## Facts

- Ross Leggett worked for Montgomery Ward & Co. for many years as an employee and clerk handling numerous sales transactions.
- Montgomery Ward, through an agent, initiated a criminal complaint in a Wyoming justice court accusing Leggett of embezzlement connected to seven sales transactions over several months.
- Leggett was arrested and released on bail.
- On advice of counsel, Leggett waived a preliminary hearing; he alleged he did not intend to admit, and did not admit, probable cause by waiving.
- Leggett alleged the accusations were made without giving him an opportunity to explain the transactions.
- Leggett alleged the transactions could be explained only by access to Montgomery Ward’s records, which he did not have.
- Leggett alleged he lacked time to prepare for the preliminary hearing and could not secure certain material defense witnesses by the hearing date.
- Leggett alleged he believed a preliminary hearing would be useless because the employer would continue to harass and pursue similar charges until trial.
- Leggett was tried in Wyoming district court and acquitted.
- Leggett sued Montgomery Ward in federal district court for malicious prosecution, alleging the criminal case was instituted maliciously and without probable cause.

## Issues

1. Whether a plaintiff’s waiver of a preliminary hearing creates, on the face of the complaint, a conclusive or prima facie showing of probable cause sufficient to defeat a malicious prosecution claim on a Rule 12 motion.
2. Whether the complaint sufficiently alleged want of probable cause and malice under Wyoming law despite the waiver.

## Decision

- The Tenth Circuit reversed the dismissal and remanded.
- The court held that waiver of a preliminary hearing did not establish probable cause as a matter of law at the pleading stage.
- The court held the amended complaint adequately alleged want of probable cause and malice and therefore stated a claim for malicious prosecution.

## Legal Principles

- Under Wyoming law, malicious prosecution requires institution of criminal proceedings, favorable termination, want of probable cause, and malice.
- On a motion to dismiss, the complaint is read in the plaintiff’s favor; dismissal is improper unless the pleading shows the plaintiff can prove no set of facts entitling relief.
- A magistrate’s probable-cause determination after a contested preliminary examination may be treated as strong evidence of probable cause, but a unilateral waiver of the preliminary hearing is not equivalent to such a determination.
- A waiver of preliminary hearing, particularly where the plaintiff alleges it was a procedural choice made without admitting probable cause and under constraining circumstances, does not automatically bar a later malicious prosecution claim.

## Conclusion

The Tenth Circuit held that a criminal defendant’s waiver of a preliminary hearing does not, by itself, establish probable cause as a matter of law to defeat a malicious prosecution claim at the pleading stage; where the complaint alleges lack of probable cause and malice and explains the waiver, the action may proceed.


Leggett v. Montgomery Ward & Co., 178 F.2d 436 (10th Cir. 1949)