact    that    a    simple

question to the employee or a thorough search of the safe would

have      revealed—and         ultimately            did      reveal—the          employee’s

innocence, the Supreme Court of Virginia nonetheless found that

there was probable cause as a matter of law to ask for his

arrest. Id. at 918. Thus, the Court concluded that the trial

court erred in denying the motion to set aside the jury verdict.

Id.

       Similarly, the district court and majority here fail to

recognize      the    significant        evidence         McGinnis    had     before         him,

which   was    sufficient      to   establish             “probable   cause.”          Even    if

there was additional information in existence (but unknown to

McGinnis)      that    could    have      undercut          the    accusations         against

Bennett,      that    information        does       not    undercut       probable      cause.

McGinnis might have been more thorough in his investigation,

just as the employer in Mziguir could have been. As with most

investigations viewed through the lens of hindsight, there was

more    relevant      information         he    could       have     learned,      but        the

majority rightly acknowledges that the failure to discover those

                                               56
facts      “could     not   be     considered        by   the     jury    in     deciding     the

element      of    lack     of    probable      cause.”         Maj.    Op.     at   27.   Three

different         people     implicated         Bennett         (one     of     whom    was   an

accomplice) and the accomplice then produced tangible evidence

supporting his story that he was involved in the theft. In my

view,      probable       cause    existed      as    a    matter       of     law, 1   and   the

district court erred in construing Virginia law to the contrary.

        B.     Malice

       The final element of a malicious prosecution claim that a

plaintiff must prove is that the defendant acted with “legal

malice.”       This    type       of   malice    is       distinct       from     the   “actual

malice” required for the imposition of punitive damages. See

Giant of Va., Inc. v. Pigg, 152 S.E.2d 271, 276-77 (Va. 1967).

In the context of a malicious prosecution claim, legal malice is

“any       controlling      motive      other     than      a    good    faith       desire    to

further the ends of justice, enforce obedience to the criminal


       1
       While it could not be considered as evidence of probable
cause by the jury since it occurred after Bennett’s arrest, it
is nonetheless telling that an impartial state court judge,
after hearing the testimony of Lowrey and the findings of
McGinnis’ investigation, found there was probable cause to
certify to the grand jury the criminal proceedings against
Bennett. See Mosby, 70 S.E. at 520-21 (noting that “the police
justice and two grand juries” who returned bills of indictments
against   Mosby  “gave   credence   to  the   evidence of  both
[accomplices], as [the investigator] had done” and that the
investigator’s belief that the plaintiff was guilty was “shared
in by the police justice and two grand juries”).



                                             57
laws,   suppress       crime,        or    see      that     the    guilty      are    punished.”

Hudson v. Lanier, 497 S.E.2d 471, 473 (Va. 1998) (emphasis in

original).      Thus,      it       requires         the     “intentional         doing      of    a

wrongful      act   with       an    evil      or    unlawful       purpose”      and    must     be

proven separately. Freezer v. Miller, 176 S.E. 159, 168-69 (Va.

1934)    (emphasis        in    original).               Malice    can    be    inferred      from

probable cause, but only where the circumstances of the case

warrant it. See id. Indeed, the majority apparently agrees that

such an inference is possible only where the circumstances of

the case warrant it. See Maj. Op. at 31-32 (citing Pigg, 152

S.E.2d at 276; Oxenham v. Johnson, 402 S.E.2d 1, 2 (Va. 1991)).

       Notably,      after          quoting         extensively          from    the    district

court’s ruling regarding legal malice, the majority concludes

that    McGinnis’s        decision          to       press    charges        against        Bennett

“solely    on       the    basis          of     information          from      informants        he

considered unreliable and deceptive, along with his failure to

seek    the     most      basic        corroborating               information        for    these

accounts, supports a jury finding as to malice.” Maj. Op. at 35.

This conclusion fails to follow Virginia law concerning legal

malice, which clearly holds that “neither lack of probable cause

nor the mere failure to act as a reasonably prudent man under

the circumstances in instituting the prosecution is the same

thing as malice.” Freezer, 176 S.E. at 168. As explained in

Freezer, the circumstances of the case will warrant an inference

                                                    58
of malice from a lack of probable cause only where there is “no

reasonable ground for the institution of a prosecution.” Id. at

169    (emphasis       in   original).        This    is    so     because         legal        malice

requires a “wrong motive or purpose [which] must be proved as a

fact     and    will      not      be    imputed     by     the        law    from        the    mere

intentional doing of a wrongful act without legal justification

or excuse.” Id. (emphasis in original).

       Virginia cases applying these principles show that more is

required than what is present in the case at bar. In Hudson, for

example, the Supreme Court of Virginia required proof of ill

motive    in    a   malicious           prosecution      case.     497       S.E.2d       471.     The

trial court had dismissed the action at the close of evidence on

the    grounds      that     the    plaintiff        failed       to    prove       that        either

individual defendant acted with malice. The Supreme Court of

Virginia affirmed the circuit court’s conclusion that there was

insufficient proof of malice, because the plaintiff had failed

to prove that either defendant “had a controlling motive other

than to ‘further the ends of justice, enforce obedience to the

criminal       laws,      suppress        crime,    or     see    that       the     guilty       are

punished.’”         Id.     at     473    (citing        Freezer,       176        S.E.     at     169

(emphasis in Freezer)). Similarly, in Freezer, the Supreme Court

of    Virginia      explained       that     “[e]ven      if     there       was    no     probable

cause for the prosecution, but it is shown there was in fact no

wrongful motive, the action for malicious prosecution cannot be

                                              59
maintained, and a verdict for the plaintiff will be set aside.”

176 S.E. at 170.

      The    facts      of   this       case,    similarly,    do    not       warrant   an

inference that malice was present, and there is no independent

evidence of wrongful intent or any other improper “controlling”

motive by Defendants. It is undisputed that McGinnis had never

met Bennett before the investigation, and Bennett admitted that

he never heard Finley say anything derogatory about him. See

Reilly, 643 S.E.2d at 218 (noting, as to the malice element,

that there was “no contention that [the investigator] had any

personal      ill-will        against       [the     plaintiff]      or        that    [the

investigator] had even known or heard of him before the case was

assigned     to   him    for       investigation”).     Moreover,        there     was    no

evidence offered of any motive by McGinnis other than a motive

to see the guilty punished. See Hudson, 497 S.E.2d at 473.

      The     decision       in     Pigg,   is     instructive      as    to    when     the

circumstances of a case can warrant a finding of malice. There,

the   Supreme     Court       of     Virginia      concluded    that      the    lack    of

probable cause before it was sufficient to support a finding of

malice      for   purposes         of   liability,     but    the    conduct      of     the

defendant in that case was far more egregious than the facts of

the case at bar. 152 S.E.2d 271. In that case, a store employee

tasked with apprehending shoplifters flatly refused to consider

the plaintiff’s explanation that she had purchased items earlier

                                            60
in the day and the receipt was in her car. He refused to even go

to the car (which was in the store parking lot) and examine the

receipt.     Instead,      he    arrested    her,     escorted         her   to   a    nearby

police precinct and swore out a warrant charging her with petit

larceny. Id. at 273-74. There, despite the plaintiff inviting an

inquiry into her innocence and offering a plausible explanation

for    her     having      the     items    in     her        purse,     there        was     no

investigation conducted.

       Here,   by    contrast,      R&L    brought       in    an   investigator,            who

spent days reviewing records and interviewing numerous people,

several of whom implicated Bennett. Additionally, one of the

witnesses      who   implicated        Bennett     not    only      admitted      his        own

participation in the crime, but produced corroborating physical

evidence to back up his story (a stolen computer tower). Unlike

in Pigg, there was no flat, blanket refusal here to consider the

plaintiff’s potential innocence.

       Moreover,     the    mere    fact    that      Bennett       proclaimed        he     was

innocent does not alter this result. The malicious prosecution

plaintiff in Mosby likewise emphatically denied any guilt, but

the court nonetheless concluded that there was probable cause to

have    him     arrested.         70    S.E.     at      520        (“Taking      [Mosby’s

proclamations of innocence] and considering them in connection

with information [the investigator] then had, we cannot agree

that    they    were    so       convincing      of    [his]        innocence         that    a

                                            61
reasonably prudent man should have desisted in his purpose to

have him arrested.”). In short, no inference of legal malice is

warranted under the facts of the case at bar.

     I would therefore conclude that Bennett failed to establish

both a lack of probable cause and malice, and that the jury’s

verdict should be overturned.

II. Damages

     Because I would reverse the judgment of the district court

as to Defendants’ liability, I would not find it necessary to

address any of Defendants’ challenges to the damages awards.

Nonetheless, because the majority reaches those issues, I will

set out two aspects of the district court’s approval of the

verdict and majority’s analysis that I believe to be error.

     First, the jury’s award of non-pecuniary damages in the

amount of more than $1.1 million is wholly unsupported by the

evidence   and   “shocks   the   conscience.”   Accordingly,   I   would

vacate that portion of the compensatory damages award. 2 Second,

because Plaintiff has not satisfied the standards under Virginia


     2
       At trial, Defendants briefly cross-examined Bennett, and
offered no evidence of their own to contest the pecuniary
damages sought. Although the evidence supporting the jury’s
pecuniary damages award was minimal, see J.A. 589 (district
court admonishing plaintiff’s counsel for being unable to
clearly explain or identify the damages), I nonetheless conclude
that it was sufficient under the standard of review, assuming
there was liability on the part of the defendants.



                                   62
law for an award of punitive damages, I would vacate the jury’s

award of punitive damages.

      A.      Non-pecuniary Compensatory Damages

      The     jury    awarded         over    $1.1    million     for   non-pecuniary

damages to Mr. Bennett, in addition to more than $500,000 in

pecuniary losses. 3 The district court acknowledged that the non-

pecuniary award was “large.” J.A. 746. Likewise, the majority

describes     the     award      as    “the   jury    plainly,     even    generously,

express[ing] its belief that the [Defendants] visited a grievous

pecuniary and dignitary harm on Bennett . . . .,” Maj. Op. at

46, and acknowledges that the award “appears to be a windfall by

sheer      virtue    of    its    size.”      Maj.    Op.   at    44.   The     majority

nonetheless concludes that the jury’s award was not so great as

to “shock the conscience [or] create the impression that the

jury has been motivated by passion, corruption, or prejudice”

and   that    it     was   no    “so    out    of    proportion    to     the   injuries

suffered as to suggest that it is not the product of a fair and

impartial decision.” Shepard v. Capitol Foundry of Va., Inc.,


      3
       As noted by the majority, the jury was not asked to
provide a breakdown of its damages award by category. Maj. Op.
at 43. The district court assumed the jury had given the full
amount sought by Plaintiff for pecuniary damages and then
attributed the rest of the award to non-pecuniary damages. The
pecuniary damages included lost past and future wages, and the
amounts Bennett used from his retirement account and annuity
fund.



                                              63
554 S.E.2d 72, 75 (Va. 2001) (quoted in Maj. Op. at 39). I

disagree and would hold the district court abused its discretion

in refusing to vacate the non-pecuniary damages award.

     As    a     preliminary    matter,     while     I    fully    recognize        that

Virginia does not employ an “average verdict rule” to determine

the excessiveness of a damage award, see John Crane, Inc. v.

Jones, 650 S.E.2d 851, 858 (Va. 2007), it is noteworthy that the

award     here     is      substantially      higher       than     any      malicious

prosecution       damage    award   affirmed     by       the   Supreme      Court    of

Virginia in the past one hundred years, if not in that Court’s

history. As Defendants note in their brief, 4 from 1911-2011, the

Supreme    Court     of     Virginia    heard   and       decided       42   malicious

prosecution       cases    involving    monetary      awards.      Of    those   cases

where the award was affirmed, the highest award of compensatory

damages ever affirmed was in 2011, in the amount of $185,000.

See Br. of Appellants at 3-4 & Addendum A (citing O’Connor v.

Tice, 704 S.E.2d 572 (Va. 2011)). Even more significantly, the

total compensatory damages awards in all of those cases affirmed

during    that      same     100-year      period     equaled       $249,850.         The

compensatory damages awarded here was almost seven times the

combined amount of all affirmed awards in a century.


     4
        This summary of case information was compiled                                 by
Defendants, but Bennett has not been challenged its accuracy.



                                         64
      Setting aside any comparison to other awards, the amount

here is plainly excessive and shocks the conscience because it

is   so   disproportionate          “to   the    injuries    suffered      so    as    to

suggest that it is not the product of a fair and impartial

decision.” Shepard, 554 S.E.2d at 75. Indeed, the evidence of

humiliation, pain and suffering, and other emotional damages,

was practically non-existent in the case at bar, and certainly

insufficient        to    support    an    award   of    over    $1     million.      See

Gazette, Inc. v. Harris, 325 S.E.2d 713, 745 (Va. 1985) (holding

$100,000 compensatory damage award excessive as a matter of law

where libel plaintiff “experienced no physical manifestation of

any emotional distress[,] . . . sought no medical attention for

any condition resulting from the publication, [and there was] no

evidence that [his] standing with his peers was diminished as

the result of the libel”); cf. Schnupp v. Smith, 457 S.E.2d 42,

49-50 (Va. 1995) (allowing $200,000 non-pecuniary damages award

to   stand,    but       detailing    specific     injury    to       reputation      and

detailed information regarding the effect of the defamation on

plaintiff     and    his    family);      see   also    Sloane   v.    Equifax     Info.

Servs., LLC, 510 F.3d 495, 503 (4th Cir. 2007) (summarizing and

setting forth various factors properly considered in determining

the potential excessiveness of an award for emotional distress,

including the context in which the distress arose, corroborating

testimony, the nexus between the conduct of the defendant and

                                           65
the     emotional          distress,       mitigating           circumstances,         physical

injuries       as    a     result   of   the      distress         and    medical      attention

resulting from it, psychiatric or psychological treatment and

loss of income) (citation omitted).

       In this case, there was no evidence that Bennett suffered

any    physical          symptoms   at     all        as    a    result     of   his    alleged

distress. He never saw a physician, therapist or counselor, or

sought other psychiatric treatment. He never took any medicine.

He expressly admitted that he did not know of anyone with whom

his reputation had been harmed. His testimony regarding how he

felt about what had occurred or about how it had affected him,

emotionally or physically, was limited to the rather conclusory

testimony that he was “humiliated, embarrassed and felt betrayed

by     [his]    employer.”          J.A.     562.          While      the   district       court

ultimately affirmed the jury verdict, it also acknowledged the

paucity of the evidence regarding harm to reputation. J.A. 586

(district court: “that is about as thin as evidence as you could

have . . . Why is it you try a case and put on no damages? I

don’t understand it.”).

       Additionally, the entirety of the “corroborating evidence”

here    came        from    Bennett’s      two        brothers,       who    testified      with

incredible brevity that Bennett was a changed person, and that

he used to be “happy, easy going, [and] fun,” but after the

criminal       proceedings,         he     was    “not          the   same,”     “quiet”    and

                                                 66
“subdued.” J.A. 559, 560. Why Plaintiff’s counsel decided not to

question them more extensively, and why Plaintiff himself did

not testify more fully as to his damages, are not for us to

determine. 5 It is sufficient that, on the record before us, there

is no evidence that would lead an impartial and fair jury to

conclude that an award of $1.1 million for non-pecuniary damages

(in addition to more than a half-million dollars in pecuniary

damages) was warranted.

     Contrary to the majority’s implication, Maj. Op. at 46-47,

I do not suggest that a false arrest could never traumatize a

person or entitle them to a large award, and we can speculate

that events may well have greatly affected Bennett. But that is

all we would be doing—speculating. Likewise, that is what the

jury impermissibly must have done because the evidence is simply

not there to support its verdict. The majority’s description of

the arrest here as “just short of a psychic brutalization,” Maj.

Op. at 47, is wholly unsupported by any testimony from Bennett

or anyone else that it had that effect on him. Quite simply,

Plaintiff failed to put forth sufficient evidence of emotional


     5
       While it may be uncomfortable for a plaintiff to discuss
his feelings, emotional difficulties, or emotional pain in front
of a courtroom of strangers, when he seeks vast amounts of money
for mental anguish and suffering, he must offer sufficient
evidence to support any such award. The award here was not so
supported and I would not allow it to stand.



                               67
pain or suffering so as to justify an award of more than $1

million for non-pecuniary damages.

     B.      Punitive Damages

     I also would vacate the award of punitive damages, both

because there has been no showing of actual malice and because

it is excessive.

     As the majority notes, this Court has held that a Virginia

malicious prosecution plaintiff must prove his entitlement to

punitive damages by clear and convincing evidence. Stamathis v.

Flying J., Inc., 389 F.3d 429, 440 (4th Cir. 2004). 6 The punitive

damages award here cannot stand, because the record is devoid of

any evidence of actual malice by Defendants, let alone clear and

convincing     evidence.    The   majority     misstates    and    misapplies

Virginia     law    in   suggesting     that   mere      negligence     in   an

investigation      can   establish    actual   malice.     Maj.   Op.   at   42

(relying on Oxenham, 402 S.E.2d 1). Virginia law has never held

that common negligence could support the imposition of punitive

damages. Rather, the negligence or recklessness must be of such

a character as to “evince a conscious disregard of the rights of

others.” Oxenham, 402 S.E.2d at 5. Again, for reasons similar to

     6
       Neither party has cited to a Virginia case clearly stating
that this is the proper standard for an award of punitive
damages for malicious prosecution. Plaintiff, however, does not
challenge that this is the proper standard and so for purposes
of this opinion I will presume it applies.



                                      68
those   discussed           in    Sections    I-A   and     I-B    supra     (addressing

elements of probable cause and legal malice), the record does

not   contain        evidence      of   actual    malice,    which     is   required     to

support an award of punitive damages.

      Indeed,        even    in    cases    where   legal    malice      sufficient      to

impose liability is found, the Supreme Court of Virginia has

refused    to    impose          punitive    damages    absent     a     much    stronger

showing as to actual malice than that present in the case at

bar. In Pigg, for example, the Supreme Court of Virginia upheld

the jury’s finding as to liability, but reversed the award of

punitive damages, finding no actual malice. The Court reasoned:

      There is no evidence that [the defendants] acted with
      actual malice, or with evil purpose, or a spirit of
      mischief, in causing the arrest of Mrs. Pigg. They did
      not know her, and there is no showing of personal
      animosity, ill will, rudeness, or oppression, and
      actual malice cannot be inferred from a showing of
      want of probable cause. Here the jury inferred, as it
      had a right to do, that lack of probable cause and the
      circumstances, including the refusal of [the employee]
      to go to her car and examine her sales slip showing a
      prior   purchase    of   the    merchandise  involved,
      constituted legal malice. But the fact that [the
      employee] was not performing his duty in a reasonable
      way cannot be blown up to show that he was guilty of
      actual malice. Consequently, the evidence does not
      warrant the award for punitive damages.

152 S.E.2d at 277.

      The same is true here. While the majority repeatedly casts

aspersion       on     McGinnis’        investigation       (characterizing        it    as

“brief,”    “pell-mell”           and   “ham-handed,”       Maj.   Op.      at   29,    46),


                                             69
these     characterizations                  cannot       contort     the      evidence        in   the

record to the level required for a finding of actual malice.

McGinnis spent several days conducting more than ten witness

interviews. He reviewed documentation and apparently tried to

ascertain what had occurred and to convince individuals with

knowledge to come forward or to confess. He may have reached an

incorrect       conclusion.              Particularly            with          the     benefit       of

hindsight,           he      could           have         performed        a     more      thorough

investigation. But at most he was negligent; conduct which does

not meet the standard for actual malice. See Pigg, 152 S.E.2d at

277. To hold him and R&L liable for punitive damages is not

supported by the record and is contrary to Virginia law.

III. Conclusion
       If we assume that Bennett was merely a victim here, the

primary     perpetrators                of     the     wrong     against          him    were       not

Defendants, but were Lowery, Spangler, and Mitchell, who falsely

implicated Bennett in a theft he claims he did not commit. Any

harm    visited           upon    Bennett           thus     rests    squarely          upon    their

shoulders,      not        upon    the       Defendants’.        At    the       time    Defendants

elected    to    call        the     police,          McGinnis       had       three    individuals

reporting       to    him        that    Bennett          committed        the    theft.       He   was

permitted to rely on their statements in reporting to the police

that he believed Bennett had committed theft. At the time the

investigation was handed over to the police—with probable cause

                                                     70
to believe Bennett had committed the theft—Defendants had no

further obligation to Bennett. Under Virginia law, they should

not be held liable for malicious prosecution and be subject to

an excessive award of compensatory damages and punitive damages

solely for what was, at worst, an incomplete investigation.

     Based on this record, I am firmly of the view the Supreme

Court of Virginia would find the applicable standards for proof

of malicious prosecution, and certainly damages, were not met in

this case. I respectfully dissent.




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