Dolsilia T. Cheramie, Plaintiff-appellant, v. Associates Discount Corporation, Defendant-appellee, 428 F.2d 1227 (5th Cir. 1970)

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US Court of Appeals for the Fifth Circuit - 428 F.2d 1227 (5th Cir. 1970) July 1, 1970

Daniel C. Wiemann, New Orleans, La., Cleveland J. Marcel, Houma, La., for appellant.

Paul B. Deal, New Orleans, La., for appellee.

Before BELL, AINSWORTH, and GODBOLD, Circuit Judges.


This is an appeal from the district court's dismissal of a diversity action for malicious prosecution on the ground that it was premature. We affirm.1 

On March 20, 1968, Associates Discount Corporation filed suit against Dolty J. Cheramie, as guarantor of two promissory notes due and owing to Associates from D. J. Cheramie Towing, Inc. That suit is still pending in the state courts.

On May 2, 1968, Mr. Cheramie died and his wife then instituted the present action for damages in the district court, alleging that her husband's death was caused by the traumatic effect of Associates' suit against him for an amount greatly in excess of the amount owing on the guarantee.

The district court dismissed the action on the ground that a prerequisite under Louisiana law to an action for malicious prosecution is the termination of the allegedly wrongful action in favor of the present plaintiff. Here, the action complained of is still pending in the state courts. We affirm. See Eusant v. Unity Industrial Life Ins. Co., 1940, 195 La. 347, 196 So. 554, 556; Brown & Root, Inc. v. Big Rock Corporation, 5 Cir., 1967, 383 F.2d 662, 665.



We dispose of this case on the briefs and record, without oral argument, as provided by our Local Rule 18