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Pollack v. Fournier

Superior Court of Maine, Sagadahoc

June 11, 2019

MATTHEW POLLACK and JANE QUIRION, Plaintiffs,
v.
JESSICA FOURNIER, Defendant.

          JUDGMENT ON SPECIAL MOTION TO DISMISS

          Daniel I. Billings, Justice

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

         BACKGROUND

         Fournier 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.[1] 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).[2] 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).[3] 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.

         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, 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.

         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 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.

         Next, 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 1190.

         Finally, 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. Id.

         II. Does Fournier Meet Her Burden to Show that Her Actions were Petitioning Within the Meaning of Section 556?

         In this 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 of petition"

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).

         A. Are Founder's Activities Petitioning Within the Meaning of Section 556?

         The 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.[4] Whether these actions amount to petitioning are discussed below.

         1. Does Fournier's Notice of Claim Amount to Petitioning?

         Fournier 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 Fournier's claims.

         The 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.

         2. Do Fournier's Actions Relating to Thibeault's Protection From Harassment Requests and Harassment Notices that She Obtained from the TPD Amount to Petitioning?

         Preliminarily 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.[5] 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 ...


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