ABC/Lorenzo Bevilaqua(CHICAGO) — On Wednesday, Jussie Smollett’s lawsuit against the city of Chicago for malicious prosecution was tossed out by U.S. District Judge Virginia Kendall.“In a malicious prosecution case, all elements cannot be pled until the proceedings are terminated in the plaintiff’s favor,” the judge wrote in her 15-page order.“Given this, it cannot be said that the case has terminated, nor can it be said that the case has terminated in Smollett’s favor,” she said.In layman’s terms, the Empire actor must wait to find out the outcome of his upcoming trial against the city of Chicago, which has charged him with six counts pertaining to making four false police reports. The only catch is that he can only refile the lawsuit if he is found innocent of those charges. For the record, he has pleaded not guilty. The Windy City has sued the 37-year-old for over $130,000 as reimbursement for the overtime that was paid to police officers and others who were involved in investigating the allegedly staged racist and homophobic attack against him. Copyright © 2020, ABC Audio. All rights reserved.