ORDER ON PLAINTIFF'S MOTION TO
to M.R. Civ. P. 59, Plaintiff Mark Klein has filed a Motion
To Reconsider directed to the court's Order dated April
17, 2019, granting the Defendants' Special Motions to
Dismiss pursuant to Maine's anti-SLAPP statute, 14 M.R.S.
§ 556. Defendants Jessica Demers and Amanda
Myers have filed oppositions to the Motion to Reconsider, and
Plaintiff Klein has filed reply memoranda to both
court elects to decide the Motion to Reconsider without oral
argument. See M.R. Civ. P. 7(b)(7). For the reasons stated
below, the Motion is denied.
fundamental question of law presented by Klein's Motion
to Reconsider is this: In considering a special motion to
dismiss in accord with the three-step procedure established
in Gaudette v. Davis, 2017 ME 86, ¶¶16-17,
160 A.3d 1190, ) must the court schedule a step 3 evidentiary
hearing even if the record before the court at step 2 amply
demonstrates that the petitioning activity at issue had
reasonable factual support and a solid basis in law?
Defendants' special motions to dismiss were accompanied
by affidavits and exhibits intended to demonstrate that (1)
Klein's claims against them were based on petitioning
activity for purposes of section 556, and (2) that their
petitioning activity involved statements and sworn testimony
in court that had more than a reasonable degree of factual
support and a more than an arguable basis in law.
response included his affidavit and exhibits in which he
denied and disputed both (1) that his claims arose out of
Defendants' petitioning activity and (2) that what the
Defendants claimed to be their petitioning activity had any
support at all in fact or basis in law. As noted in the
court's April 17, 2019 Order, Klein's filings focused
on the Defendants' allegations that he applied bag balm
to his older daughters' anal areas and did not controvert
other areas referred to in his complaint.
other words, the parties' filings addressed the issues to
be decided at both step 1 and step 2 according to
Gaudette. The issue whether the Defendants were
engaged in petitioning activity for purposes of step 2 was
joined in the parties' filings, and so was the issue
whether their activity had reasonable factual support and a
basis in law for purposes of step 2.
court's Order granting Demers's and Myers's
special motions to dismiss determined, based on the entire
record before the court at the time, that the petitioning
activity that was the subject of Klein's claims against
them had reasonable factual support and a basis in law for
purposes of section 556, and therefore that Klein had not
made a prima facie showing to the contrary.
Motion to Reconsider appears to contend that the court should
not have considered the entire record in deciding whether he,
as the non-moving party, had met his step 2 burden to make a
prima facie showing that the Defendants' petitioning
activity lacked reasonable factual support and an arguable
basis in law. Klein's Motion to Reconsider contends that,
regardless of what the Defendants had submitted into the
record to show factual and legal support for their
petitioning activity, he had met his step 2 burden merely by
denying that what Demers and Klein had said and testified to
was untrue. His Motion also says that the court should have
taken the allegations of his complaint in and of themselves
as being sufficient to meet his step 2 burden.
court remains persuaded that under Gaudette, the
court needs to consider the entire record in deciding whether
the non-moving party has made the required step 2 prima facie
showing. A similar question is presented in the context of
summary judgment-whether the non-moving party has made a
prima facie showing sufficient to defeat the motion-and the
court certainly does not disregard the moving party's
submittals and look only at the non-moving party's
opposition in deciding that question.
also contends that, in dismissing his claims without
convening a step 3 hearing, this court made
credibility determinations about the accuracy of the
Defendants' statements and testimony and the testimony of
the Department of Health and Human Services caseworker to the
effect that Klein had admitted applying bag balm to his
daughters' anal regions in the manner Defendants alleged
court did not do that. What the court did was look at the
record, which clearly indicates that the accuracy of the
testimony given by the Defendants and by the DHHS caseworker
was evaluated by the judges who heard that testimony. This
court did not evaluate the credibility of that testimony,
because the judges who heard the testimony did so and issued
orders based on their evaluation of the testimony.
sense, it was the very nature of the petitioning activity in
this case that guided the court's decision. The
petitioning activity at issue in this case did not involve
unsworn and untested out-of-court accusations, the
credibility of which, if denied, would need to be tested at a
step three evidentiary hearing.
petitioning activity at issue consisted entirely of
Myers's and Demers's efforts to gain access to the
courts and present their concerns about Klein's behavior.
Though the activity included prefatory statements to a
pediatrician, child protective workers, police officers and
family crisis advocates, all of the activity for which Klein
has sued Myers and Demers arose out of ...