Rosana Boulhosa Nassar v. Eduardo Boulhosa Nassar

USCA11 Case: 22-11664 Document: 38-1 Date Filed: 07/12/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11664
Non-Argument Calendar
____________________
ROSANA BOULHOSA NASSAR,
Plaintiff-Appellant,
versus
EDUARDO BOULHOSA NASSAR,
Defendant- Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:20-cv-14033-RLR
____________________
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2 Opinion of the Court 22-11664
Before GRANT, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Rosana Nassar, proceeding pro se, appeals the grant of sum-
mary judgment for Eduardo Nassar on her complaint alleging ma-
licious prosecution.1 She argues that the district court erred in rul-
ing that Eduardo had probable cause to institute a 2012 lawsuit
against Rosana alleging defamation and intentional infliction of
emotional distress. She also argues that the district court erred in
ruling that Eduardo’s dismissal of the lawsuit did not constitute a
bona fide termination in her favor. Because the district court cor-
rectly found that there are no genuine issues of fact regarding
whether Eduardo had probable cause to institute the lawsuit, we
need not reach the question of whether the lawsuit ended in a bona
fide termination in Rosana’s favor. Accordingly, we affirm.
I.
In July 2012, Eduardo sued Rosana alleging defamation and
intentional infliction of emotional distress in Florida state court.
The suit was based on Rosana’s public allegations that Eduardo had
sexually assaulted her during their childhood. Rosana responded
with a counterclaim as a defense, and the parties litigated for two
and a half years. On December 5, 2014, Eduardo filed a voluntary
1 Because the parties have the same last name, we refer to them by their first
names for the sake of clarity.
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22-11664 Opinion of the Court 3
notice of dismissal. In November 2018, Rosana, filed a complaint in
the Circuit Court of the Nineteenth Judicial Circuit in and for St.
Lucie County, Florida, against Eduardo.
Rosana’s complaint alleged malicious prosecution under
Florida law. In relevant part, Rosana claimed that Eduardo had
“acted without probable cause in instituting or continuing the pro-
ceeding against [Rosana] when the circumstances were insufficient
and not reasonably justified,” and that Eduardo “could not prove
the truthfulness of his claim.” Rosana also attached Eduardo’s 2012
complaint as an exhibit.
On January 30, 2020, pursuant to 28 U.S.C. §§ 1441 and 1446,
Eduardo filed a notice of removal in the United States District
Court for the Southern District of Florida, alleging federal jurisdic-
tion under 28 U.S.C. § 1332.
Following discovery, Eduardo moved for summary judg-
ment, arguing that Rosana could not establish the elements re-
quired to succeed on a claim of malicious prosecution. He con-
tended that he had probable cause to institute the defamation pro-
ceeding because, as detailed in his complaint, Rosana had posted
defamatory remarks about him online to ruin his personal and pro-
fessional reputation. He pointed out that his complaint had identi-
fied several websites where Rosana had published the statements
and the various legal actions that he had taken in Brazil to stop their
publication. In support of his motion for summary judgment, Edu-
ardo attached a copy of his notarized affidavit asserting the follow-
ing facts.
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4 Opinion of the Court 22-11664
Rosana opposed Eduardo’s motion for summary judgment
and filed a statement of disputed facts. In relevant part, Rosana ar-
gued that the mere fact that Eduardo filed the complaint in order
to have the posts removed did not establish that he had probable
cause. However, Rosana’s response in opposition does not include
an affidavit, deposition, or any other sworn documentary evidence
averring that the statements she made about Eduardo were true.
The district court granted Eduardo’s motion for summary
judgment. It noted that Rosana had satisfied the first two elements
of her malicious prosecution claim because the parties did not dis-
pute that Eduardo had commenced a civil lawsuit against her.
However, the court found that Rosana failed to satisfy the third and
fourth elements of her malicious prosecution claim because (1) Ed-
uardo had probable cause to institute the proceeding, and (2) there
had not been a bona fide termination of the proceeding in Rosana’s
favor.
Rosana timely appealed. Although Rosana also filed a mo-
tion for summary judgment, she does not challenge the district
court’s denial of her motion for summary judgment on appeal. Ac-
cordingly, we address only the district court’s rulings on Eduardo’s
motion.
II.
We review a grant of summary judgment de novo, applying
the same legal standards as the district court. Yarbrough v. Decatur
Hous. Auth., 941 F.3d 1022, 1026 (11th Cir. 2019). “When
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22-11664 Opinion of the Court 5
considering a motion for summary judgment, . . . courts must con-
strue the facts and draw all inferences in the light most favorable to
the nonmoving party and when conflicts arise between the facts
evidenced by the parties, they must credit the nonmoving party’s
version.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252
(11th Cir. 2013) (cleaned up). At the same time, factual disputes
must be genuine, “that is, if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
III.
To succeed on a malicious prosecution claim under Florida
law, a plaintiff must establish (1) there was an original judicial pro-
ceeding against the present plaintiff; (2) “the present defendant was
the legal cause of the original proceeding against the present plain-
tiff as the defendant in the original proceeding”; (3) there was a
bona fide termination of that proceeding in favor of the present
plaintiff; (4) the original proceeding lacked probable cause; (5) mal-
ice; and (6) damages from the original proceeding. Debrincat v.
Fischer, 217 So. 3d 68, 70 (Fla. 2017) (quoting Alamo Rent-A-Car,
Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994)). Rosana’s inabil-
ity to prove any one of these elements defeats her claim. See Man-
cusi, 632 So. 2d at 1355. The district court concluded Rosana could
not establish the original proceeding lacked probable cause. We
agree. Accordingly, we need not reach the issue of whether the
lawsuit ended in a bona fide termination for Rosana.
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6 Opinion of the Court 22-11664
A malicious prosecution plaintiff may establish that the in-
stigator of a prior suit lacked probable cause by proving that the
instigator lacked “a reasonable belief, based on facts and circum-
stances know to him, in the validity of the claim.” Wright v. Yurko,
446 So. 2d 1162, 1166 (Fla. Dist. Ct. App. 1984). In other words, the
instigator must have had “[a] reasonable ground of suspicion, sup-
ported by circumstances sufficiently strong in themselves to war-
rant a cautious man in the belief that the person accused is guilty
of the offense with which he is charged.” Goldstein v. Sabella, 88
So. 2d 910, 911 (Fla. 1956) (quoting Dunnavant v. State, 46 So. 2d
871, 874 (Fla. 1950)). “Probable cause in the context of a civil suit is
measured by a lesser standard than in a criminal suit.” Wright, 446
So. 2d at 1166.
The district court cited Eduardo’s affidavit for the proposi-
tion that Rosana “admit[ed] to posting negative information
against [Eduardo] on the internet.” The court reasoned that be-
cause Rosana failed to refute Eduardo’s allegations that she posted
negative content about him, she could not rebut Eduardo’s asser-
tion that the original suit lacked probable cause.
Rosana claims she refuted this allegation in her pleadings to
the district court. In her pleadings, Rosana noted that if her state-
ments were “perceived as negative, it is because of the negative as-
pect of the[] events . . . which refer to the pain and suffering of the
plaintiff as a consequence of Eduardo’s acts against her.” Accord-
ingly, Rosana argued, the “facts narrated in [her] book can be inter-
preted as negative, but not defamatory.” Further, Rosana denied
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22-11664 Opinion of the Court 7
that any defamatory posts were made and pointed out that the only
evidence supporting Eduardo’s assertions about probable cause
was his affidavit.
However, absent from Rosana’s statement of facts is a cita-
tion to any affidavit or sworn declaration supporting her assertions
that she had posted negative but truthful information online. Un-
sworn statements cannot be considered by a district court at the
summary judgment stage. Carr v. Tatangelo, 338 F.3d 1259, 1273
n.26 (11th Cir. 2003). As such, Rosana’s unsworn statements are
“incompetent to raise a fact issue precluding summary judgment.”
Roy v. Ivy, 53 F.4th 1338, 1347 (11th Cir. 2022). Accordingly, the
district court did not err in concluding that Rosana failed to dispute
Eduardo’s sworn affidavit and granting summary judgment in his
favor.
IV.
Affirmed.