FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DECEMBER 7, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 10-12411

Non-Argument Calendar

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D.C. Docket No. 4:09-cv-10030-JLK

PETER HALMOS,

PAH CO.,

Plaintiffs-Appellants,

versus

BOMARDIER AEROSPACE CORP.,

Defendant-Appellee,

LEGAL SERVICES P.C.,

ROBERT M. GREENBERG,

Defendants.

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Appeal from the United States District Court

for the Southern District of Florida

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(December 7, 2010)

Before TJOFLAT, WILSON, and COX, Circuit Judges.
PER CURIAM:

Plaintiff Peter Halmossued Bomardier Aerospace Corporation (“Bomardier”)

for malicious prosecution following the conclusion of a Dallas County, Texas suit

filed by Bomardier against Halmos, individually and doing business as PAH

Corporation, and PAH Co. Halmos contends that the district court erred in

dismissing his claim for malicious prosecution. We reject this contention.

At the Fed. R. Civ. P. 12(b)(6) stage, we “primarily consider the allegations in

the complaint,” but “[t]he court is not [always] limited to the four corners of the

complaint.” Long v. Slaton, 508 F.3d 576, 578 n.3 (11th Cir. 2007) (citation omitted). 

We have held that a district court may take judicial notice of matters of public record

without converting a Rule 12(b)(6) motion into a Rule 56 motion. See Bryant v.

Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999); see also Tellabs, Inc. v.

Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S. Ct. 2499, 2509 (2007)

(“courts must consider the complaint in its entirety, as well as other sources courts

ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular,

documentsincorporated into the complaint by reference, and matters of which a court

may take judicial notice.”).

In order to adequately allege malicious prosecution of a civil claim, the

plaintiff must establish: (1) a judicial proceeding against the present plaintiff was

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commenced or continued; (2) the present defendant filed the original proceeding

against the present plaintiff as the defendant in the original proceeding; (3) the

termination of the original proceeding was in favor of the present plaintiff; (4)

absence of probable cause for the original proceeding; (5) malice on the part of the

present defendant; and (6) the plaintiff suffered damage as a result of the original

proceeding. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994)

(citing Burns v. GCC Beverages, Inc., 502 So. 2d 1217 (Fla. 1986).

Halmos asserts that the district court explored forbidden territory when ruling

on Bomardier’s motion to dismiss. We disagree. The district court’s determination

did not exceed the permissible scope of a 12(b)(6) motion to dismiss - the complaint,

attachments to the complaint, and matters of public record. The district court found

that “Halmos was the individual owner of PAH Co.,” “he signed numerous

documents, including the relevant Agreements, on the company’s behalf,” and he

“admittedly used the aircraft for personal reasons.” (R.2-55 at 5.) All of this

information was contained in Halmos’s Amended Complaint and its attachments. 

(R.1-4 at 5 ¶ 17; at 8-10 ¶¶ 27-31; at 17 ¶ 43; Exs. 3-6.) The district court relied upon

undisputed facts of public record, including the undisputed fact that Halmos did not

file a motion to dismiss during the four-year Texas lawsuit, that he filed individual

counterclaims in his name in the Texas lawsuit, and that one would not know the

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proper defendant to sue asthere was no entity called “PAH Corporation” in existence

in Florida at the time the Texas lawsuit was filed. (R.2-55 at 5.) The district court

used this information to conclude that Halmos’s Amended Complaint was “deficient

in failing to allege the critical element that [Bomardier] lacked probable cause in

instituting and pursuing an action against Halmos[in his individual capacity].” (Id.)

The district court did not err in considering matters of public record that went beyond

the scope of Halmos’s complaint to reach this conclusion.

Halmos also contends that the district court impermissibly held that he had

waived his malicious prosecution claim by failing to file a motion to dismiss, a

motion for summary judgment, or by filing counterclaims in the Texas lawsuit. 

Halmos misreads the district court’s order. It is clear from reading the order that the

court simply looked at the record of the Texas lawsuit in considering the totality of

the undisputed facts surrounding whether Bomardier had probable cause to either

commence or continue a suit against Halmos in his individual capacity. The district

court concluded that all the facts taken together defeated Halmos’s ability to allege

Bomardier’s lack of probable cause. This was proper. Consequently, we find no

error in the district court’s dismissal of Halmos’s malicious prosecution claimagainst

Bomardier.

AFFIRMED.

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