Lead Opinion
Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.
Dissent: JABAR, J.
[¶ 1] Dana Desjardins appeals from a judgment of the Superior Court (Cumberland County, Warren, J.) dismissing his complaint against Michael Reynolds for defamation and false light invasion of privacy. Desjardins contends that the court erred by concluding that his complaint was barred by application of Maine’s anti-SLAPP (“Strategic Lawsuit Against Public Participation”) statute, 14 M.R.S. § 556 (2016). We affirm the judgment.
I. BACKGROUND
[¶ 2] In August of 2013, Desjardins, a town official for the Town of Raymond, instituted a lawsuit in the Superior Court against Michael Reynolds,
[¶ 3] Reynolds removed the matter to the United States District Court for the District of Maine. See 28 U.S.C.S. § 1441 (LEXIS through Pub. L. No. 115-30). The District Court (Torresen, J.) dismissed the federal claims, and Desjardins agreed to the dismissal of his claims for negligent and intentional infliction of emotional distress. Desjardins v. Willard, No. 2:13-cv-00338-NT,
[¶ 4] On Desjardins’s appeal, the United States Court of Appeals for the First Circuit affirmed the dismissal of Desjardins’s federal claims, but vacated the dismissal of his state law claims on section 666 grounds, concluding that those “issues are better resolved by the state courts, where this case began.” Desjardins v. Willard, 777 F.3d 43, 46 (1st Cir. 2015). Thus, when the matter was returned to the Superior Court’s jurisdiction in February of 2015, only Desjardins’s claims for defamation and false light invasion of privacy remained.
[¶ 5] Before the Superior Court, Reynolds reasserted his special motion to dismiss on anti-SLAPP grounds, with accompanying affidavits and various exhibits. Desjardins opposed the motion, submitting affidavits and exhibits of his own. By judgment dated June 29, 2015, the Superior Court (Warren, J.) granted Reynolds’s special motion to dismiss both remaining causes of action on anti-SLAPP grounds. Desjardins appeals.
II. DISCUSSION
[¶ 6] In this matter, we are called upon to consider the reaches of Maine’s anti-SLAPP statute, 14 M.R.S. § 556, which provides as follows:
§ 556. Special motion to dismiss
When a moving party asserts that the civil claims, counterclaims or cross claims against the moving party are based on the moving party’s exercise of the moving party’s right of petition under the Constitution of the United States or the Constitution of Maine, the moving party may bring a special motion to dismiss. The special motion may be advanced on the docket and receive priority over other cases when the court determines that the interests of justice so require. The court shall grant the special motion, unless the party against whom the special motion is made shows that the moving party’s exercise of its right of petition was devoid of any reasonable factual support or any arguable basis in law and that the moving party’s acts caused actual injury to the responding party. In making its determination, the court shall consider the pleading and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
The Attorney General on the Attorney General’s behalf or on behalf of any government agency or subdivision to which the moving party’s acts were directed may intervene to defend or otherwise support the moving party on the special motion.
All discovery proceedings are stayed upon the filing of the special motion under this section, except that the court, on motion and after a hearing and for good cause shown, may order that specified discovery be conducted. The stay of discovery remains in effect until notice of entry of the order ruling on the special motion.
The special motion to dismiss may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms the court determines proper.
If the court grants a special motion to dismiss, the court may award the moving party costs and reasonable attorney’s fees, including those incurred for the special motion and any related discovery matters. This section does not affect or preclude the right of the mov-*233 mg party to any remedy otherwise authorized by law.
As used in this section, “a party’s exercise of its right of petition” means any written or oral statement made before or submitted to a legislative, executive or judicial body, or any other governmental proceeding; 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; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive or judicial body, or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.
Thus, Maine’s anti-SLAPP statute, like those of other jurisdictions, provides a procedure for the expedited dismissal of lawsuits that are brought not to redress a legitimate wrong suffered by the plaintiff, but instead solely for the purpose of dissuading a defendant from exercising his First Amendment right to petition the government or punishing him for doing so. See Nader v. Me. Democratic Party (Nader I),
[¶ 7] To further the goals of the statute, section 556 allows the moving party to file a special motion to dismiss that may be given priority on the docket as the interests of justice require. 14 M.R.S. § 556; Morse Bros., Inc.,
[¶ 8] As we have consistently stated, section 556 imposes a burden-shifting procedure between the moving and nonmoving parties. E.g., id. ¶¶ 8-9; Camden Nat'l Bank v. Weintraub,
[¶ 9] If the defendant satisfies this initial burden, the burden then shifts to the nonmoving party (usually the plaintiff) to offer prima facie evidence that the de■fendant’s exercise of his right to petition (1) was “devoid of any reasonable factual support or any arguable basis in law” and (2) caused “actual injury” to the plaintiff. 14 M.R.S. § 556; see Gaudette,
[¶ 10] If the plaintiff meets his pri-ma facie burden of establishing that any one or more of the petitioning activities at issue lacks factual or legal support and caused the plaintiff actual injury, the parties may avail themselves of an additional procedural mechanism according to the new procedure set out in Gaudette.
[¶ 11] Here, there can be no legitimate argument but that Reynolds’s statements to the sheriffs office regarding Desjardins’s alleged history of arriving at Town meetings—and having driven his vehicle to those meetings—while under the influence of alcohol qualify as petitioning activity.
[¶ 12] The meaning of “actual in-jur/’ pursuant to section 556 is a question of law we review de novo. Id. ¶ 17. To interpret section 556 in a manner that gives effect to the Legislature’s intent, we look first to the plain language of the provision. MaineToday Media, Inc. v. State,
[¶ 13] Unlike other terms in the statute, “actual injury” is not defined in section 556. Indeed, although we often look to other statutory provisions for clues as to the meaning of particular phrase, section 556 marks the single occurrence of the phrase “actual injury” in the current Maine Revised Statutes.
[¶ 14] We have, however, had multiple occasions to address its meaning in our prior decisions. In those decisions, we have emphasized that “actual injury” requires a “reasonably certain monetary valuation of the injury” suffered by the plaintiff. Schelling,
[¶ 15] In his opposition to Reynolds’s motion to dismiss, Desjardins states that he suffered two forms of harm as a result of Reynolds’s actions. First, Desjar-dins attested that he was stopped by the sheriffs deputy on one occasion “without cause and [was] not allowed to go about his normal activities for a time,” was “humiliated and embarrassed at that time,” and “suffered great emotional distress ... when he learned that he had been red flagged [by the sheriffs office] for something that was totally contrived.” The second form of harm Desjardins suggests he suffered in his opposition to the special motion to dismiss is an expenditure of $500 he alleges he paid an attorney after he was stopped, whom he hired to investigate the source of the reports to the sheriffs office.
[¶ 16] As a matter of law, these asserted harms do not rise to the level of “actual injury” required by section 556. In the lengthy recitation of the underlying facts comprising his complaint, Desjardins briefly mentioned that he retained counsel to investigate .the reports. His complaint never purported to seek damages for that cost, however, or to otherwise suggest that his retention of counsel constituted any aspect of the damages he was seeking in the litigation; rather, as to his defamation and false light invasion of privacy causes of action remaining before the court, Desjar-dins alleged only that Reynolds’s statements constituted defamation per se; that he suffered “humiliation, loss of reputation and severe emotional distress” and “serious emotional distress”; and that he was entitled to punitive damages for Reynolds’s actual or implied malice.
[¶ 17] Our notice pleading requirements are forgiving; the plaintiff need only give “fair notice of the cause of action by providing a short and plain statement of the claim showing that the pleader is entitled to relief.” Burns v. Architectural Doors & Windows,
[¶ 18] Although this process may appear abrupt, it provides protection for a citizen’s fundamental right to petition the government, a right that the Legislature has given priority by enacting the anti-SLAPP statute. See Bradbury,
[¶ 19] In this context, both parties must be limited in them anti-SLAPP filings to the universe of facts as actually alleged in the plaintiffs complaint.
[¶ 20] Nor did Desjardins meet his burden of establishing actual injury through his various assertions of emotional damages, although these do at least correspond with the allegations in his complaint. In Schelling, we held that “purely emotional injuries” could only constitute “actual injury” to the extent that those emotional damages were otherwise compensable pursuant to existing statutory or common law.
[¶21] Consistent with these decisions, Desjardins suffered no “actual injury” by the inconvenience of being the subject of a routine traffic stop, nor do his filings contain any evidence that the emotional distress he has suffered is “so severe that no reasonable person could be expected to endure it.” Curtis,
The entry is:
Judgment affirmed.
Notes
. Desjardins also named Donald Willard, the Town Manager, as a defendant on all counts. The claims against Willard were dismissed by the United States District Court for the District of Maine, see Desjardins v. Willard, No. 2:13-cv-00338-NT,
. Because it is so often the case, we will use "defendant” in place of "the moving party” and “plaintiff” in place of "the nonmoving party.”
. To the extent that Desjardins also points to Reynolds’s statements to nongovernmental third parties, Desjardins did not allege any such statements as the basis of any of his claims in this matter and any such facts are therefore not before us in this appeal.
. At no time did Desjardins seek to amend his complaint. See M.R. Civ. P. 15.
. Because we conclude that Desjardins's failure to conform his special motion to dismiss opposition to the allegations pleaded in his complaint prevents him from meeting his burden, we need not consider whether such self-generated damages otherwise can satisfy the “actual injury” component of an anti-SLAPP opposition. 14 M.R.S. § 556 (2016).
Dissenting Opinion
dissenting.
[¶ 22] I respectfully dissent for two reasons. First, the Court’s decision overstates the protection afforded to petitioning activity. The decision prevents what would otherwise be a meritorious case of defamation from proceeding in our courts. The Court states that Maine’s anti-SLAPP statute, 14 M.R.S. § 556 (2016), “create[s] a procedure for the prompt dismissal of lawsuits that challenge any actions that fall within that broad definition of petitioning activity.” Court’s Opinion ¶ 18 (emphasis added). This is not accurate; the statute was intended to protect petitioning activity from nonmeritoriou’s lawsuits—not from meritorious lawsuits. A person engaged in petitioning activity is not immune from a meritorious defamation action.
Eli 23] Second, we should broaden the definition of “actual injury” to include non-monetary or non-out-of-pocket- damages traditionally allowed in defamation cases.
I. MERITORIOUS CASES
[¶ 24] Our decisions have historically and consistently stated that the purpose of Maine’s anti-SLAPP statute is-to protect against meritless lawsuits filed with the purpose of discouraging participation in activities protected by the First Amendment, such as the right to petition the government. See Morse Bros., Inc. v. Webster,
[¶25] Maine’s anti-SLAPP statute, like anti-SLAPP statutes from other states, has a single objective: to force lawsuits that are brought as a result of petitioning activity to face judicial scrutiny before discovery and litigation costs are incurred by the responding party. As the Court notes in its decision,
[t]he purpose of section 556 is to provide for expedited consideration of the nature of a plaintiff’s allegations—and a minimum amount of evidence supporting the veracity of those allegations—as early in the litigation as possible, before discovery or any other motion practice. In this way, a defendant burdened by a SLAPP case can seek early disposal of the litigation, before the substantial legal fees that are the true impetus behind SLAPP litigation can accrue.
Court’s Opinion ¶ 17 (citations omitted).
[¶ 26] The Court’s announcement today that Maine’s anti-SLAPP statute bars a claim for defamation that the plaintiff
[¶ 27] If the Legislature had intended section 556 to establish such a wide-ranging immunity, the statute would simply provide that a defendant need only demonstrate that the actions cited in the complaint consisted of valid petitioning activities and that upon such demonstration the lawsuit must be dismissed. Instead, section 556 requires a showing of valid petitioning activity as the first step in the process. The second step—a showing that the defendant’s acts were “devoid of any reasonable factual support or any arguable basis in law” and “caused actual injury”—is directed to the plaintiffs complaint.
II. ACTUAL INJURY
[¶ 28] In addition to overstating the protection afforded by Maine’s anti-SLAPP statute to any action, the Court’s definition of “actual injury” is too narrow. Although our jurisprudence has limited the definition of “actual injury” to out-of-pocket damages, see Camden Nat’l Bank v. Weintraub,
We need not define ‘actual injury,’ as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.
[¶ 29] Requiring a litigant to prove out-of-pocket expenses to establish “actual injury” in a defamation case is in derogation of our common law. The enactment of a statute in derogation of common law is a profoundly significant step and we must
we have long embraced the well-established rule of statutory construction that the common law is not to be changed by doubtful implication, be overturned except by clear and unambiguous language, and that a statute in derogation of it will not effect a change thereof beyond that clearly indicated either by express terms or necessary implication.
[¶ 30] Among the authorities cited for our statement in Batchelder was Maietta Construction, Inc., which confirmed the proposition that “[generally, Legislatures are deemed to draft legislation against the backdrop of the common law, and do not displace it without directly addressing the issue.”
[¶ 31] Therefore, we must define “actual injury” as we have traditionally defined actual injury in defamation casés by not limiting the definition to out-of-pocket expenses. Because Desjardin established a prima facie case of emotional injury, which would be recoverable in a defamation claim as an “actual injury” without proof of out-of-pocket expenses, I would vacate the trial court’s grant of Reynolds’s special motion to dismiss and remand the case to Superior Court. Because I do not agree with the Court’s new evidentiary procedure, see Gaudette v. Davis,
. See Bradbury v. City of Eastport,
. See Steven J. Andre, Anti-SLAPP Confabulation and the Government Speech Doctrine, 44 Golden Gate U. L. Rev. 117, 119 (2014) ("The hallmark of a SLAPP suit is its lack of merit. Defendants prevail on the merits in over 77% of SLAPP suits. A SLAPP is brought with goals of obtaining an economic advantage over a citizen party by increasing the cost of litigation, to weaken that defendant’s ability to engage in petitioning activity undesirable to the plaintiff, and to deter future activity.” (footnotes omitted) (quotation marks omitted)); John C. Barker, Common-Law and Statutory Solutions to the Problem of SLAPPS, 26 Loy. L.A. L. Rev. 395, 399 (1993) ("SLAPPs are by definition meritless suits.”); Leah McGowan Kelly, Election SLAPPS: Effective at Suppressing Political Participation and Giving Anti-SLAPP Statutes the Slip, 66 Me. L. Rev. 191, 192 (2013).
. I agree with the Court that “Reynolds has not challenged the Superior Court’s conclusion that Desjardins met his prima facie burden of establishing that at least one of Desjar-dins’s statements to the sheriff was devoid of any factual or legal support.” Court's Opinion ¶ 11. My disagreement with the Court’s decision is limited to the scope of the anti-SLAPP statute and the meaning of "actual injury” as that term of art is used in it.
. We have in the past recognized that the limited legislative history of section 556 constrains our interpretation of the statute. See Town of Madawaska v. Cayer,