Polay v. McMahon
468 Mass. 379
| Mass. | 2014Background
- Neighbors in Lowell; plaintiffs Jane Polay and William Morse sued Joseph McMahon alleging abuse of process, malicious prosecution, intentional and negligent infliction of emotional distress, and invasion of privacy after numerous disputes.
- Plaintiffs allege McMahon filed multiple false police reports and obtained a harassment prevention order (later vacated) and repeatedly filed criminal complaints that were dismissed.
- Plaintiffs allege McMahon installed multiple video cameras aimed at and continuously recording the plaintiffs’ property and interior through windows, allegedly to harass and drive them out of the neighborhood.
- Superior Court allowed a Rule 12(b)(6) dismissal of all claims; McMahon’s special motion to dismiss under the anti‑SLAPP statute (G. L. c. 231, § 59H) succeeded as to abuse of process and malicious prosecution but failed as to invasion of privacy and intentional infliction of emotional distress.
- The judge awarded McMahon costs and attorney’s fees under § 59H; plaintiffs appealed only the dismissal of invasion of privacy and intentional infliction of emotional distress and the fee award.
- The Appeals Court reversed dismissal of the invasion of privacy claim, affirmed dismissal of intentional infliction of emotional distress, vacated the fee award for reconsideration in light of reinstated claim, and otherwise affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether surveillance-supported invasion of privacy under G. L. c. 214, § 1B survives 12(b)(6) | Continuous video surveillance aimed at plaintiffs’ home, seeing into windows and recorded for harassment, is an unreasonable, substantial, serious intrusion on seclusion | Cameras served legitimate security purpose and only incidentally captured views visible from public way | Reversed dismissal; allegations plausibly state invasion of privacy; factual dispute for later proceedings |
| Whether plaintiffs stated a claim for intentional infliction of emotional distress (IIED) | Combination of false reports, verbal attacks, and continuous surveillance intended to harass caused extreme, severe emotional distress | Petitioning activity is privileged; surveillance and verbal attack not extreme/outrageous enough; plaintiffs’ emotional distress allegations are conclusory | Affirmed dismissal: petitioning acts barred from IIED claim by anti‑SLAPP protection; remaining allegations insufficiently extreme and emotional‑distress allegations conclusory |
| Whether anti‑SLAPP fee‑shifting (§ 59H) applies when defendant’s insurer paid defense | Fees were not “incurred” by defendant so award improper | § 59H award applies to fees incurred on defendant’s behalf; insurer payment does not bar award; deterrence and purpose of statute support award | Trial court correctly may award fees even if insurer paid; but remanded to reassess amount given reinstated invasion claim |
| Standard for reviewing Rule 12(b)(6) and use of public records on motion | Plaintiffs relied on facts/records pled; such materials may be considered | Defendant submitted public‑record materials supporting motion | Court reviews de novo, accepts well‑pleaded factual allegations, and may consider public records cited without converting to summary judgment |
Key Cases Cited
- Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160 (standard for Rule 12(b)(6) review)
- Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 409 Mass. 514 (privacy statute interpretation and factors for intrusion)
- Ellis v. Safety Ins. Co., 41 Mass. App. Ct. 630 (examples of factors showing unreasonable intrusion and harassment)
- Agis v. Howard Johnson Co., 371 Mass. 140 (privilege bars IIED claims based on privileged petitioning)
- Foley v. Polaroid Corp., 400 Mass. 82 (high standard for IIED; narrow doorway to recovery)
- North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852 (anti‑SLAPP fee award is mandatory when special motion granted)