Opinion
Civil Action CV-13-369
09-29-2017
DANA DESJARDINS, Plaintiff v. MICHAEL REYNOLDS, Defendant
ORDER
Before the court is a motion by defendant Michael Reynolds for attorney's fees pursuant to 14 M.R.S. § 556. That statute provides in pertinent part that if the court grants a special motion to dismiss under Maine's anti-SLAPP statute, "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."
Reynolds prevailed on a special motion to dismiss in this court's order filed on June 19, 2015, a ruling that was affirmed on appeal by the Law Court. Desjardins v. Reynolds, 2017 ME 99. Reynolds now seeks attorney's fees for work performed in connection with the defense of this action in federal court (after it was removed), in the First Circuit, in this court (upon remand from the federal court), and on the appeal to the Law Court from this court's decision.
The proceedings in this case prior to this court's June 19, 2015 order are set forth in that order.
Entitlement to Attorney's Fees
As set forth above, 14 M.R.S. § 556 states that the court "may" award a successful movant under the anti-SLAPP statute attorney's fees and costs. In Maietta Construction Inc. v. Wainwright, 2004 ME 53 ¶¶ 17, 20, 847 A.2d 1169, the Law Court rejected the proposition that the statute creates a presumption that attorney's fees should be awarded to a successful movant in the absence of special circumstances. It instead emphasized that the award of attorney's fees under 14 M.R.S. § 556 is discretionary and that it is appropriate to consider the merits of the case in deciding whether to award attorney's fees. 2004 ME 53 ¶¶ 12, 18.
Assessing the Merits
Plaintiff Dana Desjardins argues that his claims have been found to be meritorious because this court found that, for purposes of the special motion to dismiss, Desjardins met his burden of showing that Reynolds's petitioning activity was devoid of factual support. July 19, 2015 order at 3-4. That determination, however, meant only that Desjardins provided prima facie proof- "some evidence" - that Reynolds's report to the Cumberland County Sheriffs office was unfounded. See Nader v. Maine Democratic Party ('Nader I"), 2012 ME 57 ¶¶ 33-35, 41 A.3d 551. As the Law Court noted in Nader v. Maine Democratic Party, "prima facie proof is a low standard that does not depend on the reliability or credibility of the evidence." 2012 ME 57 ¶ 34, quoting Cookson v. State, 2011 ME 53 ¶ 8, 17 A.3d 1208.
In weighing the evidence and assessing its probative value, see Maietta, 2004 ME 53 ¶ 13, the court has reviewed the affidavits and other evidence submitted by the parties in connection with the special motion. This includes the following:
• Affidavits by Reynolds, Nathan White (Road Commissioner of the Town of Raymond), Catherine Gosselin (Deputy Chief, Town of Raymond Emergency Medical Services), Bruce Tupper (Fire Chief, Town of Raymond), and Don Willard (Raymond Town Manager, originally named as a co-defendant in this action) stating that that they had smelled a strong odor of alcohol from Desjardins at one or more town meetings and that in two cases, they had observed erratic driving on his part. Reynolds stated that he had been asked by residents and town officials to convey to the Cumberland County Sheriffs Office concerns that Desjardins may have driving while impaired.
• Two emails from Reynolds to the Sheriff on December 12. 2012. The first of those requested the opportunity to speak to the Sheriffs office with respect to "a public safety issue." which Reynolds confirmed in the second email involved Dana Desjardins.
• Emails from Sheriff Joyce to Deputy Sheriff Goulet dated December 21, 2012 and January 5, 2013 stating that complaints had been received that Desjardins had been driving while intoxicated and had attended Selectmen's meetings intoxicated. The Sheriff suggested that a deputy watch to see if Desjardins's vehicle was being operated erratically around the time of the next meeting.
• A subsequent email from Reynolds to the Sheriff on January 7, 2013indicating that there had been a conversation between Reynolds and the Sheriff after the first emails. The email reminded the Sheriff that the next meeting was on January 8 and stated that if a deputy would be available to drop by, "that would be great."
• A January 9, 2013 email from Reynolds to the Sheriff stating that Desjardins had not been visibly intoxicated at two meetings that week. The email mentioned a rumor that someone from the Sheriffs office had spoken to Desjardins, and stated that since Desjardins had appeared at two meetings without raising any public safety concerns, Reynolds hoped the rumor was true.
• An affidavit from Dana Desjardins stating that he had not attended any Selectman's meetings intoxicated, that he seldom drinks alcohol, and any claims that he was driving under the influence were false. In his affidavit Desjardins surmises that Reynolds and Willard had developed an animus against him based on his outspokenness at town meetings and because of disputes dating from January and May of 2011 - more than 18 months before Reynolds's December 14, 2012 email.
• Affidavits from Charles Leavitt, Peter Leavitt, John Russo, and Julie Southerland stating that they were friends and acquaintances of Desjardins who were involved with Town government, denying that they had ever detected any signs of intoxication, and specifically denying that any indications of intoxication were apparent at a town meeting where persons whose affidavits had been submitted by Reynolds stated that they had observed indications of intoxication. Charles Leavitt also stated his belief that false accusations had been made against Desjardins because of his outspokenness at town meetings and because of the two disputes mentioned by Desjardins that had occurred in 2011.
The claims against Willard were dismissed by the federal district court after the case was removed and were thereafter dropped by Desjardins in the course of his appeal to the First Circuit from Judge Torresen's June 20, 2014 order.
In assessing the case, the court concludes that there are two competing considerations. On the merits of the case, there is a dispute as to whether there was an adequate basis for Reynolds's report to law enforcement that Desjardins may have been operating under the influence. Nevertheless, there is no evidence that Reynolds ever voiced his suspicions or concerns in public or took any action other than his report to law enforcement. The evidence offered by Desjardins that Reynolds had an ulterior motive is at best speculative. Moreover, Reynolds's January 9 email - expressing that he had observed no indications of intoxication at recent meetings and the hope that the issue had been resolved by a conversation between Desjardins and a Sheriffs deputy - is inconsistent with the contention that Reynolds was engaged in any kind of vendetta.
Moreover, the extent of the asserted harm experienced by Desjardins was that he was (privately) advised that he had been red-flagged by the Sheriffs office and his vehicle was stopped on one occasion when he was given a warning for going 5 mph above the speed limit. There is no evidence that any allegedly defamatory communication was ever made public or was made to anyone other than law enforcement.
In sum, an assessment of the merits favors Reynolds, and a reasonable argument can be made that - where the Legislature has departed from the American rule in authorizing attorney's fees - he should be entitled to recoup at last some portion of the substantial attorney's fees incurred in almost three years of litigation. Reynolds was unsuccessfully sued for actions that the Legislature has defined as "a party's exercise of its right of petition." 14 M.R.S. § 556.
On the other hand, in litigating this case, Desjardins was pursuing a legal issue that the First Circuit identified as unresolved based on tension between Schelling v. Lindell, 2008 ME 59, 942 A.2d 1226, and Nader v. Maine Democratic Party, 2012 ME 57, 41 A.3d 551. Moreover, this is not a case of a deep-pocketed plaintiff bringing suit in order to bully a little guy for opposing the plaintiffs plans.
See Desjardins v. Willard, 777 F.3d 43, 45-46 (1st Cir 2015).
On balance, therefore, and particularly because there is no evidence that Reynolds is personally out of pocket for successfully defending this action, the court concludes that no attorney's fee shall be awarded.
Reynolds is also seeking $400 in costs for the removal fee to federal court. Costs paid to a federal court are not recoverable as costs pursuant to 14 M.R.S. § 1502-B.