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Gunning v. Doe

Supreme Court of Maine

May 4, 2017


         Reporter of Decisions

          Argued: October 26, 2016

          Gene R. Libby, Esq., Tara A. Rich, Esq., and Tyler Smith, Esq. (orally), Libby O'Brien Kingsley & Champion LLC, Kennebunk, for appellant Marie Gunning

          Sigmund D. Schutz, Esq. (orally), Preti, Flaherty, Beliveau & Pachios, LLP, Portland, for appellee John Doe

          Zachary L. Heiden, Esq., American Civil Liberties Union of Maine Foundation, Portland, Paul Alan Levy, Esq., Public Citizens Litigation Group, Washington, DC, and George J. Marcus, Esq., Marcus, Clegg & Mistretta, P.A., Portland, for amici curiae Public Citizen, Inc., and American Civil Liberties Union of Maine Foundation


          Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.

          MEAD, J.

         [¶1] In August 2013, Marie Gunning brought suit in the Superior Court (Cumberland County) against the anonymous publisher and writer(s) (collectively John Doe) of News as Viewed From a Crow's Nest (Crow's Nest), a publication distributed locally in Freeport, Maine, and accessible on the Internet, [1] which Gunning claimed had published defamatory statements about her in several of its issues. After a California court quashed a subpoena that Gunning served on the Crow's Nest's website host seeking to identify Doe, the Superior Court [Warren, /.) dismissed her complaint without prejudice for failure to effect service on the defendants. Gunning appeals from that judgment. The publisher of the Crow's Nest (Doe #1) cross-appeals, agreeing with the court that Gunning is estopped by the California judgment from continuing to seek the Does' identities, and additionally contending that Gunning cannot force the Does to reveal their identities because the Crow's Nest is both nonactionable constitutionally protected parody and protected anonymous speech. We conclude that Gunning is estopped by the prior California judgment, and we affirm the judgment of the Superior Court without reaching Doe's alternative arguments.


         [¶2] In 2011, Gunning ran for the Freeport Town Council and was defeated. One week later, the Crow's Nest, which declares under its masthead that it is "a parody look at the news, " published an "Election Special" issue, which included a photograph of the "Wicked Witch of the West" character from the classic movie The Wizard of Oz next to Gunning's name, along with the caption "Aka: 'Gunner Gunning' 'Miss Prozac 2003, '" and several purported quotes from Gunning. Several other people with apparent ties to Freeport were treated similarly. Gunning's complaint against Doe alleged three counts of libel and one count each of false light and intentional infliction of emotional distress based on the statements concerning her in the "Election Special" issue, as well as those appearing in fifteen subsequent issues of the Crow's Nest.

         [¶3] Gunning served a California subpoena on the Crow's Nest's website host, seeking the names, email addresses, and IP addresses of anyone associated with the publication's website. Does #1 and #2, who filed written declarations in the California Superior Court stating that they were the owner and writer, respectively, of the Crow's Nest website, moved to quash the subpoena in that court, asserting that the Crow's Nest was constitutionally protected parody and that they had a constitutional right to speak anonymously. In a decision issued on January 24, 2014, the court granted the motion to quash, ruling that

[Gunning] must make a prima facie showing of libel[She] failed to make this prima facie showing. The Court finds that while the content of the Crow's Nest could be seen as rude and distasteful, taking into consideration the context and contents of the statements at issue, it is a parody. The speech at issue in the Crow's Nest is protected under the First Amendment of the U.S. Constitution. The statements are not actionable speech such that the identities of the website owner and persons who comment or otherwise publish material printed in or posted online at the Crow's Nest must be revealed pursuant to the subpoena.

Doe v. Gunning, No. CPF-13-513271 (Cal. Super. Ct. S.F. County Jan. 24, 2014).

         [¶4] Gunning did not appeal the California judgment. Three months after that judgment issued, Gunning served a Maine subpoena on a Town of Freeport employee in order to depose him to learn whether he was the writer for the Crow's Nest. The employee objected to the subpoena and provided an affidavit averring that he had never had anything to do with the Crow's Nest and had no knowledge of anyone who did. Fourteen months later, the employee, stating that Gunning again sought to depose him, moved to quash the subpoena on the grounds that Gunning was collaterally estopped by the California judgment from further discovery seeking to learn the identities of Does #1 and #2, and that her complaint failed to state a claim that could survive First Amendment scrutiny.[2] Doe #1 separately moved to quash the employee's subpoena and "to bar Gunning from issuing any other process to compel the disclosure of the anonymous speakers named in her Complaint, and to enter an order dismissing the Complaint."

         [¶5] On October 22, 2015, the Superior Court issued an order granting the motion to quash and dismissing Gunning's complaint without prejudice for failure to effectuate service pursuant to M.R. Civ. P. 3.[3] The court said that "[l]eft to its own devices" it would "conclude that [G]unning has set forth a prima facie case and that she has submitted evidence sufficient to support the elements of her libel claim." The court found, however, that although it "would be inclined to find that there is at least a factual dispute as to whether [one specific] description of Gunning . . . would reasonably be understood to constitute a parody" and therefore be entitled to First Amendment protection,

the court is not writing on a clean slate on that issue[W]hether or not this court agrees with the California ruling, the issue of whether Gunning has made the necessary prima facie showing [of an actionable claim] was actually litigated in California, was decided adversely to Gunning, and was essential to the outcome of the California action. ... No appeal was sought. Accordingly, the California decision is entitled to collateral estoppel effect and precludes Gunning from relitigating the same issue here in Maine.

         [¶6] Accordingly, the court quashed the subpoena and dismissed the complaint for lack of service on the Does. Gunning appealed and Doe #1 cross-appealed.


         [¶7] We first address the question of whether Gunning is precluded from relitigating in Maine the issue of the constitutional protection afforded to the statements made about her in the Crow's Nest. If she is, then the California court's determination that the statements are parody protected by the First Amendment controls, and Gunning's libel complaint fails to state an actionable claim.[4] In that event, the trial court did not abuse its discretion in quashing the Freeport employee's subpoena, and we need not reach the Does' contention that the statements in the Crow's Nest, if reviewed de novo, are entitled to protection either as constitutionally protected parody or as anonymous speech. See State v. Marroquin-Aldana, 2014 ME 47, ¶ 33, 89 A.3d 519 ("We review a court's decision on a motion to quash for an abuse of discretion.").

         [¶8] The California judgment is conclusive to the extent that it quashed the subpoena issued to the Crow's Nest's website host, a result concerning a discrete collateral issue related to Gunning's suit that she does not challenge. See Baker v. Gen. Motors Corp., 522 U.S. 222, 233 (1998) (holding that pursuant to the Full Faith and Credit Clause, "the judgment of the rendering State gains nationwide force"). Maine law, however, determines whether the judgment acts to foreclose Gunning's claims in this State. See Restatement (Second) of Conflict of Laws § 95 cmt. c (Am. Law Inst. Supp. 1989 revisions) ("[L]ocal law of the State where the judgment was rendered... will be consulted to determine whether the judgment affects the claim or only some incidental issue. If under this law the judgment was not on the merits and settled only some incidental issue... the judgment will be held conclusive in other States only as to the issue decided and the plaintiff will remain free to maintain an action on the original claim.").

         [¶9] In beginning that analysis, we have explained, applying well-established law, that

[c]ollateral estoppel is the issue preclusion component of the principle of res judicata. It prevents the relitigation of factual issues already decided if the identical issue was determined by a prior final judgment, and the party estopped had a fair opportunity and incentive to litigate the issue in a prior proceeding. . . . The court's conclusion that collateral estoppel applies is a legal determination; our review of that conclusion is therefore de novo.

Gray v. TD Bank, N.A., 2012 ME 83, ¶ 10, 45 A.3d 735 (alteration and quotation marks omitted) (emphases added); see Macomber v. MacQuinn-Tweedie, 2003 ME 121, ¶ 22, 834 A.2d 131 (stating that "[w]e have long recognized that the doctrine of res judicata has two prongs, " including "[i]ssue preclusion, also referred to as collateral estoppel, " and claim preclusion).

         A. Identical Issue

         [¶10] Concerning the first element, the issue decided by the California court and that to be decided by Maine courts if Gunning is not estopped from relitigating it is the same-did Gunning make out a prima facie showing of libel, or were the statements made about her in the Crow's Nest shielded by the First Amendment from being the basis for a libel claim. ...

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