Under Georgia law, malicious prosecution has six elements: "(1) prosecution for a criminal offense; (2) instigated without probable cause; (3) with malice; (4) under a valid warrant, accusation or summons; (5) which has terminated favorably to the plaintiff; and (6) has caused damage to the plaintiff." Barnette v. Coastal Hematology & Oncology P.C., 670 S.E.2d 217, 220 (Ga. Ct. App. 2008)); aff'd 599 F. App'x 378 (11th Cir. 2015); see also Standard v. Falstad, 779 S.E.2d 682, 685 (Ga. Ct. App. 2015) (quoting McNeely v. Home Depot, Inc., 621 S.E.2d 473, 474-75 (Ga. Ct. App. 2005)).

"For purposes of [a malicious prosecution claim], the prosecution must be 'carried on,' which requires 'an inquiry before a committing court.'" Standard v. Falstad, 779 S.E.2d 682, 685 (Ga. Ct. App. 2015) (citations omitted). Did Wilder allege in his Complaint that he was taken before a magistrate after he was in custody?

According to the Georgia Court of Appeals, however, "[t]he suing out of a warrant, . . . without more, is not sufficient to sustain a cause of action for [malicious prosecution]." Standard v. Falstad, 779 S.E.2d 682, 685 (Ga. Ct. App. 2015). Regardless, Plaintiff's malicious prosecution claim fails on independent grounds, as explained herein.

"To qualify as sufficiently 'extreme and outrageous' the conduct at issue 'must be so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.' " Standard v. Falstad, 779 S.E.2d 682, 686 (Ga. Ct. App. 2015) (quoting Kaiser v. Tara Ford, Inc., 546 S.E.2d 861, 868 (Ga. Ct. App. 2001)). Plaintiff alleged in her original complaint that Defendant Siegel's intentional conduct, including false allegations of theft, were extreme and outrageous and that it caused her to suffer severe emotional distress.

In Georgia, a claim of intentional infliction of emotional distress must show the following elements: "(1) the conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the plaintiff's emotional distress; and (4) the emotional distress must be severe." Standard v. Falstad, 779 S.E.2d 682, 686 (Ga. Ct. App. 2015) (quoting Undoinyion v. Re/Max of Atlanta, 657 S.E.2d 644 (Ga. Ct. App. 2008)). To qualify as sufficiently "extreme and outrageous," the conduct at issue "must be so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society."

Still other states, however, continue to hold that an arrest without any formal charges will not support a claim for malicious prosecution. (Jackson v. District of Columbia (D.D.C. 1989) 710 F.Supp. 13, 14-15 ; Standard v. Falstad (2015) 334 Ga.App. 444, 447, 779 S.E.2d 682, 685 ; Mulligan v. Bradley (1985) 131 Ill.App.3d 513, 516, 86 Ill.Dec. 650, 475 N.E.2d 1029, 1032.) Van Audenhove makes a similar appeal to fairness and justice.