Opinion
CUMSC-CV-18-0377
06-13-2019
MARK KLEIN, Plaintiff v. JESSICA DEMERS-KLEIN now known as Jessica Demers, and AMANDA MYERS, Defendants
ORDER ON PLAINTIFF'S MOTION TO RECONSIDER
A. M. HORTON, JUSTICE
Pursuant to M.R. Civ. P. 59, Plaintiff Mark Klein has filed a Motion To Reconsider directed to the court's Order dated April 17, 2019, granting the Defendants' Special Motions to Dismiss pursuant to Maine's anti-SLAPP statute, 14 M.R.S. § 556. Defendants Jessica Demers and Amanda Myers have filed oppositions to the Motion to Reconsider, and Plaintiff Klein has filed reply memoranda to both oppositions.
The court elects to decide the Motion to Reconsider without oral argument. See M.R. Civ. P. 7(b)(7). For the reasons stated below, the Motion is denied.
The fundamental question of law presented by Klein's Motion to Reconsider is this: In considering a special motion to dismiss in accord with the three-step procedure established in Gaudette v. Davis, 2017 ME 86, ¶¶16-17, 160 A.3d 1190, ) must the court schedule a step 3 evidentiary hearing even if the record before the court at step 2 amply demonstrates that the petitioning activity at issue had reasonable factual support and a solid basis in law?
The Defendants' special motions to dismiss were accompanied by affidavits and exhibits intended to demonstrate that (1) Klein's claims against them were based on petitioning activity for purposes of section 556, and (2) that their petitioning activity involved statements and sworn testimony in court that had more than a reasonable degree of factual support and a more than an arguable basis in law.
Klein's response included his affidavit and exhibits in which he denied and disputed both (1) that his claims arose out of Defendants' petitioning activity and (2) that what the Defendants claimed to be their petitioning activity had any support at all in fact or basis in law. As noted in the court's April 17, 2019 Order, Klein's filings focused on the Defendants' allegations that he applied bag balm to his older daughters' anal areas and did not controvert other areas referred to in his complaint.
Klein's Motion to Reconsider also contends that the Defendants should not have included exhibits with their affidavits, even though he did likewise. Nothing in the statute limits a parties' ability to attach and incorporate exhibits in the party's affidavits in support of a special motion to dismiss. Nothing in the statute limits the parties' affidavits to facts and information admissible in evidence.
In an apparent attempt to rectify the omission, Klein's Motion to Reconsider includes a further affidavit from Klein in which he denies the accuracy of accusations and allegations he says were made by the Defendants. However, he has not established that Defendants even made some of the statements. In any event, the court declines to consider the further affidavit.
In other words, the parties' filings addressed the issues to be decided at both step 1 and step 2 according to Gaudette. The issue whether the Defendants were engaged in petitioning activity for purposes of step 2 was joined in the parties' filings, and so was the issue whether their activity had reasonable factual support and a basis in law for purposes of step 2.
This court's Order granting Demers's and Myers's special motions to dismiss determined, based on the entire record before the court at the time, that the petitioning activity that was the subject of Klein's claims against them had reasonable factual support and a basis in law for purposes of section 556, and therefore that Klein had not made a prima facie showing to the contrary.
Klein's Motion to Reconsider appears to contend that the court should not have considered the entire record in deciding whether he, as the non-moving party, had met his step 2 burden to make a prima facie showing that the Defendants' petitioning activity lacked reasonable factual support and an arguable basis in law. Klein's Motion to Reconsider contends that, regardless of what the Defendants had submitted into the record to show factual and legal support for their petitioning activity, he had met his step 2 burden merely by denying that what Demers and Klein had said and testified to was untrue. His Motion also says that the court should have taken the allegations of his complaint in and of themselves as being sufficient to meet his step 2 burden.
The court remains persuaded that under Gaudette, the court needs to consider the entire record in deciding whether the non-moving party has made the required step 2 prima facie showing. A similar question is presented in the context of summary judgment-whether the non-moving party has made a prima facie showing sufficient to defeat the motion-and the court certainly does not disregard the moving party's submittals and look only at the non-moving party's opposition in deciding that question.
Klein also contends that, in dismissing his claims without convening a step 3 hearing, this court made credibility determinations about the accuracy of the Defendants' statements and testimony and the testimony of the Department of Health and Human Services caseworker to the effect that Klein had admitted applying bag balm to his daughters' anal regions in the manner Defendants alleged he did.
The court did not do that. What the court did was look at the record, which clearly indicates that the accuracy of the testimony given by the Defendants and by the DHHS caseworker was evaluated by the judges who heard that testimony. This court did not evaluate the credibility of that testimony, because the judges who heard the testimony did so and issued orders based on their evaluation of the testimony.
In that sense, it was the very nature of the petitioning activity in this case that guided the court's decision. The petitioning activity at issue in this case did not involve unsworn and untested out-of-court accusations, the credibility of which, if denied, would need to be tested at a step three evidentiary hearing.
The petitioning activity at issue consisted entirely of Myers's and Demers's efforts to gain access to the courts and present their concerns about Klein's behavior. Though the activity included prefatory statements to a pediatrician, child protective workers, police officers and family crisis advocates, all of the activity for which Klein has sued Myers and Demers arose out of their efforts to invoke the protection of governmental agencies and the courts-classic petitioning activity.
Klein clearly seeks the step 3 evidentiary hearing so he can challenge the accuracy of the Defendants' statements and in-court testimony in. the family court and the protection from abuse court. But Klein already had that opportunity. And he used it, in cross-examining both Defendants and the caseworker and in presenting his own evidence.
Thus, the step 3 evidentiary hearing Klein seeks would basically be a do-over of the DHHS process and the proceedings in the family case and protection from abuse case. But the factual support and legal basis for the Defendants' petitioning activity has already been presented, tested, evaluated and factored into agency and judicial decisions, and Klein is not entitled to a do-over.
Another argument against Klein's contention that a step 3 evidentiary hearing should be held so this court can determine whether the Defendants and the DHHS caseworker testified falsely in the court hearings is that witnesses are absolutely immune from civil liability for their relevant sworn testimony in court, regardless of whether the testimony is true or false, see Hurley v. Towne, 155 Me. 433, 436-39, 156 A.2d 377 (1959); Dunbar v. Greenlaw, 152 Me. 270, 128 A.2d 218 (1956). The court's April 17, 2019 Order deemed the Defendants' Rule 12(b)(0) motions moot but they plainly would have been granted at least in part if the court had not decided that Klein bad not met his burden of production at step 2 in response to the special motions to dismiss.
IT IS HEREBY ORDERED: Plaintiffs Motion for Reconsideration is denied, Plaintiff has 20 days from the date of this Order to file his responses to the Defendants' pending applications for an award of attorney fees.
Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this Order by reference in the docket.