ORDER ON DEFENDANTS' MOTIONS FOR ATTORNEY
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.
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.")
Defendants' Motions seek an award of their attorney foes
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.
argument is persuasive.
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.
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.
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
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.
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.")
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.
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.
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