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Klein v. Demers-Klein

Superior Court of Maine, Cumberland

August 13, 2019

MARK KLEIN, Plaintiff
v.
JESSICA DEMERS-KLEIN now known as Jessica Demers, and AMANDA MYERS, Defendants

          ORDER ON DEFENDANTS' MOTIONS FOR ATTORNEY FEES

          A. M. HORTON, JUSTICE

         Defendant Amanda Myers's Motion for Attorney Fees and Defendant Jessica Demers's Motion for Award of Attorney Fees and Costs are before the court, along with Plaintiff Mark Klein's memorandum in opposition to both motions and the Defendants' reply memoranda. The court elects to decide the motions without oral argument. See M.R. Civ. P. 7(b)(7).

         The Defendants' motions are brought under the anti-SLAPP statute. 14 M.R.S. § 556, which permits but does not require the court to award attorney fees to the moving party after granting a. special motion to dismiss. See id. ("If the court grants a special motion to dismiss, the court may award the moving party costs and reasonable attorney's fees, including those incurred for the special motion and any related discovery matters.")

         The Defendants' Motions seek an award of their attorney foes and costs.

         Plaintiff Mark Klein's opposition to any award of attorney fees is based on two arguments: "(1) this case falls outside of the purpose for which the Anti-SLAPP statute was created; and (2) the statute and the Law Court decisions interpreting the statute are extremely confusing and inconsistent." Plaintiffs Opposition to Defendants' Motions for Attorney Fees at 1.

         Neither argument is persuasive.

         Contrary to Plaintiffs first argument, this case fits the template that the anti-SLAPP statute was intended to address-meritless lawsuits brought in order to punish or deter rather than in order to prevail.

         All of the Defendants' statements that are the subject of Plaintiffs claims were subject to at least a qualified privilege and most were subject to an absolute privilege.

         The Law Court has recognized that an absolute privilege attaches to defamatory communications preliminary to or during a judicial proceeding, provided the communications have "some relation" to the proceeding and the maker of the communications participates in the proceeding. See Raymond v. Lyden, 1999 ME 59, ¶ 6 & n.7, 728 A.2d 124, quoting RESTATEMENT (SECOND) OF TORTS § 587.

         "The privilege is absolute and 'protects a party to a private litigation . . . from liability... irrespective of his purpose in publishing the defamatory matter, of his belief in its truth or even his knowledge of its falsity."" Id., quoting RESTATEMENT (SECOND) of Torts § 587, cmt a.

         Defendants' statements to the police, the pediatrician, family crisis advocates and the Department of Health and Human Services (DHHS) caseworkers were also protected, at least by a qualified privilege if they were not absolutely privileged. See Truman v. Browne, 2001 ME 182, ¶ 15, 788 A.2d 168 ("Any person has a qualified privilege to make statements to law enforcement or regulatory agencies regarding the conduct of others, where the person making the statement believes in good faith that the statement is true and indicates that a statutory standard administered by the agency may have been violated.")

         Plaintiff Klein was unlikely to overcome even a qualified privilege, given that he admitted to a DHHS caseworker the truth of the central allegation that the Defendants brought forward.

         Plaintiff, having been advised and represented by legal counsel, must have known that his case had little, if any, chance of success, but he decided to proceed anyway. That decision lends credence to the Defendants' claim that Plaintiff was motivated by punitive or deterrent considerations in bringing this action, rather than by any real expectation that the case could succeed on its merits. That point serves to distinguish this case from the Law Court decision upon which Plaintiff Klein's opposition mainly relies, Maietta v. Wainwright, 2004 ME 53, 847 A.2d 1169.

         Plaintiffs' second argument-that the anti-SLAPP statute and the Law Court's decisions under it are too confusing to justify an attorney fee award-has equally little merit. The statute is broad but not vague. The Law Court's jurisprudence has evolved in terms of the mechanics of how a special motion to dismiss is addressed, but is not confusing. It has always stood for the proposition that a party who brings a lawsuit ...


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