O'Gara v. St. Germain
91 Mass. App. Ct. 490
| Mass. App. Ct. | 2017Background
- Dorene St. Germain held a permanent G. L. c. 209A no-contact order against her ex-husband Kevin O'Gara that allowed contact only for "notification of court proceedings" (by mail or officer).
- O'Gara mailed motions to St. Germain and to the Probate & Family Court; St. Germain received unstamped copies and called the court, which (at that time) had no record of the filings.
- St. Germain reported to police that O'Gara had violated the order; Officer Barker investigated, contacted the court, and arrested O'Gara. Criminal charges were later dismissed for insufficient evidence.
- O'Gara then sued St. Germain alleging wrongful arrest, malicious prosecution, abuse of process, interference with business relations, breach of contract, and emotional distress.
- St. Germain filed a special motion to dismiss under the Massachusetts anti-SLAPP statute, G. L. c. 231, § 59H, arguing the suit was based entirely on protected petitioning (reporting to police); the Superior Court denied the motion.
- The Appeals Court reversed, holding St. Germain's report to police was protected petitioning and O'Gara failed to show by a preponderance that her report was devoid of any reasonable factual or legal basis; the complaint must be dismissed and fees awarded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reporting a suspected c. 209A violation to police is "petitioning" under § 59H | O'Gara asserted St. Germain's report was a false, non‑petitioning act intended to injure him | St. Germain argued reporting suspected criminal conduct to police is protected petitioning activity | Held: Reporting suspected violation to police is protected petitioning activity under § 59H |
| Whether O'Gara's suit is "based entirely" on petitioning activity | O'Gara contended his claims arise from wrongful arrest/prosecution and alleged sham reporting and malicious intent | St. Germain argued all alleged harms sprang from her protected report and investigation requests to police | Held: The complaint arose entirely from petitioning activity, satisfying movant's threshold burden |
| Whether O'Gara proved petitioning was "devoid of any reasonable factual support or any arguable basis in law" | O'Gara argued the order did not require court-stamped filings and that St. Germain knew no violation occurred (sham petitioning) | St. Germain pointed to court clerk statements and Officer Barker's independent investigation supporting her belief of a violation | Held: O'Gara failed to show by a preponderance that St. Germain's report lacked any reasonable factual or legal basis |
| Whether anti-SLAPP dismissal was appropriate and fees recoverable | O'Gara opposed dismissal and sought to proceed | St. Germain sought dismissal under § 59H and recovery of fees/costs, including appellate fees | Held: Motion to dismiss should have been allowed; complaint dismissed and defendant entitled to attorney's fees and costs (including appellate fee application) |
Key Cases Cited
- Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 (describing purpose and procedural mechanics of § 59H anti‑SLAPP remedy)
- Cardno Chemrisk, LLC v. Foytlin, 476 Mass. 479 (recent elaboration of § 59H two‑stage burden shifting)
- Kobrin v. Gastfriend, 443 Mass. 327 (discussing § 59H protection for petitioning activity)
- Fabre v. Walton, 436 Mass. 517 (holding petitioning activity may be shielded and discussing costs award on dismissal)
- Office One, Inc. v. Lopez, 437 Mass. 113 (focus on whether conduct complained of is petitioning activity)
- Wenger v. Aceto, 451 Mass. 1 (filing criminal complaints is protected petitioning)
- McLarnon v. Jokisch, 431 Mass. 343 (§ 59H covers petitions to government even on private matters)
- Benoit v. Frederickson, 454 Mass. 148 (explaining § 59H standard and burdens)
- North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852 (preponderance standard and showing petitioning lacked reasonable support)
- Keegan v. Pellerin, 76 Mass. App. Ct. 186 (noting reporting suspected crime to police is firmly protected petitioning activity)