Steinmetz, et al v. Coyle & Caron, Inc., et al

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; Bruce M. Selya, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Published. [16-1996]

Case: 16-1996

Document: 00117172392

Page: 1

Date Filed: 06/29/2017

Entry ID: 6102781

United States Court of Appeals
For the First Circuit
No. 16-1996
JOHN W. STEINMETZ; JANE C. STEINMETZ,
Plaintiffs, Appellants,
v.
COYLE & CARON, INC.,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]

Before
Lynch, Selya, and Kayatta,
Circuit Judges.

John W. Steinmetz for appellants.
Evan Fray-Witzer, with whom Ciampa Fray-Witzer, LLP was on
brief, for appellee.
Richard J. Yurko, Sanford F. Remz, Noemi Kawamoto, Yurko,
Salvesen & Remz, P.C., and Sarah Wunsch on brief for the American
Civil Liberties Union of Massachusetts, amicus curiae.
Christopher T. Bavitz, Cyberlaw Clinic, Harvard Law School,
Bruce Brown, Gregg P. Leslie, and D. Victoria Baranetsky on brief
for the Reporters Committee for Freedom of the Press, The
Associated Press, Gannett Co., Inc., New England First Amendment
Coalition, and New England Newspaper and Press Association, Inc.,
amici curiae.

Case: 16-1996

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June 29, 2017

Entry ID: 6102781

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LYNCH, Circuit Judge.
home

in

Cohasset,

Massachusetts

Date Filed: 06/29/2017

Entry ID: 6102781

Prevented from building a new
by

the

Cohasset

Conservation

Commission, plaintiffs John W. Steinmetz and Jane C. Steinmetz
brought this lawsuit alleging state law claims of negligence, gross
negligence,
consumer

defamation,

protection

and

statute,

violation
Mass.

of

Gen.

the

Laws

Massachusetts

ch.

93A.

The

defendant is Coyle & Caron, Inc., a Florida landscape design firm
that was hired by the attorney representing the James Island
Preservation Group, a neighborhood association formed to oppose
the construction of the Steinmetzes' proposed home.

In this

federal case, the Steinmetzes chose to sue the contractor hired to
assist in the Group's opposition by producing and presenting
renderings of the proposed home to the Conservation Commission.
Before the district court, Coyle & Caron moved to dismiss
the lawsuit pursuant to the Massachusetts Strategic Litigation
Against Public Participation statute ("anti-SLAPP statute"), which
allows a defendant to move to dismiss any claim that arises from
its exercise of its right of petition.
§ 59H.

Mass. Gen. Laws ch. 231,

Coyle & Caron also moved to dismiss under Rule 12(b)(6) of

the Federal Rules of Civil Procedure.
The district court ruled in Coyle & Caron's favor on all
counts, granting its special motion to dismiss under the antiSLAPP

statute

and

Rule 12(b)(6) motion.

also

granting,

in

the

alternative,

its

See Steinmetz v. Coyle & Caron, Inc., No.

- 3 -

Case: 16-1996

Document: 00117172392

15-cv-13594-DJC,

2016

WL

Page: 4

4074135

Date Filed: 06/29/2017

(D.

Mass.

July

Entry ID: 6102781

29,

2016).

Regarding the special motion to dismiss, the district court held
that the state anti-SLAPP statute applied in federal court, id. at
*3–4, that the statute did not violate the Seventh Amendment of
the U.S. Constitution, id. at *6, and that the statute applied to
this case, id. at *4–5.

It ruled as such over the Steinmetzes'

objection that Coyle & Caron -- as a "disinterested paid witness"
hired to assist another in petitioning the government, and not a
citizen exercising his or her own right of petition -- should not
receive the protection of the anti-SLAPP statute.

Id. at *4.

After confirming the constitutionality and applicability
of the statute, the district court next found that Coyle & Caron,
as the party seeking the protection of the anti-SLAPP statute, had
made its threshold showing that the Steinmetzes' claims were based
exclusively on Coyle & Caron's petitioning activities.
7.

Id. at *6–

At that point, the court ruled, in reliance on then-existing

state law, that the burden shifted to the Steinmetzes to show that
Coyle & Caron's petitioning activity "was devoid of any reasonable
factual support or any arguable basis in law and [that Coyle &
Caron's] actions caused actual injury."

Id. at *6.

The district

court held that the Steinmetzes had failed to meet this burden and
thus could not defeat Coyle & Caron's special motion to dismiss.
Specifically, it found that the renderings, which were developed
to petition the Conservation Commission, had "reasonable factual

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Entry ID: 6102781

support," as they were "the product of well-trained professionals
who examined multiple sources," including architectural plans and
photos of James Island.

Id. at *8.

The mere fact that the

Steinmetzes' own architect found inaccurate certain aspects of the
renderings did not establish that "no reasonable person would
conclude that there was a [factual] basis" for the renderings.
Id.
Further, the district court found that the renderings
did not cause actual injury to the Steinmetzes, as the Conservation
Commission had explained in its Memorandum of Decision that it did
not approve the proposed construction project because the home's
driveway "would adversely affect adjacent salt marsh wetlands and
Plaintiffs failed to demonstrate their entitlement to a variance."
Id. at *9.

The Memorandum did not refer to Coyle & Caron's

renderings.

In fact, as the district court noted, two of the

Commission members who voted against the proposal publicly stated
that "they were not considering Coyle & Caron's [r]enderings in
reaching their decision."
Finally,

the

Id.
district

court

held

that,

under

Rule 12(b)(6), Coyle & Caron was also entitled to dismissal of
each of the Steinmetzes' claims.

Id. at *9-11.

It dismissed the

negligence and gross negligence claims because Coyle & Caron owed
no duty to the Steinmetzes, id. at *9, the defamation claim because
Coyle & Caron's renderings constituted opinion and not fact, id.

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at *10, and the chapter 93A claim because the Steinmetzes lacked
any business or commercial relationship with Coyle & Caron, id. at
*11.
The Steinmetzes appeal, restating their arguments that
the anti-SLAPP statute is unconstitutional, that it does not apply
to this case, and that the district court erred by granting Coyle
& Caron's special motion, even assuming the statute applies.

The

Steinmetzes also challenge the dismissal of their claims under
Rule 12(b)(6).
After the parties completed their briefing and presented
oral argument before us, Massachusetts law on the anti-SLAPP
statute dramatically shifted.

On May 23, 2017, the Supreme

Judicial Court of Massachusetts ("SJC") issued two decisions on
that statute.

See Blanchard v. Steward Carney Hosp., Inc., 75

N.E.3d 21 (Mass. 2017); 477 Harrison Ave., LLC v. Jace Bos., LLC,
74 N.E.3d 1237 (Mass. 2017).

The SJC's decision in Blanchard, in

particular, augmented the previous burden-shifting framework such
that the nonmoving party could survive a special motion to dismiss
also by establishing that its claims were not "primarily brought
to chill the special movant's legitimate petitioning activities."
75 N.E.3d at 38–39.

To understand how the recent Blanchard and

477 Harrison Ave. decisions impact this case, we requested and
received supplemental briefing from both parties.

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We affirm today the district court's determinations that
Coyle & Caron's renderings constitute petitioning activity within
the meaning of the statute if the statute applies to Coyle & Caron
as a third-party contractor, and that the Steinmetzes failed to
show that the renderings lacked any reasonable factual basis.

We

further hold that the Steinmetzes' negligence, gross negligence,
and chapter 93A claims are not colorable under the augmented antiSLAPP framework.

We cannot do the same for the defamation claim,

as that claim arguably offers some reasonable possibility of a
decision in the Steinmetzes' favor.

However, in order to dismiss

any of the Steinmetzes' claims under Coyle & Caron's special
motion, we face the threshold issue of whether Coyle & Caron, as
a third-party contractor hired to assist with the Preservation
Group's petitioning activity, can even avail itself of the special
motion.

As there is no controlling precedent from the SJC on this

determinative question of state law, we certify it for resolution
by that court.
I.
The Steinmetzes own approximately 6.68 acres of land at
1 James Island Way, Cohasset, Massachusetts.

This land, on which

the Steinmetzes planned to build a single-family dwelling, is part
of James Island, a peninsula surrounded by Inner Little Harbor.
After securing a sewer permit for this proposed construction from
the Town of Cohasset, the Steinmetzes submitted a Notice of Intent

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Case: 16-1996

Document: 00117172392

application

to

the

Page: 8

Cohasset

Date Filed: 06/29/2017

Conservation

Entry ID: 6102781

Commission.

The

Steinmetzes hired a local architectural firm co-headed by Can
Tiryaki to design the home.
Certain

residents

of

the

Inner

Little

Harbor

area

opposed the construction of the Steinmetzes' home on James Island
and formed the James Island Preservation Group to voice that
opposition.

The Steinmetzes allege that the Preservation Group

opposed the construction out of fear that the scenic views from
the members' homes "might change[,] as there would now be a house
on the previously undeveloped James Island."

The Preservation

Group's attorney hired Coyle & Caron to prepare renderings of the
Steinmetzes' proposed home for submission to the Conservation
Commission.

Sally Coyle, President of Coyle & Caron, and Yuka

Suganuma (a landscape architect who worked with Coyle & Caron)
participated in creating the renderings.
The

Steinmetzes

allege

that

these

renderings

"false, fraudulent[,] and defamatory" in five ways.

were

First, the

renderings used an "incorrect view location," which resulted in an
inaccurate three-dimensional depiction of the house.

Second, they

used "multiple horizon lines and [an] incorrect perspective,"
which resulted in "the house appearing significantly higher in the
view frame than where it will actually be."

Third, they portrayed

an "incorrect house orientation," which made the house -- and
especially the eastern wing of the house -- appear more visible

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than it actually would be.

Date Filed: 06/29/2017

Entry ID: 6102781

Fourth, the renderings "represent[ed]

a two-dimensional elevation drawing . . . that was stretched and
distorted to make it appear three-dimensional," which made it
impossible to "represent the actual massing of the house."

Fifth,

they represented an "incorrect . . . size and scale of the house"
given the four issues noted above, as well as the inaccurate
"location of the proposed house on the site." In addition to these
five defects, the Steinmetzes point out that their proposed home
"will be surrounded on all sides by a 50 foot buffer of trees,"
many of which are taller than the proposed house and "will largely
hide it from view by others."

Disregarding this design, the

Steinmetzes

depicted

say,

the

renderings

a

"hideous

behemoth

looming over the tree line of the island" (quoting Amanda Thompson,
Conservation Commission Says "No" to Large Cohasset Home, Patriot
Ledger

(Sept.

12,

2015),

http://www.patriotledger.com/article

/20150912/news/150919497).
On September 3, 2015, Sally Coyle of Coyle & Caron
appeared

before

renderings.

the

Conservation

Commission

to

present

the

In addition, at least one of Coyle & Caron's earlier

draft renderings had been posted on a Facebook page created by the
Preservation
throughout

Group.

Cohasset

The
and

Facebook

rendering

Massachusetts"

in

was

order

negative emotions," according to the Steinmetzes.

"circulated
to

"inflame

With regard to

this Facebook publication and distribution, Sally Coyle stated in

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her affidavit that the first draft of the renderings was not
circulated beyond a "small client (and consultant) group" and that
she did not intend for the draft to be circulated more widely.

As

a result of the publication, the Steinmetzes allege that they "were
personally attac[k]ed and ridiculed on Facebook."
The Conservation Commission ultimately voted to deny the
Steinmetzes' construction project by a vote of four to two,
articulating as its reason that the proposed work would harm
adjacent salt-marsh wetlands.

Nonetheless, the Steinmetzes allege

that Coyle & Caron's renderings "had a dramatic impact on the
Conservation Commission proceedings" by "br[inging] out the masses
to the Conservation hearing in opposition to Plaintiffs' Project
based upon the unfounded and irrational fear they created, and
wrongfully influenc[ing] and bias[ing] four of the Conservation
Commission members against Plaintiffs' Project."
On October 19, 2015, the Steinmetzes filed a complaint
against Coyle & Caron in the U.S. District Court for the District
of Massachusetts, asserting the claims already described.1

1

The Steinmetzes also initiated three other lawsuits. One of
them was Steinmetz v. Creighton, No. 15-cv-13789-DJC, in the U.S.
District Court for the District of Massachusetts against the
members of the Cohasset Conservation Commission.
On March 17,
2016, the parties stipulated to the dismissal of that lawsuit
without prejudice.
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II.
The Massachusetts anti-SLAPP statute provides that "[i]n
any case in which a party asserts that the [claims] against said
party are based on said party's exercise of its right of petition
under the constitution of the United States or of the commonwealth,
said party may bring a special motion to dismiss."
Laws ch. 231, § 59H.

Mass. Gen.

It goes on to state that the special motion

shall be granted "unless the party against whom such special motion
is made shows that: (1) the moving party's exercise of its right
to petition was devoid of any reasonable factual support or any
arguable basis in law and (2) the moving party's acts caused actual
injury

to

the

responding

party."

Id.

The

statute

further

instructs that, in assessing whether to grant the special motion,
"the court shall consider the pleadings and supporting and opposing
affidavits stating the facts upon which the liability or defense
is based."

Id.
In Baker v. Parsons, 750 N.E.2d 953 (Mass. 2001), the

SJC specified the evidentiary standard required to defeat the
special motion to dismiss.

Once the party invoking the motion

makes its threshold showing that "the claims against [it] were
based on petitioning activities and had no substantial basis other
than or in addition to those activities," id. at 960, the burden
shifts to the nonmoving party "to show by a preponderance of the
evidence that the moving party lacked any reasonable factual

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support or any arguable basis in law for its petitioning activity,"
id. at 961.

This was the framework under which the district court

granted Coyle & Caron's special motion.

See Steinmetz, 2016 WL

4074135, at *6–8.
However, the SJC recently "augmented" this framework in
Blanchard.
that

after

See 75 N.E.3d at 38–39.
the

special

movant

There, the SJC established
has

met

its

burden

of

"demonstrat[ing] that the nonmoving party's claims are solely
based on its own petitioning activities," the nonmoving party can
now survive the special motion not only by "demonstrating that the
special movant's petitioning activities upon which the challenged
claim is based lack a reasonable basis in fact or law, . . . and
that the petitioning activities at issue caused it injury," but
also by "demonstrating that each such claim was not primarily
brought

to

activities."

chill

the

special

Id. at 38.

movant's

legitimate

petitioning

Blanchard further provided that to make

this latter showing, it is "necessary but not sufficient" for the
nonmoving party to show that its "claim at issue is 'colorable
or . . . worthy of being presented to and considered by the court,'
i.e., [that] it 'offers some reasonable possibility' of a decision
in the party's favor."

Id. at 39 (first alteration in original)

(first quoting L.B. v. Chief Justice of Prob. & Family Court Dep't,
49 N.E.3d 230, 238 (Mass. 2016); then quoting Commonwealth v.
Levin, 388 N.E.2d 1207, 1209 (Mass. App. Ct. 1979)).

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As
Blanchard,

we

Page: 13

understand

then,

the

Date Filed: 06/29/2017

Massachusetts

filing

of

an

law

in

anti-SLAPP

Entry ID: 6102781

the

wake

special

of

motion

triggers the following sequential inquiry:
First, we ask whether the special movant has made the
threshold

showing

that

the

claims

against

it

are

"based

on

petitioning activities and had no substantial basis other than or
in addition to those activities."

Baker, 750 N.E.2d at 960.

If

the answer to this question is no, then the special motion fails.
Second, we ask whether the nonmoving party can "show by
a preponderance of the evidence that the moving party lacked any
reasonable factual support or any arguable basis in law for its
petitioning

activity,"

id.

at

961,

and

that

the

petitioning

activity caused the nonmoving party "actual injury," Mass. Gen.
Laws ch. 231, § 59H.

If the nonmoving party is able to make both

of these showings, then the special motion must be denied.
Third, we ask whether the nonmoving party has shown that
its

own

claim

--

the

one

being

challenged

by

the

special

motion -- is itself "colorable or . . . worthy of being presented
to and considered by the court, i.e., [that] it 'offers some
reasonable possibility' of a decision in the [nonmoving] party's
favor."

Blanchard, 75 N.E.3d at 39 (first alteration in original)

(citation

omitted).

If

the

nonmoving

party's

colorable, then the special motion must be granted.

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claim

is

not

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Fourth, and finally, we ask whether the nonmoving party
has "demonstrat[ed] that each [challenged] claim was not primarily
brought

to

activities."

chill

the

special

Id. at 38.

movant's

legitimate

petitioning

If the answer to this question is yes,

then the special motion fails.

If the answer to this question is

no, then the special motion succeeds.
While these questions present an array of interpretive
and

constitutional

issues,

the

Steinmetzes'

initial

and

supplemental briefs limit their challenge, essentially, to the
following: First, the Steinmetzes contend that Coyle & Caron fails
at step one of the foregoing sequential inquiry because their
claims were not based solely on any legitimate petitioning activity
within the meaning of the statute.

Second, they argue that step

two of the special-motion inquiry as applied by the district court
violated their rights under the Seventh Amendment to the United
States Constitution because the district court decided disputed
issues of material fact.

Third, they claim that, in any event,

they succeeded in showing that Coyle & Caron lacked any reasonable
basis in fact or law for its petitioning activity, which, in turn,
caused actual injury to the Steinmetzes.

And finally, they argue

that their claims against Coyle & Caron were each colorable claims
not brought to chill any legitimate petitioning activity.
In considering these arguments, we review de novo the
district court's determinations under the pre-Blanchard anti-SLAPP

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framework, as they each present questions of law.
Schencks, 629 F.3d 79, 85 (1st Cir. 2010).

Entry ID: 6102781

See Godin v.

We opt to determine in

the first instance the colorability of the Steinmetzes' claims
under

the

post-Blanchard

framework

because

that

inquiry

also

presents questions of law, and the record, together with the
initial and supplemental briefing on appeal, is sufficient for us
to decide those questions without remand to the district court.
Cf. P.R. Tel. Co. v. T-Mobile P.R. LLC, 678 F.3d 49, 57 (1st Cir.
2012).
We conclude that if the anti-SLAPP statute applies to
third-party contractors like Coyle & Caron, then Coyle & Caron has
met its burden of showing that the Steinmetzes' claims were based
solely on legitimate petitioning activities, and the Steinmetzes
have failed to show that those activities lacked any reasonable
factual basis.
forth

in

We also find, under the augmented framework set

Blanchard,

that

the

Steinmetzes'

negligence,

gross

negligence, and chapter 93A claims so lacked any likelihood of
success as to be frivolous and, therefore, that there is no need
to assess further the Steinmetzes' primary intent in bringing those
claims.

However,

we

decline

Steinmetzes' defamation claim.

to

find

the

same

as

to

the

Finally, given our uncertainty

that the anti-SLAPP statute applies to third-party contractors
like Coyle & Caron in the first place, we certify that question to
the SJC.

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Claims Based Solely on Legitimate Petitioning Activity
Coyle & Caron's renderings seem to fall squarely within

at least two of the five statutory definitions of a statement that
constitutes an "exercise of its right of petition."

The first of

those definitions is: "any written or oral statement made before
or submitted to a legislative, executive, or judicial body, or any
other governmental proceeding."

Mass. Gen. Laws ch. 231, § 59H.

The second is: "any written or oral statement made in connection
with an issue under consideration or review by a legislative,
executive,

or

judicial

proceeding."
renderings
Facebook

Id.
--

--

consideration

body,
Here,

or

any

Coyle

&

including

in
of

the

rendering

connection

with

the

the

Steinmetzes'

other
Caron
that

Conservation

application.

governmental
prepared
appeared

its
on

Commission's
The

company

eventually submitted its renderings directly to the Conservation
Commission, and Sally Coyle appeared at a hearing before that body
in order to present the renderings in support of the Preservation
Group's petitioning.

And as the record presents no other basis

for the Steinmetzes' claims, it seems clear at first glance that
Coyle & Caron has made its threshold showing that the claims were
based solely on its petitioning activity.
The text of the anti-SLAPP statute, however, also limits
its scope to a party who asserts that it faces legal action based
on its "exercise of its right of petition under the constitution

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of the United States or of the commonwealth."

Id.

Entry ID: 6102781

While the

Appeals Court of Massachusetts has interpreted this language to
encompass certain third parties assisting in petitioning activity,
see, e.g., Plante v. Wylie, 824 N.E.2d 461 (Mass. App. Ct. 2005),
the SJC has warned several times, albeit in dicta, that the statute
encompasses

only

parties

who

"petition

their

government

as

citizens, not as vendors of services," Kobrin v. Gastfriend, 821
N.E.2d 60, 64 n.8 (Mass. 2005).
Plante involved two developers who had failed to win a
town planning board's approval for their proposed subdivision
expansion and brought suit against the attorney for a conservation
trust that had opposed the expansion.

824 N.E.2d at 462–64.

The

attorney moved to dismiss all claims under the anti-SLAPP statute,
and the Appeals Court reversed the denial of the motion, holding
that the attorney could "avail himself of the anti-SLAPP statute
when the statements that form the basis of the [developers'] claims
were made by him as an attorney on behalf of the conservation
trust."

Id. at 465.
The Plante court articulated why the anti-SLAPP statute

should protect the attorney for petitioning citizens, in addition
to the citizens themselves:
[T]he statute would provide but hollow
protection for citizens who wish to exercise
their right of petition if statements made by
an attorney on their behalf were not covered
by the anti-SLAPP statute to the same extent

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as statements made by them directly. . . .
[S]uits directed against the attorneys who
represent petitioning parties are just as
likely to exert a chilling effect on
petitioning activity as suits directed against
the parties themselves, and the costs to
attorneys and their clients if such suits
cannot promptly be dismissed are just as
likely to impede the clients' right to
petition . . . .
Id. at 466.
In other cases, the Appeals Court extended the antiSLAPP

statute's

protection

to

employees

employers' petitioning activities.

assisting

in

their

See Keegan v. Pellerin, 920

N.E.2d 888, 893 (Mass. App. Ct. 2010) (holding that a security
officer of a condominium complex "remains entitled to the [antiSLAPP] statute's protection because we have held that when a
nongovernmental person or entity is the petitioner, the statute
protects one who is engaged to assist in the petitioning activity
under circumstances similar to those this record reveals"); see
also Blanchard v. Steward Carney Hosp., Inc., 46 N.E.3d 79, 85
(Mass. App. Ct. 2016) (holding that the president of a hospital,
although "not personally aggrieved by [governmental] agencies'
actions and . . . not petitioning them on his own behalf," could
nonetheless bring a special motion to dismiss under the anti-SLAPP
statute), vacated in part on other grounds, 75 N.E.3d 21.
But casting doubt upon these Appeals Court decisions are
repeated statements from the SJC that only those who petition the

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government in their status as citizens may avail themselves of the
anti-SLAPP statute's special motion provision.

In Kobrin, the SJC

interpreted the statutory phrase "based on said party's exercise
of its right of petition under the constitution" as "restricting
the

statute's

coverage

to

those

government on their own behalf.
designed

to

protect

overtures

defendants

who

petition

the

In other words, the statute is
to

the

government

by

parties

petitioning in their status as citizens." 821 N.E.2d at 64. Under
this interpretation, the SJC in Kobrin found that the anti-SLAPP
statute was inapplicable to a psychiatrist who was hired by the
government to serve as an expert investigator and witness.

See

id. (noting that the anti-SLAPP statute does not "apply to those
performing services for the government as contractors").
While the Appeals Court has subsequently sought to limit
Kobrin to circumstances in which the government seeks to petition
itself, see Keegan, 920 N.E.2d at 893, the SJC recently clarified
that Kobrin should not necessarily be so confined.

In Cardno

ChemRisk, LLC v. Foytlin, 68 N.E.3d 1180 (Mass. 2017), the SJC
suggested that Kobrin could be read more expansively to deny the
anti-SLAPP statute's protection to those who do not "petition their
government as citizens," but merely as "vendors of services,"
Kobrin, 821 N.E.2d at 64 n.8.

See Cardno, 68 N.E.3d at 1189.

"[E]nter[ing] into a 'mere[ly] contractual' relationship to vend
[one's] skills and knowledge" may be insufficient to fall within

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the scope of the anti-SLAPP statute.

Entry ID: 6102781

Id. at 1189–90 (third

alteration in original).
As recently as in Blanchard, the SJC reiterated that
"[t]he statute . . . requires a special movant to demonstrate that
it was exercising 'its own right of petition' in both the statutory
and the constitutional sense."

75 N.E.3d at 29 n.12 (citing

Cardno, 68 N.E.3d at 1188–90, and Mass. Gen. Laws ch. 231, § 59H).
Although the SJC has not elaborated on this point, we cannot ignore
the frequency with which the SJC has commented on the requirement
that a party must have exercised "its own right of petition" in
order to invoke the protection of the anti-SLAPP statute.

In

short, the SJC's commentary in Kobrin, Cardno, and Blanchard,
juxtaposed with Appeals Court rulings in cases like Plante and
Keegan, renders the state law insufficiently clear for us to rule
definitively on the applicability of the anti-SLAPP statute to
Coyle & Caron.2
Thus, although we would otherwise conclude that Coyle &
Caron has met its burden of showing that the Steinmetzes' claims
are

based

solely

on

Coyle

&

Caron's

legitimate

petitioning

activity, we cannot do so without further guidance regarding the

2

The record indicates that Coyle & Caron's counsel has
emphasized his client's status as a third-party vendor of services
in an interview with the Boston Globe: "[M]y clients have no dog
in this fight.
They were not trying to advance or deter the
Steinmetzes. They were simply asked to do a job, which they did
to the best of their abilities."
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Entry ID: 6102781

applicability of the anti-SLAPP statute to Coyle & Caron.

As a

prelude to seeking that guidance, we examine the other steps called
for by the special-motion inquiry to explain why the guidance we
seek will make a difference.
B.

Reasonable Basis in Fact or Law and Actual Injury
To meet their burden of showing that the renderings

lacked any factual basis, the Steinmetzes rely primarily on an
affidavit from their own architect, Can Tiryaki.

That affidavit

repeatedly states that the Coyle & Caron renderings are "highly
inaccurate" and, at one point, that the renderings "have no basis
in

fact

(iv)

as

to

visibility;

Tiryaki's

the
(v)

affidavit

(i)

location;

massing;
makes

no

or

(ii)
(vi)

response

size;
scale
to

(iii)
of

Coyle

height;

the

house."

&

Caron's

contentions that it did not receive all of the materials that it
had requested from the Steinmetzes to prepare the renderings and
that the renderings are subject to that limitation.
Even under the prima facie evidentiary standard that the
Steinmetzes concede is constitutionally permissible, the first
statement

that

the

renderings

are

"highly

inaccurate"

is

insufficient to meet the high burden of showing that "no reasonable
person could conclude" that there was factual support behind the
renderings.

Baker, 750 N.E.2d at 962 n.20 (affirming this "no

reasonable person" formulation as "a correct statement of the
law").

The same is true as to the second assertion that, in six

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respects, the renderings had "no basis in fact."

Entry ID: 6102781

The renderings,

on their face, plainly had some factual basis, insofar as they
depict a house on the Steinmetzes' James Island property; were
prepared, at least in great part, on the basis of two-dimensional
design plans provided by the Steinmetzes; and were delivered with
an express caveat that they were not completely accurate and were
based on the available source materials.

In short, then, neither

we nor the district court need decide any disputed issues of
material fact to find that the Steinmetzes failed to make even a
prima facie showing that no reasonable person could conclude that
the renderings lacked any factual basis.
As a last resort, the Steinmetzes complain that the
district court "improperly ignored" the affidavit of Christopher
MacFarlane, who attested that Yuka Suganuma had told him, inter
alia, that the renderings that she had helped prepare for Coyle &
Caron were "inaccurate . . . given the limited information she
had."

Even if Suganuma had made such statements to MacFarlane,

the statements simply acknowledge the limitations in information
already disclosed. It is of no import, on this step of the specialmotion inquiry, that the district court did not comment on the
MacFarlane affidavit.
The Steinmetzes therefore have failed to advance any
arguments that might lead a reasonable person to conclude that the

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renderings had no factual basis at all.3

Entry ID: 6102781

Simply put, accurate or

not, the renderings do not constitute sham petitioning activity.
Cf. generally United Mine Workers of Am. v. Pennington, 381 U.S.
657 (1965); E. R.R. Presidents Conference v. Noerr Motor Freight,
Inc., 365 U.S. 127 (1961).

Because the foregoing provides an

independently sufficient basis to move us to the next step of the
special-motion inquiry, Steinmetz, 2016 WL 4074135, at *8 n.3, we
do not reach the issue of whether Coyle & Caron's actions caused
actual injury to the Steinmetzes.
C.

Primary Intent of Nonmovants' Claims
Again, "[a] necessary but not sufficient factor" in

determining
primarily

whether
brought

the
to

nonmoving

chill

the

party's
special

claims
movant's

were

"not

legitimate

petitioning activities" is whether those claims are "colorable
or . . . worthy of being presented to and considered by the court."
Blanchard,

75

N.E.3d

(citation omitted).

at

38–39

(last

alteration

in

original)

We need not tarry long on this question, for

the negligence, gross negligence, and chapter 93A claims so lack

3

In reaching this conclusion, we reject the Steinmetzes'
contention that the SJC's decision in 477 Harrison Ave. requires
us to examine each aspect of the individual renderings for a
reasonable factual basis. That decision merely distinguished one
"instance[]" of petitioning activity from another, and does not
suggest that courts should further separate each instance of
petitioning activity into individual elements. 477 Harrison Ave.,
74 N.E.3d at 1248.
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a "likelihood of success" as to be "frivolous."

Entry ID: 6102781

Levin, 388 N.E.2d

at 1209.
1.

Negligence and Gross Negligence

The Steinmetzes' negligence and gross negligence claims
essentially encompass two different arguments.

First, they argue

that Coyle & Caron was negligent in creating the renderings at
issue.

Second, they argue that Coyle & Caron was negligent in

allowing one of the draft renderings to be published on Facebook.
Both of these arguments fail.
The first argument regarding the allegedly negligent
creation of the renderings fails for the reason that the district
court stated in alternatively dismissing the claim under Rule
12(b)(6)4: Coyle & Caron owed no professional duty of care to the
Steinmetzes because the Steinmetzes did not rely on its services.
See Steinmetz, 2016 WL 4074135, at *9.

Under Massachusetts law,

"a

a

professional

noncontractual

.

.

third

.

does

party]

not

owe

unless

it

duty
was

of

care

to

foreseeable

[a
and

reasonable for [the third party] to rely on the services provided
.

.

.

by

the

professional,

and

the

professional

had

actual

knowledge that [the third party] was relying on the professional's

4

In doing so, we neither affirm nor reverse now the district
court's alternative rulings under Rule 12(b)(6). Nor do we pass
judgment on the nature of the Rule 12(b)(6) inquiry relative to
the present inquiry into colorability as described in Blanchard,
75 N.E.3d at 39.
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services."

Page: 25

Date Filed: 06/29/2017

Entry ID: 6102781

Meridian at Windchime, Inc. v. Earth Tech, Inc., 960

N.E.2d 344, 350 (Mass. App. Ct. 2012) (citing Craig v. Everett M.
Brooks Co., 222 N.E.2d 752 (Mass. 1967)).
Here, the Steinmetzes did not allege that they relied on
Coyle

&

Caron's

renderings,

let

alone

allege

that

it

was

foreseeable and reasonable for them to do so, or that Coyle & Caron
had actual knowledge of any such reliance.

In fact, the record

makes clear that the Steinmetzes did precisely the opposite of
relying on the renderings.

The Steinmetzes vigorously disputed

the accuracy of the renderings and declared that it would "simply
make[] no sense" for them to rely on them.

We find, therefore,

that the Steinmetzes' claim that Coyle & Caron acted negligently
in creating the renderings at issue cannot succeed as a matter of
law.
The Steinmetzes' second argument -- that Coyle & Caron
was negligent in allowing one of its draft renderings to be posted
on Facebook -- also fails.

Although the Steinmetzes insist that

Coyle & Caron "had a duty to the Steinmetzes to not allow its
completely unfounded [r]endering of the Steinmetzes' house to be
published on Facebook," they have not cited a single case to
support their assertion that Coyle & Caron would owe such a duty.
Our own survey of Massachusetts negligence law has likewise yielded
no sources that articulate such a duty.

In the circumstances of

this case, Coyle & Caron owed the Steinmetzes no duty to ensure

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Entry ID: 6102781

that its draft rendering would not end up on Facebook.

Any

negligence claim predicated on such a duty lacks any reasonable
chance of success.
2.

Chapter 93A

In

response

to

the

district

court's

Rule

12(b)(6)

dismissal of their chapter 93A claim on the ground that they failed
to allege any business or commercial relationship to Coyle & Caron,
Steinmetz, 2016 WL 4074135, at *11, the Steinmetzes argue that
this reasoning was in error because they say they brought their
claims under section 9, not section 11, of chapter 93A, and there
is no requirement of privity between the parties for a section 9
suit.
The Steinmetzes are correct that contractual privity is
not required to sustain a chapter 93A claim brought under section
9.

See, e.g., Maillet v. ATF-Davidson Co., 552 N.E.2d 95, 99

(Mass.

1990).

Nonetheless,

some

business,

commercial,

or

transactional relationship is required even for a claim brought
under section 9.

See, e.g., Swenson v. Yellow Transp., Inc., 317

F. Supp. 2d 51, 56–57 (D. Mass. 2004) (rejecting suit brought under
section 9 because "[i]t is well-established that 'the proscription
in § 2 of "unfair or deceptive acts or practices . . ." must be
read to apply to those acts or practices which are perpetrated in
a business context'" and, in that case, "there was no relationship
between the plaintiffs and the defendants at all prior to the

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Case: 16-1996

Document: 00117172392

accident"

at

issue

Page: 27

(citation

Date Filed: 06/29/2017

omitted)).

Absent

Entry ID: 6102781

any

such

relationship, the Steinmetzes' chapter 93A claim is frivolous.
3.

Defamation

In addition to the three claims discussed above, the
Steinmetzes brought a defamation claim, alleging that the "false"
and "fraudulent" renderings "have caused, are causing, and will
cause" them reputational injury.

They further allege that the

creation and publication of the renderings were "calculated to,
and do, expose Plaintiffs to public scorn, hatred, and ridicule."
Unlike with the claims of negligence, gross negligence,
and chapter 93A violation, we cannot conclude that the defamation
claim offers no reasonable possibility of a decision in the
Steinmetzes' favor.

While we have found that the renderings had

some factual basis, the complaint adequately alleges facts that,
if believed, could lead a reasonable person to conclude that the
renderings

were

nevertheless

also

based

on

erroneous

extrapolations from their factual basis, resulting in depictions
that contain material errors in excess of the margin of possible
error claimed. The assertions set forth in MacFarlane's affidavit,
in turn, arguably suggest Coyle & Caron's knowledge of at least
some of those errors.

Further, we decline to find on the present

record, as the district court did in assessing the pleadings under
Rule 12(b)(6), that the renderings constitute pure opinion beyond

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the scope of a defamation claim.

Date Filed: 06/29/2017

Entry ID: 6102781

While the issue is close, we

cannot say that the defamation claim is not colorable.
This

finding

leaves

(in

addition

to

the

certified

question we discuss further below) the question of the Steinmetzes'
intent in bringing this claim.

Answering that question requires

a "totality of the circumstances" inquiry that is better suited
for resolution in the first instance by the district court.
Blanchard, 75 N.E.3d at 39.

See

We therefore decline to answer that

question at this time.
D.

Certification of Applicability of Anti-SLAPP Statute
SJC

Rule

1:03

allows

us

to

certify

to

that

court

"questions of law of [Massachusetts] which may be determinative of
the cause then pending in the certifying court and as to which it
appears to the certifying court there is no controlling precedent
in the decisions of this court."

SJC R. 1:03.5

This case meets

the requirements for certification.
1.

Determinative Question of State Law

The questions of state law raised by Coyle & Caron's
special motion under the anti-SLAPP statute are determinative.
Under Massachusetts law, as the first step in assessing whether

5

"Although neither party requested certification, 'we have the
discretion to certify questions to the SJC sua sponte.'" Phillips
v. Equity Residential Mgmt., L.L.C., 844 F.3d 1, 4 n.7 (1st Cir.
2016) (quoting Easthampton Sav. Bank v. City of Springfield, 736
F.3d 46, 50 n.4 (1st Cir. 2013)).
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the district court properly granted the special motion, we must
consider whether the anti-SLAPP statute even applies in this case,
where the moving party is not the petitioner itself but a thirdparty

contractor

hired

by

counsel

to

assist

in

petitioning

activity.
If the SJC concludes that third-party contractors in
like position to Coyle & Caron fall within the scope of the antiSLAPP statute, then Coyle & Caron's special motion must be granted
as to the negligence, gross negligence, and chapter 93A claims,
for the reasons stated above.
precise

question

that

we

This threshold inquiry is the

certify

for

the

SJC's

resolution,

recognizing that the question presents subparts.
2.

No Controlling Precedent and Unclear Law

"[E]ven
certification

in

would

the
be

absence

of

inappropriate

controlling
where

precedent,

state

sufficiently clear to allow us to predict its course."

law

is

Ropes &

Gray LLP v. Jalbert (In re Engage, Inc.), 544 F.3d 50, 53 (1st
Cir. 2008); see also Phillips v. Equity Residential Mgmt., L.L.C.,
844 F.3d 1, 5 (1st Cir. 2016).

As earlier discussed, however, the

question of whether Coyle & Caron may invoke the protection of the
anti-SLAPP statute presents "a close and difficult legal issue"
and, in addition, has policy implications that reach beyond the
specific case at hand.

In re Engage, Inc., 544 F.3d at 53; accord

Showtime Entm't, LLC v. Town of Mendon, 769 F.3d 61, 82 (1st Cir.

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2014).

Page: 30

Date Filed: 06/29/2017

Entry ID: 6102781

Under these circumstances, we exercise our discretion to

certify the question.
We

thus

certify

the

following

question

to

the

Massachusetts SJC:
Can Coyle & Caron, a third-party contractor
that made submissions to a governmental body
for the purpose of assisting in its private
client's petitioning activity, avail itself of
the special motion provision under chapter
231, section 59H of the Massachusetts General
Laws?
We also welcome any additional observations about Massachusetts
law that the SJC may wish to offer.
III.
We hold that if the anti-SLAPP statute applies to Coyle
& Caron, then the negligence, gross negligence, and chapter 93A
claims alleged in this suit must be dismissed pursuant to Coyle &
Caron's special motion, leaving only the defamation claim for
further consideration by the district court under the special
motion.6
The Clerk is directed to forward to the Massachusetts
SJC, under the official seal of this court, a copy of the certified
question and this opinion, along with copies of the parties'
briefs, appendix, and all supplemental filings under Rule 28(j) of

6

Again, we reserve judgment on the district court's
alternative Rule 12(b)(6) rulings, which may be mooted in large
part depending on the guidance we receive from the SJC.
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the Federal Rules of Appellate Procedure.
jurisdiction over this appeal.
So ordered.

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Entry ID: 6102781

The panel retains