Klein v. Demers-Klein

          ORDER ON DEFENDANTS' PENDING MOTIONS

          A. M. Horton, Justice

         Plaintiff 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^[1] and also a motion to dismiss pursuant to M.R. Civ. P. 12(b)(6).

          Factual Background

         The 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.

         The 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.

         Mark Klein and Amanda Myers were married in January of 2003 and divorced on September 26, 2011. (Def Myers Ex. 5 at 2)^[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).

          Klein 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. ¶¶ 1, 9).

         In 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).

         On 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. ¶22).

         Prior 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).

         After 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. ¶48).

         Wanting 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. ¶ 10).

         On 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).

         On 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. ¶¶25-26).

         The 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 reporters).

         When 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).

         On 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 8).

         During 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.

         On 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).

         On September 11, 2017, the family court issued an order amending Klein's and Myers's divorce judgment. (Myers Aff. ¶ 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).

         Additionally, 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).

          Demers and Klein finalized their divorce on October 16, 2018. (Demers Aff. ¶ 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).

         Procedural History

         Plaintiff 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.

         The 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.

         Demers 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.

         Myers 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.

         Discussion

         I. Applicability of Maine's anti-SLAPP statute to this case

         Both 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).

         The 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.

          a. The Three-Step Special Motion to Dismiss Standard

         What 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 said:

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 burden-shifting procedure.

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, ¶ 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 ¶ 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 ¶ 17.

          The 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, ¶¶16, 29-38, 41 A.3d 551). If the plaintiff fails to carry that burden, the special motion to dismiss is granted. Id.

         If the 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 ...