Opinion
Civil Action CV-44-429
03-31-2015
JOSEPH BRUNO, et al., Plaintiffs v. PAUL CORRADO, et al., Defendants
ORDER ON SPECIAL MOTION TO DISMISS
Joyce A. Wheeler Justice, Superior Court
Before the court is the defendants' special motion to dismiss counts II and III of plaintiffs' complaint under 14 M.R.S. § 556 (2014), Maine's anti-SLAPPstatute. For the following reasons, the motion is denied.
SLAPP stands for Strategic Lawsuit Against Public Participation. Schelling v. Lindell, 2008 ME 59, ¶ 1 n, l, 942 A.2d 1226.
Background
The facts alleged in the complaint are more fully set forth in the court's order on defendants' motion to dismiss. (1/5/15 Order.) This motion concerns counts II and III of the complain, which allege defamation per se and false light invasion of privacy. These counts concern defendant Paul Corrado's statements initially made in a letter in the form of a petition written by Corrado and addressed to the governor. The letter reads as follows:
The letter is reproduced here word for word without any corrections.
The Honorable Governor of the State of Maine
Office of the Governor #1 State House Station Augusta, ME 04333-0001
Phone 207-287-3531
Fax 207-287-1034
Governor Le Page:
PLEASE SAVE PHARMACIST PAUL CORRADO AND CORRADO'S PHARMACY OF CORINTH, MAINE!
Mr. Corrado came to Corinth specifically to build a stagnant business. He was immediately adopted by the Town of Corinth and the surrounding communities and remains the most trusted medical professional in the area. He received many accolades from his former employer. Mr. Corrado was encouraged to open his own pharmacy in the same town. His former employer, Mr. Bruno has done everything in his power to put Mr. Corrado out of business. Mr. Bruno is also the President of the Board of Pharmacy and has used his influence against Mr. Corrado. Mr. Corrado is professional, caring, compassionate, and honest and has opened his pharmacy after hours and on weekends to fill emergency prescriptions for many of us in town. Mr. Corrado expected trouble with Mr. Bruno the moment he left his employment. He was extremely diligent and careful to dot his T's and cross his 'f s in expectation of Mr. Bruno's onslaught. I believe Mr. Bruno interfered with Mr. Corrado's application for a Federal DEA license causing him to wait 18-months to become a fully functional pharmacy.
I believe Mr. Corrado is being excessively punished for something a former disgruntled technician who a may have caused the error intentionally and who has violated the HIPPA regulations by telling a patient he received a generic medication in place of a brand even though the generic is in fact, the unchanged brand drug re-distributed by 4 other manufacturers.
Mr. Corrado has hurdled every obstacle in opening and starting a business. He deserves to stay in business without the excessive penalties imposed on him personally and on his Pharmacy.
I ask that you get involved and reduce these penalties so that the financial burden does not put Mr. Corrado and his fledgling Pharmacy out of business.
Governor, I am asking you not ignore my request. Please investigate, remove Mr. Bruno from the Board and have the Board dismiss this complaint against Mr. Corrado. Mr. Corrado was very surprised to learn that the tablets are the same and does not need to be punished this harshly.
Sincerely,
Name:______
Address:_______
City, ST., Zip:_________(Compl. Ex. A.) Corrado advertised the letter on Facebook, telling his friends and customers to come sign it at his pharmacy. (Corrado Aff. ¶¶ 1-2.) According to Corrado, many of his customers and friends signed the letter and he mailed the signed letters to the governor. (Corrado Aff. ¶¶ 3-4.) After receiving the letters, someone from the governor's office contacted Corrado's attorney to inform him that the governor would not get involved in any matter before the Board of Pharmacy. (Corrado Aff. ¶ 5.)
Procedural History
Plaintiffs filed their complaint on October 14, 2014. Defendants filed a motion to dismiss counts I, rV, and V of the complaint, which was granted in part and denied in part on January 5, 2015. The court dismissed count V and dismissed Bruno as a plaintiff from count I. Defendants moved to enlarge the time to file a special motion to dismiss to January 30, 2015, which was granted. Defendants filed their, special motion to dismiss on January 23, 2015.
Unless the court extends the time to file, a special motion to dismiss must be filed within 60 days of the service of the complaint. 14 M.R.S. § 556.
Discussion
Special Motion to Dismiss Standard
The special motion to dismiss is allowed under 14 M.R.S. § 556, which states:
When a moving party asserts that the civil claims, counterclaims or cross claims against the moving party are based on the moving party's exercise of the moving party's right of petition under the Constitution of the United States or the Constitution of Maine, the moving party may bring a special motion to dismiss .... The court shall grant the special motion, unless the party against whom the special motion is made shows that the moving party's exercise of its right of petition was devoid of any reasonable factual support or any arguable basis in law and that the moving party's acts caused actual injury to the responding party. In making its determination, the court shall consider the pleading and supporting and opposing affidavits stating the facts upon which the liability or defense is based.14 M.R.S. § 556 (2014). This section "targets plaintiffs who 'do not intend to win their suits; rather they are filed solely for delay and distraction, and to punish activists by imposing litigation costs on them for exercising their constitutional right to speak and petition the government for redress of grievances.'" Maietta Constr., Inc. v. Wainwright, 2004 ME 53, ¶ 6, 847 A.2d 1169 (quoting Morse Bros, Inc. v. Webster, 2001 ME 70, ¶ 10, 772 A.2d 842). "The typical mischief that the [anti-SLAPP] legislation intended to remedy was lawsuits directed at individual citizens of modest means for speaking publicly against development projects." Morse Bros., Inc., 2001 ME 70, 110, 772 A.2d 842.
In applying the statute, the court employs a two-step, burden-shifting analysis. Nader v. Me. Democratic Party, 2012 ME 57, ¶ 15, 41 A.3d 551 (Nader I). The first step is to determine "whether the anti-SLAPP statute applies." Id. "At this step, the moving party (i.e., the defendant) 'carries the initial burden to show that the suit was based on some activity that would qualify as an exercise of the defendant7s First Amendment right to petition the government.'" Id. (quoting Schelling v. Lindell, 2008 ME 59, ¶ 7, 942 A.2d 1226). To meet this burden, "the moving party must show that the claims at issue are 'based on the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.'" Town of Madawaska v. Cayer, 2014 ME 121, ¶ 12, 103 A.3d 547 (quoting Nader I, 2012 ME 57, ¶ 22 n.9, 41 A.3d 551).
If the moving party demonstrates that the statute applies, "the burden shifts to the nonmoving party to establish, through pleadings and affidavits, that the moving party's exercise of its right of petition (1) was 'devoid of any reasonable factual support or any arguable basis in law, ' and (2) 'caused actual injury' to the nonmoving party." Nader I, 2012 ME 57, ¶16, 41 A.3d 551 (quoting 14 M.R.S. § 556). At this step, the nonmoving party must present "'some evidence' that the defendant's petitioning activity was devoid of factual or legal support and caused actual injury. Even when faced with conflicting evidence from a defendant, a plaintiff able to meet this 'low standard' could avoid dismissal of his or her claim.'" Nader I, 2012 ME 57, ¶ 35, 41 A.3d 551.
The court must apply this framework to defendants' motion.
Defendants' Burden
At the outset, the court notes that Bruno's claims are not the typical claims that the anti-SLAPP statute was enacted to prevent. Maietta Constr., Inc., 2004 ME 53, ¶ 6, 847 A.2d 1169. The court also notes there are competing constitutional rights involved in anti-SLAPP cases Nader I, 2012 ME 57, ¶¶ 23-25, 41 A.3d 551; see also id 1 48 (SILVER, J, concurring) (noting that plaintiff had constitutional interest in access to courts). Nevertheless, the statute as written applies to a broad swath of activity. Schelling, 2008 ME 59, ¶¶ 11-12, 942 A.2d 1226.
The statute protects the following activity:
As used in this section, "a party's exercise of its right of petition" means any written or oral statement made before or submitted to a legislative, executive or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive or judicial body, or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.14 M.R.S. § 556.
The Law Court has not articulated any clear guidance at step one of the analysis. In previous cases, it has interpreted the statute broadly. See Maietta Constr., Inc., 2004 ME 53, ¶¶ 3, 7, 847 A.2d 1169 (letters to the City Council, the Mayor, and statements to newspapers alleging that a developer was violating his contract with the city "clearly amount to petitioning activity"); Schelling, 2008 ME 59, ¶ 13, 942 A.2d 1226 (petitioning activity "includes a letter, written to a newspaper, that is designed to expand the public consideration of a controversial issue recently considered by the Legislature"). Under the unique facts of this case, however, the court concludes that defendants have failed to meet their burden at step one of the analysis for two reasons. First, defendants have failed to show that Corrado's letter constitutes petitioning activity protected under the statute. Second, defendants have failed to show that plaintiffs' claims are based solely on the letter, even if it is petitioning activity. These two reasons are discussed below.
Not Petitioning Activity
Corrado has failed to show that his letter to the governor constitutes the type of petitioning activity protected by the statute. The statements in the letter were not "made in connection" with any issue under review by the governor. Defendant had the opportunity, and did in fact, bring his concerns to the Board of Pharmacy. (PL's Ex. D.) Given the wording of the letter and the fact that it was addressed to the governor, the letter was not "reasonably likely to encourage consideration or review" of the allegations in the letter. Finally, although the letter was circulated to Corrado's customers and Corrado's Facebook friends, the petition was not reasonably likely to enlist public engagement. The letter was not sent to a newspaper, it does not ask the public to submit comments or letters to the Board of Pharmacy, and it only asks the governor, the chief executive of the state, to investigate a Board of Pharmacy complaint. Although the statute may be read in a way that it would apply to Corrado's letter, the court will not do so because it would not serve the purpose behind the statute. See Duracraft Corp. v. Holmes Prods. Corp., 691 N.E.2d 935, 943 (Mass. 1998) ("A matter may be within the letter of a statute and not come within its spirit, if the matter is beyond the mischief intended to be reached or if to include it would require a radical change in established public policy or in the existing law and the act does not manifest any intent that such a change should be effected.").
Claims Not Based on Petitioning
Even if the letter in this case is considered protected petitioning activity, the Law Court has adopted a requirement that the statute only applies if plaintiffs' claims are solely "based on" the exercise of Corrado's right to petition. Nader I, 2012 ME 57, ¶ 22 n.9, 41 A.3d 551; Town of Madawaska, 2014 ME 121, ¶12, 103 A.3d 547. Corrado has failed to meet his burden to show that Bruno's claims are "based on" the exercise of Corrado's right to petition alone. First, the claims are not based on Corrado sending a letter to the governor. Rather, they are based on him sharing the letter, which includes the alleged defamatory statements regarding Bruno, with his customers and on the internet. Second, the issues in this lawsuit are between two private individuals and their companies. Corrado's letter to the governor does not raise an issue of public concern. Cf. Schelling, 2008 ME 59, ¶13, 942 A.2d 1226 (applying statute to letter to newspaper that sought to expand public consideration of a controversial issue), Third, the claims in this case, when taken as a whole, allege that Paul Corrado and Carrado's Pharmacy engaged in a campaign to tarnish Bruno's reputation and steal Community Pharmacy's customers. While counts II and III specifically mention the statements in the letter, the other allegations in the complaint are relevant to the court's analysis in deciding whether the claims are "based on" Corrado's exercise of the right to petition. See Burley v. Comets Cmry. Youth Ctr., Inc., 917 N.E.2d 250, 254-56 (Mass. App. Ct. 2009) (refusing to dismiss claim when allegations in complaint not based solely on protected petitioning activity); see also Duracraft Corp., 691 N.E.2d at 943 ("[W]e adopt a construction of 'based on' that would exclude motions brought against meritorious claims with a substantial basis other than or in addition to the petitioning activities implicated."). Taking these other allegations into consideration, the court concludes that Bruno's claims are not based on Corrado's petitioning activity alone.
Conclusion
Because defendants have not met their burden at step one of the analysis under Maine's anti-SLAPP statute, the special motion to dismiss must be denied.
The entry is:
Defendants' special motion to dismiss is DENIED.