Jobs First Independent Expenditure Political Action Committee v. Coakley

Filing 75

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDER 1) the motion to dismiss of defendant Brian Mannal(Docket No. 63) is, with respect to Counts III, IV and VI, DENIED, but is, with respect to Count V, ALLOWED; 2) the motion for attorneys fees and costs of defendant Brian Mannal (Docket No. 63) is DENIED and 3) the motion to dismiss of defendant Maura Healey(Docket No. 71) is ALLOWED.(Caruso, Stephanie)

United States District Court
District of Massachusetts
)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
Martha Coakley, Attorney General )
)
for the Commonwealth of
Massachusetts and Brian Mannal, )
)
)
Defendants.
)

Jobs First Independent
Expenditure Political Action
Committee and Melissa Lucas,

Civil Action No.
14-14338-NMG

MEMORANDUM & ORDER
GORTON, J.
Plaintiffs Jobs First Independent Expenditure Political
Action Committee (“Jobs First”) and Melissa Lucas (“Lucas”)
(collectively, “plaintiffs”) bring this action for 1)
declaratory judgment challenging the constitutionality of a
certain Massachusetts statute and 2) alleged violations of
plaintiffs’ First Amendment rights by both defendants.

The

First Amendment claims are against State Representative Brian
Mannal (“Mannal”), in his individual and official capacities and
against the Massachusetts Attorney General in her official
capacity.
Defendants filed separate motions to dismiss the claims
asserted against them.

For the following reasons, 1) the motion

-1-

of defendant Mannal to dismiss will be allowed, in part, and
denied, in part, 2) the motion of defendant Mannal for
attorney’s fees and costs will be denied and 3) the motion of
defendant Healey to dismiss will be allowed.
I.

Factual and Procedural Background
Defendant Mannal is the incumbent representative for the

2nd Barnstable District in the Massachusetts House of
Representatives.

Mannal is also a practicing attorney who

receives appointments to represent clients in Massachusetts
trial courts.
Leading up to the November, 2014, election, Jobs First
created and published several brochures and press releases
criticizing Mannal’s legislative record.

Specifically, Jobs

First circulated multiple brochures criticizing Mannal’s
apparent support for legislation concerning sex offenders.

Each

brochure includes a small disclaimer that reads “[p]aid for by
Jobs First Independent Expenditure PAC, Melissa Lucas,
Treasurer.”

Jobs First and Lucas maintain, however, that Lucas

had nothing to do with the creation of these published
materials.
On October 21, 2014, Mannal filed an application for a
criminal complaint with the Barnstable District Court.

In the

complaint, Mannal alleged that Jobs First and Lucas violated
M.G.L c. 56, § 42 (“§ 42”).

That same day Mannal issued a press

-2-

release and gave statements to the media describing the criminal
complaint.
A probable cause hearing on Mannal’s application for a
criminal complaint was scheduled for November 20, 2014, before a
Clerk Magistrate.

On October 27, 2014, plaintiffs filed a

motion to dismiss the application, contending that the statute
was facially unconstitutional.

On October 30, 2014, the

Barnstable District Court transferred the application to the
Falmouth District Court.

At Lucas’s request, the probable cause

hearing was postponed until December, 2014.
Mannal won re-election to his seat in the Massachusetts
House of Representatives on November 4, 2014, by a narrow
margin.
On December 5, 2014, plaintiffs filed a complaint in this
Court seeking a declaratory judgment and injunctive relief
against Mannal and then Massachusetts Attorney General Martha
Coakley.1

On the same day, plaintiffs also filed a motion for a

temporary restraining order or preliminary injunction against
the Clerk Magistrate of the Falmouth District Court who is not a
party to these proceedings.

1

Because Martha Coakley was sued in her official capacity as the
Attorney General of Massachusetts, defendant Attorney General
Maura Healey was automatically substituted as a party in this
action pursuant to Fed. R. Civ. P. 25(d).
-3-

Also in December, 2014, this Court denied plaintiffs
preliminary injunctive relief.

The probable cause hearing in

state court went forward, and a criminal complaint against Lucas
was issued on December 31, 2014, charging her with two
violations of § 42.
In February, 2015, Lucas sought review by the Supreme
Judicial Court of Massachusetts (“SJC”) of the constitutionality
of § 42.

All proceedings in state and federal court were then

stayed pending the SJC’s decision.

In May, 2015, the SJC

concluded that § 42 was facially unconstitutional under the
Massachusetts constitution and dismissed the criminal complaint
against Lucas.
On December 31, 2015, plaintiffs filed an amended complaint
in this Court.

In the amended complaint, plaintiffs allege four

claims against defendant Mannal for 1) violation of 42 U.S.C.
§ 1983 (Count III), 2) damages under 42 U.S.C. § 1988 (Count
IV), 3) violation of M.G.L. c. 231, § 59H (Count V) and 4) abuse
of process (Count VI).

Plaintiffs also assert two claims

against defendant Healey for 1) violation of 42 U.S.C. § 1983
(Count II) and 2) damages under 42 U.S.C. § 1988 (Count IV).
Finally, plaintiffs seek a declaratory judgment that M.G.L.
c. 56, § 42 is unconstitutional (Count I).

Now pending before

the Court are the separate motions of the defendants to dismiss
and defendant Mannal’s motion for attorney’s fees and costs.

-4-

II. Defendant Mannal’s Motion to Dismiss and Motion for
Attorney’s Fees and Costs
Defendant Mannal moves to dismiss plaintiffs’ claims
against him pursuant to the Massachusetts “anti-SLAPP”
(Strategic Lawsuit Against Public Participation) statute, M.G.L.
c. 231, § 59H (“§ 59H”).

Defendant also requests attorney’s

fees and costs should the Court allow the motion.
A.

Legal Standard

Section 59H allows civil defendants to resolve
expeditiously lawsuits “designed to deter or retaliate against
individuals who seek to exercise their right of petition.”
Keegan v. Pellerin, 920 N.E.2d 888, 891 (Mass. App. Ct. 2010).
The SJC has provided a two-step process for special motions
to dismiss brought under § 59H.

First, the moving party must

make a showing that the claim of the non-moving party is based
on the movant’s protected petitioning activities and has no
other substantial basis. Bargantine v. Mechs. Coop. Bank, Docket
No. 13-11132, 2013 WL 6211845, at *2 (D. Mass. Nov. 26, 2013).
If the moving party makes such a showing, the burden shifts to
the non-moving party to establish by a preponderance of the
evidence that the “petitioning activities lacked any reasonable
factual support or any arguable basis in law.” Id. (quoting
Fustolou v. Hollander, 920 N.E.2d 837, 840 (Mass. 2010)).
Court may consider pleadings and affidavits without making

-5-

The

inferences in favor of the non-moving party. Id. (citing M.G.L.
c. 231, § 59H).
B.

Application
1.

Counts III and IV: Claims Brought Under 42
U.S.C. §§ 1983 and 1988

In Count III, plaintiffs bring a claim under 42 U.S.C.
§ 1983 and in Count IV, plaintiffs allege damages pursuant to 42
U.S.C. § 1988.

Defendant Mannal seeks dismissal of Counts III

and IV under § 59H, relying on this Court’s decision in
Bargantine v. Mechanics. Cooperative Bank.

Plaintiffs respond

that § 59H does not apply in federal court actions.
This session has previously determined that § 59H applies
as substantive law to diversity cases in federal court. See
Bargantine, 2013 WL 6211845, at *2-3 (applying § 59H to state
law claims in a diversity action).

Plaintiffs here contend that

this Court’s decision in Bargantine is distinguishable because
this case involves questions of federal law.
The Court agrees with plaintiffs and concludes that § 59H
does not apply to their federal claims in this case.

Because

federal law governs substantively and procedurally the
litigation of federal claims, § 59H is not applicable to
plaintiffs’ § 1983 and § 1988 claims. See S. Middelsex
Opportunity Council, Inc. v. Town of Framingham, Docket No. 0712018, 2008 WL 4595369, at *9 (D. Mass. Sept. 30, 2008).

-6-

Therefore, the Court will deny defendant Brian Mannal’s motion
to dismiss for Counts III and IV.
2.

Count V:

Violation of § 59H

In Count V, plaintiffs assert that defendant violated § 59H
when he filed the criminal complaint.

Defendant’s primary

contention is that § 59H does not support a cause of action for
civil plaintiffs or criminal defendants.

Plaintiffs maintain

that Count V is alleged in response to defendant’s filing of a
criminal complaint.
The Court agrees with defendant.

The language of § 59H

limits the right to bring a special motion to dismiss for “civil
claims, counterclaims, or crossclaims.”

M.G.L. c. 231, § 59H.

To the extent plaintiffs are responding to defendant’s criminal
complaint, plaintiffs may not rely on § 59H for a cause of
action.

Moreover, the statute authorizes a party to file a

“special motion to dismiss” which is not a cause of action.
Accordingly, the Court will dismiss Count V of plaintiff’s
complaint for failing to state a claim upon which relief can be
granted.
3.

Count VI:

Abuse of Process

In Count VI, plaintiffs allege that defendant Mannal abused
the legal process when he sought a criminal complaint against
Lucas.

With respect to Count VI, the Court will apply

-7-

§ 59H. See Phillibotte v. Nisource Corp. Servs. Co., 793 F.3d
159, 165 (1st Cir. 2015) (applying state substantive law when
exercising supplemental jurisdiction over a state law claim);
Barqantine, 2013 WL 6211845, at *3-5 (applying § 59H to a claim
for abuse of process).
Plaintiffs aver that 1) § 59H is not applicable because
defendant is not a private citizen as understood in the statute
or, alternatively, 2) plaintiffs have made the requisite showing
to defeat a special motion to dismiss with respect to the abuse
of process claim.
Because the Court finds that defendant has not met its
burden with respect to the first prong of the test for § 59H,
the Court will disregard plaintiffs’ first argument that § 59H
is not applicable to defendant.
First, defendant must allege that plaintiffs’ action is
based on his protected petitioning activities and has no other
substantial basis other than or in addition to the petitioning
activity. Wenger v. Aceto, 883 N.E.2d 262, 266 (Mass. 2008).
Although filing a petition for a criminal complaint constitutes
a protected petitioning activity under § 59H, id. at 266-67,
plaintiffs contend that Mannal’s press conference and press
release constitute additional conduct sufficient to support an
abuse of process claim. See Adams v. Whitman, 822 N.E.2d 727,
731 (Mass. App.Ct. 2005) (“[T]he key to survival of a party’s

-8-

abuse of process claim seems to be whether the party relies on
some other conduct by the special movant, apart from merely
obtaining the process, that amounted to an affirmative,
subsequent misuse of the process to further the special movant’s
alleged ulterior purpose.” (emphasis omitted)).
Defendant responds by citing Wynne v. Creigle for the
proposition that when statements to the press mimic statements
contained in the criminal complaint, that additional activity is
also protected under § 59H. See Wynne v. Creigle, 825 N.E.2d
559, 565-67 (Mass. App. Ct. 2005).

The Court finds instructive,

however, other opinions, including one of the SJC, which
distinguish Wynne.
In Cadle Co. v. Sclictmann, the SJC concluded that an
attorney was not protected by § 59H for public statements made
to
shor[e] up his . . . position . . . or otherwise
gain[] a tactical advantage in [the] ongoing legal
proceeding.
859 N.E.2d 858, 867 (Mass. 2007).

Similarly, defendant Mannal

issued a press release and held a press conference to “shore up”
support for his re-election campaign.

Although defendant

Mannal’s statements in the press conference and press release
could be construed as “mirroring” his statements in the
application for a criminal complaint, Mannal is not necessarily
free to publish the petition elsewhere. See Riverdale Mills

-9-

Corp. v. Cavatorta N. Am., Inc., Docket No. 4:15-CV-40131, 2016
WL 3030234, at *6 (D. Mass. May 26, 2016) (quoting Kalter v.
Wood, 67 Mass.App.Ct. 584, 855 N.E.2d 421, 424 (Mass. App. Ct.
2006)).
Just as the SJC removed “aggressive lawyering” from the
protection of § 59H, so too does this Court conclude that
Mannal’s campaign activities are not protected by § 59H.
Because defendant Mannal has failed to show that plaintiffs’
lawsuit has no substantial basis other than the petitioning
activities, the Court will deny defendant’s special motion to
dismiss Count VI. See Cadle Co., 859 N.E.2d at 867.
C.

Attorney’s Fees

Finally, defendant Mannal asks the Court to award him
attorney’s fees and costs for successfully challenging
plaintiff’s complaint under § 59H.

Plaintiffs maintain that

defendant is not entitled to attorney’s fees because, as a pro
se litigant, he is not entitled to fees.
Section 59H provides that:
If the court grants such special motion to dismiss,
the court shall award the moving party costs and
reasonable attorney’s fees, including those incurred
for the special motion and any related discovery
matters.
M.G.L. c. 231, § 59H.

Because the Court will deny defendant’s

special motion to dismiss with respect to Counts III, IV and VI,
it will not award attorney’s fees.

-10-

Although the Court will

allow the motion with respect to Count V, plaintiffs have failed
to state a claim and thus the Court will not dismiss the count
on § 59H grounds.

Accordingly, defendant will not be entitled

to attorney’s fees and costs.
III. Defendant Maura Healey’s Motion to Dismiss
A.

Legal Standard

To survive a motion to dismiss for failure to state a claim
under Fed. R. Civ. P. 12(b)(6), a complaint must contain
“sufficient factual matter” to state a claim for relief that is
actionable as a matter of law and “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is

facially plausible if, after accepting as true all nonconclusory factual allegations, the court can draw the
reasonable inference that the defendant is liable for the
misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d
1, 12 (1st Cir. 2011).

A court may not disregard properly pled

factual allegations even if actual proof of those facts is
improbable. Id.

Rather, the relevant inquiry focuses on the

reasonableness of the inference of liability that the plaintiff
is asking the court to draw. Id. at 13.
When rendering such a determination, a court may not look
beyond the facts alleged in the complaint, documents
incorporated by reference therein and facts susceptible to

-11-

judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st
Cir. 2011).
B.

Application
1.

Count I: Declaration that M.G.L. c. 56, § 42 Is
Unconstitutional

In Count I, plaintiffs seek a declaration from this Court
that § 42 was facially unconstitutional under the Constitution
of the United States.

Defendant avers that the claim should be

dismissed because 1) it is moot and 2) it is barred by the
Eleventh Amendment.
The mootness doctrine ensures that claims will be
justiciable throughout litigation not only when a claim is
initially filed. ACLU of Mass. v. U.S. Conference of Catholic
Bishops, 75 F.3d 44, 52 (1st Cir. 2013) (quoting Mangual v.
Rotger-Sabat, 317 F.3d 45, 60 (1st Cir. 2003)).

Accordingly, a

claim is subject to dismissal as moot if subsequent events
render a court’s opinion advisory. Id. at 52-53.
Plaintiffs in this case filed their amended complaint after
the SJC declared § 42 unconstitutional.

If this Court were now

to declare the statute unconstitutional, the opinion would be
redundant and therefore advisory. See New Eng. Reg’l Council of
Carpenters v. Kinton, 284 F.3d 9, 18 (1st Cir. 2002) (remarking
that it would be “pointless” to declare the constitutionality of

-12-

a policy that had been revised during litigation).

Thus, the

Court will dismiss Count I as moot.
Because the Court will dismiss Count I as moot, it declines
to address defendant’s contention that Count I is barred by the
Eleventh Amendment. ACLU of Mass., 75 F.3d at 52 (“[F]ederal
courts are not to reach constitutional issues where alternative
grounds for resolution are available.”).
2.

Count II:

42 U.S.C. § 1983 Claim

Plaintiffs next allege that the Massachusetts Attorney
General, in her official capacity, violated their First
Amendment rights by failing to determine the constitutionality
of § 42 before the criminal complaint was issued against Lucas.
Defendant Healey asserts that the claim is barred by the
Eleventh Amendment.
With respect to liability under § 1983, state officials
sued in their official capacities are not “persons” as
considered by the statute. See Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989).

Thus, plaintiffs cannot state a

claim under § 1983 against the Massachusetts Attorney General in
her official capacity.

Although plaintiffs respond that claims

against the Commonwealth for “ancillary” relief are cognizable,
their underlying claim seeks monetary damages.
II will be dismissed.

-13-

Therefore, Count

3.

Count IV:

Damages

In Count IV, plaintiffs ask the Court to award them
compensatory and punitive damages, along with costs and
attorney’s fees, pursuant to 42 U.S.C. § 1988 against both
defendants.

Because the Court will dismiss the underlying

causes of action against defendant Healey (Counts I and II), the
Court will also dismiss Count IV with respect to the claim
against defendant Massachusetts Attorney General Maura Healey.
4.

Plaintiffs’ Monell Claim

In their opposition to the motion to dismiss of defendant
Healey, plaintiffs attempt to plead a Monell claim against the
office of the Massachusetts Attorney General.

They concede,

however, that they cannot allege “anything substantively” and
want to “explore” the claim through discovery.

Although

defendant has not sought leave to file a reply to address this
claim, the Court will dismiss all of the causes of action
against the Attorney General to the extent plaintiffs attempt to
construe them as Monell claims.

Plaintiffs have not alleged

sufficient facts in their amended complaint to state a plausible
Monell claim. See Penalbert-Rosa v. Fortuno-Burset, 631 F.3d
592, 596 (1st Cir. 2011) (“‘[F]ishing expeditions’ are not
permitted.” (quoting DM Research, Inc. v. Coll. of Am.
Pathologists, 170 F.3d 53, 55 (1st Cir. 1999))).

-14-

ORDER
For the forgoing reasons,
1)

the motion to dismiss of defendant Brian Mannal
(Docket No. 63) is, with respect to Counts III, IV and
VI, DENIED, but is, with respect to Count V, ALLOWED;

2)

the motion for attorney’s fees and costs of defendant
Brian Mannal (Docket No. 63) is DENIED and

3)

the motion to dismiss of defendant Maura Healey
(Docket No. 71) is ALLOWED.

So ordered.

/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated November 10, 2016

-15-