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Desjardins v. Reynolds

Superior Court of Maine, Cumberland

September 29, 2017



         Before the court is a motion by defendant Michael Reynolds for attorney's fees pursuant to 14 M.R.S. § 556. That statute provides in pertinent part that if the court grants a special motion to dismiss under Maine's anti-SLAPP statute, "the court may award the moving party costs and reasonable attorney's fees, including those incurred for the special motion and any related discovery matters."

         Reynolds prevailed on a special motion to dismiss in this court's order filed on June 19, 2015, a ruling that was affirmed on appeal by the Law Court. Desjardins v. Reynolds, 2017 ME 99. Reynolds now seeks attorney's fees for work performed in connection with the defense of this action in federal court (after it was removed), in the First Circuit, in this court (upon remand from the federal court), and on the appeal to the Law Court from this court's decision.[1]

         Entitlement to Attorney's Fees

         As set forth above, 14 M.R.S. § 556 states that the court "may" award a successful movant under the anti-SLAPP statute attorney's fees and costs. In Maietta Construction Inc. v. Wainwright, 2004 ME 53 ¶¶ 17, 20, 847 A.2d 1169, the Law Court rejected the proposition that the statute creates a presumption that attorney's fees should be awarded to a successful movant in the absence of special circumstances. It instead emphasized that the award of attorney's fees under 14 M.R.S. § 556 is discretionary and that it is appropriate to consider the merits of the case in deciding whether to award attorney's fees. 2004 ME 53 ¶¶ 12, 18.

         Assessing the Merits

         Plaintiff Dana Desjardins argues that his claims have been found to be meritorious because this court found that, for purposes of the special motion to dismiss, Desjardins met his burden of showing that Reynolds's petitioning activity was devoid of factual support. July 19, 2015 order at 3-4. That determination, however, meant only that Desjardins provided prima facie proof- "some evidence" - that Reynolds's report to the Cumberland County Sheriffs office was unfounded. See Nader v. Maine Democratic Party ('Nader I"), 2012 ME 57 ¶¶ 33-35, 41 A.3d 551. As the Law Court noted in Nader v. Maine Democratic Party, "prima facie proof is a low standard that does not depend on the reliability or credibility of the evidence." 2012 ME 57 ¶ 34, quoting Cookson v. State, 2011 ME 53 ¶ 8, 17 A.3d 1208.

         In weighing the evidence and assessing its probative value, see Maietta, 2004 ME 53 ¶ 13, the court has reviewed the affidavits and other evidence submitted by the parties in connection with the special motion. This includes the following:

• Affidavits by Reynolds, Nathan White (Road Commissioner of the Town of Raymond), Catherine Gosselin (Deputy Chief, Town of Raymond Emergency Medical Services), Bruce Tupper (Fire Chief, Town of Raymond), and Don Willard (Raymond Town Manager, originally named as a co-defendant in this action[2]) stating that that they had smelled a strong odor of alcohol from Desjardins at one or more town meetings and that in two cases, they had observed erratic driving on his part. Reynolds stated that he had been asked by residents and town officials to convey to the Cumberland County Sheriffs Office concerns that Desjardins may have driving while impaired.
• Two emails from Reynolds to the Sheriff on December 12. 2012. The first of those requested the opportunity to speak to the Sheriffs office with respect to "a public safety issue." which Reynolds confirmed in the second email involved Dana Desjardins.
• Emails from Sheriff Joyce to Deputy Sheriff Goulet dated December 21, 2012 and January 5, 2013 stating that complaints had been received that Desjardins had been driving while intoxicated and had attended Selectmen's meetings intoxicated. The Sheriff suggested that a deputy watch to see if Desjardins's vehicle was being operated erratically around the time of the next meeting.
• A subsequent email from Reynolds to the Sheriff on January 7, 2013indicating that there had been a conversation between Reynolds and the Sheriff after the first emails. The email reminded the Sheriff that the next meeting was on January 8 and stated that if a deputy would be available to drop by, "that would be great."
• A January 9, 2013 email from Reynolds to the Sheriff stating that Desjardins had not been visibly intoxicated at two meetings that week. The email mentioned a rumor that someone from the Sheriffs office had spoken to Desjardins, and stated that since Desjardins had appeared at two meetings without raising any public safety concerns, Reynolds hoped the rumor was true.
• An affidavit from Dana Desjardins stating that he had not attended any Selectman's meetings intoxicated, that he seldom drinks alcohol, and any claims that he was driving under the influence were false. In his affidavit Desjardins surmises that Reynolds and Willard had developed an animus against him based on his outspokenness at town meetings and because of disputes dating from January and May of 2011 - more than 18 months before Reynolds's December 14, 2012 email.
• Affidavits from Charles Leavitt, Peter Leavitt, John Russo, and Julie Southerland stating that they were friends and acquaintances of Desjardins who were involved with Town government, denying that they had ever detected any signs of intoxication, and specifically denying that any indications of intoxication were apparent at a town meeting where persons whose affidavits had been submitted by Reynolds stated that they had observed indications of intoxication. Charles Leavitt also stated his belief that false accusations had been made against ...

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