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Lacey v. Maine Media Collective, LLC

Superior Court of Maine, Cumberland

January 30, 2019



          Nancy Mills, Justice

         Before the court is defendants Maine Media Collective, LLC, and Kevin Thomas's motion to dismiss pursuant to M.R. Civ. P. 12(b)(6). For the following reasons, defendants' motion to dismiss is DENIED in part and GRANTED in part.


         Plaintiff Jessie Lacey is a resident of Portland. (Compl. ¶ 2.) Defendant Kevin Thomas is a resident of Yarmouth and was the owner and CEO of defendant Maine Media Collective, LLC (MMC), a Maine corporation with its principal place of business in Portland. (Compl. ¶¶ 3, 4, 7.) Plaintiff worked for defendants from 2006 to November 2010. (Compl. ¶ 10); (Defs.' Ex. C.)

         On April 26, 2018, plaintiff published a blog post detailing her experience as an employee of MMC and described incidents of sexual harassment, abuse, retaliation, and bullying. (Compl. ¶ 50); (Defs.' Ex. A.) In response to this blog post and a story published in the Bollard detailing similar incidents, (Defs.' Ex. B), both defendant Thomas and defendant MMC made statements relating to the accusations levied against them. (Compl. ¶¶ 51, 55-67, 72, 74-80.) Plaintiff alleges that many of these statements were defamatory and were intended to cause her emotional distress. (See Compl. ¶¶ 84-99.)


         When reviewing a motion to dismiss pursuant to M.R. Civ. P. 12(b)(6), the court "examine[s] the complaint in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." In re Wage Payment Litig. v. Wal-Mart Stores. Inc., 2000 ME 162, ¶ 3, 759 A.2d 217. "Dismissal is warranted when it appears beyond a doubt that the plaintiff is not entitled to relief under any set of facts that he might prove in support of his claim." Johanson v. Dunnington. 2001 ME 169, ¶ 5, 785 A.2d 1244.

         Generally, the court considers only the allegations in the complaint, which are accepted as true. Nadeau v. Frydrych. 2014 ME 154, ¶ 8, 108 A.3d 1254; Moody v. State Liquor & lottery Comm'n. 2004 ME 20, ¶ 8, 843 A.2d 43. A court may, however, consider official public documents, documents that are central to a plaintiff's claim, and documents referred to in the complaint without converting a motion to dismiss into a motion for summary judgment. Moody. 2004 ME 20, ¶ 11, 843 A.2d 43; see also M.R. Civ. P. 12(b). Defendants attached three exhibits to their motion to dismiss pursuant to Moody. The court has considered the exhibits, which include plaintiff's blog article about defendants, a Bollard article about the defendants, and plaintiff's termination letter from MMC, because all three are "documents referred to in the complaint." 2004 ME 20, ¶8, 843 A.2d 43.

         The court notes that the defamation cases on which defendants rely for the motion to dismiss involved motions for summary judgment, judgments after trial, or case law from other jurisdictions. See McKee v. Cosby, 874 F.3d 54, 59-60 (1st Cir. 2017) (Michigan law); Pan Am Sys. v. Atl. Ne. Rails & Ports. Inc., 804 F.3d 59, 62 (1st Cir. 2015) (summary judgment); Gray v. St. Martin's Press. Inc., 221 F.3d 243, 247 (1st Cir. 2000) (summary judgment and judgment after trial); Flotech. Inc. v. E. I. Du Pont de Nemours & Co., 814 F.2d 775, 776-77 (1st Cir. 1987) (summary judgment; Massachusetts law); Green v. Cosby, 138 F.Supp.3d 114, 124 (D. Mass. 2015) (California and Florida law); Schatz v. Republican State Leadership Comm., 777 F.Supp.2d 181, 189 (D. Me. 2011) (federal court procedure); McNamee v. Clemens, 762 F.Supp.2d 584, 599-600 (E.D.N.Y. 2011) (New York law); Stark v. Zeta Phi Beta Sorority. Inc., 587 F.Supp.2d 170, 174 (D.D.C. 2008) (summary judgment); Levesque v. Doocy, 557 F.Supp.2d 157, 159 (D. Me. 2008) (summary judgment); Norris v. Bangor Publ'g. Co., 53 F.Supp.2d 495, 498 (D. Me. 1999) (summary judgment); Novecon, Ltd. v. Bulgarian-American Enter. Fund. 977 F.Supp. 45, 46 (D.D.C. 1997) (summary judgment); Ballard v. Wagner, 2005 ME 86, ¶ 9, 877 A.2d 1083 (judgment after trial); Rice v. Alley. 2002 ME 43, ¶ 1, 791 A.2d 932 (judgment after trial); Rippett v. Bemis, 672 A.2d 82, 84 (Me. 1996) (summary judgment); Lester v. Powers, 596 A.2d 65, 66 (Me. 1991) (summary judgment); Bakal v. Weare, 583 A.2d 1028, 1029 (Me. 1990) (summary judgment); Picard v. Brennan, 307 A.2d 833, 833 (Me. 1973) Qudgment after trial); Brown v. Guy Gannett Pub. Co., 147 Me. 3, 5, 82 A.2d 797, 798 (1951) (motion to dismiss; defendant admitted falsity and intent to injure plaintiff). The standard of review for a motion to dismiss differs from that for a motion for summary judgment or a judgment after trial. M.R. Civ. P. 12(b)(6); 56(c); Ballard, 2005 ME 86, ¶ 11, 877 A.2d 1083 ("[A] determination by the fact-finder of whether the alleged defamatory statement is fact or opinion is subject to review for clear error."). Further, no analysis has been presented with regard to whether Maine law and the law from other jurisdictions are similar.

         Count I: Defamation

         For her defamation claim, plaintiff must allege:

(a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third party;
(c) fault amounting to at least to negligence on the part of the publisher; and
(d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

Morgan v. Kooistra, 2008 ME 26, ΒΆ 26, 941 A.2d 447. Plaintiff alleges the following instances constituted defamation ...

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