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Click here for the full text of this decision FACTS:Plaintiffs-Appellants Marion Duzich, et al. (together, “Duzich”) appeal the district court’s grant of the Federal Rule of Civil Procedure 12(b)(6) motion to dismiss filed by defendants-appellees Advantage Financial Group, et al. (together, “CIT”). Duzich also appeals the district court’s denial of Duzich’s motion for leave to file a second amended complaint. In September 2000 CIT filed the underlying prosecution against Duzich in bankruptcy court in the Southern District of Texas on behalf of Liberty Seafood Inc. The allegations concerned criminal conduct and fraud in the seafood business. The bankruptcy court granted CIT a temporary restraining order and preliminary injunction and appointed a trustee for Liberty. For reasons not in the record, the trustee voluntarily dismissed the bankruptcy adversary proceeding. In June 2003 Duzich filed this case based on diversity in district court in the Southern District of Texas. Duzich alleged that the underlying bankruptcy litigation constituted a malicious prosecution and that CIT engaged in civil conspiracy. CIT filed a motion to dismiss under Rule 12(b)(6). Duzich responded and CIT replied. The district court granted CIT’s motion to dismiss for failure to state a claim and entered final judgment dismissing all Duzich’s claims with prejudice. In doing so, the district court found that Duzich had not sufficiently pleaded a requisite element for a malicious prosecution claim � that the underlying litigation had terminated in Duzich’s favor. In addition, the court found that Duzich had not satisfied a requisite element for civil conspiracy � an unlawful, overt act � because Duzich had not shown that CIT’s initiation of the bankruptcy action was an unlawful act. The court also denied Duzich’s motions for leave to file a second amended complaint and for reconsideration. Duzich timely appealed. HOLDING:Affirmed. In KT Bolt Manufacturing Co. v. Texas Electric Cooperatives Inc., 837 S.W.2d 273 (Tex. App. – Beaumont 1992, writ denied), a Texas appeals court explained that the dismissal of an action pursuant to a voluntary non-suit was in no way an adjudication of the merits of the particular case. There, the court held that because the voluntary non-suit of the initial action brought by the now-defendant did not indicate a termination of the proceedings in the now-plaintiff’s favor, the trial court properly determined that an essential element for malicious prosecution was missing. The record in this case provides nothing from which to infer that the voluntary dismissal of the bankruptcy proceeding by the trustee was a favorable termination for Duzich on the merits. Moreover, although the Texas Supreme Court noted that its rule in Texas Beef Cattle Co. v. Green, 921 S.W.2d 203 (Tex. 1996), was in accord with cmt. j. of 674 of Restatement (Second) of Torts, the rule at issue did not concern whether to interpret a voluntary dismissal as a favorable termination. Instead, the court held that there could be no favorable termination for a malicious prosecution plaintiff while the underlying proceeding was still on appeal. KT Bolt’s holding remains undisturbed, the court determines. The court finds the district court properly applied Texas law as set forth in KT Bolt in this case. The court finds that the district court did not err in dismissing Duzich’s civil conspiracy claim. The court agrees with the district court that any amendment to Duzich’s complaint would have been futile to cure its defects. OPINION:Per curiam; Garza, DeMoss and Stewart, JJ.

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