Lavielle et al v. Acosta

Filing 61

ORDER granting 55 Motion for Partial Summary Judgment, as more fully set out. Signed by Honorable David L. Russell on 10/3/17. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
LEA ANN LAVIELLE and
MICHAEL LAVIELLE, Individually
and on behalf of their minor
children, H.L., A.L., and D.L.,
Plaintiffs,
v.
DANIEL BERTRAM ACOSTA,
Defendant.

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Case No. CIV-16-1002-R

ORDER
Plaintiffs Lee Ann and Michael Lavielle, who are named in a malicious prosecution
counterclaim filed by Defendant Daniel Bertram Acosta, seek summary judgment on the
claim. (Doc. No. 55). Daniel Acosta responded in opposition to the motion, and clarified
therein that the basis for his malicious prosecution claim is an affidavit executed by
Michael Lavielle on September 4, 2015, which Mr. Acosta contends was the basis of a
criminal prosecution against him that was ultimately dismissed without prejudice. As such,
the Court will confine its consideration to whether Michael Lavielle is entitled to summary
judgment on Daniel Acosta’s malicious prosecution claim under Kansas law and the
motion is granted as it applies to Lea Ann Lavielle.
A motion for summary judgment serves the purpose of testing whether a trial is
required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). The Court
shall grant summary judgment if the pleadings, depositions, answers to interrogatories,
admissions, or affidavits show there is no genuine issue of material fact, and the moving

party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material if
it might affect the outcome of the suit under the governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The moving party bears the initial responsibility of providing to the court the factual
basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The moving party
may carry its initial burden either by producing affirmative evidence negating an essential
element of the nonmoving party's claim, or by showing that the nonmoving party does not
have enough evidence to carry its burden of persuasion at trial.” Trainor v. Apollo Metal
Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002).1 Michael Lavielle relies upon the
latter in the instant motion, noting in the Reply that he filed a “no evidence” summary
judgment motion. (Doc. No. 60, p. 1). Accordingly, the question is whether Daniel
Acosta’s response presents sufficient evidence to bear the burden of proof with regard to
his malicious prosecution claim.
The parties do not address which law applies to this case, which arises out of actions
occurring in Kansas, and both assume Kansas law applies. To maintain an action for
malicious prosecution under Kansas law, Mr. Acosta must establish: (1) that Michael
Lavielle instituted the criminal proceeding of which complaint is made; (2) in doing so
Michael Lavielle acted without probable cause and with malice; (3) the criminal

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Michael Lavielle’s motion does not comply with Local Civil Rule 56.1, which requires that a brief in support of a
motion for partial summary judgment shall begin with a section stating the material facts to which the movant contends
no genuine dispute exists and that each statement shall be followed by citation, with particularity to any evidentiary
material upon which the party relies in support of its position. Michael Lavielle cites to no evidence in support of his
Statement of Uncontroverted Material Fact although he subsequently quotes from and attaches the deposition of Mr.
Acosta within the brief.

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proceeding terminated in his favor; and (4) Daniel Acosta sustained injury as a result of
the criminal proceeding. Crow v. United States, 659 F.Supp. 556, 571 (D.Kan. 1987). In
addition to asserting that Daniel Acosta cannot establish the elements of a malicious
prosecution claim, Michael Lavielle asserts that finding in Daniel Acosta’s favor would
infringe on Michael Lavielle’s rights under the First Amendment, specifically his right to
petition the government for redress of grievances.
The evidence presented by the parties establishes that on September 4, 2015,
Michael Lavielle completed a “Sworn Affidavit” for an incident that allegedly occurred
between him and Daniel Acosta. Mr. Lavielle asserted in the affidavit, completed for the
Sheriff of Morton County, that on that date he and Mr. Acosta exchanged words outside
their homes and that Mr. Acosta “pulled out a gun that was in a case” and later exhibited a
pocket knife and made threatening statements to Mr. Lavielle. Mr. Acosta completed a
similar form on that same date and asserted therein that Mr. Lavielle “flipped him off” for
no reason and yelled at him, asking if there was a problem. His affidavit does not indicate
that he exhibited either a gun or a knife. Daniel Acosta also includes a Kansas Standard
Arrest Report executed on September 7, 2015, by Amanda Wray, which states:
On September 4, 2015 at approximately 1630 hours while on a phone call in
dispatch, I witnessed Michael Lavielle pull up to the LEC and walk up to the
door. I also noticed Michael’s wife Lea Lavielle and their children run up to
the door. While they are in the lobby explaining to dispatch what they
needed, I would see Daniel Acosta approaching the LC. I told dispatch to
move the Lavielle[]s into the interview room. Once I was able to make
contact with Michael, he told me that he had a confrontation with Daniel
Acosta. Michael said that Daniel had a handgun that he picked up in a manner
that would allow Michael to see it and then placed it in the console area of
his vehicle. Michael said that Daniel then started to pull off and Michael
flipped Daniel off. Daniel returned the gesture driving a short distance and
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then stopped and backed up. Michael said that Daniel then exited the vehicle
and came around to the back side standing in the street and yelled to Michael
“you have a problem?” Michael said that Daniel pulled out a pocket knife
after saying this. Michael responded, “we have a big problem.” Daniel then
was heard to say, “come on get your ass over hear.” Michael saw Daniel open
the pocket knife at this time. More words were exchanged then Daniel left.
Michael loaded up his family and came to the LEC. Daniel stated that he was
in his vehicle on the phone leaving his home and noticed Michael in his yard
talking to someone. Michael then flipped him off, so Daniel said that he got
out asking if he had a problem. Daniel said that he had a pen in his hand.
Daniel said the problem was Michael was yelling at him. Daniel said that he
left and went to the county attorney’s office. Daniel was told to come to the
LEC to make a report. Daniel was arrested on Agg Assault w/deadly weapon,
criminal threat and disorderly conduct.
Doc. No. 58-3. The remaining summary judgment evidence consists of an excerpt form a
deposition of Mr. Acosta wherein he states that “they [Lee Ann and Michael Lavielle]
made an accusation that I had pulled a gun on Michael Laveille and then a knife and that
turned out to be not true, counsel.” Doc. No. 55-1, Deposition of Acosta, p. 407. Mr. Acosta
responded affirmatively when asked, “So the statements in the declarations in your view
were false?” Id. at 408. He admitted, however, that he lacked evidence that the Laveille’s
acted with the intent to hurt him. Id. at 409 (“Well, I don’t have much evidence right now,
counsel.”). With this evidence in mind, and construing the evidence in the light most
favorable to Mr. Acosta, the non-movant, the Court finds that he fails to present evidence
in support of each element of his malicious prosecution claim, and therefore, Michael
Lavielle is entitled to summary judgment on this counterclaim.
The Court addresses only a single element of Mr. Acosta’s malicious prosecution
claim, that the criminal proceedings against him were terminated in his favor. In support
of his position, Mr. Acosta presents an Order from the District Court of Morton County,
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Kansas in Case No. 15-CR-90, State of Kansas v. Daniel Acosta. The parties thereto
apparently presented an agreement to the court seeking dismissal without prejudice. The
record, however, contains no evidence regarding why the criminal prosecution was
terminated or why the dismissal was without prejudice. Thus, the Court is unable to discern
that the termination of the proceedings was in favor of the accused, Mr. Acosta. As stated
in the Restatement (Second) of Torts § 660, “[p]roceedings are ‘terminated in favor of the
accused,’ as that phrase is used . . . throughout this Topic, only when their final disposition
is such as to indicate the innocence of the accused.” First, the dismissal of the underlying
criminal action without prejudice was not a final disposition. See State v. Perez, 2017 WL
1035373, *3 (Kan.Ct.App. March 17, 2017)(Concluding that without prejudice dismissal
of a criminal case was not a final judgment and noting, “[a]s generally understood, the
phrase ‘without prejudice’ means there is no decision of the controversy on its merits. . .
.”). Second, as noted by Perez, the without prejudice dismissal does not indicate that the
issue of Mr. Acosta’s criminal liability was adjudicated. There is simply no evidence
establishing a reason for the dismissal that reflects on Mr. Acosta’s innocence, the record
is simply silent on the issue, and thus, Mr. Acosta has failed to meet his burden of
production.
Because Mr. Acosta is required to present evidence in support of each of the
elements of a malicious prosecution claim and because his evidence fails with regard to
this particular element, the Court need not consider the remaining arguments regarding the
propriety of summary judgment on Mr. Acosta’s malicious prosecution claim. The Motion
for Partial Summary Judgment (Doc. No. 55) filed by Lee Ann and Michael Lavielle is
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hereby GRANTED.
IT IS SO ORDERED this 3rd day of October 2017.

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