DAVID NERY, individually and on behalf of ANDREW NERY, AVA NERY, ELEANOR NERY, and WILLIAM NERY, Plaintiffs,
BRIDGET MILLER and RANDALL MILLER, Defendants.
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
I. Billings, Justice, Maine Superior Court.
matter is before the court on the Defendants' Special
Motions to Dismiss brought pursuant to 14 M.R.S. § 556.
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
4. False Imprisonment
5. Invasion of Privacy
6. Intentional Infliction of Emotional Distress 7. Violation
of Civil / Constitutional Rights
9. Negligent Infliction of Emotional Distress 10. Civil
claims are asserted against both Bridget and Randy, except
for negligence and negligent infliction of emotional
distress, which are asserted against Bridget only.
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
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.
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.
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.
The Anti-SLAPP Burden Shifting Framework.
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.
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.
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