Opinion
18-P-388
10-31-2019
John PHELAN v. Christine FITZGERALD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from both the order denying the defendant Christine Fitzgerald's special motion to dismiss the plaintiff John Phelan's verified complaint under the "anti-SLAPP" provisions of G. L. c. 231, § 59H (anti-SLAPP motion), and the order denying Fitzgerald's motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (10), as appearing in 450 Mass. 1403 (2008) (motion to dismiss). We conclude that the judge abused his discretion in denying Fitzgerald's anti-SLAPP motion, and remand the matter for further proceedings consistent with this opinion.
Background. In brief, Phelan, the deputy fire chief in the town of Mashpee (town), filed this civil action against Fitzgerald on February 16, 2017, seeking damages in three counts for libel against a quasi-public official, slander, and malicious interference with his advantageous relationships. Fitzgerald is Phelan's former sister-in-law. According to Phelan's verified complaint, in October 2014, Fitzgerald sent a letter to the town manager, the town's chief of police, and the town's fire chief for whom Phelan worked, referencing a thirty year old criminal arson investigation of Phelan when he was a security guard at a local university. This correspondence prompted an internal investigation of the allegations therein, and concluded with the town taking no action against Phelan. The record does not indicate whether either Fitzgerald or the public were notified of that investigation or its conclusion.
The October 2014 correspondence is not included with the verified complaint or in the record.
Subsequently, in January 2017, Fitzgerald sent an electronic mail message (e-mail) to the town manager and the president of the firefighters' union, stating that in response to viewing on the website "YouTube.com" Phelan's swearing-in ceremony as deputy fire chief, Fitzgerald felt compelled to inform Phelan's superiors that he "was arrested for arson" in the past and that, "according to the arson report, he had been the suspect[ ] of others." The second communication from Fitzgerald prompted Phelan to file the underlying civil suit seeking both damages and a permanent injunction.
A copy of the January 2017 e-mail chain was attached to the verified complaint; however, there is no copy of the arson report referenced therein in the record.
Discussion. 1. Anti-SLAPP motion. On appeal, Fitzgerald first argues that the motion judge incorrectly applied the first step of the analytical framework in deciding the anti-SLAPP motion under the provisions of G. L. c. 231, § 59H, as outlined in Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 165 (1998). Specifically, she argues that the judge erred in concluding that Phelan's complaint was not based on Fitzgerald's legitimate petitioning activity.
" General Laws c. 231, § 59H, provides a remedy for persons who find themselves targeted by a lawsuit based on their petitioning activity." O'Gara v. St. Germain, 91 Mass. App. Ct. 490, 494 (2017). See G. L. c. 231, § 59H. The statutory definition of which activities constitute petitioning is "very broad." O'Gara, supra at 495, quoting Cardno Chemrisk, LLC v. Foytlin, 476 Mass. 479, 484 (2017). Protected petitioning activity includes "any written or oral statement ... reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body" or "reasonably likely to enlist public participation in an effort to effect such consideration." G. L. c. 231, § 59H. See North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 862 (2009). Moreover, "[t]he key requirement of this definition of petitioning is the establishment of a plausible nexus between the statement and the governmental proceeding." Blanchard v. Steward Carney Hosp., 477 Mass. 141, 149 (2017).
The analytical framework for § 59H motions, as established in Duracraft, requires two steps. Under the first step, the movant has the burden of demonstrating, "through the pleadings and affidavits that the claims against [her] are ‘based on’ [her] petitioning activit[y] alone and have no substantial basis other than or in addition to the petitioning activit[y]." Duracraft, 427 Mass. at 167-168. If this threshold burden is met, the burden then shifts to the opposing party. See id. Critically, "[a]t [the first] stage of the inquiry, the motive behind the petitioning activity is irrelevant, and [t]he focus solely is on the conduct complained of." Reichenbach v. Haydock, 92 Mass. App. Ct. 567, 572 (2017), quoting Office One, Inc. v. Lopez, 437 Mass. 113, 122 (2002).
The opposing party must then show, by a preponderance of the evidence, that "(1) the moving party's exercise of its right to petition was devoid of any reasonable factual support or any arguable basis in law and (2) the moving party's acts caused actual injury to the responding party." G. L. c. 231, § 59H. This second step was augmented in Blanchard to provide the opposing party an alternate means to defeat the special motion to dismiss. See Blanchard, 477 Mass. at 159.
In dismissing Fitzgerald's anti-SLAPP motion, the judge determined that, because Fitzgerald appeared to consider the statements she made via e-mail to be potentially defamatory, Phelan's subsequent filing of a defamation suit was not based solely on Fitzgerald's petitioning activity.
In describing Fitzgerald's motives for sending e-mails to the public officials about Phelan's past charges for arson, the judge impermissibly considered subjective reasons for sending the e-mails, rather than considering whether the conduct itself constituted petitioning activity. See Fabre v. Walton, 436 Mass. 517, 524-525 (2002). The focus in determining whether conduct is petitioning activity is not on subjective considerations, but rather on the "objective indicia of a party's intent to influence a governmental proceeding." Blanchard, 477 Mass. at 149. The judge provided no explanation, beyond the impermissible subjective considerations, why expressing concerns to public officials, union leadership, and a local reporter –- plausibly in an attempt to prompt, aid, relaunch, or gather support for an investigation into the competency of a town executive -- does not constitute petitioning activity. Without any permissible support, the conclusion that the challenged conduct does not constitute petitioning activities cannot stand.
Such a conclusion is further weakened by Phelan's counsel's apparent concession at oral argument that the challenged conduct standing alone does constitute petitioning activity.
In considering the second prong of the Duracraft-Blanchard analytical framework, the judge found that Phelan's case was not a "SLAPP suit" at all, in part because the parties were private individuals with a prior relationship, and "Fitzgerald knowingly sent potentially defamatory information to Phelan's employer and appointing authority and persisted in doing so even after the [t]own had conducted an investigation of the allegation and closed the matter."
In concluding that the second prong of the Duracraft-Blanchard analysis was met, the judge again relied on factors not supported by law. See Blanchard, 477 Mass. at 159-160. At this augmented second step, the nonmoving party must show "that each challenged claim d[id] not give rise to a ‘SLAPP’ suit. It may do so by demonstrating that each such claim was not primarily brought to chill the special movant's legitimate petitioning activities." Id. at 160. There is no requirement that the suit involve corporations, associations, or other group entities. Rather, a claim under the anti-SLAPP provisions of § 59H can be brought between private individuals. See Fabre, 436 Mass. at 522-525.
Additionally, the evidence before the judge showed that the report of the investigation conducted in response to Fitzgerald's October 2014 letter was "confidential." There is no evidence in the record that Fitzgerald or the public at large was notified of such an investigation or the conclusions reached therein. Because there is no indication that Fitzgerald had knowledge of any investigation, it cannot be said that she knowingly persisted in submitting the allegedly defamatory concerns to town officials after an investigation had concluded.
Moreover, even if Fitzgerald had knowingly persisted in submitting her concerns after an investigation had concluded, such conduct would not necessarily be ruled out as petitioning activity.
The remaining factor presented -- that Phelan did not file suit in 2014 after the first communication was sent -- is not sufficient to support a conclusion that Phelan does not now bring suit primarily to chill legitimate petitioning activities.
General Laws c. 231, § 59H, vests discretion in a judge to allow a special motion to dismiss after the sixty-day deadline. See G. L. c. 231, § 59H. The judge here did not reach the timeliness issue because he denied the motion on other grounds. We decline to speculate as to the decision the motion judge would have made had the issue been reached. We likewise decline to prospectively substitute our discretion for that of the motion judge.
2. Motion to dismiss. Although a party has the immediate right to an appeal from the order denying a special motion to dismiss filed pursuant to G. L. c. 231, § 59H, see Fabre, 436 Mass. at 521-522, the denial of a motion to dismiss, as a general rule, is not immediately appealable. See Benoit v. Frederickson, 454 Mass. 148, 151-52 (2009). The parties did not argue, nor is it readily apparent from the record, that the denial of Fitzgerald's rule 12 (b) motion to dismiss fits into an exception to the general rule. As such, this court lacks jurisdiction over this matter.
Assuming an exception did exist to permit this interlocutory appeal, it does not affect the outcome, as there was no abuse of discretion. When both an equity claim and a claim for damages are simultaneously before the Superior Court, the judge has discretion "to determine whether or not to exercise jurisdiction over the complaint in such circumstances, thereby either retaining the case for decision in the Superior Court despite the absence of the threshold amount in controversy, or dismissing the case despite the equity claim." Zizza v. Zizza, 456 Mass. 401, 408 (2010). Although Zizza provides factors which may be considered in exercising this discretion, "[t]he mechanical application of the guidelines should not frustrate the fundamental purpose" of providing efficient adjudication of the merits of a case. Ari Weitzner, M.D., P.C. v. Cynosure, Inc., 85 Mass. App. Ct. 77, 84 (2014).
Here, three hearings addressing the protective order and preliminary injunction were held before a judge other than the special motion judge. If Phelan prevails on this appeal, there is a chance that the requested protective order and injunction could become permanent. Because these hearings had already taken place in the Superior Court, the judge hearing Fitzgerald's motion to dismiss did not abuse her discretion in retaining jurisdiction of the matter for efficient adjudication.
Conclusion. For the aforementioned reasons, the order dated July 24, 2017, denying Fitzgerald's special motion to dismiss Phelan's verified complaint is vacated, and the matter is remanded for further proceedings consistent with this opinion. So much of the appeal as purports to be from the order dated November 13, 2017, denying Fitzgerald's motion to dismiss the complaint is dismissed.
Because the appeal is not frivolous, we decline Phelan's request for an award of attorney's fees.
So ordered.
vacated