Carey v. Eglody

2006 DNH 051

Opinion

Carey v . Eglody 05-CV-010-SM 04/28/06 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

William J. Carey, Plaintiff

v. Civil N o . 05-cv-010-SM Opinion N o . 2006 DNH 051 Kristi L . Eglody, Defendant

O R D E R

A single claim of malicious prosecution, arising from a

criminal charge against plaintiff for attempted violation of a

stalking order, prosecuted in the New Hampshire Superior Court

(Crim. N o . 03-S-1078), is all that remains in this case. Before

the court is defendant’s second supplemental motion for summary

judgment. Plaintiff objects.

“To succeed in an action for malicious prosecution, the

plaintiff must prove that he was subjected to a criminal

prosecution instituted by the defendant without probable cause

and with malice, and that the criminal proceeding terminated in

his favor.” Hogan v . Robert H . Irwin Motors, Inc., 121 N.H. 7 3 7 ,

739 (1981) (quoting Stock v . Byers, 120 N.H. 8 4 4 , 845 (1980))

(internal quotation marks omitted). The undisputed factual record in this case now establishes

that defendant did not initiate the prosecution in Crim. No. 03-

S-1078. Rather, the criminal investigation that eventually led

to plaintiff’s prosecution on that charge was based upon a report

by plaintiff’s own mother, Judith MacDonald. Because defendant

did not institute the prosecution in Crim. No. 03-S-1078, she

cannot, as a matter of law, be liable for malicious prosecution

relative to the specified charge.

Accordingly, defendant’s motion for summary judgment

(document no. 72) is granted, thus rendering moot her motion to

stay discovery (document no. 73) and her motion to strike

(document no. 75). The clerk of the court shall enter judgment

in accordance with this order and close the case.

SO ORDERED. ^ ^ S

/Steven J. McAuliffe Chief Judge

April 28, 2006

cc: William J. Carey, pro se Corey M. Belobrow, Esq.