Ju dge Henley died on October 18, 1997. This opinion is consistent with hi s 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 B OWMAN, Circuit Judge, HENLEY, Senior Circuit Judge , and MORRI S 1 SHEPPARD ARNOLD, Circuit Judge.

_____________ BOWMAN, Circuit Judge.

A man was arrested for driving while intoxicated in Ward County, Texas, o n Fe bruary 12, 1994. He convinced the police that he was Michael Wayne Dean. H e also convinced a bail bonding company operated by the defendant, Pascual Olibas.-2-

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

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

Th e man was probably Michael Dean's brother, Lee Dean Jr. He failed to appear i n court at his hearing on the DWI charge. Ward County t hen instituted proceedings against Olibas to collect on the $1,500 bond, prompting Olibas to begin searching for Michae l Dean. Mich ael 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 Inten tionto 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 su bsequently brought this suit against Olibas for causing his arrest, claimin g malicious prosecution, false imprisonment, and violation of his civil ri ghts. Dean filed suit in Arkansa s state court, and the case was removed to federal court on the basis o f diver sity of citizenship. It was tried before a jury, which found Olibas liable on each of the th ree claims and awarded Dean $5,000 in compensatory damages and $70,000 i n 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 i n costs. Olibas now appeals. We affirm in part and reverse in part.
Olibas's first contention is that the District Court incorrectly den ied his motion to dismiss the su it for lack of personal jurisdiction. Olibas, a citizen of Texas, maintains that th e District Court in Arkansas had no jurisdiction over him because he had insufficien t contacts with that state. We review rulings on que stions of personal jurisdiction de novo. Burlington Indus., Inc. v. Maples Indus. , 97 F.3d 1100, 1102 (8th Cir. 1996). Unde r 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 st ate court of the state in which it sits (unless some other federal rule applies, but none does here). TheDe an filed his claim on February 13, 1995. On February 28, 1995, Arkansas 2 amendedits long-arm statute to state that its courts have personal jurisdiction "to the maximu m 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 t he prior version governed in this case because it was t he 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 jurisdictio n 2 over a person . . . as to a (cause of action) (claim for relief) arising from the person's: (a) Transact ing any business in this state." Ark. Code Ann. § 16-4-101(C)(1)(a) (Michi e 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. Handcoc k , 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 foru m "such that the maintenance of the suit does not offe nd traditional notions of fair play and substantial justice." International Shoe Co. v. Washington , 326 U.S. 310, 316 (1945) (in ternal quotation marks omitted). This standard is met where "the defendant ha s purposely directed its activities at forum residents, an d 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 purpo sely directed his activities at Michael Dean and Arkansas in several ways. H e made num erous 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 sub mitted to an Arkansas court an Affidavit of Intention to Surrender Accused tha t requested Dean’s arrest. This led directly to Dean's arrest, which led directly to-4-

t he present litigation. In sum, Olibas intentionally made many contacts with Arkansas in his pursuit of Dean, and those contacts caused this lawsuit. The District Cour t 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 fo r judgment as a matter of law de novo

. Haynes v. Bee-Line Trucking Co. , 80 F.3d 1235, 1238 (8th Cir. 1996). A part y 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.

Malic ious Prosecution : Under Arkansas law, a plaintiff claiming to have suffere d malicious prosecution must prove: "(1) a proceeding instituted or continued by th e defendant against the plaintiff; (2) terminat ion 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 h e 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 proceeding s agai nst Dean. He asserts that he unquestionably had probable cause because charge s
were pendin g against Michael Dean and a warrant had been issued for his arrest. T o assess the merit o f Olibas's argument, we must examine the meaning of probable cause under Arkansas law.
The Supreme Court of Arkansas defin es 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 stand ard of reasonableness which presents an issue for the jury when the proof is in dis pute 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 reasonabl y could have found that an ordinarily cautious person in Olibas's positionDean cites Grandjean v. Grandjean , 869 S.W.2d 709 (Ark. 1994), in which the 3 court uphel d a verdict of liability for false imprisonment where the defendant ha d knowingly given false information to a prosecutor in order to procure warrants for the plaintiffs' arrests and the plaintiffs were the n arrested pursuant to those properly issued warrants. See id. at 710. The court in Grandjean , however, did not affirm th e judgment on its merits; it declined to consider the defe ndant's argument because he had not proper ly 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 testifie d that Olib as 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 th e 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 persona l liberty of another consisting of detention without sufficient legal authority." Headrick

v. W al-Mart Stores, Inc. , 738 S.W.2d 418, 420 (Ark. 1987). Olibas argues that he i s 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 o f Arkansas has held that "'[o]ne who instigates or participates in a lawful arrest, as fo r example an arre st 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 o f proc ess, . . . 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 in stigating the arrest does so maliciously. See Campbell v. Hyde , 122 S.W. 99, 10 1 (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 th e 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 no t acting under color of law when he filed the affidavit that led to Dean's arrest. Th e 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 th e 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 att ributable to the State." Lugar v. Edmondson Oil Co. , 457 U.S. 922, 93 7 (1982). The Supreme Court has set forth a two-part test for analyzing whether conduct fits that descri ption. We first must ask "whether the claimed constitutional deprivation resulted from the exercise of a right or privilege havingits source in state authority," and if so we then determine if "the private party charged with the deprivation could b e described in all fairness as a state actor." Edmonson v. Leesville Concr ete Co. , 500 U.S. 614, 620 (1991). In this case t he answer to the first question is yes. When Olibas filed his Affida vit 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--th e Uniform Cri minal Extradition Act, Ark. Code Ann. § 16-94-213 (Michie 1987). Th e 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 an d benefits; whether the actor is performing a traditional governmental function; an d whether the incident is aggravated in a unique way by the incidents of governmenta l authority." 500 U.S. at 621-22 (citations omitted). In this case Olibas's alleged stat e action consisted of filing an affidavit that led to Dean's arrest. ProvidingContrary 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 Circui t 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 wh o 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 tradition al governmental function; it is something that private citizens do every day. Olibas did not rely o n governmental assistance or benefits in filing the affidavit; he filed it on his own and of his own fre e 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 conc lusion is supported by other cases in which bail bondsmen have caused a fugi tive's arrest. In Landry v. A-Able Bonding, Inc. , 75 F.3d 200, 204-05 (5th Cir

. 1996), theFifth 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 eff ecting 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 a rrest was not a state actor since he did not act pursuant to state law); Curtis v. Peerless Ins. Co. , 299 F.Supp. 429, 43 4 (D. Minn. 1969) (holding t hat private parties who arrested fugitive on whose bond they were suretie s
w e re not state actors). In this case it is even more clear that no state action occurred. 4 Unlike the defendants in the cases c ited above, Olibas did not personally arrest Dean (a traditional government function). Ins tead he merely provided the state information that ledto 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 aThe District Court awarded Dean attorney fees in accordance with sectio n 5 105(b) of the Arkansas Civil Rights Act, Ark. Code Ann. § 16-123-105(b), whic h authorizes assessing such fees agains t a party who violates the act. The District Court was careful t o 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.

Bec ause we reverse the judgment of liability on the civil rights claim, we als o 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 aff irm 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 awa rd on any particular one of the th ree claims. Dean’s damages, and Olibas’s conduct that caused them, are th e same regardless of wha

t legal theory entitles Dean to recovery. See Lowe v. Hart , 125 S.W. 1030, 1034 (Ark. 1910) (holdin g that the plaintiff need only prevail on one of two legal theori es based on the same set of facts in order fully to recover). For the sam e 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 wa s
unco nstitutionally excessive and that the District Court therefore erred in denying hi s motionfor remittitur. The due process clause of the Fourteenth Amendment prohibits the imposition of "grossly exce ssive" 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 opinio n)). The Supreme Court has declined to establish

a single test for determining whether an award of punitive damages violates th e Constitution. See BMW , 116 S. Ct. at 1604. The Court has, however, articulated-9-

se veral factors relevant to this determination. Our consideration of these factors leads us to uphold the award in this case.

Fir st, the Supreme Court has stated that "a judgment that is a product of [fai r procedures] is entitled to a strong presumption of validity." TXO , 509 U.S. at 457; see al so Pacific Mut. Life Ins. Co. v. Haslip , 499 U.S. 1, 19-23 (1991) (finding award o f punitive damages constitutional in part because it was rendered and upheld in fai r proceedings). Most of the procedures mentioned in TXO and Haslip as contributing to the presumptive validity of an award were present in thi s case. The jurors were selected

as impartial; they heard all the evidence presented by both sides; the district judg e properly instructed them on the law; and the judge upheld the award after considering its consti tutionality. Indeed, Olibas does not argue that the procedures in the Distric t Court were unfair. A ccordingly, 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 indiciu m of the reasonableness of a punitive damages award is the degree of reprehensibility of the defenda nt's conduct." 116 S. Ct. at 1599. Olibas's conduct had some of th e characteristics that justify the imposition of substantial punitive damages. Mos t impor tant, his misconduct was intentional: he had Dean arrested for a crime he kne w Dean did not commit, so tha t 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 revers al of the award partly on the absence from the record of "deliberate false statement s" 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 becausethe plaintiff's harm was "purely economic." Id. at 1599. In this ca se Dean was eating dinner with his wife and children when police arrested h im, took him to the police station, confiscated some of his property, an d detained him for several hours against his will. He subsequentlywas-10-

requiredto 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 har m inflicted on the plaintiff." 116 S. Ct. at 1601. Olibas argues that the punitive damages assessed against him were out of prop ortion to Dean's harm. Dean was awarded $5,000 in compen satory 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 punitiv e damages over four times the amount of compensatory damages

were "close to the line" but nevertheless constitutional). The Court, however, ha s "consi stently rejected the notion that the constitutional line is marked by a simpl e mathematical f

ormula." BMW , 116 S. Ct. at 1602. In fact, in TXO the Court uphel d 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 lo w 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. Tha t was certainly true in this case, where Dean's financial harm was minimal but his emotional damage great. Mo reover, in imposing punitive damages it is proper to consider not only the harm that actual ly resulted from the defendant's misdeeds but also the harm that might hav e resulted. Id. This includes "the possible harm to other victims that might have resulted if similar future b ehavior 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 persua de the police that he was not the man they sought. The potential harm to future victi ms also was significant; as the operator of a bail bonding business, Olibas may have other opportunities knowingly to initiate the arrest of innocent people. I n conclusion, while the ratio of punitive to actual d amages in this case was high, that is not

en oughto convince us that the punitive damages, which punished Olibas’s intentiona l misconduct and were imposed in a trial-11-

i n which all requisite procedural safeguards were employed, were so grossly excessive

as to v iolate due process. The award of punitive damages was within the limits th e Constitution imposes.
In summary, we find that the District Court did have jurisdiction over Oliba s. We affirm the jud gment on the malicious prosecution claim and therefore affirm the award o f compensa tory damages and the award of punitive damages, which we find to b e 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.