Opinion
Civil Action CV-19-417
02-04-2020
JOHN THURLOW, Plaintiff v. ZAKIA CORIATY NELSON and ROSS NELSON, Defendants
ORDER ON DEFENDANTS' SPECIAL MOTION TO DISMISS
Harold Stewart, II Justice, Superior Court.
Before the court is defendant Zakia Coriaty Nelson and Ross Nelson's (hereafter "Nelson's") special motion to dismiss plaintiff John Thurlow's (herafter "Thurlow") complaint pursuant to 14 M.R.S. § 556.
FACTUAL BACKGROUND
Thurlow is currently unemployed and a. resident of Scarborough, Maine. (Compl. ¶ 1.) Previously, Thurlow was employed as an assistant principal at the Wentworth School hi Scarborough, Maine from August 1, 2014 to December 31.2018. (Compl. ¶¶ 4, 9.) The Nelson's arc married and residents of Cape Elizabeth. (Compl, ¶ 2.) From 2014 to 2017, the Nelson's children attended the Wentworth School. (Compl. ¶ 9.) In the spring of 2017, the Nelson's became concern that their son was being bullied at school. (Compl, ¶ 13); (Nelson Aff. ¶ 3,)
The Nelson's contacted die Wentworth School and plaintiff regarding their concerns. (Compl. ¶ 14); (Nelson Aff. ¶ 5.) Thurlow investigated defendants'' concerns that their son was being bullied at school. (Compl. ¶¶ 16-19); (Nelson Aff. ¶¶ 5-6.) Thurlow developed a plan that he deemed an appropriate course of action to deal with the alleged bullying, (Compl, ¶ 20.) Nelson's disagreed with the findings of Thurlow5 s investigation and did not believe that Thurlow's course of action was appropriate. (Compl. ¶ 15, 24-25): (Nelson Aff. ¶ 8-14.) Thurlow and the Nelson's met on May 18, 2017 to discuss the alleged bullying of Nelsons' son and to discuss Thurlow's corrective action to prevent any further instances of bullying. (Compl. ¶ 15); (Nelson Aff. ¶ 15-18, 22.) After this meeting, the Nelson's were still not satisfied with Thurlow's handling of the matter. (Compl. ¶ 25); (Nelson Aff. ¶ 24.) On September 25, 2017 Nelson's sent a letter regarding their concerns about how Thurlow handled their son's case to Kelly Murphy, the Chair of the Scarborough School Board of Education. (Compl. ¶ 25); (Nelson Aff. ¶ 28.) The letter was also sent to Julie Kukenberger, then-Superintendent of Scarborough Public Schools; Kelli Crosby, Principal of the Wentworth School; and Angel Loredo, a representative of the Maine Department of Education. (Nelson Aff. ¶ 29.)
PROCEDURAL HISTORY
Thurlow filed a complaint in District Court on September, 24, 2019, alleging that the Nelson's defamed him in their September 25, 2019 letter to the Scarborough School Board Chair Murphy. On October 9, 2019, the Nelson's removed the action to Superior Court.
On October 15, 2019, Nelson's filed an answer and a special motion to dismiss pursuant to 14 M.R.S. § 556. Thurlow filed an opposition to defendants' motion on November 5, 2019. Nelson's filed a reply to plaintiffs opposition on November 18, 2019.
Plaintiff moved for a hearing on the special motion to dismiss on November 21, 2019, which was denied.
14 M.R.S. §556 does not provide for a hearing, per se. As discussed in this opinion, if a plaintiff meets his burden o f proof of establishing prima facie evidence that the petitioning activity was devoid o f any reasonable factual support or arguable basis in law and that it caused injury, then the court may entertain a motion to allow limited discovery and an evidentiary hearing. Gaudette v. Davis, 2017 ME 86.
DISCUSSION
Special Motion to Dismiss Pursuant to 14 M.RS. § 556
a. Special Motion to Dismiss Standard
The Nelson's argue that plaintiffs complaint should be dismissed because the alleged causes of action arise from their "petitioning activity" and thus must be dismissed pursuant to Maine's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. 14 M.R.S. § 556 (2018).
To determine whether a complaint should be dismissed pursuant to the anti-SLAPP statute the court must conduct a multi-step analysis. First, defendants must establish, as a matter of law, that "the claims against [them] are based on [their] exercise of the right to petition pursuant to the federal or state constitutions." Gaudette v. Davis, 2017 ME 86, ¶¶ 16-17, 160 A.3d 1190 (quoting Morse Bros. v. Webster, 2001 ME 70, ¶ 19, 772 A.2d 842). If defendants satisfy step one, the burden then shifts to the plaintiff. Id. at ¶ 17. Plaintiffs burden in step two is to establish prima facie evidence that defendants' "petitioning activity" was "devoid of any reasonable factual support or any arguable basis in law" and that the" petitioning activity" caused him or her injury. Id. (quoting Nader v. Me. Democratic Party (Nader I), 2012 ME 57, ¶¶ 16, 29-38, 41 A.3d 551). If plaintiff fails to meet this prima facie burden for both elements the special motion is granted. Id. However, if the plaintiff does meet this burden, the court, upon a motion by either party, may permit "the parties to undertake a brief period of limited discovery, the terms of which are determined by the court after a case management hearing, and at the conclusion of that limited discovery period, the court conducts an evidentiary hearing." Id. at ¶ 18.
b. Petitioning Activity
The Nelson's argue that the conduct that forms the basis of Thurlow's complaint is their "petitioning activity." (Defs.' Special Mot. Dismiss 9.) Thurlow does not provide any argument that his defamation claim is not based on the Nelson's exercise of their right to petition. (See Pl.'s Opp'n to Defs.' Special Mot. Dismiss.)
Maine's anti~SLAPP statute defines "a party's exercise of its right of petition" as:
[1] any written or oral statement made before or submitted to a legislative, executive or judicial body, or any other governmental proceeding;
[2] 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;
[3] any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive or judicial body, or any other governmental proceeding;
[4] any statement reasonably likely to enlist public participation in an effort to effect such consideration; or
[5] any other statement falling within constitutional protection of the right to petition government.14 M.R.S. § 556 (2018). The Law Court has directed that § 556 be interpreted to provide broad protections for "petitioning activities." Schelling v. Lindell, 2008 ME 59, ¶ 12, 942 A.2d 1226.
Thurlow's claim for defamation is based on a theory that the letter the Nelson's sent to the Scarborough School Board of Education, Scarborough Public School Staff, and the Maine Department of Education concerning Thurlow's job performance contained false accusations and libelous statements. (Compl. ¶ 26.) The Nelson's letter clearly falls under multiple categories enumerated in § 556. Their letter to the school board and other public employees including state officials regarding plaintiffs work performance as a public employee constitutes petitioning activity. See Desjardins v. Reynolds, 2017 ME 99, ¶ 11, 162 A.3d 228.
c. Step Two: Devoid of any Reasonable Factual Support or any Arguable Basis in Law
The burden now shifts to plaintiff to show that defendants' "petitioning activity" was "devoid of any reasonable factual support or any arguable basis in law" and that the petitioning activity caused him injury. Nader I, 2012 ME 57, ¶ 16, 41 A.3d 551. This test does not look at the merits of the plaintiffs claims, it looks only at the elements required by § 556. See Gaudette, 2017 ME 86 ¶ 21, 160 A.3d 1190.
The statements that form the basis of Thurlow's complaint for defamation contained in the Nelson's letter are: (1) the Nelson's believed based on reports from their son that he was being bullied; (2) the Nelson's reported this to Thurlow; (3) Thurlow conducted an investigation; (4) Thurlow crafted a Positive Behavioral Support Plan for the Nelson's son and the alleged bully, a response he deemed was sufficient to deal with the matter; (5) the Nelson's did not believe that Thurlow's response of crafting a Positive Behavioral Support Plan for their son was sufficient and wished for him to craft a safety plan for their son instead of put the onus on their son to report bullying to a teacher as he had difficulties advocating for himself; (6) Thurlow and the Nelson's disagreed over whether the Nelson's son was being bullied according to the school's handbook and state law; (7) the Nelson's believed that Thurlow's attitude toward their sons in his investigation was dismissive, apathetic, and intimidating; (8) the Nelson's wished to view the surveillance video generated by the school and were denied access to it; and (10) that Thurlow was dismissive and unresponsive to the Nelson's advocacy for their son. (See Nelson Aff.); (Thurlow Aff.)
Thurlow argues that the Nelson's petitioning activity is devoid of any reasonable factual support or evidence because it was based on lies. (Pl.'s Opp'n to Defs.' Special Mot. Dismiss 1-2.) If a plaintiff establishes that a party's petitioning was based on "totally false" claims it may constitute a prima facie showing that their "petitioning activity" was devoid of any reasonable factual support. See Gaudette, 2017 ME 86, ¶ 24, 160 A.3d 1190. Thurlow supports his argument with: (1) his own affidavit; (2) defendants' September 25, 2017 letter to the School Board; (3) a memo regarding procedures for complaints about school personnel; (4) a letter to him from the superintendent placing him on administrative leave; (5) a letter of recommendation in support of Thurlow from the Wentworth School principal; (6) the first page of a memorandum written by the investigator hired by the superintendent to look into Thurlow's actions (which does not include any findings); (7) the Nelson's son's positive behavioral support plan crafted by Thurlow; (8) an additional affidavit that recites Thurlow's factual summary of his interactions with the Nelson's and their son in the spring of 2017; and (9) a letter from Aetna Life Insurance regarding Thurlow's disability benefits. (Thurlow Aff.); (PL's Exs. 1, 2, 3, 6, 7, 12, 14, 16.)
Thurlow's exhibits do not establish a prima facie showing that defendants' "petitioning activity" was totally false and therefore totally devoid of any reasonable factual support.
The affidavits and exhibits provided by both plaintiff and defendants, show that the Nelson's were upset with Thurlow's investigation and selected corrective action in regards to their son allegedly being bullied at school. In response to this dissatisfaction, the Nelson's sent a letter to the School Board stating that they did not feel that Thurlow's assessment that no bullying occurred was correct and that they did not believe Thurlow had complied with state and federal guidelines and standards. (See Nelson Aff.); (Thurlow Aff.) The allegations contained in the September 25, 2017 letter that Thurlow intimidated the Nelson's son is an interpretation of facts that actually happened and is therefore not devoid of any reasonable factual support. Thurlow agrees that he sat down with the Nelson's son, watched the surveillance tape with him, and discussed what happened on the day the alleged bullying occurred before Thurlow implemented his positive behavioral support plan. (See Pl.'s Ex. 14.) Where the parties diverge is in their interpretation of these events. How the Nelson's son reacted to viewing the surveillance video and Thurlow's corrective action and how the Nelson's reacted to Thurlow's corrective action based on what their son told them, is clearly not aligned with how Thurlow viewed these actions, but this difference of interpretation does not mean the September 25, 2017 letter is completely devoid of any reasonable factual support. Additionally, the September 25, 2017 letter claims that the refusal to allow them to watch the surveillance video of the alleged bullying was a violation of law. (Pl.'s Ex. 1.) Whether or not this denial was actually a violation of law does not change the fact that the Nelson's were denied the ability to watch the video, which factually supports their petitioning activity. Petitioning activity is protected even when the petitioner is reporting a crime that turns out not to be a crime as long as the report was based on reasonable factual support. Cf. Desjardins, 2017 ME 99, ¶ 11, 162 A.3d 228 (analyzing an anti-SLAPP motion where the defendant reported to the sheriffs office that plaintiff drove his car drunk, but finding that there was no reasonable factual support for defendant's claim). Whether or not Thurlow's plan to deal with the alleged bullying was appropriate is not at issue in this special motion to dismiss, nor is whether the Nelson's' September 25, 2017 letter was misleading or hyperbolic. The issue is whether the Nelson's petitioning activity was devoid of any reasonable factual support. The court finds that defendants' petitioning activity was not devoid of reasonable factual support. Accordingly, the special motion to dismiss is granted.
As Thurlow has failed to establish prima facie evidence that the Nelson's petitioning activity was devoid of any reasonable factual support or arguable basis in law, we do not need to address the additional procedural component of entertaining a motion to permit limited discovery and an evidentiary hearing. See Gaudette v, Davis, 2017 ME 86, ¶ 18.
Defendants' Special Motion to Dismiss is GRANTED. The Clerk is requested to enter this Order on the docket for this case by incorporating it by reference. MR. Civ. P. 79(a).