Dever v. Ward
AC 16-P-817
| Mass. App. Ct. | Sep 7, 2017Background
- Dever, a former broker supervisor at Moors & Cabot (M&C), was fired after disputes over alleged unpaid salary/commissions and reporting a coworker’s improper stock sales.
- M&C defendants (Joyce, Foley, M&C, and attorneys) reported Dever to police, sought criminal complaints and ex parte harassment prevention orders in multiple jurisdictions in mid‑2012; some orders/complaints were later denied, dismissed, or vacated for venue or other reasons.
- Dever filed FINRA arbitration against M&C for wrongful termination; defendants introduced the criminal complaints and harassment orders in the arbitration, which resulted in an adverse arbitration award to Dever.
- Dever then sued in Superior Court alleging conspiracy, fraud, defamation, abuse of process, malicious prosecution, and emotional‑distress claims based principally on defendants’ reports to police/courts and statements in FINRA arbitration.
- Defendants brought a special motion to dismiss under Massachusetts’ anti‑SLAPP statute, G. L. c. 231, § 59H; the motion judge found the challenged communications were petitioning activity with arguable factual and legal support and allowed the motion.
- The Appeals Court affirmed the dismissal ruling but vacated and remanded for reconsideration under the Supreme Judicial Court’s newly articulated augmented Duracraft/Blanchard framework, applied retroactively.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants' reports to police/courts and statements in FINRA arbitration are "petitioning" under § 59H | Dever: communications were illegitimate and intended to influence the arbitration, not protected petitioning | Defs: communications to police, courts, and arbitrators are classic petitioning activities protected by § 59H | Court: communications were petitioning activity; motive irrelevant under precedent |
| Whether Dever showed defendants’ petitioning lacked any reasonable factual or legal basis | Dever: denials/ dismissals of complaints show no arguable basis | Defs: record (complaints, police reports) provided arguable factual and legal support despite some process being unsuccessful or dismissed | Court: Dever failed to prove petitioning was devoid of reasonable factual/legal support; dismissal appropriate under Duracraft standard |
| Whether introducing criminal complaints into FINRA arbitration constitutes non‑petitioning «subsequent misuse of process» sufficient to survive § 59H motion | Dever: use of complaints in arbitration was affirmative misuse to prejudice arbitration | Defs: communications in arbitration were petitioning activity (and, in any event, tied to prior petitioning) | Court: treated communications in arbitration as petitioning activity; no separate nonpetitioning misuse established on record |
| Whether the Blanchard augmented Duracraft framework applies retroactively | Dever: should be allowed to proceed under augmented test to show claims were not SLAPPs | Defs: special motion properly granted under prior Duracraft analysis | Court: Blanchard applies retroactively; remanded to allow Dever to attempt alternative showing that claims were not primarily brought to chill petitioning activity |
Key Cases Cited
- Blanchard v. Steward Carney Hosp., 477 Mass. 141 (Sup. Jud. Ct. 2017) (augments Duracraft test; nonmovant may alternatively show claim not primarily aimed at chilling petitioning)
- Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 (Sup. Jud. Ct. 1998) (two‑stage anti‑SLAPP framework requiring threshold showing and then nonmovant burden)
- Van Liew v. Stansfield, 474 Mass. 31 (Sup. Jud. Ct. 2016) (application for harassment prevention order is petitioning activity)
- Wenger v. Aceto, 451 Mass. 1 (Sup. Jud. Ct. 2008) (failure of petitioning activity does not alone show lack of arguable basis)
- North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852 (Sup. Jud. Ct. 2009) (broad definition of petitioning; "in connection with" requires communication reach governmental bodies)
- O'Gara v. St. Germain, 91 Mass. App. Ct. 490 (Mass. App. Ct. 2017) (reporting suspected criminal activity to police is petitioning activity)
- 477 Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162 (Sup. Jud. Ct. 2017) (subsequent misuse of process must be nonpetitioning to avoid § 59H protection)
- McLarnon v. Jokisch, 431 Mass. 343 (Sup. Jud. Ct. 2000) (standard of appellate review for special motions to dismiss)
- Benoit v. Frederickson, 454 Mass. 148 (Sup. Jud. Ct. 2009) (burden on nonmovant to show by preponderance petitioning was devoid of arguable basis)