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April 17, 1979

Arthur WHITTAKER and Theodora L. Whittaker, Plaintiffs,
Doris DUKE, Defendant

The opinion of the court was delivered by: SAND

Defendant has moved for summary judgment in this action for malicious prosecution, asserting that as a matter of New Jersey law, which controls here, plaintiff cannot establish the four elements necessary for such a cause of action. We conclude that as to one of the four elements, there exist no issues of material fact and plaintiff cannot prevail as a matter of law. The motion, therefore, is granted.

The elements of a malicious prosecution are as follows:

(1) A criminal proceeding instituted or continued by the defendant against the plaintiff;
(2) Termination of the proceeding in favor of the accused;
(3) Absence of probable cause for the proceeding;
(4) "Malice", or a primary purpose other than that of bringing an offender to justice.

 Prosser, Law of Torts 835 (4th Ed. 1971). The question before us is whether, on the undisputed facts, plaintiff has established the first of these elements whether defendant "instituted or continued" the criminal proceeding which was brought against Mr. Whittaker.

 The background of this action, and the facts relating to the "institution or continuation" element, are as follows. At all relevant times, plaintiff was a principal of Whittaker Associates, a New York State partnership engaged in the business of "investigation". Whittaker was a licensed private detective in New York State, but was not so licensed by the State of New Jersey.

 On November 28, 1973, a burglary occurred on defendant's property in New Jersey. The following day, defendant retained Whittaker to perform certain services, the precise nature of which is in dispute. Plaintiff *fn1" contends that he was retained to assess the security system on the property, while defendant asserts that he was hired, at least in part, to investigate the burglary. Under New Jersey law,

No person, firm, association or corporation shall engage in the private detective business or as a private detective or investigator . . . without having first obtained from the superintendent a license to conduct such business. . . . Any person, firm, association or corporation who shall violate any of the provisions of this section shall be guilty of a misdemeanor. (N.J.S.A. 45:19-10.)

 In the course of plaintiff's activities on the Duke property, he engaged a firm of polygraphers to make polygraph examinations of the employees on the Duke estate. In January, 1974, a guard employed by the Animal Medical Center (a research hospital that had facilities at the estate) filed a complaint with the New Jersey Department of Labor and Industry with respect to disputed wages. As a result of that complaint, the Department of Labor became aware that polygraph tests had been conducted at the Duke estate. The Animal Medical Center was represented in this complaint by William F. Tompkins, Esq., who also at that time was representing it in an action against Duke. Tompkins brought to the attention of the Department of Labor the fact that polygraph tests had been administered by Whittaker Associates, and was directed by the Department to refer the matter to "the proper agency". On September 9, 1974, Tompkins wrote to Matthew P. Boylan, Esq., the Director of Criminal Justice of the State of New Jersey.

 In October, 1974, the New Jersey State Police conducted an investigation of Whittaker's activities at the Duke premises. In connection with that investigation, Duke was interviewed on October 28, 1974 by a detective of the New Jersey State Police. The results of the investigation were given to the Somerset County Prosecutor's office, which presented the case to the Somerset County Grand Jury. An Assistant Prosecutor spoke with Duke immediately before she testified before the Grand Jury on September 17, 1975. On that day, the Grand Jury indicted Whittaker under N.J.S.A. 45:19-10. Trial was held in June, 1976, at which Duke also testified. On motion of defendant, the charges were dismissed. *fn2"

 No contention has been made that Mr. Tompkins acted as Duke's agent or that his actions can be attributed to her. Indeed, Tompkins and Duke were in an adversarial position at the time with respect to the AMC litigation against Duke.

 Rather, plaintiff asserts that defendant herself "instituted or continued" the criminal prosecution against him in that she lied at critical points in the proceedings, under such circumstances that her false statements "set the proceedings in motion against him or caused their continuance". Defendant vigorously denies plaintiff's claims respecting her statements and testimony and has submitted an affidavit stating ...

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