Peter Halmos v. Bomardier Aerospace Corp. , 404 F. App'x 376 ( 2010 )


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  •                                                          [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________                  FILED
    U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 10-12411                 DECEMBER 7, 2010
    Non-Argument Calendar                JOHN LEY
    ________________________                CLERK
    D.C. Docket No. 4:09-cv-10030-JLK
    PETER HALMOS,
    PAH CO.,
    Plaintiffs-Appellants,
    versus
    BOMARDIER AEROSPACE CORP.,
    Defendant-Appellee,
    LEGAL SERVICES P.C.,
    ROBERT M. GREENBERG,
    Defendants.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (December 7, 2010)
    Before TJOFLAT, WILSON, and COX, Circuit Judges.
    PER CURIAM:
    Plaintiff Peter Halmos sued Bomardier Aerospace Corporation (“Bomardier”)
    for malicious prosecution following the conclusion of a Dallas County, Texas suit
    filed by Bomardier against Halmos, individually and doing business as PAH
    Corporation, and PAH Co.        Halmos contends that the district court erred in
    dismissing his claim for malicious prosecution. We reject this contention.
    At the Fed. R. Civ. P. 12(b)(6) stage, we “primarily consider the allegations in
    the complaint,” but “[t]he court is not [always] limited to the four corners of the
    complaint.” Long v. Slaton, 
    508 F.3d 576
    , 578 n.3 (11th Cir. 2007) (citation omitted).
    We have held that a district court may take judicial notice of matters of public record
    without converting a Rule 12(b)(6) motion into a Rule 56 motion. See Bryant v.
    Avado Brands, Inc., 
    187 F.3d 1271
    , 1278 (11th Cir. 1999); see also Tellabs, Inc. v.
    Makor Issues & Rights, Ltd., 
    551 U.S. 308
    , 322, 
    127 S. Ct. 2499
    , 2509 (2007)
    (“courts must consider the complaint in its entirety, as well as other sources courts
    ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular,
    documents incorporated into the complaint by reference, and matters of which a court
    may take judicial notice.”).
    In order to adequately allege malicious prosecution of a civil claim, the
    plaintiff must establish: (1) a judicial proceeding against the present plaintiff was
    2
    commenced or continued; (2) the present defendant filed the original proceeding
    against the present plaintiff as the defendant in the original proceeding; (3) the
    termination of the original proceeding was in favor of the present plaintiff; (4)
    absence of probable cause for the original proceeding; (5) malice on the part of the
    present defendant; and (6) the plaintiff suffered damage as a result of the original
    proceeding. Alamo Rent-A-Car, Inc. v. Mancusi, 
    632 So. 2d 1352
    , 1355 (Fla. 1994)
    (citing Burns v. GCC Beverages, Inc., 
    502 So. 2d 1217
     (Fla. 1986).
    Halmos asserts that the district court explored forbidden territory when ruling
    on Bomardier’s motion to dismiss. We disagree. The district court’s determination
    did not exceed the permissible scope of a 12(b)(6) motion to dismiss - the complaint,
    attachments to the complaint, and matters of public record. The district court found
    that “Halmos was the individual owner of PAH Co.,” “he signed numerous
    documents, including the relevant Agreements, on the company’s behalf,” and he
    “admittedly used the aircraft for personal reasons.” (R.2-55 at 5.) All of this
    information was contained in Halmos’s Amended Complaint and its attachments.
    (R.1-4 at 5 ¶ 17; at 8-10 ¶¶ 27-31; at 17 ¶ 43; Exs. 3-6.) The district court relied upon
    undisputed facts of public record, including the undisputed fact that Halmos did not
    file a motion to dismiss during the four-year Texas lawsuit, that he filed individual
    counterclaims in his name in the Texas lawsuit, and that one would not know the
    3
    proper defendant to sue as there was no entity called “PAH Corporation” in existence
    in Florida at the time the Texas lawsuit was filed. (R.2-55 at 5.) The district court
    used this information to conclude that Halmos’s Amended Complaint was “deficient
    in failing to allege the critical element that [Bomardier] lacked probable cause in
    instituting and pursuing an action against Halmos [in his individual capacity].” (Id.)
    The district court did not err in considering matters of public record that went beyond
    the scope of Halmos’s complaint to reach this conclusion.
    Halmos also contends that the district court impermissibly held that he had
    waived his malicious prosecution claim by failing to file a motion to dismiss, a
    motion for summary judgment, or by filing counterclaims in the Texas lawsuit.
    Halmos misreads the district court’s order. It is clear from reading the order that the
    court simply looked at the record of the Texas lawsuit in considering the totality of
    the undisputed facts surrounding whether Bomardier had probable cause to either
    commence or continue a suit against Halmos in his individual capacity. The district
    court concluded that all the facts taken together defeated Halmos’s ability to allege
    Bomardier’s lack of probable cause. This was proper. Consequently, we find no
    error in the district court’s dismissal of Halmos’s malicious prosecution claim against
    Bomardier.
    AFFIRMED.
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Document Info

Docket Number: 10-12411

Citation Numbers: 404 F. App'x 376

Judges: Cox, Per Curiam, Tjoflat, Wilson

Filed Date: 12/7/2010

Precedential Status: Non-Precedential

Modified Date: 8/3/2023