Opinion
20-P-883
06-18-2021
Rochelle COSTIGAN & another v. Nicholas KANIEFF.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Rochelle Costigan and her daughter, Mira, filed a complaint in the Superior Court against the defendant, Nicholas Kanieff, for conspiracy, false imprisonment, and intentional infliction of emotional distress. Kanieff filed an answer and counterclaims alleging defamation, intentional interference with parent-child relationship, civil conspiracy, intentional infliction of emotional distress, loss of filial consortium, and abuse of process. The plaintiffs filed a special motion to dismiss the abuse of process counterclaim under the "anti-SLAPP" statute, G. L. c. 231, § 59H. Following a hearing, the judge denied the special motion. The plaintiffs appeal from that denial, and from the judge's failure to award attorney's fees under the statute. We affirm.
The complaint named Bazzel Bazz as a defendant on claims including false imprisonment, and the Association for the Recovery of Children as a defendant on claims including false imprisonment and conspiracy. Neither is a party to this appeal.
Background. Plaintiff Rochelle Costigan and defendant Kanieff are the parents of a child. Rochelle is also the mother of plaintiff Mira Costigan. Rochelle moved with the child and Mira to Pennsylvania, Thailand, and ultimately Cambodia. At some point, Kanieff obtained a temporary order in the Probate and Family Court for sole legal and physical custody of the child. After Rochelle refused to comply with the order, Kanieff traveled to Cambodia with the other defendants to obtain custody of the child. Kanieff ultimately returned to Massachusetts with the child.
Kanieff is not Mira's father and has never had any custodial rights relating to her. Insofar as Rochelle Costigan and Mira Costigan share the same surname, we refer to them individually by their first names and collectively as "plaintiffs."
The present case stems from, inter alia, the removal of the child from Cambodia. The allegations also arise from the ongoing custody dispute, various allegations of emotional and physical abuse, claims of stalking by Rochelle, claims of extortion by Kanieff, and claims by Kanieff that Rochelle filed false police reports, defamed him, and more.
Discussion. The plaintiffs contend that Kanieff's abuse of process counterclaim violates G. L. c. 231, § 59H, because it is predicated solely on the fact that the plaintiffs brought this lawsuit against him. Accordingly, they argue, the judge erred in denying their motion.
A special motion to dismiss under the anti-SLAPP statute is governed by a two-stage framework. "At the first stage, a special movant must demonstrate that the nonmoving party's claims are solely based on [the special movant's] own petitioning activities." Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141, 159 (2017), S.C., 483 Mass. 200 (2019) (Blanchard I ). If the special movant meets this burden, the analysis proceeds to the second stage, which shifts the burden to the nonmoving party, here Kanieff. The nonmoving party must then demonstrate that dismissal of his claims was nonetheless not required by the anti-SLAPP statute. Kanieff could meet this burden through one of two paths: (1) by showing that the plaintiffs’ petitioning activities "lack[ed] a reasonable basis in fact or law" and caused Kanieff injury, id.; or (2) by showing that "each ... claim was not primarily brought to chill the [plaintiffs’] legitimate petitioning activities," id. at 160.
In the present case, the judge concluded as follows:
"After hearing and careful consideration of the parties’ submissions and the pleadings, the special motion is denied. Plaintiff[s] ha[ve] not shown that the abuse of process counterclaim is based solely on plaintiff[s’] petitioning activity, namely filing of this lawsuit, because defendant's abuse of process allegations include conduct from the past that extends beyond this lawsuit. Further, the court has determined that defendant's counterclaim - whatever its eventual merits may be - is designed to press defendant's claims in response to plaintiff[s’] lawsuit, not designed to chill plaintiff[s’] petitioning activity."
We review this conclusion only for an abuse of discretion or other error of law. See Blanchard v. Steward Carney Hosp. Inc., 483 Mass. 200, 203 (2019) (Blanchard II).
We discern no abuse of discretion or error. Even assuming, arguendo, that the plaintiffs demonstrated that Kanieff's abuse of process counterclaim was solely based on their petitioning activity (i.e. the filing of the complaint), the judge acted within his discretion in concluding that Kanieff met his burden under the second alternative path. To prevail under this path, Kanieff had to demonstrate two elements: that his claims were "colorable," and that they were "not ‘brought primarily to chill’ [the plaintiffs’] legitimate exercise of [their] right to petition." Blanchard II, 483 Mass. at 204, quoting Blanchard I, 477 Mass. at 159-161. Kanieff had to make a sufficient showing on both elements so that the judge could say with "fair assurance" -- i.e., with "confiden[ce]" -- that this action "is not a ‘SLAPP’ suit." Id. at 205. In this regard, we note that Kanieff's affidavit filed in support of his opposition to the special motion set forth more than sufficient facts to support the judge's conclusion that his claims were both colorable and not brought primarily to chill legitimate petitioning activity. We also view the claim in its totality -- here in the context of the six counterclaims, the allegations detailed therein, as well as the information delineated in the Kanieff affidavit. See Blanchard I, 477 Mass. at 160 n.25 ("Because at this stage the motion judge is to assess in a holistic fashion whether the claim at issue is a ‘SLAPP’ suit, the nonmoving party's showing in this regard is as to the entirety of its claim").
The plaintiffs argue that Kanieff's affidavit provides no facts or allegations related to conduct other than the plaintiffs’ petitioning activity and in fact demonstrates "the retaliatory nature" of the counterclaim. We disagree. For Kanieff to show that he did not bring the abuse of process counterclaim to chill the plaintiffs’ petitioning activity, he must establish that his primary goal was "not to interfere with and burden [the plaintiffs’] ... petition rights, but to seek damages for the personal harm to [him] from [the plaintiffs’] alleged ... [legally transgressive] acts" (citation omitted). Blanchard I, 477 Mass. at 160. Kanieff's affidavit alleges a contentious history between the parties that includes allegations regarding Rochelle's past conduct related to custody of the child, lawsuits for child support, and her threat to "sue [Kanieff] for every penny [he has]" if he asserted his parental rights in court. The affidavit, which dovetails with the allegations incorporated into the counterclaim, supports the judge's conclusion that the counterclaim "is designed to press defendant's claim ... [and is] not designed to chill plaintiff[s’] petitioning activity." Contrast 477 Harrison Ave., LLC v. JACE Boston, LLC, 483 Mass. 514, 529 (2019) (vacating denial of special motion to dismiss where nonmovant "cannot establish that their counterclaims do not have a retaliatory purpose").
We further note that this case is not a typical or "classic" SLAPP suit in that it was not "directed at individual citizens of modest means for speaking publicly against development projects." Blanchard II, 483 Mass. at 206, quoting Baker v. Parsons, 434 Mass 543, 549 (2001). "Although we recognize that the anti-SLAPP statute is not limited in application to ‘typical’ cases ... the presence or absence of the classic indicia may be considered." Blanchard II, supra. Because we conclude that the judge neither erred nor abused his discretion in denying the special motion to dismiss, the order is affirmed.
Where we conclude that the judge did not err in denying the special motion to dismiss, we likewise conclude that the judge did not err in failing to award attorney's fees to the plaintiffs.
We deny both parties’ requests for appellate attorney's fees.
affirmed