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Nery v. Miller

Superior Court of Maine, Sagadahoc

March 18, 2019

DAVID NERY, individually and on behalf of ANDREW NERY, AVA NERY, ELEANOR NERY, and WILLIAM NERY, Plaintiffs,
v.
BRIDGET MILLER and RANDALL MILLER, Defendants.

          DAVID NERY - PLAINTIFF, Attorney for: DAVID NERY, DANIEL D FELDMAN - RETAINED, HALLETT WHIPPLE WEYRENS.

          BRIDGET MILLER - DEFENDANT, Attorney for: BRIDGET MILLER, JUSTIN W ANDRUS - RETAINED ANDRUS LAW LLC.

          RANDALL MILLER - DEFENDANT, Attorney for: RANDALL MILLER, LUIS DENNIS CARRILLO - RETAINED CLOUTIER CARRILLO

          JUDGMENT

          Daniel I. Billings, Justice, Maine Superior Court.

         This matter is before the court on the Defendants' Special Motions to Dismiss brought pursuant to 14 M.R.S. § 556.

         BACKGROUND

         There is a long history of discord between the parties in this case, as evidenced by the many associated family matter orders. Plaintiff, David Nery ("David") is the father of minor children Andrew, Ava, Eleanor, and William. Defendant Bridget Miller ("Bridget") is the children's mother. David and Bridget were divorced in November 2014. Bridget remarried to Defendant Randall Miller ("Randy") in September 2015. Amidst the ongoing family matters, on August 28, 2018, David filed a ten-count Verified Complaint: "an action for legal relief from, and recompense for, a malicious scheme to destroy [his] constitutionally-protected, fundamental interest in the nurture, upbringing, companionship, and custody of his children." The ten counts are:

1. Abuse of Process
2. Fraud
3. Defamation
4. False Imprisonment
5. Invasion of Privacy
6. Intentional Infliction of Emotional Distress 7. Violation of Civil / Constitutional Rights
8. Negligence
9. Negligent Infliction of Emotional Distress 10. Civil Conspiracy.

         All the claims are asserted against both Bridget and Randy, except for negligence and negligent infliction of emotional distress, which are asserted against Bridget only.

         Defendants are separately represented and each filed a Special Motion to Dismiss on November 30, 2018 pursuant to 14 M.R.S. § 556, the anti-Strategic Lawsuit Against Public Participation (SLAPP) statute. Both motions are supported by affidavits and exhibits. David opposed both motions on December 26, 2018. The facts that are relevant to these Special Motions to Dismiss are addressed in greater detail later in this Judgment, but generally include the Defendants' phone calls to law enforcement, Bridget's conversation with a doctor, and Bridget's communications with the children's school.

         DISCUSSION

         SLAPP litigation is generally without merit and filed to dissuade or punish the exercise of a defendant's First Amendment Rights. Morse Bros. v. Webster, 2001 ME 70, ¶ 10, 772 A.2d 842. Delay, distraction, punishment, or the defendant's financial burden in defending the suit are the plaintiff's primary goals in a SLAPP case. Gaudette v. Davis, 2017 ME 86, ¶ 4, 160 A.3d 1190, 160 A.3d 1190; Morse Bros., 2001 ME 70, ¶ 10, 772 A.2d 842.

         To deter this behavior, in 1995, the Maine Legislature enacted 14 M.R.S. § 556, the anti-SLAPP statute. The statute permits the filing of a special motion to dismiss when a moving party asserts that the civil claims against her are based on her right of petition under either the state or federal Constitution. § 556. The special motion to dismiss is designed to "minimize the litigation costs associated with the defense of such meritless suits." Schelling v. Lindell, 2008 ME 59, ¶ 6, 942 A.2d 1226. Section 556 is employed in more than just run of the mill zoning dispute cases. "Recent precedent suggests that an anti-SLAPP motion is appropriate when the plaintiff's lawsuit or claim is a retaliatory effort based solely on the moving party's petitioning conduct." Town of Madawaska v. Cayer, 2014 ME 121, ¶ 13, 103 A.3d 547. "Accordingly, SLAPP lawsuits have most often taken the form of ordinary tort claims, including defamation, business torts, conspiracy, constitutional-civil rights violations, and nuisance claims." Id. n.6.

         The statute contemplates a burden shifting framework that allows the court to expedite the process of dismissing a meritless case and mandates that the court grant the special motion unless the plaintiff meets his burden on certain issues. § 556. Over the years, caselaw has refined this burden shifting framework in an attempt to balance the plaintiff's right of access to the court to seek redress for the very same actions that the defendant declares is an exercise of her First Amendment right. Gaudette, 2017 ME 86, ¶ 6, 160 A.3d 1190.

         I. The Anti-SLAPP Burden Shifting Framework.

         Gaudette provides the trial court with a three-step burden shifting framework to determine whether a defendant's special motion to dismiss under section 556 should be granted. Id. ¶¶ 16-22. First, the defendant, as the moving party, has the burden to show based on pleadings and affidavits that the anti-SLAPP statute applies by demonstrating that the claims against her are based on her constitutional right to petition. Id. ¶ 16. This petitioning activity is question of law for the court to decide. Id. If the defendant does not meet her burden to show that the plaintiff's claims are based on her petitioning activity, "the court must deny the special motion to dismiss without any need to review any opposition by the plaintiff." Id.

         Next, if the defendant has met her burden to show that the claims are based on her petitioning activity, the court must then consider the plaintiff's opposition. Id. ¶ 17. In his opposition, the plaintiff must present prima facie evidence, via pleadings and affidavits, "that the defendant's petitioning activity was devoid of any reasonable factual support or any arguable basis in law and that the defendant's petitioning activity caused actual injury to the plaintiff." Id. (quoting Nader v. Me. Democratic Party, 2012 ME 57, ¶¶ 20-25, 41 A.3d 551 (internal quotation omitted). If the plaintiff does not meet his prima facie burden, whether due to lack of evidence "on either element or based on some other legal insufficiency, the special motion to dismiss must be granted, either partially or wholly, with no additional procedure." Gaudette, 2017 ME 86, ¶ 17, 160 A.3d 1190.

         Finally, in departure from Nader, and applicable only if the plaintiff meets his prima facie burden regarding "any or all of the defendant's petitioning activities, the special motion to dismiss is not then automatically denied." Id. ¶ 18. Instead, the Law Court now requires an "additional procedural component" that requires the trial court, upon request of either the plaintiff or the defendant, to allow the parties "to undertake a brief period of limited discovery, the terms of which are determined by the court after a case management hearing." Id. After the discovery period the court is required to hold an evidentiary hearing. Id. At the hearing the plaintiff has the burden to show by a preponderance of the evidence that the defendant's petitioning activity was without factual support or any arguable legal basis in law and that the plaintiff suffered actual injury as a result of the petitioning activity. Id. If the plaintiff meets his prima facie burden, but neither party avails himself of the ...


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