JUDGMENT ON SPECIAL MOTION TO DISMISS
I. Billings, Justice
matter is before the court on the Defendant's Special
Motion to Dismiss brought pursuant to 14 M.R.S. § 556.
brings her Special Motion to Dismiss pursuant to 14 M.R.S.
§ 556, the Anti-Strategic Lawsuit Against Public
Participation (SLAPP) Statute, on all four counts of
Plaintiffs' Amended Complaint 3. Count I, abuse of process,
is brought by both Pollack and Quirion. Its basis is the
Notice of Claim (Notice) dated August 3, 2012, that Fournier
served on the Plaintiffs pursuant to 14 M.R.S. §
1602(B)(5). In the Notice, Fournier asserted claims of
defamation, negligent and/or intentional infliction of
emotional distress, and interference with contractual
relations. The remaining counts in Amended Complaint 3 are
asserted by Quirion only. Counts II and III allege wrongful
use of civil proceedings. Count II is based upon Fournier
having "procured" a civil harassment proceeding by
Caroline Thibeault (Thibeault). Count III is based on
Fournier's harassment notices and civil harassment
proceeding that she initiated on her own behalf. Finally,
Count IV is an alleged violation of the Maine Civil Rights
Act (MCRA) based on the threat of arrest contained within the
harassment notices obtained from the Topsham Police
Department (TPD) by Fournier, Thibeault, and Rebecca Brooks
(Brooks) that were subsequently served on Quirion.
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, 110, 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. Coyer, 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 a question of law for the court to
decide. Id. If the defendant does not meet her
burden to show that the plaintiffs 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 then
considers 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 (Nader I),
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
in departure from Nader I, 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,
an "additional procedural component" 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. Next, 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 and that the plaintiff
suffered actual injury as a result of the petitioning
activity. Id. If neither party avails himself of the
evidentiary hearing, the court must decide whether the
plaintiff met his burden by a preponderance of the evidence
based solely on the pleadings and affidavits submitted by
both parties for and against the special motion to dismiss.
Does Fournier Meet Her Burden to Show that Her Actions were
Petitioning Within the Meaning of Section 556?
first step of the burden shifting procedure, Fournier must
show that her activities amount to petitioning. The
Legislature has protected petitioning activity by broadly
defining it under section 556. Desjardins v.
Reynolds, 2017 ME 99, ¶ 18, 162 A.3d 228. Section
556 clarifies that "a party's exercise of its right
means any written or oral statement made before or
submitted to a legislative, executive or judicial body,
or any other governmental proceeding; any written or oral
statement made in connection with an issue under
consideration or review by a legislative, executive or
judicial body, or any other governmental proceeding; any
statement reasonably likely to encourage consideration or
review of an issue by a legislative, executive or judicial
body, or any other governmental proceeding; any
statement reasonably likely to enlist public participation in
an effort to effect such consideration; or any other
statement falling within constitutional protection of the
right to petition government.
(emphases added). In its broad construction of petitioning
activities, the Law Court has determined that petitioning
includes a letter written to a newspaper for the purpose of
"expand[ing] the public consideration of a controversial
issue recently considered by the Legislature,"
Schelling v. Lindell, 2008 ME 59, ¶ 12, 942
A.2d 1226, and letters to a newspaper to influence the
outcome in a dispute between a city and a contractor,
Maietta Constr., Inc. v. Wainwright, 2004 ME 53, 1
7, 847 A.2d 1169. Regarding reports to law enforcement, the
Court stated that "there can be no legitimate
argument" that a defendant's report to a
sheriff's office of a town official's alleged history
of arriving at town meetings drunk after having driven his
vehicle there, "qualify as petitioning activity."
Desjardins, 2017 ME 99, ¶ 11, 162 A.3d 228.
Additionally, the District Court of Maine has stated that
reports to law enforcement could clearly be covered by
section 556. Lynch v. Christie, 815 F.Supp.2d 341,
346 n.6 (2011) (favorably cited by Camden Nat'l Bank
v. Weintraub, 2016 ME 101, 1 4, 143 A.3d 788).
Are Founder's Activities Petitioning Within the Meaning
of Section 556?
activities that Plaintiffs take issue with, but Fournier
claims are petitioning are (1) serving them with the Notice,
and (2) "procuring" civil proceedings through
Thibeault by way of a harassment notice and temporary
protection order. Whether these actions amount to
petitioning are discussed below.
Does Fournier's Notice of Claim Amount to
argues that her Notice is petitioning activity, in part based
on the Plaintiffs' assertions in their opposition to her
Second Motion to Dismiss that the Notice is a "court
document or process." Plaintiffs maintain that the
Notice does not fit within the definition of petitioning set
forth in Section 556, specifically that it was not
"reasonably likely to encourage consideration or
review" by a governmental body because it was never
communicated to any person that might bring it to that
body's attention. Moreover, they argue that it actually
did not encourage any consideration or review of
Notice is petitioning activity. The Law Court has recognized
the broad definition that the Legislature has provided for
petitioning activity. It is reasonably likely that the Notice
could eventually lead to consideration or review by a
judicial body. The Law Court has never held that activity
cannot be petitioning because it does not actually lead to
review by a governmental body. Because the Notice was sent
pursuant to statute, and could have reasonably led to review
or consideration by a judicial body, it is petitioning
activity that falls within section 556.
Do Fournier's Actions Relating to Thibeault's
Protection From Harassment Requests and Harassment Notices
that She Obtained from the TPD Amount to
Fournier argues, based on the allegations listed in
Plaintiffs' Amended Complaint 3, that her providing a
written "Victim Impact Statement" to the TPD in
support of Thibeault's and Brooks's harassment
notices against Quirion is petitioning as it is a statement
submitted to the executive body. Fournier is correct that a
victim impact statement provided to police is petitioning
under the protection of section 556. However, in response,
the Plaintiffs state that Count II is "not based on the
victim impact statement at all. It is based on Fournier's
actions in convincing Thibeault to commence an action for a
protection from harassment order." In a ...