Jones v. McKesson & Robbins, Inc.

• Decision Date: 01 February 1965
• Docket Number: Civ. No. 3994.
• Citation: 237 F. Supp. 454
• Court: U.S. District Court — District of South Dakota
• Parties: Lawrence D. JONES, Plaintiff, v. McKESSON & ROBBINS, INC., Defendant.

237 F. Supp. 454

Lawrence D. JONES, Plaintiff, v. McKESSON & ROBBINS, INC., Defendant.

Civ. No. 3994.

United States District Court D. North Dakota, Northeastern Division.

February 1, 1965.

Jerome J. Mack, of Nelson & Mack, Grand Forks, N. D., for plaintiff.

Harold Hager, of Degnan, Hager, McElroy & Lamb, Grand Forks, N. D., for defendant.

RONALD N. DAVIES, District Judge.

The Defendant has moved the Court to dismiss this action or, in the alternative, for judgment on the pleadings. The motion to dismiss was purportedly made under Rule 12(b), Fed.R. Civ.P., but since it was made subsequent to the filing of an answer to the amended complaint, the motion must be treated as one for judgment on the pleadings, Rule 12(c), Fed.R.Civ.P., and the entire motion would ordinarily be so treated; but where, as here, matters outside the pleadings are presented, the motion must be considered and disposed of as one for summary judgment, Rule 56, Fed.R. Civ.P.

What is to be determined on motion for summary judgment is whether there is a genuine issue as to any material fact and not how that issue should be determined. In considering such motion the Court must take that view of the evidence most favorable to the opponent of the movant, giving the adversary party benefit of all favorable inferences that may reasonably be drawn; and if, when so viewed, reasonable men might reach different conclusions, the motion must be denied. Empire Electronics Co. v. United States, 2 Cir., 1962, 311 F.2d 175; Ramsouer v. Midland Valley R. Co., 8 Cir., 1943, 135 F.2d 101.

In this action for malicious prosecution the issue is whether, on the pleadings, affidavits and supporting documents, there is raised a material issue of fact as to the existence of probable cause for the commencement of criminal proceedings unsuccessfully prosecuted against the Plaintiff in the courts of the State of Wyoming. If the facts are undisputed and only one inference can be drawn from them, the question of the existence of probable cause is for the court; but when the facts relied on to show probable cause are in dispute, their existence is a question of fact for a jury. Clarke v. Montgomery Ward & Company, 4 Cir., 1962, 298 F.2d 346; Alexander v. Alexander, 4 Cir., 1956, 229 F.2d 111. Considering those facts contained in the record which are necessary for disposition of this motion, it appears that Plaintiff owned and operated a drugstore in Kemmerer, Wyoming, and while so engaged became indebted to the Defendant. That Plaintiff might continue receiving credit from Defendant and to discharge a prior indebtedness to Defendant, Plaintiff and Defendant agreed that Plaintiff would issue a check for $900.00 to Defendant every three days until the amount owed by Plaintiff to Defendant was paid. The Defendant was to send the checks to the drawee bank where they were to be held for collection, each check to be processed at such times as funds were available in Plaintiff's bank account. Under this agreement a check was issued dated February 4, 1959.¹ The Defendant presented the check to the drawee bank in the ordinary course of business, unaccompanied by any instructions to hold it for collection. The check was returned to Defendant for lack of sufficient funds in Plaintiff's accounts.

On May 12, 1960, an agent and employee of the Defendant swore out a criminal complaint before a Justice of the Peace in Lincoln County, Wyoming, charging Plaintiff with intent to defraud by issuing a check when he knew there were insufficient funds or credits with the drawee bank for payment of the check upon presentation. A warrant was issued and the Plaintiff was arrested in January of 1961 at Grand Forks, North Dakota. He was allowed to return to Wyoming voluntarily, and on January 13, 1961, appeared in the Justice Court of Lincoln County. The criminal complaint was read to him, and he pleaded not guilty. Upon his waiver of preliminary hearing, the Justice of the Peace found there was probable cause to believe Plaintiff guilty as charged and remanded him to the appropriate state District Court for trial. Upon posting bond the Plaintiff was allowed to return to North Dakota on condition that he appear in the District Court of Lincoln County, Wyoming, at a later time.

On June 8, 1961, the prosecuting attorney in Wyoming filed an information in the State District Court charging Plaintiff with intent to defraud. A hearing was held the following day at which the Plaintiff appeared and entered a plea of not guilty. On the date set for trial the prosecuting attorney moved to dismiss the information for lack of evidence. This motion was granted.² As was set out in this Court's order filed October 23, 1964, where Federal jurisdiction is based upon diversity of citizenship, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, requires adherence to the appropriate substantive...