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Hamilton v. Drummond Woodsum P.A.

Superior Court of Maine, Cumberland

November 20, 2018

SUSAN HAMILTON, Plaintiff
v.
DRUMMOND WOODSUM P.A., et al., Defendants

          ORDER

          Thomas D. Warren, Justice.

         Plaintiff Susan Hamilton contends that she was terminated without due process by the University of Southern Maine after an investigation that wrongly concluded that she had created a hostile working environment. Her federal lawsuit against USM has been settled.

         In this action Hamilton is suing Ann Chapman, who Hamilton alleges was hired by USM to perform the investigation. Hamilton has asserted that Chapman is liable for defamation, tortious interference with an advantageous economic relationship, and negligence. Chapman is an employee of Drummond Woodsum P.A., which is named as a defendant under the doctrine of respondeat superior.

         Before the court are two motions filed by Drummond Woodsum and Chapman (collectively "Chapman"). The first is a special motion to dismiss filed pursuant to 14 M.R.S. § 556, the "anti-SLAPP" statute. The second is a motion to dismiss based on the statute of limitations and the immunity provisions of the Maine Tort Claims Act, 14 M.R.S. §§ 8110-11, and on the statute of limitations applicable to claims of defamation. 14 M.R.S. § 753. Hamilton has opposed those motions and has also filed a motion for leave to file a second amended complaint.

         Procedural History

         Hamilton's initial complaint was filed on February 28, 2018. On May 22, 2018, before her first complaint was served, Hamilton filed an amended complaint. On May 24, 2018 service of the amended complaint was made on both defendants.

         On June 12, 2018 Chapman filed both a special motion to dismiss under 14 M.R.S. § 556 and a motion to dismiss pursuant to the Maine Tort Claims Act and the statute of limitations applicable to defamation claims.

         On July 3, 2018 Hamilton filed oppositions to each of those motions, along with a separate motion of her own for leave to file a second amended complaint.

         Recognizing that timely motions to amend should be freely granted, the court will grant Hamilton's motion to amend and will consider the proposed second amended complaint in connection with the pending motions to dismiss. See Sherbert v. Remmel, 2006 ME ¶ 8, 908 A.2d 622 (before considering dispositive motion, court should act on pending motion to amend in irder to determine whether amendment has cured the alleged defects in the complaint).

         Special Motion to Dismiss under 14 M.R.S. § 556

         The court will first address Chapman's motion under the anti-SLAPP statute because 14 M.R.S. § 556 provides that those motions may be entitled to priority on the docket.

         In her amended complaint Hamilton alleged that USM selected Chapman from the Drummond Woodsum firm to perform a purportedly neutral investigation of a claim of racism against Hamilton. Amended Complaint ¶ 39. In her second amended complaint Hamilton further alleges, by way of elaboration, that Chapman performed and was paid for her investigation as an independent contractor pursuant to an agreement between USM and Drummond Woodsum. Second Amended Complaint ¶¶ 39, 41-42.

         Hamilton alleges, inter alia, that Chapman did not engage in a neutral investigation, that she withheld pertinent evidence from Hamilton, and that in her report to USM, Chapman made false and defamatory statements that caused Hamilton to lose her job. Amended Complaint ¶¶ 40, 46, 68-70, 90, 94; Second Amended Complaint ¶¶ 43, 49, 77-73, 106, 117.

         Under 14 M.R.S. § 556, if the submission of Chapman's report constituted an exercise of her First Amendment right to petition the government, the burden would then shift to Hamilton to offer prima facie evidence that Chapman's petitioning activity was devoid of any reasonable factual support or any arguable basis in law and caused actual injury to Hamilton. Nader v. Maine Democratic Party, 2013 ME 51 ¶ 14, 66 A.3d 571 ("Nader II).

         The first step under the anti-SLAPP statute is to determine whether Chapman's report constituted an exercise of her right to petition as defined by the statute. See Gaudette v. Mainely Media LLC, 2017 ME 87 ¶¶ 11, 18, 160 A.3d 539. The final paragraph of section 556 defines a party's exercise of its right of petition to mean

any written or oral statement made before or submitted to a legislative, executive or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive or judicial body, or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.

         As the Law Court noted in Gaudette, it has on occasion interpreted the above language as "broadly inclusive." 2017 ME 87 ¶ 12 (citation omitted).

         Chapman argues that her report was a written statement submitted to an executive body and a written statement made in connection with an issue under consideration by an executive body or in a governmental proceeding and therefore falls within section 556. The court disagrees. In this case Chapman was not exercising her right of petition; she was instead submitting her report of an internal investigation that had been commissioned by USM. As the Law Court pointed out in Gaudette, the purpose of the right of petition is to seek redress from government. 2017 ME 87 ¶ 17. In Gaudette, even though the allegedly defamatory newspaper article at issue might have fit within the literal definition of petitioning ...


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