Judge Henley died on October 18, 1997. This opinion is consistent with his

1

vote at the panel’s conference following oral argument of the case on September 11,

1997.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 96-4245

_____________

Michael Wayne Dean, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Western District of Arkansas.

Pascual Q. Olibas, doing business as *

Freedom Bail Bonds, *

*

Appellant. *

_____________

Submitted: September 11, 1997

Filed: November 19, 1997

_____________

Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge , and MORRIS

1

SHEPPARD ARNOLD, Circuit Judge.

_____________

BOWMAN, Circuit Judge.

 

A man was arrested for driving while intoxicated in Ward County, Texas, on

February 12, 1994. He convinced the police that he was Michael Wayne Dean. He

also convinced a bail bonding company operated by the defendant, Pascual Olibas. 
-2-

The company posted a $1,500 bond to secure "Michael Dean’s" release from jail.

Regrettably, the man turned out not to be who he claimed.

The man was probably Michael Dean's brother, Lee Dean Jr. He failed to appear in

court at his hearing on the DWI charge. Ward County then instituted proceedings against

Olibas to collect on the $1,500 bond, prompting Olibas to begin searching for Michael

Dean. Michael Dean, the plaintiff in this case, contends that at some point in his search

Olibas learned that he was not the man who had been arrested for the DWI. Olibas denies

this. In any event, Olibas eventually located Dean in Arkansas and filed an Affidavit of

Intention to Surrender Accused, naming Dean as the accused, with an Arkansas court.

The Arkansas police then arrested Dean pursuant to a warrant that was based on Olibas’s

affidavit. The charges against Dean were later dismissed.

Dean subsequently brought this suit against Olibas for causing his arrest, claiming

malicious prosecution, false imprisonment, and violation of his civil rights. Dean filed suit

in Arkansas state court, and the case was removed to federal court on the basis of

diversity of citizenship. It was tried before a jury, which found Olibas liable on each of

the three claims and awarded Dean $5,000 in compensatory damages and $70,000 in

punitive damages. The District Court entered judgment in accordance with the jury’s

determinations and also awarded Dean $18,556.25 in attorney fees and $1,011.17 in

costs. Olibas now appeals. We affirm in part and reverse in part.

Olibas's first contention is that the District Court incorrectly denied his motion to dismiss

the suit for lack of personal jurisdiction. Olibas, a citizen of Texas, maintains that the

District Court in Arkansas had no jurisdiction over him because he had insufficient

contacts with that state. We review rulings on questions of personal jurisdiction de novo.

Burlington Indus., Inc. v. Maples Indus., 97 F.3d 1100, 1102 (8th Cir. 1996). Under

Federal Rule of Civil Procedure 4(k)(1)(A), in a diversity action a federal district court has

personal jurisdiction to the same extent as a state court of the state in which it sits (unless

some other federal rule applies, but none does here). The
 Dean filed his claim on February 13, 1995. On February 28, 1995, Arkansas 2

amended its long-arm statute to state that its courts have personal jurisdiction "to the

maximum extent permitted by the due process of law clause of the Fourteenth

Amendment of the United States Constitution." Ark. Code Ann. § 16-4-101 (Michie

Supp. 1995). We assume without deciding the question that the prior version governed

in this case because it was the law when Olibas filed his claim (no Arkansas court has

considered this issue). Even if the second version governed, our analysis would be the

same: under both versions of the statute the question is whether jurisdiction over Olibas

satisfied due process.

-3-

jurisdiction of Arkansas courts is governed by the Arkansas long-arm statute, which, at

the time Dean filed his claim, stated that "[a] court may exercise personal jurisdiction

2

over a person . . . as to a (cause of action) (claim for relief) arising from the person's: (a)

Transacting any business in this state." Ark. Code Ann. § 16-4-101(C)(1)(a) (Michie

1994). The Supreme Court of Arkansas has held that the purpose of this provision "is to

permit Arkansas courts to exercise the maximum in personam jurisdiction allowable by

due process." Szalay v. Handcock, 819 S.W.2d 684, 686 (Ark. 1991). Accordingly, we

must determine whether jurisdiction over Olibas was consistent with due process.

Due process requires that the defendant have "minimum contacts" with the forum

"such that the maintenance of the suit does not offend traditional notions of fair play and

substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)

(internal quotation marks omitted). This standard is met where "the defendant has

purposely directed its activities at forum residents, and the litigation results from injuries

arising out of, or relating to, those activities." Burlington Indus., 97 F.3d at 1103; see

also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). In this case, Olibas

purposely directed his activities at Michael Dean and Arkansas in several ways. He

made numerous phone calls to Arkansas while trying to locate Dean. He made a

personal visit to Arkansas in his attempt to track Dean down. Most important, Olibas

submitted to an Arkansas court an Affidavit of Intention to Surrender Accused that

requested Dean’s arrest. This led directly to Dean's arrest, which led directly to
-4-

the present litigation. In sum, Olibas intentionally made many contacts with Arkansas

in his pursuit of Dean, and those contacts caused this lawsuit. The District Court

properly exercised jurisdiction over him.

Olibas next argues that the District Court wrongly denied his motion for judgment as

a matter of law on each of the three claims. We review the denial of a motion for

judgment as a matter of law de novo. Haynes v. Bee-Line Trucking Co., 80 F.3d 1235,

1238 (8th Cir. 1996). A party should be granted judgment as a matter of law only if no

reasonable jury could find against him. Fed. R. Civ. P. 50(a)(1). We will address each

claim in turn.

Malicious Prosecution: Under Arkansas law, a plaintiff claiming to have suffered

malicious prosecution must prove: "(1) a proceeding instituted or continued by the

defendant against the plaintiff; (2) termination of the proceeding in favor of the plaintiff;

(3) absence of probable cause for the proceeding; (4) malice on the part of the defendant;

and (5) damages." Harmon v. Carco Carriage Corp., 895 S.W.2d 938, 939 (Ark. 1995).

Olibas contends that he is entitled to judgment as a matter of law on this claim because

no reasonable jury could find that he lacked probable cause to initiate proceedings

against Dean. He asserts that he unquestionably had probable cause because charges

were pending against Michael Dean and a warrant had been issued for his arrest. To

assess the merit of Olibas's argument, we must examine the meaning of probable cause

under Arkansas law.

The Supreme Court of Arkansas defines probable cause as "a state of facts or credible

information which would induce an ordinarily cautious person to believe that the accused

is guilty of the crimes charged." Id. That court has explained that ordinary caution is

"a standard of reasonableness which presents an issue for the jury when the proof is in

dispute or subject to different interpretations." Cox v. McLaughlin, 867 S.W.2d 460,

464 (Ark. 1993) (internal quotation marks omitted). In this case the jury reasonably

could have found that an ordinarily cautious person in Olibas's position
 Dean cites Grandjean v. Grandjean, 869 S.W.2d 709 (Ark. 1994), in which the 3

court upheld a verdict of liability for false imprisonment where the defendant had

knowingly given false information to a prosecutor in order to procure warrants for the

plaintiffs' arrests and the plaintiffs were then arrested pursuant to those properly issued

warrants. See id. at 710. The court in Grandjean, however, did not affirm the

judgment on its merits; it declined to consider the defendant's argument because he had

not properly preserved it in the trial court. See id. at 711-12. Grandjean thus did not

change Arkansas's law on false imprisonment.

-5-

would have thought that Michael Dean was not guilty. Indeed, the jury reasonably could

have found that Olibas actually knew that Dean was innocent. Dean's father testified

that Olibas told him Dean was not the man he sought. Dean's stepmother testified that

Olibas told her exactly the same thing. In light of this evidence, we conclude that the

jury acted reasonably in finding that Olibas did not have probable cause to arrest Dean.

The judgment of liability for malicious prosecution is affirmed.

False Imprisonment: False imprisonment is "the unlawful violation of the personal

liberty of another consisting of detention without sufficient legal authority." Headrick

v. Wal-Mart Stores, Inc., 738 S.W.2d 418, 420 (Ark. 1987). Olibas argues that he is

shielded from liability for false imprisonment because Dean was arrested pursuant to a

valid warrant. His position is supported by Arkansas law. The Supreme Court of

Arkansas has held that "'[o]ne who instigates or participates in a lawful arrest, as for

example an arrest made under a properly issued warrant by an officer charged with the

duty of enforcing it, may become liable for malicious prosecution, . . . or for abuse of

process, . . . but he is not liable for false imprisonment.'" Id. (quoting the Restatement

(Second) of Torts § 45A cmt. b (1965)). This principle applies even where the person 3

instigating the arrest does so maliciously. See Campbell v. Hyde, 122 S.W. 99, 101

(Ark. 1909). Because Dean was arrested pursuant to a properly issued warrant, Olibas

is not liable for false imprisonment for causing his arrest. The judgment on this claim

is reversed.
-6-

Violation of Civil Rights: The Arkansas Civil Rights Act of 1993 provides that

a person who, acting under color of law, deprives another of rights secured by the

Arkansas Constitution shall be liable to the person whose rights he violates. See Ark.

Code Ann. § 16-123-105(a) (Michie Supp. 1995). Olibas contends that he was not

acting under color of law when he filed the affidavit that led to Dean's arrest. The

Arkansas Civil Rights Act states that a court applying it may look to federal decisions

interpreting 42 U.S.C. § 1983, "which decisions and act shall have persuasive authority

only." Ark. Code Ann. § 16-123-105(c). No Arkansas court has yet construed the

Arkansas act, so we shall be persuaded by federal law.

To occur under color of law, conduct causing the deprivation of a civil right must be

"fairly attributable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937

(1982). The Supreme Court has set forth a two-part test for analyzing whether conduct

fits that description. We first must ask "whether the claimed constitutional deprivation

resulted from the exercise of a right or privilege having its source in state authority," and

if so we then determine if "the private party charged with the deprivation could be

described in all fairness as a state actor." Edmonson v. Leesville Concrete Co., 500 U.S.

614, 620 (1991). In this case the answer to the first question is yes. When Olibas filed

his Affidavit of Intention to Surrender Accused with an Arkansas court, he exercised a

right--the right to have fugitives arrested--having its source in state authority--the

Uniform Criminal Extradition Act, Ark. Code Ann. § 16-94-213 (Michie 1987). The

sole remaining question is thus whether Olibas was a state actor.

In addressing this question in Edmonson, the Supreme Court stated that "in determining

whether a particular action or course of conduct is [state action], it is relevant to examine

the following: the extent to which the actor relies on governmental assistance and

benefits; whether the actor is performing a traditional governmental function; and

whether the incident is aggravated in a unique way by the incidents of governmental

authority." 500 U.S. at 621-22 (citations omitted). In this case Olibas's alleged state

action consisted of filing an affidavit that led to Dean's arrest. Providing
 Contrary to these cases, the Fourth Circuit has stated that bail bondsmen are 4

state actors because of their "symbiotic relationship" with the state. See Jackson v.

Pantazes, 810 F.2d 426, 430 (4th Cir. 1987). We reject this position, as did the Fifth

Circuit in Landry and the Ninth Circuit in Ouzts. See Landry, 75 F.3d at 205 n.5;

Ouzts, 505 F.2d at 554-55. As a general matter, bondsmen are private citizens who

interact with the state in the course of pursuing their private interests. Their conduct

is therefore not attributable to the state. See Ouzts, 505 F.2d at 554-55.

-7-

information about a criminal suspect to law enforcement is not a traditional governmental

function; it is something that private citizens do every day. Olibas did not rely on

governmental assistance or benefits in filing the affidavit; he filed it on his own and of

his own free will, without the aid or encouragement of the state. In short, Olibas filed

the affidavit as a private citizen, as any private citizen could. See Ark. Code Ann. § 16-

94-213 (authorizing "any credible person" to file an affidavit requesting a fugitive's

arrest). We hold that Olibas's conduct did not constitute state action.

This conclusion is supported by other cases in which bail bondsmen have caused a

fugitive's arrest. In Landry v. A-Able Bonding, Inc., 75 F.3d 200, 204-05 (5th Cir.

1996), the Fifth Circuit held that a bail bondsman who performed a citizen's arrest of a

fugitive was not a state actor because he did not act pursuant to a warrant and did not

enlist the aid of the police in effecting the arrest. See also Ouzts v. Maryland Nat’l Ins.

Co., 505 F.2d 547, 553 (9th Cir. 1974), cert. denied, 421 U.S. 949 (1975) (holding that

the bondsman who performed a citizen's arrest was not a state actor since he did not act

pursuant to state law); Curtis v. Peerless Ins. Co., 299 F.Supp. 429, 434 (D. Minn. 1969)

(holding that private parties who arrested fugitive on whose bond they were sureties

were not state actors). In this case it is even more clear that no state action occurred. 4

Unlike the defendants in the cases cited above, Olibas did not personally arrest Dean (a

traditional government function). Instead he merely provided the state information that

led to Dean’s arrest (a traditional action of private citizens). We conclude that Olibas

was not a state actor and therefore was entitled to judgment as a
The District Court awarded Dean attorney fees in accordance with section

5

105(b) of the Arkansas Civil Rights Act, Ark. Code Ann. § 16-123-105(b), which

authorizes assessing such fees against a party who violates the act. The District Court

was careful to avoid awarding Dean attorney fees for work his lawyer performed that

was unrelated to the civil rights claim.

-8-

matter of law on the claim of violating Dean’s civil rights. The judgment on that claim

is reversed.

Because we reverse the judgment of liability on the civil rights claim, we also

must vacate the award of $18,556.25 in attorney fees, which was based on that claim.5

Because we affirm the judgment on the malicious prosecution claim, we affirm the award

of compensatory damages in the sum of $5,000. We affirm the award despite reversing

two of the three judgments because the jury did not base the award on any particular one

of the three claims. Dean’s damages, and Olibas’s conduct that caused them, are the

same regardless of what legal theory entitles Dean to recovery. See Lowe v. Hart, 125

S.W. 1030, 1034 (Ark. 1910) (holding that the plaintiff need only prevail on one of two

legal theories based on the same set of facts in order fully to recover). For the same

reason, we will also affirm the award of $70,000 in punitive damages, unless it violates

the Constitution. This is Olibas's final argument, to which we now turn.

Olibas argues that the award of $70,000 in punitive damages was

unconstitutionally excessive and that the District Court therefore erred in denying his

motion for remittitur. The due process clause of the Fourteenth Amendment prohibits

the imposition of "grossly excessive" punitive damages. BMW of N. Am. v. Gore, 116

S. Ct. 1589, 1592 (1996) (quoting TXO Prod. Corp. v. Alliance Resources Corp., 509

U.S. 443, 454 (1993) (plurality opinion)). The Supreme Court has declined to establish

a single test for determining whether an award of punitive damages violates the

Constitution. See BMW, 116 S. Ct. at 1604. The Court has, however, articulated
-9-

several factors relevant to this determination. Our consideration of these factors leads

us to uphold the award in this case.

First, the Supreme Court has stated that "a judgment that is a product of [fair

procedures] is entitled to a strong presumption of validity." TXO, 509 U.S. at 457; see

also Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 19-23 (1991) (finding award of

punitive damages constitutional in part because it was rendered and upheld in fair

proceedings). Most of the procedures mentioned in TXO and Haslip as contributing to

the presumptive validity of an award were present in this case. The jurors were selected

as impartial; they heard all the evidence presented by both sides; the district judge

properly instructed them on the law; and the judge upheld the award after considering

its constitutionality. Indeed, Olibas does not argue that the procedures in the District

Court were unfair. Accordingly, we begin our review of the legality of this award with

the presumption that it is constitutional.

In BMW, the Supreme Court held that "[p]erhaps the most important indicium

of the reasonableness of a punitive damages award is the degree of reprehensibility of the

defendant's conduct." 116 S. Ct. at 1599. Olibas's conduct had some of the

characteristics that justify the imposition of substantial punitive damages. Most

important, his misconduct was intentional: he had Dean arrested for a crime he knew

Dean did not commit, so that he could save himself $1500. In TXO and Haslip, in each

of which the defendant was responsible for purposeful malfeasance, the Court upheld the

punitive awards. See TXO, 509 U.S. at 453; Haslip, 499 U.S. at 14-15. In BMW, to the

contrary, the Court based its reversal of the award partly on the absence from the record

of "deliberate false statements" and "acts of affirmative misconduct." BMW, 116 S. Ct.

at 1601. In addition, Olibas inflicted significant noneconomic harm on Dean. In BMW,

the Court reversed the award partly because the plaintiff's harm was "purely economic."

Id. at 1599. In this case Dean was eating dinner with his wife and children when police

arrested him, took him to the police station, confiscated some of his property, and

detained him for several hours against his will. He subsequentlywas
-10-

required to attend court hearings on two different days. In sum, the nature of Olibas’s

misconduct does not require us to conclude that the punitive damages assessed against

him were unconstitutional.

The Court held in BMW that "[t]he second and perhaps most commonly cited indicium

of an unreasonable or excessive punitive damages award is its ratio to the actual harm

inflicted on the plaintiff." 116 S. Ct. at 1601. Olibas argues that the punitive damages

assessed against him were out of proportion to Dean's harm. Dean was awarded $5,000

in compensatory damages and $70,000 in punitives, so the ratio of punitive damages to

actual harm was fourteen to one. This ratio is indeed high. See Haslip, 499 U.S. at 23-

24 (finding that punitive damages over four times the amount of compensatory damages

were "close to the line" but nevertheless constitutional). The Court, however, has

"consistently rejected the notion that the constitutional line is marked by a simple

mathematical formula." BMW, 116 S. Ct. at 1602. In fact, in TXO the Court upheld

punitive damages over 526 times the size of the actual damages. See 509 U.S. at 459-62.

Indeed, the Court has stated that high punitive damages may properly accompany low

compensatory damages in cases where the plaintiff's harm is primarily noneconomic and

it is thus difficult to assign a monetary value to that harm. See id. That was certainly true

in this case, where Dean's financial harm was minimal but his emotional damage great.

Moreover, in imposing punitive damages it is proper to consider not only the harm that

actually resulted from the defendant's misdeeds but also the harm that might have

resulted. Id. This includes "the possible harm to other victims that might have resulted

if similar future behavior were not deterred." TXO, 509 U.S. at 460. In this case Dean

might have suffered more harm than he in fact did, if, for instance, he had been unable

quickly to persuade the police that he was not the man they sought. The potential harm

to future victims also was significant; as the operator of a bail bonding business, Olibas

may have other opportunities knowingly to initiate the arrest of innocent people. In

conclusion, while the ratio of punitive to actual damages in this case was high, that is not

enough to convince us that the punitive damages, which punished Olibas’s intentional

misconduct and were imposed in a trial
-11-

in which all requisite procedural safeguards were employed, were so grossly excessive

as to violate due process. The award of punitive damages was within the limits the

Constitution imposes.

In summary, we find that the District Court did have jurisdiction over Olibas. We affirm

the judgment on the malicious prosecution claim and therefore affirm the award of

compensatory damages and the award of punitive damages, which we find to be

constitutional. We reverse the judgment of liability on the claim of false imprisonment,

which does not affect the award. We also reverse the judgment on the civil rights claim,

and we therefore vacate the award of attorney fees. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.