Opinion
15-P-205
12-10-2015
MICHA BARNUM v. MARTIN HELLER & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Micha Barnum, formerly worked for defendant Tubifi, Inc. (Tubifi), a start-up company. He brought the underlying action pursuant to various employment statutes, claiming that Tubifi failed to pay him wages that he was due and that the individual defendants were derivatively liable for such claims. Tubifi and two of the individual defendants brought a six-count counterclaim against Barnum. After Barnum filed a special motion to dismiss the counterclaims pursuant to G. L. c. 231, § 59H, a Superior Court judge allowed the motion with respect to two of the counts, but denied it with respect to the four others. Before us now is Barnum's interlocutory appeal of the partial denial of his motion. For substantially the same reasons well articulated by the motion judge, we affirm.
To be entitled to the protections of G. L. c. 231, § 59H, Barnum was required "to make a threshold showing . . . that the claims against [him] are 'based on' the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities." Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168 (1998). Here, the relevant petitioning activity was Barnum's filing his complaint seeking the protection of the employment statutes. The judge dismissed the two counts of the counterclaim that he concluded sought to hold Barnum liable based solely on his having filed his action. The propriety of that ruling is not before us.
For example, the judge dismissed the counterclaim count that alleged that Barnum's filing his action amounted to a breach of the implied covenant of good faith and fair dealing.
The judge declined to dismiss the remaining counts of the counterclaim, because he concluded that they were not solely based on Barnum's having filed his suit, but instead alleged in addition that Barnum faced liability based on various pre-petitioning activities. For example, the judge declined to dismiss the counts alleging fraud and misrepresentation because they were based in part on allegations that Barnum affirmatively had misled the defendants with regard to his financial needs and had used his bookkeeping role while at Tubifi to create self-serving documentation of accrued wages. On appeal, Barnum has not demonstrated that in reaching such conclusions, the judge abused his discretion or committed other error of law. See Hanover v. New England Regional Council of Carpenters, 467 Mass. 587, 595 (2014) (decision denying special motion to dismiss reviewed for abuse of discretion or error of law).,
Barnum also argues that the remaining counts of the counterclaim rest on unsubstantiated factual assertions and fail to state a claim. As the Supreme Judicial Court said in Wenger v. Aceto, 451 Mass. 1, 9 (2008), with regard to similar contentions raised in the context of a special motion to dismiss:
"These assertions may be true, and the [claims challenged through the special motion to dismiss] may not proceed before being dismissed on other grounds. . . . It is clear, however, that the laundry list of alleged grievances enumerated in the [challenged] complaint include a multitude of matters, claims, and disputes independent of the [petitioning activity] . . . ."
Barnum's request for costs and attorney's fees pursuant to G. L. c. 231, § 59H, is denied.
Order denying in part plaintiff's special motion to dismiss affirmed.
By the Court (Kafker, C.J., Milkey & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 10, 2015.