ORDER ON DEFENDANTS' PENDING MOTIONS
Mark Klein has brought tort claims in this case against his
former spouses, Defendants Amanda Myers and Jessica Demers,
who was formerly known as Jessica Demers-Klein. Each of the
Defendants has filed a special motion to dismiss pursuant to
Maine's anti-SLAPP statute, 14 M.R.S.
§556 and also a motion to dismiss pursuant
to M.R. Civ. P. 12(b)(6).
following recitation of facts is drawn from Plaintiff
Klein's Complaint and the affidavits and affidavit
exhibits that each of the three parties has filed in
connection with the Defendants' special motions to
dismiss, and also from material that may be considered in
connection with a Rule 12(b)(6) motion to dismiss.
anti-SLAPP statute authorizes the court to consider
affidavits (and presumably exhibits incorporated into and
annexed to affidavits) in addressing a special motion to
dismiss, see 14 M.R.S. § 556. Under Rule
12(b)(6), the court may consider "official public
documents, documents that are central to the plaintiffs
claim, and documents referred to in the complaint without
converting a motion to dismiss into a motion for a summary
judgment when the authenticity of such documents is not
challenged." See Moody v. State Liquor and Lottery
Commission, 2004 ME 20, ¶ 10, 843 A.2d 43, 48.
Klein and Amanda Myers were married in January of 2003 and
divorced on September 26, 2011. (Def Myers Ex. 5 at
2); (Pl.'s Compl. ¶ 10). Klein
and Myers have two daughters together, A.K. and E.K.
(Pl.'s Compl. ¶4). Their divorce settlement provided
that they had shared parental rights over A.K and E.K. (Def.
Myers Ex. 5 at 4).
and Demers were married on January 2, 2015. (Pl.'s Compl.
¶ 13). They have one daughter together, S.K, born in
September 2015. (Pl.'s Compl. ¶5). Klein and Demers
lived together in Falmouth, Maine. (Demers Aff. ¶¶
2016, the marital relationship deteriorated and Demers took
her daughter S.K. to Pennsylvania on August 10, 2016, without
notifying Klein. (Pl.'s Compl. ¶¶ 17-19).;
(Demers Aff. ¶13). Klein filed for divorce from Demers
on August 18, 2016. (Pl.'s Compl. ¶24). Klein left
the marital home on August 22, 2016. (Pl.'s Compl.
¶37). Klein and Demers have lived separately since that
date. (Pl.'s Compl. ¶37). (The two have since
finalized their divorce, and Demers has returned to her
previous surname. (Demers Aff. ¶34).
August 31, 2016, as she was driving back to Maine, Demers
received messages from Klein that the marital home had been
broken into. (Demers Aff. ¶ 19). Demers spoke to police
regarding the break-in. (Demers Aff. ¶ 19). She returned
to Pennsylvania believing that Klein had staged the break-in.
(Demers Aff. ¶ 19). On September 25, 2016, Demers
installed a security system in the home. (Demers Aff.
to the break-in, on August 26, 2016, Demers had contacted
Myers to check on Myers's daughters' wellbeing.
(Demers Aff. ¶17), (Myers Aff. ¶7). The two
Defendants met in person on September 19, 2016, with their
attorneys present to discuss Klein's behavior of concern
towards his daughters. (Demers Aff. ¶2O).
this meeting, Myers filed a protection from abuse
("PFA") complaint against Klein on behalf of
herself and her children on September 22, 2016. (Myers Aff.
¶9). Myers was granted a temporary PFA order by the West
Bath District Court on September 22, 2016. (Pl.'s Compl.
to know the results of Myers's PFA action, Demers moved
for a continuance of a parental rights hearing in the divorce
case between her and Klein. (Demers Aff. ¶23);
(Pl.'s Compl. ¶75). After the court granted Myers a
temporary PFA order, the police searched Klein's
residence for firearms on September 22, 2016 but found none.
(Pl.'s Compl. ¶¶ 64-66); (Myers Aff. ¶
September 30, 2016, the West Bath District Court convened a
hearing on Myers's PFA complaint. (Demers Ex. 6). Demers
was subpoena'ed to testify at the hearing. (Demers Aff.
Myers and Demers testified Also on September 30, 2016, Myers
brought A.K. and E.K. to a pediatrician, Dr. Andrea Loeffler,
to discuss Klein's behavior toward them, specifically
what Myers described to the doctor as Klein's practice of
applying balm to the girls' anuses. (Myers Aff. ¶
11); (Pl.'s Compl. ¶50).
October 3, 2016, Demers learned that her house had been
broken into again. (Demers Aff. ¶25). Believing that
Klein had perpetrated the break-in, Demers contacted Family
Crisis Services ("FCS"), (Demers Aff. ¶25).
Demers informed FCS about what had happened and that she
believed Klein was the one who had broken into her home, in
response to her testimony at the PFA hearing. (Demers Aff.
mandatory reporting law required FCS, upon receiving this
information, to contact the Department of Health and Human
Services ("DHHS") Office of Child and Family
Services ("OCFS") to report possible child abuse.
(Demers Aff. ¶ 27); (Pl.'s Compl. ¶¶
51-52). See 22 M.R.S. § 4011 (list of mandatory
the OCFS contacted Demers on October 6, 2016, she answered
questions about the break-in of her house, her daughter S.K.,
and the concerning behavior exhibited by E.K. (Demers Aff.
¶28). OCFS also called Myers on October 6, 2016. (Myers
Aff ¶ 12). OCFS referred this investigation to the
Cumberland County District Attorney's Office for further
investigation and the Brunswick Police began an investigation
into Klein. (Pl.'s Compl, ¶¶61, 64).
October 24, 2016, A.K and E.K. were interviewed by OFCS and
the Brunswick Police Department. (Myers Aff. ¶13).
Additionally, Myers was asked questions about Klein and his
possible abuse of A.K and E.K. (Myers Aff. ¶ 14). On
November 21, 2016, OCFS substantiated a finding that Klein
had created a sexualized environment for A.K and E.K. (Demers
Aff. ¶31); (Pl.'s Compl. ¶ 84). On February 23,
2017, OCFS reversed its substantiation. (Def. Myers Ex. 5 at
Myers's PFA hearing against Klein both Defendants
testified about Klein's relationship and interactions
with A.K. and E.K. (Demers Aff. ¶29); (Pl.'s Compl.
¶¶ 78-83). Also, an OCFS investigator testified
that during the interview that OCFS conducted with Klein,
Klein admitted that he had been applying "bag balm"
to his older daughters' anuses from when they were in
diapers to the present. Myers Aff. Ex. 2 at 271 (testimony of
Ashley Emery at PFA hearing). The investigator also said
Klein admitted to sleeping in the same bed with his older
daughters and acknowledged that he had showered with them
although the investigator said Klein claimed to have been
wearing a wetsuit at the time. Id. at 272-277.
October 21, 2016, Klein filed a motion to modify the divorce
judgment seeking primary physical residence of E.K and A.K.,
allocated parental rights and responsibilities, and child
support. (Def. Myers Ex. 5 at 9). On December 10, 2016, Myers
filed a motion to Modify Divorce Judgment seeking sole
parental rights and responsibilities, primary residence of
E.K. and A.K., sole discretion over visitation, and child
support. (Def. Myers Ex. 5 at 9). On December 12, 2016, Myers
dismissed her PFA action. (Pl.'s Compl. ¶89).
September 11, 2017, the family court issued an order amending
Klein's and Myers's divorce judgment. (Myers Aff. Â¶
18). This order granted Myers allocated parental rights and
responsibilities and primary residence of A.K. and E.K. (Def.
Myers Ex. 5 at 27). The order granted Klein one four-hour
after school visit and one four-hour weekend visit each week,
with increased contact if therapeutically supported. (Def.
Myers Ex. 5 at 27).
the court ordered counseling for Klein to assist in his
reunification with A.K. and prohibited both parent from
discussing litigation matters with their children and from
using their children to get information about the other
parent. (Def. Myers's Ex. 5 at 28). The order required
Klein to pay Myers back child support and $340.13 per week.
(Def. Myers Ex. 5 at 28-29). Neither party was awarded
attorney's fees, based on their behavior and litigation
strategies during the course of the proceeding. (Def. Myers
Ex. 5 at 31).
and Klein finalized their divorce on October 16, 2018.
(Demers Aff. Â¶ 34). The Divorce Judgment awarded Demers and
Klein shared parental rights and responsibilities for S.K.
(Demers Ex. 4 at 7). Primary residence for S.K. was with
Demers, and Klein received a four-phase contact schedule and
split holidays and vacation. (Demers Ex. 4 at 8-9). Klein is
required to pay Demers $152 child support per week. (Demers
Ex. 4 at 12). No attorney's fees were awarded.
(Demers's Ex. 4 at 15).
Klein filed his complaint August 21, 2018, alleging 11 counts
against Defendant Jessica Demers and Defendant Amanda Myers:
(1) abuse of process, - (2) wrongful use of civil process;
(3) fraud; (4) defamation; (5) defamation per se;
(6) invasion of privacy; (7) intentional infliction of
emotional distress; (8) violation of civil/constitutional
rights; (9) negligence; (10) negligent infliction of
emotional distress; and (11) civil conspiracy.
court granted Demers's motion to enlarge time to file an
answer on September 26, 2019 and she filed an answer on
October 16, 2018. Myers filed an answer on October 23, 2018.
The court granted Demers's unopposed motion to seal on
November 11, 2018 and granted Myers's unopposed motion to
seal on December 12, 2018.
filed a motion to dismiss pursuant to M.R. Civ. P. 12(b)(6)
and a special motion to dismiss pursuant to 14 M.R.S. §
556 on November 6, 2018. Klein filed an opposition to
Demers's motions on November 27, 2018. Demers filed a
reply to Klein's opposition on December 4, 2018.
filed a motion to dismiss pursuant to M.R. Civ. P. 12(b)(6)
and a special motion to dismiss pursuant to 14 M.R.S. §
556 on December 3, 2018. Klein filed an opposition to
Myers's motions on December 26, 2018. Myers filed a reply
to Klein's opposition on January 2, 2019.
Applicability of Maine's anti-SLAPP statute to this
Defendants' special motions to dismiss argue that
Klein's complaint should be dismissed in its entirety
because the alleged causes of action all arise from what
Maine's anti-SLAPP statute defines as protected
"petitioning activity." 14 M.R.S. §556(2017).
statute provides in pertinent part
When a moving party asserts that the civil claims,
counterclaims or cross claims against the moving party are
based on the moving party's exercise of the moving
party's right of petition under the Constitution of the
United States or the Constitution of Maine, the moving party
may bring a special motion to dismiss. The special motion may
be advanced on the docket and receive priority over other
cases when the court determines that the interests of justice
so require. The court shall grant the special motion, unless
the party against whom the special motion is made shows that
the moving party's exercise of its right of petition was
devoid of any reasonable factual support or any arguable
basis in law and that the moving party's acts caused
actual injury to the responding party. In making its
determination, the court shall consider the pleading and
supporting and opposing affidavits stating the facts upon
which the liability or defense is based.
14 M.R.S. § 556.
The Three-Step Special Motion to Dismiss Standard
procedure and analysis trial courts in Maine are to apply in
addressing a section 556 special motion to dismiss has
evolved over time, as the Maine Law Court has noted. See
Gaudette v. Davis, 2017 ME 86, ¶¶ 5-12, 160
A.3d 1190. In its most recent decision under Maine's
anti-SLAPP statute, 14 M.R.S. § 556, the Maine Law Court
The application of the anti-SLAPP statute results in an
inherent tension between the coexisting constitutional right
to freedom of speech and the right to access the courts to
seek redress for claimed injuries. Accordingly, in addressing
a special motion to dismiss, the reviewing court must be
careful to recognize these competing rights and work to
achieve an appropriate balance. In an effort to achieve this
balance, we require that the reviewing court use a three-step
Hearts with Haiti, Inc. v. Kendrick,
The procedure is as follows:
At the first step, the special movant must establish, as a
matter of law, that "the claims against £her]
are based on [Tier] exercise of the right to petition
pursuant to the federal or state constitutions."
Gaudette v. Davis, 2017 ME 86, ¶¶ 16-17,
160 A.3d 1190 (quoting Morse Bros. v. Webster,
2001 ME 70, Â¶ 19, 772 A.2d 842). If the special movant
fails to make the showing, the anti-SLAPP statute does not
apply and the special motion to dismiss is denied.
Hearts of Haiti, Inc. v. Kendrick, 2019 ME 26 at Â¶
11, __ A.3d at __. If the special movant does make that
showing, the inquiry moves to step 2, at which the burden
shifts to the plaintiff. Gaudette v. Davis, 2017
ME 86 at Â¶ 17.
plaintiffs burden at the second step is to make a prima facie
showing that the defendant's "petitioning
activity" was "devoid of any reasonable factual
support or any arguable basis in law" and that the"
petitioning activity" caused the plaintiff injury.
Id. (quoting Nader v. Me. Democratic Party
(Nader I), 2012 ME 57, Â¶¶16, 29-38, 41 A.3d 551).
If the plaintiff fails to carry that burden, the special
motion to dismiss is granted. Id.
plaintiff does carry that burden, the inquiry proceeds to the
third step, at which the court, on motion of any party,
"permits the parties to undertake a brief period of
limited discovery, the terms of which are determined by the
court after a case management hearing, and  at the
conclusion of that ...