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Steinmetz v. Coyle & Caron, Inc.

United States Court of Appeals, First Circuit

June 29, 2017

JOHN W. STEINMETZ; JANE C. STEINMETZ, Plaintiffs, Appellants,
v.
COYLE & CARON, INC., Defendant, Appellee.

          Date of Issuance 7/5/2017

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Denise J. Casper, U.S. District Judge]

          John W. Steinmetz for appellants. Evan Fray-Witzer, with whom Ciampa Fray-Witzer, LLP was on brief, for appellee.

          Richard J. Yurko, Sanford F. Remz, Noemi Kawamoto, Yurko, Salvesen & Remz, P.C., and Sarah Wunsch on brief for the American Civil Liberties Union of Massachusetts, amicus curiae.

          Christopher T. Bavitz, Cyberlaw Clinic, Harvard Law School, Bruce Brown, Gregg P. Leslie, and D. Victoria Baranetsky on brief for the Reporters Committee for Freedom of the Press, The Associated Press, Gannett Co., Inc., New England First Amendment Coalition, and New England Newspaper and Press Association, Inc., amici curiae.

          Before Lynch, Selya, and Kayatta, Circuit Judges.

          LYNCH, Circuit Judge.

         Prevented from building a new home in Cohasset, Massachusetts by the Cohasset Conservation Commission, plaintiffs John W. Steinmetz and Jane C. Steinmetz brought this lawsuit alleging state law claims of negligence, gross negligence, defamation, and violation of the Massachusetts consumer protection statute, Mass. Gen. Laws ch. 93A. The defendant is Coyle & Caron, Inc., a Florida landscape design firm that was hired by the attorney representing the James Island Preservation Group, a neighborhood association formed to oppose the construction of the Steinmetzes' proposed home. In this federal case, the Steinmetzes chose to sue the contractor hired to assist in the Group's opposition by producing and presenting renderings of the proposed home to the Conservation Commission.

         Before the district court, Coyle & Caron moved to dismiss the lawsuit pursuant to the Massachusetts Strategic Litigation Against Public Participation statute ("anti-SLAPP statute"), which allows a defendant to move to dismiss any claim that arises from its exercise of its right of petition. Mass. Gen. Laws ch. 231, § 59H. Coyle & Caron also moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

         The district court ruled in Coyle & Caron's favor on all counts, granting its special motion to dismiss under the anti-SLAPP statute and also granting, in the alternative, its Rule 12(b)(6) motion. See Steinmetz v. Coyle & Caron, Inc., No. 15-cv-13594-DJC, 2016 WL 4074135 (D. Mass. July 29, 2016). Regarding the special motion to dismiss, the district court held that the state anti-SLAPP statute applied in federal court, id. at *3-4, that the statute did not violate the Seventh Amendment of the U.S. Constitution, id. at *6, and that the statute applied to this case, id. at *4-5. It ruled as such over the Steinmetzes' objection that Coyle & Caron -- as a "disinterested paid witness" hired to assist another in petitioning the government, and not a citizen exercising his or her own right of petition -- should not receive the protection of the anti-SLAPP statute. Id. at *4.

         After confirming the constitutionality and applicability of the statute, the district court next found that Coyle & Caron, as the party seeking the protection of the anti-SLAPP statute, had made its threshold showing that the Steinmetzes' claims were based exclusively on Coyle & Caron's petitioning activities. Id. at *6- 7. At that point, the court ruled, in reliance on then-existing state law, that the burden shifted to the Steinmetzes to show that Coyle & Caron's petitioning activity "was devoid of any reasonable factual support or any arguable basis in law and [that Coyle & Caron's] actions caused actual injury." Id. at *6. The district court held that the Steinmetzes had failed to meet this burden and thus could not defeat Coyle & Caron's special motion to dismiss. Specifically, it found that the renderings, which were developed to petition the Conservation Commission, had "reasonable factual support, " as they were "the product of well-trained professionals who examined multiple sources, " including architectural plans and photos of James Island. Id. at *8. The mere fact that the Steinmetzes' own architect found inaccurate certain aspects of the renderings did not establish that "no reasonable person would conclude that there was a [factual] basis" for the renderings. Id.

         Further, the district court found that the renderings did not cause actual injury to the Steinmetzes, as the Conservation Commission had explained in its Memorandum of Decision that it did not approve the proposed construction project because the home's driveway "would adversely affect adjacent salt marsh wetlands and Plaintiffs failed to demonstrate their entitlement to a variance." Id. at *9. The Memorandum did not refer to Coyle & Caron's renderings. In fact, as the district court noted, two of the Commission members who voted against the proposal publicly stated that "they were not considering Coyle & Caron's [r]enderings in reaching their decision." Id.

         Finally, the district court held that, under Rule 12(b)(6), Coyle & Caron was also entitled to dismissal of each of the Steinmetzes' claims. Id. at *9-11. It dismissed the negligence and gross negligence claims because Coyle & Caron owed no duty to the Steinmetzes, id. at *9, the defamation claim because Coyle & Caron's renderings constituted opinion and not fact, id. at *10, and the chapter 93A claim because the Steinmetzes lacked any business or commercial relationship with Coyle & Caron, id. at *11.

         The Steinmetzes appeal, restating their arguments that the anti-SLAPP statute is unconstitutional, that it does not apply to this case, and that the district court erred by granting Coyle & Caron's special motion, even assuming the statute applies. The Steinmetzes also challenge the dismissal of their claims under Rule 12(b)(6).

         After the parties completed their briefing and presented oral argument before us, Massachusetts law on the anti-SLAPP statute dramatically shifted. On May 23, 2017, the Supreme Judicial Court of Massachusetts ("SJC") issued two decisions on that statute. See Blanchard v. Steward Carney Hosp., Inc., 75 N.E.3d 21 (Mass. 2017); 477 Harrison Ave., LLC v. Jace Bos., LLC, 74 N.E.3d 1237 (Mass. 2017). The SJC's decision in Blanchard, in particular, augmented the previous burden-shifting framework such that the nonmoving party could survive a special motion to dismiss also by establishing that its claims were not "primarily brought to chill the special movant's legitimate petitioning activities." 75 N.E.3d at 38-39. To understand how the recent Blanchard and 477 Harrison Ave. decisions impact this case, we requested and received supplemental briefing from both parties.

         We affirm today the district court's determinations that Coyle & Caron's renderings constitute petitioning activity within the meaning of the statute if the statute applies to Coyle & Caron as a third-party contractor, and that the Steinmetzes failed to show that the renderings lacked any reasonable factual basis. We further hold that the Steinmetzes' negligence, gross negligence, and chapter 93A claims are not colorable under the augmented anti-SLAPP framework. We cannot do the same for the defamation claim, as that claim arguably offers some reasonable possibility of a decision in the Steinmetzes' favor. However, in order to dismiss any of the Steinmetzes' claims under Coyle & Caron's special motion, we face the threshold issue of whether Coyle & Caron, as a third-party contractor hired to assist with the Preservation Group's petitioning activity, can even avail itself of the special motion. As there is no controlling precedent from the SJC on this determinative question of state law, we certify it for resolution by that court.

         I.

         The Steinmetzes own approximately 6.68 acres of land at 1 James Island Way, Cohasset, Massachusetts. This land, on which the Steinmetzes planned to build a single-family dwelling, is part of James Island, a peninsula surrounded by Inner Little Harbor. After securing a sewer permit for this proposed construction from the Town of Cohasset, the Steinmetzes submitted a Notice of Intent application to the Cohasset Conservation Commission. The Steinmetzes hired a local architectural firm co-headed by Can Tiryaki to design the home.

         Certain residents of the Inner Little Harbor area opposed the construction of the Steinmetzes' home on James Island and formed the James Island Preservation Group to voice that opposition. The Steinmetzes allege that the Preservation Group opposed the construction out of fear that the scenic views from the members' homes "might change[, ] as there would now be a house on the previously undeveloped James Island." The Preservation Group's attorney hired Coyle & Caron to prepare renderings of the Steinmetzes' proposed home for submission to the Conservation Commission. Sally Coyle, President of Coyle & Caron, and Yuka Suganuma (a landscape architect who worked with Coyle & Caron) participated in creating the renderings.

         The Steinmetzes allege that these renderings were "false, fraudulent[, ] and defamatory" in five ways. First, the renderings used an "incorrect view location, " which resulted in an inaccurate three-dimensional depiction of the house. Second, they used "multiple horizon lines and [an] incorrect perspective, " which resulted in "the house appearing significantly higher in the view frame than where it will actually be." Third, they portrayed an "incorrect house orientation, " which made the house -- and especially the eastern wing of the house -- appear more visible than it actually would be. Fourth, the renderings "represent[ed] a two-dimensional elevation drawing . . . that was stretched and distorted to make it appear three-dimensional, " which made it impossible to "represent the actual massing of the house." Fifth, they represented an "incorrect . . . size and scale of the house" given the four issues noted above, as well as the inaccurate "location of the proposed house on the site." In addition to these five defects, the Steinmetzes point out that their proposed home "will be surrounded on all sides by a 50 foot buffer of trees, " many of which are taller than the proposed house and "will largely hide it from view by others." Disregarding this design, the Steinmetzes say, the renderings depicted a "hideous behemoth looming over the tree line of the island" (quoting Amanda Thompson, Conservation Commission Says "No" to Large Cohasset Home, Patriot Ledger (Sept. 12, 2015), http://www.patriotledger.com/article /20150912/news/150919497).

         On September 3, 2015, Sally Coyle of Coyle & Caron appeared before the Conservation Commission to present the renderings. In addition, at least one of Coyle & Caron's earlier draft renderings had been posted on a Facebook page created by the Preservation Group. The Facebook rendering was "circulated throughout Cohasset and Massachusetts" in order to "inflame negative emotions, " according to the Steinmetzes. With regard to this Facebook publication and distribution, Sally Coyle stated in her affidavit that the first draft of the renderings was not circulated beyond a "small client (and consultant) group" and that she did not intend for the draft to be circulated more widely. As a result of the publication, the Steinmetzes allege that they "were personally attac[k]ed and ridiculed on Facebook."

         The Conservation Commission ultimately voted to deny the Steinmetzes' construction project by a vote of four to two, articulating as its reason that the proposed work would harm adjacent salt-marsh wetlands. Nonetheless, the Steinmetzes allege that Coyle & Caron's renderings "had a dramatic impact on the Conservation Commission proceedings" by "br[inging] out the masses to the Conservation hearing in opposition to Plaintiffs' Project based upon the unfounded and irrational fear they created, and wrongfully influenc[ing] and bias[ing] four of the Conservation Commission members against Plaintiffs' Project."

         On October 19, 2015, the Steinmetzes filed a complaint against Coyle & Caron in the U.S. District Court for the District of Massachusetts, asserting the claims already described.[1]

         II.

         The Massachusetts anti-SLAPP statute provides that "[i]n any case in which a party asserts that the [claims] against said party are based on said party's exercise of its right of petition under the constitution of the United States or of the commonwealth, said party may bring a special motion to dismiss." Mass. Gen. Laws ch. 231, § 59H. It goes on to state that the special motion shall be granted "unless the party against whom such special motion is made shows that: (1) the moving party's exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party's acts caused actual injury to the responding party." Id. The statute further instructs that, in assessing whether to ...


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