Larry Borneisen, et al v. Capital One Financial Corp.

Filing

Opinion issued by court as to Appellants Larry Borneisen and Sherry Borneisen. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 11-15337

Date Filed: 09/18/2012

Page: 1 of 19

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15337
________________________
D. C. Docket No. 8:09-cv-02539-EAK-TGW

LARRY BORNEISEN,
SHERRY BORNEISEN,
Plaintiffs-Appellants,
versus
CAPITAL ONE FINANCIAL CORPORATION,
d.b.a. Capital One Bank,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 18, 2012)
Before HULL, MARCUS and HILL, Circuit Judges.
PER CURIAM:

Case: 11-15337

Date Filed: 09/18/2012

Page: 2 of 19

Plaintiffs Larry and Sherry Borneisen appeal the district court’s summary
judgment in favor of Defendant Capital One Financial Corporation (“Capital
One”) on the Borneisens’ state-law civil claims for trespass, invasion of privacy,
intentional infliction of emotional distress, assault, battery, false imprisonment,
malicious prosecution, and abuse of process. After review of the record and with
the benefit of oral argument, we affirm.
I. BACKGROUND
A. The Borneisens’ Delinquent Accounts
Plaintiffs Larry and Sherry Borneisen each had two separate credit card
accounts with Defendant Capital One. The Borneisens failed to make their
minimum monthly payments on those accounts.
On April 12, 2008, Larry Borneisen received a call from Capital One about
his delinquent accounts. Larry Borneisen demanded that Capital One cease calling
him and alleged that the Capital One representative responded that Capital One
would call “as many times per day as wanted” and would call “all day every day
until you pay this.” Larry Borneisen did not dispute that he owed Capital One the
amount it sought to collect from him.
B. Larry Borneisen’s Threatening Phone Call

2

Case: 11-15337

Date Filed: 09/18/2012

Page: 3 of 19

Five minutes after receiving the call from Capital One, Larry Borneisen
called Capital One’s customer call center in Virginia. The call was transferred to
Alexandria Wilson, a “Risk Specialist” at the call center. This phone call was not
recorded, and the course of the conversation between Wilson and Larry Borneisen
is the subject of some dispute. However, the following details are not disputed.
Wilson first verified Larry Borneisen’s identity. At one point during the
call, Larry Borneisen said to Wilson, “What, you dumb bitch, . . . you think I don’t
know where Glen Allen, Virginia, is?” In his deposition, Borneisen admitted that
he said this to Wilson, and he explained that he knew where Glen Allen, Virginia
was “[b]ecause I grew up there. My first apartment was right next door.” In his
deposition, Borneisen also admitted asking Wilson, “What do I got to do, come up
there and put my foot in your ass for you to stop calling me 8, 10 times a day?”
In her contemporaneous notes from the phone call, Wilson noted that
Borneisen threatened to “walk into Glen Allen and shoot everybody in there and
stated that he is not paying” on his account. In a written statement prepared the
same day, Wilson summarized the call, and Larry Borneisen’s threats, as follows:
Primary card holder called around 12:00 pm noon on 04/12/2008 and
stated that we continue to call him and we need to stop because he is not
making a payment on the account that he has with Capital One. He
proceeded to talk about this lump sum of money that he was getting
from his previous employer and that he could leave the states and that
3

Case: 11-15337

Date Filed: 09/18/2012

Page: 4 of 19

he could buy Capital One. Card holder started to curse at me, [I]
informed him that I would disconnect the call if he continued[.] I was
called every name but my name [and] then he stated that he knew where
Glen Allen was located and that he was going to blow the place up.
(emphasis added).
About 40 minutes after receiving Larry Borneisen’s threatening phone call,
Wilson reported to her supervisor that an upset customer had threatened to blow
up the call center.1 Wilson’s supervisor recalled that Wilson was worried about
the call because “she didn’t know what [Borneisen] would be capable of.”
Wilson’s supervisor duly notified Capital One’s security personnel of the threat,
and, pursuant to Capital One’s policy for handling threatening phone calls,
security personnel informed the local police department.
C. Local Police Investigation
Corporal David E. Ford of the Chesterfield County Police Department
responded to the call for service at the call center. Corporal Ford interviewed
Wilson, who stated that Larry Borneisen “was upset because of some
correspondence he had received from Capital One and some phone calls about a
delinquent account of his; that he had made some statements that—to the effect of
he knew where Glen Allen was located and that he would come up there and blow
1

Another customer call was automatically forwarded to Wilson after she terminated the
call with Borneisen, but she reported the incident to her supervisor promptly after that next call.
4

Case: 11-15337

Date Filed: 09/18/2012

Page: 5 of 19

the place up.” Corporal Ford told Wilson that it was important that she recall
Borneisen’s words as accurately as she could, and Wilson “repeated that statement
to [Corporal Ford] again, and then she stated that she . . . could not say that was
his words word-for-word but that that was what he said.”
Corporal Ford prepared a detailed report of his investigation. In his report,
Corporal Ford stated that he asked Wilson why Borneisen would mention Capital
One’s office in Glen Allen, Virginia, when the call center where she worked was
in Chester, Virginia. Wilson responded that the Glen Allen office was listed on all
letter correspondence that Borneisen would have received from Capital One.
Wilson believed that Borneisen did not realize that he was speaking to an
employee at a different location.
At the request of his police department, Corporal Ford relayed the results of
his investigation to Special Agent Eric Morefield, a bomb technician at a
Richmond, Virginia field office of the Federal Bureau of Investigation (“FBI”).
Corporal Ford testified that no one at Capital One ever requested that Borneisen be
arrested or prosecuted, and no one at Capital One requested Corporal Ford to
contact the FBI. In fact, after completing his initial investigation, the only contact
that Corporal Ford had with Capital One was when Capital One contacted him

5

Case: 11-15337

Date Filed: 09/18/2012

Page: 6 of 19

several days later to inform him that the phone call between Borneisen and Wilson
had not been recorded.
D. FBI Investigation
After receiving Corporal Ford’s report, Agent Morefield began his own
investigation. In determining whether there was probable cause for Borneisen’s
arrest, Agent Morefield “carefully reviewed the written statement that Ms. Wilson
gave to the Chesterfield Police as part of the totality of the circumstances
surrounding the threatening phone call from Mr. Borneisen.”
Agent Morefield “found no reason to doubt Ms. Wilson’s veracity in the
statement given to the police, nor did [he] find any grounds to suspect that she
intended to give a false report to law enforcement regarding Mr. Borneisen.”
Agent Morefield specifically noted that there was no evidence of a pre-existing
relationship between Wilson and Borneisen and that “private citizens rarely make
a random criminal report against a stranger, or give sworn statements to law
enforcement against a stranger without facts.” Furthermore, Agent Morefield
noted that Wilson did not report the call directly to law enforcement and did not
complete a police report. She reported the matter to her supervisor as workrelated, and her only interaction with law enforcement was her responding to
questions by Corporal Ford. Additionally, “it did not appear that Ms. Wilson
6

Case: 11-15337

Date Filed: 09/18/2012

Page: 7 of 19

stood to gain anything by reporting the telephone call to her supervisor at Capital
One.” Accordingly, Agent Morefield considered the statements provided to the
Chesterfield Police Department as a “good-citizen report,” a term of art used by
law enforcement to describe “reliable reports of information provided to law
enforcement made by a private citizen regarding possible criminal activity.”
As part of his investigation, Agent Morefield also reviewed Larry
Borneisen’s criminal history, which spanned three decades between 1976 and
2004. Borneisen’s criminal history included, inter alia, several misdemeanor
assault convictions, a charge for felony breaking and entering, and two charges for
aggravated assault with a firearm. Agent Morefield “considered Mr. Borneisen’s
history of arrests for violent crimes, continuing over several decades, to contribute
to a finding of probable cause for his arrest on suspicion of making a bomb threat
to Capital One.”
During his investigation, Agent Morefield’s only communication with
Capital One was a telephone call to determine whether Borneisen’s threatening
phone call was recorded. Capital One confirmed that the phone call was not
recorded. Agent Morefield averred that Capital One “had no other input into [his]
investigation” and “did not request that [he] seek Mr. Borneisen’s arrest or take
any other action of any kind.”
7

Case: 11-15337

Date Filed: 09/18/2012

Page: 8 of 19

E. Borneisen is Charged and Arrested
On April 14, 2008, Agent Morefield filed a criminal complaint in the U.S.
District Court for the Eastern District of Virginia. The complaint and
accompanying “Affidavit in Support of Complaint and Arrest Warrant” alleged
that Borneisen made a “telephonic bomb threat” in violation of 18 U.S.C.
§ 844(e).2 After reviewing the complaint and affidavit, a U.S. magistrate judge
found probable cause and issued a warrant for Borneisen’s arrest.
On the morning of April 15, 2008, three days after Borneisen’s threatening
phone call, the FBI arrived at the Borneisens’ residence in Tampa, Florida, to
effect Larry Borneisen’s arrest. When law enforcement arrived, Borneisen came
outside and told law enforcement “that they were armed trespassers and that they
needed to remove themselves from my property.” The officers stated that they had
a warrant for Larry Borneisen’s arrest, and Borneisen warned them not to
“manhandle me” because he had shoulder and back problems. Law enforcement
officers arrested Borneisen without incident. In his deposition, Borneisen
conceded that the officers “actually . . . were very gentle with me.” No one from

2

Section 844(e) provides: “Whoever, through the use of the . . . telephone . . . willfully
makes any threat . . . to kill, injure, or intimidate any individual or unlawfully to damage or
destroy any building, vehicle, or other real or personal property by means of fire or an explosive
shall be imprisoned for not more than 10 years or fined under this title, or both.” 18 U.S.C.
§ 844(e).
8

Case: 11-15337

Date Filed: 09/18/2012

Page: 9 of 19

Capital One was present at the scene or even aware that Larry Borneisen had been
arrested.
While effecting Larry Borneisen’s arrest, the law enforcement officers also
asked Sherry Borneisen for consent to search the Borneisens’ home and vehicles.
Sherry Borneisen signed a consent-to-search form allowing the officers to search
the Borneisens’ home and vehicles.
F. Indictment and Dismissal of Indictment
On May 7, 2008, a grand jury in the Eastern District of Virginia indicted
Larry Borneisen for violating 18 U.S.C. § 844(e) by using a telephone to “willfully
threaten[] to blow up the Capital One facility . . . by means of fire and explosives.”
In September 2008, the United States moved to dismiss the indictment
under Federal Rule of Criminal Procedure 48(a). The district court dismissed the
indictment on September 8, 2008.
G. The Borneisens Sue Capital One
In December 2008, the Borneisens sued Capital One in state court for
trespass, invasion of privacy, intentional infliction of emotional distress, assault,

9

Case: 11-15337

Date Filed: 09/18/2012

Page: 10 of 19

battery, false imprisonment, malicious prosecution, and abuse of process.3 In
December 2009, Capital One removed the action to federal court.
In January 2011, Capital One moved for summary judgment on all of the
claims. On September 13, 2011, the district court entered a thorough order
granting summary judgment for Capital One and against the Borneisens on each of
the claims. On October 13, 2011, the district court entered a final judgment in
favor of Capital One and against the Borneisens. The Borneisens now appeal.
II. DISCUSSION
On appeal, the Borneisens argue that there was “sufficient evidence . . . to
withstand Capital One’s motion for summary judgment” as to each of their
claims.4 We address these claims in turn.
A. Claims for Trespass, Invasion of Privacy, Assault, Battery, and False
Imprisonment

3

The Borneisens also brought a claim for unlawful debt collection in violation of the
Florida Consumer Collection Practices Act (“FCCPA”), §§ 559.55 to 559.785, Florida Statutes.
Although the district court denied summary judgment on the Borneisens’ FCCPA claim, the
parties subsequently moved to dismiss the FCCPA claim with prejudice. The district court
dismissed the claim, and it is not before us on appeal.
4

We review de novo the district court’s grant of summary judgment. Jones v. UPS
Ground Freight, 683 F.3d 1283, 1291–92 (11th Cir. 2012).
10

Case: 11-15337

Date Filed: 09/18/2012

Page: 11 of 19

The gravamen of the Borneisens’ claims for trespass, invasion of privacy,5
assault, battery, and false imprisonment is that Wilson falsely reported a bomb
threat and that this false report caused the Borneisens’ harm at the hands of the
law enforcement officers that arrested Borneisen at his home in Florida.
The Borneisens’ theory of liability would require a finding that the law
enforcement officers—who were serving a valid arrest warrant issued following a
probable-cause finding by a U.S. magistrate judge in Virginia—were acting as
agents of Capital One. As the district court noted, there is no evidence that any
agent of Capital One has ever entered the Borneisens’ property, and no one from
Capital One was present or participated in the arrest. There is no evidence that
anyone from Capital One ever requested that Borneisen be charged or arrested.
Indeed, the only people to enter the Borneisens’ property were law
enforcement officers, and those officers were acting pursuant to a warrant issued
following independent investigations by the local police and the FBI. And the
issuance of the warrant precluded any action against the law enforcement officers.6
5

The Borneisens’ sole ground for their invasion of privacy claim is that “an invasion of
privacy “was substantially certain to result from the false report[s]” of Capital One employees.
6

See Guin v. City of Riviera Beach, 388 So. 2d 604, 606 (Fla. 4th DCA 1980) (rejecting
trespass claim because “law enforcement personnel have a right, under appropriate
circumstances, to enter upon private property”); City of St. Petersburg v. Reed, 330 So. 2d 256,
257 (Fla. 2d DCA 1976) (rejecting assault and battery claims against a police officer because,
“when an officer has reasonable grounds to believe one has committed a felony, the officer is
11

Case: 11-15337

Date Filed: 09/18/2012

Page: 12 of 19

The law enforcement officers acted independently and without the instigation (or
even knowledge) of anyone at Capital One.
Furthermore, the Borneisens’ theory of liability would also discourage
private citizens from reporting criminal activity to law enforcement. For this
reason, Florida recognizes a “privilege of private citizens to provide, without fear
of subsequent tort liability, information about suspected criminal activities to law
enforcement officials, even where the information was mistaken, and the
providing of such information constituted the principal cause of imprisonment.”
Pokorkny v. First Fed. Savs. & Loan Ass’n of Largo, 382 So. 2d 678, 682 (Fla.
1980). Thus, “under Florida law a private citizen may not be held liable in tort
where he neither actually detained another nor instigated the other’s arrest by law
enforcement officers.” Id. “If the private citizen makes an honest, good faith
mistake in reporting an incident, the mere fact that his communication to an officer
may have caused the victim’s arrest does not make him liable when he did not in
fact request any detention.” Id. To recover for false imprisonment, the Borneisens
must also show that Capital One “was personally involved in detaining the
victim.” Id.

entitled to use force which is reasonably necessary to capture him, even to the extent of killing or
wounding him”); Jackson v. Navarro, 665 So. 2d 340, 341-42 (Fla. 4th DCA 1995) (rejecting
false-imprisonment claim based on officer’s arrest pursuant to a valid warrant).
12

Case: 11-15337

Date Filed: 09/18/2012

Page: 13 of 19

Here, Wilson undoubtedly acted reasonably in reporting Larry Borneisen’s
threatening phone call to her supervisor, and Capital One undoubtedly acted
reasonably in reporting the threat to law enforcement. Although Larry Borneisen
disputes that he made a bomb threat specifically, he admitted in his deposition to
making the following statement during the phone call: “What, you dumb
bitch, . . . you think I don’t know where Glen Allen, Virginia is?” Borneisen
explained that he knew where Glen Allen was “[b]ecause I grew up there. My first
apartment was right next door.” In his deposition, Borneisen also admitted asking,
“What do I got to do, come up there and put my foot in your ass for you to stop
calling me 8, 10 times a day?” The combination of these two statements—one
noting his knowledge of where to find Wilson and one threatening to come to the
call center to put a “foot in your ass”—were sufficiently menacing to warrant
reporting the threatening call to law enforcement irrespective of whether the threat
was a “bomb threat” or a veiled threat to beat a Capital One employee. And even
if Wilson incorrectly reported a bomb threat instead of Borneisen’s personal threat
to beat her, no Capital One employee or agent “was personally involved in
detaining” Borneisen. See Pokorny, 382 So. 2d at 682. Accordingly, these claims
fail.
B. Intentional Infliction of Emotional Distress
13

Case: 11-15337

Date Filed: 09/18/2012

Page: 14 of 19

The Borneisens’ intentional infliction of emotional distress claim is also
based on Wilson’s allegedly false report that Borneisen threatened to blow up the
Capital One facility.
The Borneisens may recover for intentional infliction of emotional distress
only if Capital One’s conduct was “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious and utterly intolerable in a civilized community.” Johnson v. Thigpen,
788 So. 2d 410, 412–13 (Fla. 1st DCA 2001). “Generally, the case is one in which
the recitation of facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Id. Whether
alleged conduct rises to this level is a question of law. Gandy v. Trans World
Computer Tech. Grp., 787 So. 2d 116, 119 (Fla. 2d DCA 2001).
We agree with the district court that Capital One did not act outrageously.
As a Capital One employee, Wilson notified her supervisor that she had received a
threatening phone call, and Capital One notified the police that it had received the
call. Even if Larry Borneisen never made a bomb threat, he admitted that he was
threatening in the phone call, Wilson perceived Borneisen’s words as threatening,
and it was therefore eminently reasonable (and certainly not outrageous) for

14

Case: 11-15337

Date Filed: 09/18/2012

Page: 15 of 19

Capital One to report Borneisen’s behavior to law enforcement. The Borneisens’
claim for intentional infliction of emotional distress fails.
C. Malicious Prosecution
The Borneisens next argue that the district court erred in rejecting their
claim for malicious prosecution. To establish a claim for malicious prosecution,
the Borneisens must show that: (1) “an original criminal or civil judicial
proceeding against [Larry Borneisen] was commenced or continued”; (2) Capital
One “was the legal cause of the original proceeding against [Borneisen] as the
defendant in the original proceeding”; (3) the termination of the original
proceeding constituted a bona fide termination of that proceeding in favor of
Borneisen; (4) there was no probable cause for the original proceeding; (5) Capital
One acted with malice; and (6) Borneisen suffered damage as a result of the
original proceeding. Alterra Healthcare Corp. v. Campbell, 78 So. 3d 595, 602
(Fla. 2d DCA 2011).
The Borneisens’ malicious prosecution claim fails because they cannot
show that Capital One was the legal cause of Borneisen’s prosecution. To make
such a showing, Borneisen had to show that Capital One “instigated” the
prosecution. Orr v. Belk Lindsey Stores, Inc., 462 So. 2d 112, 114 (Fla. 5th DCA
1985). “The general rule is that if the defendant merely gives a statement to the
15

Case: 11-15337

Date Filed: 09/18/2012

Page: 16 of 19

proper authorities, leaving the decision to prosecute entirely to the uncontrolled
discretion of the officer or if the officer makes an independent investigation, the
defendant is not regarded as having instigated the proceeding.” Id. Nevertheless,
if “the defendant’s persuasion is the determining factor in inducing the officer’s
decision or if he gives information which he knew to be false and so unduly
influences the authorities, then the defendant may be held liable.” Id.
Here, Wilson reported to her supervisor that Borneisen had called in a bomb
threat, Wilson’s supervisor reported the threat to Capital One’s security team, and
Capital One’s security team reported the threat to the local police, who conducted
an independent investigation and then spoke to the FBI. The FBI then conducted
its own independent investigation, which included a review of Borneisen’s
extensive criminal history, and concluded that there was probable cause for
Borneisen’s arrest. After Borneisen’s arrest, a grand jury found probable cause to
indict him. At no point did anyone from Capital One contact the FBI or urge
Borneisen’s prosecution. Rather, the record contains no evidence that anyone at
Capital One even knew the federal government planned to prosecute Borneisen.
Under these circumstances, where Capital One merely relayed Wilson’s report of
criminal activity (and no one at Capital One had any reason to doubt Wilson’s
report), Capital One was not the legal cause of Borneisen’s prosecution.
16

Case: 11-15337

Date Filed: 09/18/2012

Page: 17 of 19

Additionally, although Larry Borneisen denies making the bomb threat, this
denial does not necessarily establish that Wilson knew that her report of a bomb
threat was false. As explained above, Borneisen made, at minimum, veiled threats
to Wilson that included an express statement that Borneisen knew where she was
located. There is no evidence in the record showing that Wilson knew any of her
statements were false. But even if Borneisen’s denial creates an issue of Wilson’s
knowledge, there is, importantly, no evidence that Wilson’s superiors at Capital
One knew that Wilson’s report was false and knowingly passed on false
information. And there is also no evidence that anyone else at Capital One
knowingly gave false information to the authorities. In sum, Borneisen’s
prosecution resulted from the independent investigation of an FBI agent and a
probable-cause determination by a U.S. magistrate judge in Virginia, not from any
action by Capital One. Accordingly, the malicious prosecution claim fails.
D. Abuse of Process
Finally, the Borneisens argue that the district court erred in rejecting their
claim for abuse of process. “A cause of action for abuse of process requires proof
that: (1) the defendant made an illegal, improper, or perverted use of process; (2)
the defendant had an ulterior motive or purpose in exercising the illegal, improper
or perverted process; and (3) the plaintiff was injured as a result of defendant’s
17

Case: 11-15337

Date Filed: 09/18/2012

Page: 18 of 19

action.” Thomson McKinnon Sec., Inc. v. Light, 534 So. 2d 757, 760 (Fla. 3d
DCA 1988).
As the district court noted, the record is devoid of any evidence that Capital
One “made an illegal, improper, or perverted use of process.” See id. In fact,
there is no evidence that Capital One made any use of process at all. The only
“process” that Capital One possibly could have abused were the arrest-warrant
proceedings, the grand-jury proceedings, or the criminal proceedings. But there is
no evidence that Capital One initiated, supported, or maintained any of those
proceedings. The record shows that Capital One was unaware that those
proceedings were even occurring. See U.S. Steel, LLC v. Tieco, Inc., 261 F.3d
1275, 1292 (11th Cir. 2001) (rejecting abuse-of-process claim because there was
no evidence that the defendant “controlled or influenced, or even participated in,
the decision to seek and execute the warrant”).
Furthermore, “abuse of process requires an act constituting the misuse of
process after it issues. The maliciousness or lack of foundation of the asserted
cause of action itself is actually irrelevant to the tort of abuse of process.” Cazares
v. Church of Scientology of Cal., Inc., 444 So. 2d 442, 444 (Fla. 5th DCA 1983).
The Borneisens failed to present any evidence of any improper action by Capital
One after process issued. The alleged misconduct—the allegedly false report of a
18

Case: 11-15337

Date Filed: 09/18/2012

Page: 19 of 19

bomb threat—occurred prior to the commencement of the criminal proceedings.
Accordingly, the Borneisens’ abuse-of-process claim fails.
AFFIRMED.

19