Steinmetz et al v. Coyle & Caron, Inc.
Filing
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Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER. The Court ALLOWS Coyle & Caron's special motion to dismiss.D. 5. (Maynard, Timothy)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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John W. Steinmetz and Jane C. Steinmetz,
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Plaintiffs,
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v.
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Civil Action No.: 15-cv-13594-DJC
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Coyle & Caron, Inc.,
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Defendant.
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__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.
July 29, 2016
Introduction
Plaintiffs John W. Steinmetz and Jane C. Steinmetz (“Plaintiffs”) have filed this lawsuit
against Defendant Coyle & Caron, Inc. (“Coyle & Caron”) alleging negligence, gross negligence,
defamation and violation of Mass. Gen. L. c. 93A. D. 1 ¶¶ 28-40. Coyle & Caron has moved to
dismiss pursuant to Mass. Gen. L. c. 231, § 59H and, alternatively, pursuant to Fed. R. Civ. P.
12(b)(6). D. 5. For the reasons stated below, the Court ALLOWS the motion.
II.
Standard of Review
On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant
to Fed. R. Civ. P. 12(b)(6), the Court must determine if the facts alleged present a plausible claim
for relief. Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citation
omitted). To make that determination, the Court engages in a context-specific, two-step process.
García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (citation omitted). To begin,
the Court closely reads the complaint to identify and separate the factual allegations from the
1
conclusory legal allegations in the complaint. Id. The Court accepts only the factual allegations
as true. Id. Looking to the factual allegations and viewing them as a whole, the Court must
determine whether those allegations amount to a “reasonable inference that the defendant is liable
for the misconduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (citation
omitted).
III.
Factual Background
The following facts are taken from Plaintiffs’ complaint and accepted as true for the
purposes of this motion. Plaintiffs are the owners of land at 1 James Island Way, Cohasset,
Massachusetts (the “Property”). D. 1 ¶ 7. The Property is part of James Island, a peninsula with
wetland resources that is surrounded by Inner Little Harbor. Id. ¶¶ 7, 10. Plaintiffs seek to build
a single family dwelling on the Property. Id. ¶ 10. Plaintiffs submitted a notice of intent
application to the Cohasset Conservation Commission (“Conservation Commission”). Id. A
group entitled the James Island Preservation Group (“Preservation Group”) formed to oppose
Plaintiffs’ proposed construction. Id. ¶ 13.
Coyle & Caron is a Florida landscape design firm. Id. ¶ 14. Plaintiffs allege that Coyle &
Caron, specifically its president Sally Coyle (“Coyle”), worked with the Preservation Group to
prepare false, fraudulent and defamatory renderings of Plaintiffs’ proposed construction
(“Renderings”). Id. ¶ 17. Plaintiffs allege that Coyle & Caron’s Renderings were gross distortions
that were designed to instill fear and create animosity towards Plaintiffs. Id. ¶ 17. According to
Plaintiffs, the Renderings were generated from an incorrect view location, involved discrepancies
of the horizon lines, contained incorrect house orientation, incorrectly represented the size and
scale of the house and lacked an accurate three-dimensional model. Id. ¶ 22. As alleged, at least
one Rendering was posted on a Facebook page created by the Preservation Group and circulated
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throughout Cohasset and Massachusetts. Id. ¶¶ 18-19. Plaintiffs further allege that Coyle & Caron
submitted the Renderings to the Conservation Commission. Id. ¶ 20. On September 3, 2015,
Coyle appeared in person before the Conservation Commission to present the Renderings. Id.
The Conservation Commission ultimately voted to reject Plaintiffs’ proposed construction.
Id. ¶¶ 14, 26. Plaintiffs allege that Coyle & Caron’s Renderings had a dramatic impact upon the
Conservation Commission’s decision. Id. ¶ 27. According to Plaintiffs, Coyle & Caron was
largely behind the Preservation Group’s success in selling a misrepresentation of Plaintiffs’
proposed construction to the public and to the Conservation Committee. Id. ¶ 14.
IV.
Procedural History
Plaintiffs instituted this action on October 19, 2015. D. 1. Coyle & Caron subsequently
moved to dismiss. D. 5. The Court heard the parties on the pending motion and took the matter
under advisement. D. 15. 1
V.
Analysis
Coyle & Caron casts its motion as a special motion to dismiss pursuant to the Strategic
Litigation against Public Participation statute (“anti-SLAPP statute”). Mass. Gen. L. c. 231, §
59H. In the alternative, Coyle & Caron moves for dismissal pursuant to Fed. R. Civ. P 12(b)(6).
D. 5. Where, as here, the moving party files a special motion to dismiss and asserts alternative
grounds for dismissal, courts typically address the special motion to dismiss first. See Kobrin v.
Gastfriend, 443 Mass. 327, 341 (2005) (citation omitted). Thus, the Court begins with the motion
brought pursuant to the anti-SLAPP statute.
1
The Court grants nunc pro tunc the motion for leave to file an amicus brief by the American
Civil Liberties Union. D. 16. In reaching its decision, the Court notes that it has reviewed and
considered not only the briefing filed by the parties, but also the amicus brief filed by the. D. 161.
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A.
Coyle & Caron’s Special Motion to Dismiss
The purpose of the anti-SLAPP statute is to protect the right to petition under the
Massachusetts and United States Constitution from the burden of meritless lawsuits. See Town of
Hanover v. New England Reg’l Council of Carpenters, 467 Mass. 587, 594 (2014). To that end,
the statute provides for a special motion to dismiss that allows courts to “dispose expeditiously of
meritless lawsuits that may chill petitioning activity.” Id. (quoting Duracraft Corp. v. Holmes
Prods. Corp., 427 Mass. 156, 166 (1988)). Through special motions to dismiss, such lawsuits are
“‘resolved quickly with minimum cost to citizens who have participated in matters of public
concern.’” Duracraft Corp., 427 Mass. at 161 (internal quotation marks and citation omitted). The
anti-SLAPP statute defines “the exercise of the right to petition” as, inter alia, a written or oral
statement submitted to a legislative, executive or judicial body or any other governmental
proceeding or made in connection with an issue under consideration by any such body or
proceeding. Mass. Gen. L. Ann. c. 231, § 59H. In drafting the statute, “the Legislature intended
to enact very broad protection for petitioning activities.” Duracraft Corp., 427 Mass. at 162.
Plaintiffs raise three challenges to the applicability of the anti-SLAPP statute to this action.
D. 7. Plaintiffs contend that (1) the anti-SLAPP statute does not apply in federal court, D. 7 at 4,
(2) the anti-SLAPP statute does not apply to “disinterested expert witnesses,” D. 7 at 5-10, and (3)
the anti-SLAPP statute is unconstitutional, D. 14 at 5-6; D. 22 at 1-2. In addition, Plaintiffs argue
that, even if the anti-SLAPP statute applies, Coyle & Caron has failed to meet its threshold burden
under the anti-SLAPP statute. D. 7 at 10-11.
1.
The Anti-SLAPP Statute Applies in Federal Courts
As a general matter, “a federal court sitting in diversity jurisdiction applies the state’s
substantive law and the federal procedural rules.” Godin v. Schencks, 629 F.3d 79, 85 (1st Cir.
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2010). Moreover, “it is long settled that the allocation of burden of proof is substantive in nature
and controlled by state law.” Id. at 89 (citing Palmer v. Hoffman, 318 U.S. 109, 117 (1943)).
Thus, to determine if the statute applies in federal courts, this Court must determine whether the
statute is substantive. On a special motion to dismiss pursuant to the Massachusetts anti-SLAPP
statute, the burden is first assigned to the movant who must demonstrate that the non-movant’s
claim is based strictly upon petitioning activity and “ha[s] no substantial basis other than or in
addition to the petitioning activities.” See Fustolo v. Hollander, 455 Mass. 861, 865 (2010)
(citation and internal quotation marks omitted). If the moving party satisfies the burden of
demonstrating petitioning activity, the burden then shifts to the non-moving party to demonstrate
by a preponderance of the evidence that the petitioning activity “‘lacked any reasonable factual
support or any arguable basis in law.’” Fustolo, 455 Mass. at 865 (quoting Baker v. Parsons, 434
Mass. 543, 553 (2001)). Because the anti-SLAPP statute assigns the burden in these ways and sets
out the scope of the burden for the specific category of cases concerning the constitutional right to
petition, the anti-SLAPP statute is substantive rather than procedural. See Godin, 629 F.3d at 89.
In Godin, the First Circuit applied this reasoning to reach the conclusion that the Maine
anti-SLAPP statute is substantive and therefore applies in federal court. See Godin, 629 F.3d at
88. In Godin, the First Circuit explained that the Maine anti-SLAPP statute has substantive
aspects, pointing to, inter alia, the fact that the statute shifts the burden to the plaintiff to defeat
the special motion to dismiss, the statute set outs the scope of that burden and the statute alters
what plaintiffs must prove to prevail. Id. at 88-89. Moreover, unlike federal procedural rules
which are applicable to all categories of cases, id., the Maine anti-SLAPP statute focuses upon a
specific category of cases: lawsuits based upon a defendant’s exercise of his constitutional
petitioning rights. Id. at 88. The First Circuit explained that the statute addresses a different matter
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than Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 56 do since neither Fed. R. Civ. P. 12(b)(6) or Fed.
R. Civ. P. 56 “determine[] which party bears the burden of proof on a state-law created cause of
action.” Id. at 89. In the end, the First Circuit described the Maine anti-SLAPP statute as “so
intertwined with a state right or remedy that it functions to define the scope of the state-created
right.” Id. (citation and internal quotation marks omitted). For these reasons, the statute could not
“be displaced” by federal procedural rules. Id. Additionally, the First Circuit recognized that, as
a policy matter, if federal courts declined to apply the anti-SLAPP statute, “the incentives for
forum shopping would be strong: electing to bring state-law claims in federal as opposed to state
court would allow a plaintiff to [inter alia] avoid [the anti-SLAPP statute’s] burden-shifting
framework.”2 Id. at 92.
The reasoning and conclusion of Godin extend to the Massachusetts anti-SLAPP statute
because, as three judges in this district have expressly recognized, the Massachusetts anti-SLAPP
statute is in all relevant respects the same as the Maine anti-SLAPP statute. See Bargantine v.
Mechanics Co-op. Bank, No. 13-cv-11132-NMG, 2013 WL 6211845, at *3 (D. Mass. Nov. 26,
2013) (concluding that the holding of Godin extends to the Massachusetts anti-SLAPP statute
because “[t]he Massachusetts anti-SLAPP statute is . . . in all respects identical to the Maine
statute”); Sullivan v. Flaherty, No. 14-cv-14299-ADB, 2015 WL 1431151, at *5 n.5 (D. Mass.
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Indeed, for these reasons, the Second, Fifth and Ninth Circuit have concluded that anti-SLAPP
statutes apply in federal court. See, e.g., Adelson v. Harris, 774 F.3d 803, 809 (2d Cir. 2014)
(explaining that the district court’s application of the Nevada anti-SLAPP statute was
“unproblematic”); Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 169-70 (5th Cir. 2009)
(approving of lower court’s application of Louisiana anti-SLAPP statute in federal proceedings);
U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999)
(citation omitted) (concluding that California’s anti-SLAPP statute applies in federal proceedings
because the statute reflects “important, substantive state interests,” protects “‘the constitutional
rights of freedom of speech and petition for redress of grievances’” and does not directly collide
with the Federal Rules of Civil Procedure).
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Mar. 27, 2015) (noting that the court was “inclined to agree” with the view that “based on the logic
of Godin” and because of the “similarity of language between the Maine and Massachusetts antiSLAPP statutes . . . the Massachusetts anti-SLAPP statute is also substantive”); Pomponio v. Town
of Ashland, No. 15-cv-10253-IT, 2016 WL 471285, at *6 (D. Mass. Feb. 5, 2016) (rejecting the
argument that “the anti-SLAPP statute is a procedural rule that does not apply in federal court”
because the “same substantive aspects” that are in the Maine anti-SLAPP statute are in the
Massachusetts anti-SLAPP statute). Accordingly, the Massachusetts anti-SLAPP statute applies
in federal courts. See Shire City Herbals, Inc. v. Blue, 15-cv-30069-MGM, 2016 WL 2757366, at
*7 (D. Mass. May 12, 2016) (applying Massachusetts anti-SLAPP statute’s burden-shifting
framework and granting special motion to dismiss).
Plaintiffs’ argument that a line of district court cases predating Godin compel the
conclusion that the anti-SLAPP statute does not apply in federal courts, D. 7 at 4-5, is unavailing.
The conclusions of those cases, however, were rejected by the First Circuit in Godin. By contrast,
Plaintiffs point to no district court opinion released after Godin wherein the Court concluded that
the anti-SLAPP statute does not apply in federal courts. Instead, in post-Godin rulings, judges
have concluded that the Massachusetts anti-SLAPP statute is applicable in federal courts and, in
so doing, have concluded that the pre-Godin line of cases upon which Plaintiffs rely are no longer
persuasive. See Bargantine, 2013 WL 6211845, at *3; Sullivan, 2015 WL 1431151, at *5 n.5;
Pomponio, 2016 WL 471285, at *6; Shire City Herbals, Inc., 2016 WL 2757366, at *7. For all of
these reasons, the Court concludes that the anti-SLAPP statute applies in federal courts.
2.
The Anti-SLAPP Statute Applies to Third Parties Assisting in
Petitioning Activity
Plaintiffs contend that even if the anti-SLAPP statute applies in federal courts, it does not
apply in this suit because Coyle & Caron was not petitioning on its own behalf. D. 7 at 1-2, 5.
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Plaintiffs describe Coyle as a “disinterested expert witness,” id. at 2, and a “disinterested paid
witness who had no more than a mere contractual connection to the proceedings that are the basis
of the alleged petitioning activity.” Id. at 7. Plaintiffs contend that the anti-SLAPP statute’s
protections do not reach such actors. The Court does not agree.
“‘[P]etitioning has been consistently defined to encompass a ‘very broad’ range of
activities in the context of the anti-SLAPP statute.” Blanchard v. Steward Carney Hosp., Inc., 89
Mass. App. Ct. 97, 102 (2016) (quoting N. Am. Expositions Co. Ltd. P’ship v. Corcoran, 452
Mass. 852, 861 (2009)). The anti-SLAPP statute defines “a party’s exercise of its right to petition”
as, inter alia, “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” and
“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.” Mass. Gen. L. c. 231, §
59H. Petitioning activity includes, inter alia, writing to government officials, attending public
hearings, testifying before government bodies, circulating petitions for signatures, lobbying for
legislation and engaging in peaceful demonstrations. See Town of Hanover, 467 Mass. at 591. To
determine whether statements constitute petitioning activity, courts consider the “over-all context
in which they were made.” Blanchard, 89 Mass. App. Ct. at 102 (quoting N. Am. Expositions Co.
Ltd. P’ship, 452 Mass. at 862).
In recognition of this broad definition of petitioning activity, Massachusetts courts have
held that the protections of the anti-SLAPP statute extend to those who are “engaged to assist [a
nongovernmental person or entity] in the petitioning activity.” Keegan v. Pellerin, 76 Mass. App.
Ct. 186, 192 (2010). In the context of the anti-SLAPP statute, “making statements to seek redress
8
is not always an individual activity.” Town of Hanover, 467 Mass. at 593. Accordingly,
“organizational support of the [directly aggrieved party],” falls within the definition of petitioning
activity. Id. Third parties, including experts and professionals, may bring a special motion to
dismiss where they are “sued for voicing the positions of a petitioning client.” Plante v. Wylie, 63
Mass. App. Ct. 151, 157 (2005) (concluding that anti-SLAPP statute applied to attorney who
advocated for his client in relation to client’s petitioning activity); see Margolis v. Gosselin, No.
95-cv-03837-HJS, 1996 WL 293481, at *2-3 (Mass. Super. May 22, 1996). In other words, where
a third party has been engaged by the directly aggrieved individual or entity to further advance the
directly aggrieved party’s objective, the third party “share[s]” in the directly aggrieved party’s
interest and petitioning rights. See Town of Hanover, 467 Mass. at 594. Moreover, where third
parties assist directly aggrieved individuals or entities by submitting statements to a government
body, the third parties’ assistance constitutes petitioning activity. See e.g., Baker v. Parsons, 434
Mass. 543, 549, 551 (2001) (concluding that a scientist who submitted information to a
government agency reviewing another individual’s proposed construction on an island historically
home to aquatic birds was protected by the anti-SLAPP statute); McLarnon v. Jokisch, 431 Mass.
343, 347 (2000) (explaining that the definition of petitioning activity was “broad enough to
include” parent who “fil[ed] for abuse protection orders” in court on behalf of her son).
Denying third party experts and professionals the protections of the anti-SLAPP statute
would have a “chilling effect on petitioning activity” and “hollow” the statute. Plante v. Wylie,
63 Mass. App. Ct. 151, 156-57 (2005). “[T]he costs . . . if such suits cannot promptly be dismissed
are just as likely to impede the clients’ right to petition” as permitting meritless suits against the
directly aggrieved party for its own petitioning activity. Id. In explaining the purpose of and need
for the anti-SLAPP statute, the Massachusetts legislature noted that “‘full participation by persons
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and organizations and robust discussion of issues before legislative, judicial, and administrative
bodies and in other public fora are essential to the democratic process’” and that “‘there has been
a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional
rights of freedom of speech and petition for the redress of grievances.’” Duracraft Corp., 427
Mass. at 161 (quoting preamble to 1994 House Doc. No. 1520). Freedom of association is
intimately intertwined with the ability to express ideas and petition. See Caswell v. Licensing
Comm’n for Brockton, 387 Mass. 864, 871-72 (1983) (citations omitted). As such, “[p]unishing
organizations that support constitutionally protected petitioning activity would only serve to inhibit
both individual and organizational rights of petitioning.” Town of Hanover, 467 Mass. at 594
(citing Plante, 63 Mass. App. Ct. at 157). Thus, both caselaw and policy compel the conclusion
that the anti-SLAPP statute applies to third parties who are engaged to assist the petitioning entity
or individual.
In asserting its argument that parties that do not petition “on their own behalf” are not
protected by the anti-SLAPP statute, Plaintiffs rely extensively upon Kobrin, 443 Mass. at 327.
Korbin, however, was focused specifically upon whether government actors and those acting on
behalf of the government can seek relief under the anti-SLAPP statute. See Kobrin, 443 Mass. at
332. The defendant in Korbin had been hired by the government and the court’s decision that the
anti-SLAPP statute did not apply to the defendant turned upon that fact: “the statute is designed
to protect overtures to the government by parties petitioning in their status as citizens. It is not
intended to apply to those performing services for the government as contractors.” Id. Courts
have recognized that Korbin stands for the limited proposition that “the government cannot
‘petition’ itself within the meaning of [the anti-SLAPP statute].” Moriarty v. Mayor of Holyoke,
71 Mass. App. Ct. 442, 447-48 (2008) (holding that the anti-SLAPP statute did not apply to mayor
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and assistant city solicitor who had acted as agents of the city). Plaintiffs’ reliance upon Fisher v.
Lint is unavailing for the same reason. Fisher v. Lint, 69 Mass. App. Ct. 360, 365 (2007). Fisher
merely reiterates the rule that the government cannot petition itself. Id. In Fisher, the court held,
in relevant part, that the anti-SLAPP statute did not apply to a state trooper who, at the instruction
of his supervisor, investigated and made statements to internal affairs regarding the misconduct of
another state officer. Id.
The proposition that the government cannot petition itself does not disrupt the Court’s
conclusion that non-government entities, such as Coyle & Caron, that assist in petitioning activity
are protected by the anti-SLAPP statute. See, e.g., Keegan, 76 Mass. App. Ct. at 192 (rejecting
the plaintiff’s argument that the anti-SLAPP statute did not apply because the defendant “was not
petitioning on his own behalf” and explaining that Korbin did not control because Korbin “rest[s]
on the commonsense principle that a statute designed to protect the constitutional right to petition
has no applicability to situations in which the government petitions itself”); Town of Hanover, 467
Mass. at 593 (concluding that the anti-SLAPP statute applied after rejecting town’s reliance upon
Korbin on the grounds that Korbin addressed “an expert witness hired by a government agency”).
Plaintiffs’ reliance upon Fustolo v. Hollander is also unavailing. Fustolo v. Hollander, 455
Mass. 861 (2010). In Fustolo, the defendant seeking the protection of the anti-SLAPP statute was
a reporter who had not been assisting, engaged with or contracted by any aggrieved party or
individual in their petitioning activity. Id. at 863-64. The defendant-reporter, who worked for an
independent newspaper had merely been reporting on a public meeting. Id. at 862-63. Indeed, the
defendant-reporter affirmatively denied representing, working for or advancing any particular
viewpoint. Id. at 869. In that context, the court explained that the anti-SLAPP did not apply and
the defendant-reporter was instead protected by “the common law of defamation, with its
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constitutional overlay.” Id. at 870. Accordingly, Fustolo is inapposite to cases, like this one, where
the third party is engaged by a directly aggrieved party and embraces and advances a particular
viewpoint. For all of these reasons, the anti-SLAPP statute applies to third parties who assist in
petitioning activity to advance the interests of their clients.
3.
Plaintiffs’ Challenge to the Constitutionality of the Massachusetts AntiSLAPP Statute Is Unavailing
Finally, at oral argument and in supplemental briefings, Plaintiffs argue that the
Massachusetts anti-SLAPP statute is unconstitutional under both the Massachusetts and United
States Constitution because the statute violates the right of trial by jury. D. 14 at 5-6; D. 22 at 12. In support of this argument, Plaintiffs rely upon Davis v. Cox, 183 Wash. 2d 269 (2015). In
Davis, the Supreme Court of Washington held that the Washington anti-SLAPP statute violated
the Washington Constitution because the statute required “a truncated adjudication of the merits
of a plaintiff's claim, including nonfrivolous factual issues, without a trial.” Id. at 275, 294. As
the court explained, special motions to dismiss pursuant to the Washington anti-SLAPP statute
involved two steps: (1) the moving party had the burden of showing by a preponderance of the
evidence that the claim was based upon activity involving public participation and petitioning (2)
if that burden was satisfied, the burden shifted to the non-moving party to “to establish by clear
and convincing evidence a probability of prevailing on the claim.” Id. at 276 (internal quotation
marks and citation omitted). The court declared the statute unconstitutional in violation of the
right to a trial by jury under the Washington Constitution because, in the court’s view, the second
assignment of the burden under the statute “require[d] the trial court to weigh the evidence and
make a factual determination of plaintiffs’ probability of prevailing on the claim.” Id. at 280
(citation and internal quotation marks omitted).
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The reasoning of Davis, however, turned upon the specific nature of the Washington antiSLAPP statute and the Washington Constitution. Id. at 275. Unlike the Washington anti-SLAPP
statute, the Massachusetts anti-SLAPP statute does not require courts to assess the non-moving
party’s likelihood of prevailing on their claims. Fustolo, 455 Mass. at 865 (quoting Baker, 434
Mass. at 553). Instead, under the Massachusetts anti-SLAPP statute, courts assess whether the
petitioning activity “‘lacked any reasonable factual support or any arguable basis in law.’” Id.
Indeed, in reaching its decision in Davis, the Supreme Court of Washington recognized that
“among the slight majority of states that have adopted an anti-SLAPP statute, the details of these
statutes vary significantly” and for that reason, the court declined to rely upon out of jurisdiction
cases. Davis, 183 Wash. 2d at 283.
Moreover, the Supreme Judicial Court has reviewed and applied the Massachusetts antiSLAPP statute, implicitly approving of the statute’s constitutionality each time it did so. See, e.g.,
Town of Hanover, 467 Mass. at 587; N. Am. Expositions Co. Ltd. P’ship, 452 Mass. at 852;
Kobrin, 443 Mass. at 327; Duracraft Corp., 427 Mass. at 156.
4.
Coyle & Caron Has Met its Threshold Showing under the Anti-SLAPP
Statute
Having resolved the general applicability of the anti-SLAPP statute to this proceeding, the
Court turns to whether Coyle & Caron has satisfied its burden under the statute. The burdenshifting standard for a special motion to dismiss pursuant to the anti-SLAPP statute is wellestablished. See Town of Hanover, 467 Mass. at 595. First, the party seeking the protection of
the anti-SLAPP statute must present pleadings and affidavits that provide a “threshold” showing
that the claims against the party moving for dismissal are based exclusively upon that party’s
petitioning activities. See id. (citing Duracraft Corp., 427 Mass. at 167-68). Thereafter, the claims
are subject to dismissal unless the nonmoving party can establish by a preponderance of the
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evidence that the moving party’s petitioning activity was devoid of any reasonable factual support
or any arguable basis in law and its actions caused actual injury. See Town of Hanover, 467 Mass.
at 595 (citing Mass. Gen. L. c. 231, § 59H).
As to the initial showing, Plaintiffs do not dispute that the Preservation Group’s opposition
to Plaintiffs’ proposed construction and presentation of that opposition to the Conservation
Commission constitutes petitioning activity.
D. 7 at 2.
Instead, Plaintiffs argue that the
Preservation Group’s petitioning interest cannot be ascribed to Coyle & Caron. Id. at 5. In this
circumstance, however, where Plaintiffs concede that Coyle & Caron was retained for the specific
purpose of furthering the Preservation Group’s petitioning efforts before a government body, D. 1
¶¶ 14, 16-17, 20, Coyle & Caron shares in the Preservation Group’s petitioning interest. See Town
of Hanover, 467 Mass. at 594.
The only basis Plaintiffs offer for their alleged injury is Coyle & Caron’s creation of,
submission of and presentation to the Conservation Commission regarding the Renderings. D. 1
¶¶ 28, 34, 37-40. Plaintiffs’ allegations recognize that the Preservation Group “hired [Coyle &
Caron] to create renderings of Plaintiffs’ house” and to promote the Preservation Group’s
“message.” D. 1 ¶ 16. As alleged, Coyle & Caron “agreed to create the Renderings . . . for the
[Preservation Group], and did exactly what [Coyle & Caron’s] clients wanted.” Id. ¶ 17. Coyle
& Caron submitted the Renderings to the Conservation Commission on behalf of the Preservation
Group. Id. ¶ 17. Moreover, Coyle, president of Coyle & Caron, has submitted an affidavit attesting
to the fact that Coyle & Caron was contracted specifically to assist the Preservation Group in its
opposition to Plaintiffs’ proposed construction. D. 6-1 ¶¶ 19-21. On the materials Coyle & Caron
submitted to the Conservation Commission, it was specifically noted that “Coyle and Caron Inc.
has been retained by the James Island Preservation Group.” D. 6-1 at 16. In sum, in creating and
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submitting the Renderings, Coyle & Caron was merely advancing the interests of the Preservation
Group. Thus, Coyle & Caron’s conduct constitutes petitioning activity under the anti-SLAPP
statute. See, e.g., Plante, 63 Mass. App. Ct. at 157; Benoit v. Frederickson, 454 Mass. 148, 153
(2009) (concluding that parents who provided assistance to their daughter as she reported crimes
to the police had themselves petitioned for the purpose of the anti-SLAPP statute).
Coyle & Caron’s conduct is substantially similar to the conduct that was found to constitute
petitioning activity in Margolis v. Gosselin, No. 95-cv-03837-HJS, 1996 WL 293481, at *2 (Mass.
Super. May 22, 1996). In Margolis, the defendant, a public relations professional, was hired by
Stop & Shop to support Stop & Shop’s efforts in opposing a proposed development in a parcel of
land subject to the Wetlands Protection Act. Id. at *1. As part of her work for Stop & Shop, the
defendant solicited signatures from residents to persuade the local conservation board to revise a
relevant order the board had issued. Id. The plaintiff alleged that in the process of collecting
signatures the defendant made false statements regarding the plaintiff’s proposed development.
Id. Rejecting the plaintiff’s argument that the anti-SLAPP statute did not apply because, inter alia,
the defendant had been an “agent” of the plaintiff’s competitor, the court concluded that the
defendant’s conduct before the local board constituted petitioning activity and granted the
defendant’s special motion to dismiss. Id. at *2, *4. Like the defendant in Margolis, Coyle &
Caron’s conduct amounts to petitioning activity even though Coyle & Caron was hired by another
entity to advance that entity’s interest before a local government board. Like the defendant in
Margolis, Coyle & Caron’s assistance in efforts before a local government board constituted
petitioning activity.
Consequently, to the extent that Plaintiffs intended to argue that the protections of the antiSLAPP statute extend only to attorneys assisting in petitioning activity, D. 7 at 8, or that Coyle &
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Caron’s status as a retained party that was receiving compensation for its services bars Coyle &
Caron from the protections of the anti-SLAPP statute, D. 14 at 3-4, the Court is unpersuaded. It
is well-established that “the motive behind the petitioning activity is irrelevant at this initial stage.”
See, e.g., Office One, Inc. v. Lopez, 437 Mass. 113, 122 (2002); Margolis, 1996 WL 293481, at
*2-3 (noting that “the plain language of [the anti-SLAPP statute] does not limit its application to
public interests or make the motivation of protected parties relevant in any way”). Moreover, the
anti-SLAPP statute “has been held to apply to activity motivated by commercial purposes.”
Margolis, 1996 WL 293481, at *2-3; N. Am. Expositions Co. Ltd. P'ship, 452 Mass. at 863
(explaining that “the fact that the speech involves a commercial motive does not mean it is not
petitioning” under the anti-SLAPP statute). For all of these reasons, Coyle & Caron’s actions that
underlie Plaintiffs’ claim constitutes exclusively of petitioning activity.
5.
Coyle & Caron’s Renderings Had a Basis in Law and Fact
To defeat Coyle & Caron’s special motion to dismiss, Plaintiffs must establish by a
preponderance of the evidence that Coyle & Caron’s exercise of the right to petition “was devoid
of any reasonable factual support or any arguable basis in law.” Margolis, 1996 WL 293481, at
*3. The precise question before the Court is whether Coyle & Caron’s Renderings “‘contain[] any
reasonable factual or legal merit at all.’” Bargantine, 2013 WL 6211845, at *5 (citing Wenger v.
Aceto, 451 Mass. 1, 7 (2008)).
The Court concludes that Coyle & Caron’s Renderings had reasonable factual support.
Coyle & Caron has made a substantial showing, via affidavits and pleadings, that its Renderings
were the product of well-trained professionals who examined multiple sources and engaged in
careful consideration. As an initial matter, Coyle has extensive qualifications as an architect,
including a bachelor’s degree in landscape architect from the College of Architecture at the
16
University of Florida, a master of landscape architecture from the Graduate School of Design at
Harvard University, D. 6-1 ¶ 3-4, professional licenses in Massachusetts and Florida, id. ¶ 4,
membership in the American Society of Landscape Architects, id. ¶ 7, and employment in the
architecture industry since at least 1993. Id. ¶ 6. Coyle & Caron’s services to its clients include
master planning, site design, construction documents, site models and renderings. Id. ¶ 16.
Wetland restoration and reconstruction, habitat design for zoos and sustainable landscapes are
among Coyle & Caron’s particular areas of interest. Id.
In addition, Coyle & Caron’s Renderings for the Preservation Group were based upon a
review of relevant documents. Coyle’s affidavit details the various materials Coyle & Caron
received in preparation for creating the Renderings, including the James Island Way Site Plan
Large House Review, architectural plans from the owner’s architect, photos of James Island, a
photo table listing additional photos of the island, Google earth screenshots, notice of intent plans,
a grading sheet and a review letter by EcoTec, Inc.’s president. Id. ¶¶ 22, 27-28. Over the course
of several days, Coyle & Caron reviewed these documents. Id. ¶ 24. Coyle & Caron engaged in
dialogue with other professionals working for the Preservation Group. Id. ¶ 30. In preparing the
draft, Coyle & Caron used Photoshop and AutoCad to create high resolution photographic files.
Id. ¶¶ 31-33. In collaboration with the Preservation Group and other professionals hired by the
Preservation Group, Coyle & Caron also created a three dimensional model of the view using a
computer program called Sketchup. Id. ¶¶ 38-39. In sum, the Renderings had a factual basis
because Coyle & Caron reasonably based its Renderings upon its skill and experience combined
with the evidence, resources and materials available to it. See, e.g., Baker, 434 Mass. at 552
(concluding that the defendant’s statements regarding the potential effect of increased construction
on nearby bird population had a basis in fact where the defendant was “a biologist who had studied
17
bird populations on Clark's Island for many years”); Margolis, 1996 WL 293481, at *4 (concluding
that the viewpoint upon which defendant petitioned was not devoid of factual basis where
newspaper reports expressed similar concerns and defendant’s concern “reasonably followed from
the information defendant gathered from a site tour”).
Even if Plaintiffs are correct that Coyle & Caron’s Renderings were not entirely accurate,
D. 7 at 12-13, the Renderings would still not be without a factual and legal basis. To prevail,
Plaintiffs must show that no reasonable person would conclude that there was a basis for Coyle &
Caron’s Renderings. See Baker, 434 Mass. at 555. The fact that the architect Plaintiffs have
presented disagrees with Coyle & Caron’s Renderings, D. 7-1, does not mean that the Renderings
are without any basis in fact. The mere existence of disagreement is not determinative here,
because, given Coyle & Caron’s skill set and methodology, a reasonable person could have agreed
with Coyle & Caron at the time of the dispute. See, e.g., Bargantine, 2013 WL 6211845, at *5
(concluding that defendant's police report had "reasonable factual support” even though the
criminal complaint was ultimately dismissed); Donovan v. Gardner, 50 Mass. App. Ct. at 600
(explaining that “[t]he fact that the incidents were resolved in the plaintiffs’ favor . . . does not
mean that there was no colorable basis for their petitions”). Thus, Coyle & Caron’s Renderings
had a basis in law and fact and Coyle & Caron is entitled to dismissal under the anti-SLAPP
statute.3
3
Plaintiffs’ failure to satisfy this prong is an independently sufficient basis for the Court to grant
Coyle & Caron’s special motion to dismiss. See, e.g., Baker, 434 Mass. at 552 n.14 (explaining
that there was no need to reach the second element where the plaintiff failed to meet his burden on
the first element); Margolis, 1996 WL 293481, at *4 (stating the same). For the sake of
thoroughness, the Court reviews the injury prong.
18
6.
Coyle & Caron’s Renderings Did Not Cause Actual Injury to Plaintiffs
Even if the Renderings lacked a reasonable basis in fact and law, Coyle & Caron would
still be entitled to dismissal because Plaintiffs have failed to show that the Renderings caused them
actual injury. See Town of Hanover, 467 Mass. at 596 (explaining that the nonmoving party has
the burden of showing actual injury by a preponderance of the evidence). Here, the Conservation
Commission’s Memorandum of Decision states that Plaintiffs’ proposal was rejected because four
members of the Conservation Commission determined that the proposed construction, specifically
its driveway, would adversely affect adjacent salt marsh wetlands and Plaintiffs failed to
demonstrate their entitlement to a variance. D. 6-1 at 30. The Memorandum of Decision makes
no reference to the Renderings. Id. Thus, the Renderings, even if they suffered from the
inaccuracies Plaintiffs allege, did not cause the denial of Plaintiffs’ proposal. Moreover, Coyle &
Caron has asserted and Plaintiffs have not disputed that two members of the Conservation
Commission who voted against Plaintiffs’ proposed construction stated publically that they were
not considering Coyle & Caron’s Renderings in reaching their decision. Id. at 10. To the extent
that Plaintiffs intended to argue that they suffered actual injury in the form of “ridicule” on
Facebook, D. 7 at 14, Plaintiffs have failed to offer any authority suggesting that such allegations
can rise to the level of “actual injury” and have failed to present sufficient affidavits or other
evidentiary material to support its claim of actual injury. Therefore, Plaintiffs have failed to make
a showing of actual injury and Coyle & Caron is entitled to dismissal of Plaintiffs’ claims.
B.
Coyle & Caron’s Motion to Dismiss Pursuant to Rule 12(b)(6)
In the alternative to its special motion dismiss pursuant to the anti-SLAPP statute, Coyle
& Caron moves for dismissal pursuant to Rule 12(b)(6) for failure to state a claim, D. 5, and, in
the interest of completeness, the Court addresses these bases for dismissal
19
1.
Coyle & Caron Is Entitled to Dismissal of Plaintiffs’ Negligence Claims
In Count I and II, Plaintiffs allege negligence and gross negligence, respectively. D. 1 ¶¶
28-33. Plaintiffs contend that Coyle & Caron “had a duty to use reasonable care not to improperly
create and allow to be published the false, fraudulent and defamatory Renderings and Defendant
breached its duties,” D. 1 ¶ 29, and Coyle & Caron “had a duty to prevent foreseeable harm to
Plaintiffs.” 4 D. 7 at 17. Under Massachusetts law, whether there is a “[legal] duty is ‘determined
by balancing the foreseeability of harm, in light of all the circumstances, against the burden to be
imposed.’” Meridian At Windchime, Inc. v. Earth Tech, Inc., 81 Mass. App. Ct. 128, 132 (2012)
(quoting Vaughan v. E. Edison Co., 48 Mass. App. Ct. 225, 229 (1999)). A professional only owes
a duty of care to a non-contractual third party where it was foreseeable and reasonable that the
third party would rely upon the services provided by the professional and the professional had
actual knowledge that the third party was relying upon the professional’s services. See id. at 135;
see also Barret v. Wakefield Crossing, LLC, No. 11-cv-2329-MMK, 2012 WL 4903004, at *4
(Mass. Super. Oct. 4, 2012) (explaining that “[t]he allegedly negligent party . . . must have ‘actual
knowledge’ of the plaintiff's reliance on its services”).
Foreseeability of harm turns upon whether “the injured party’s reliance on the services
performed by the negligent party was reasonable.” Meridian At Windchime, Inc., 81 Mass. App.
Ct. at 133; see Quigley v. Bay State Graphics, Inc., 427 Mass. 455, 461 (1998). The requirement
of foreseeability and reasonable reliance serves to “avoid the problem of imposing on [a
professional] unlimited liability to an indeterminate class.” McCallum v. Rizzo, No. 94-cv-2878MBS, 1995 WL 1146812, at *2 (Mass. Super. Oct. 13, 1995) (citation and internal quotation marks
4
Plaintiffs also characterize this suit as a “malpractice action based upon Defendant’s failure to
perform within the required professional standard of care.” D. 7 at 11.
20
omitted). Indeed, it is the “rare instance[]” in which a duty of care extends between a professional
and a non-client. Id. at *3.
Plaintiffs have failed to allege that Coyle & Caron owed Plaintiffs, their non-clients, any
duty of care or that Plaintiffs reasonably relied upon the Renderings. Based upon Plaintiffs’
allegations, at the time of the dispute Plaintiffs were aware that the Preservation Group actively
opposed Plaintiffs’ proposed construction, D. 1 ¶ 14, and Plaintiffs were aware that the
Preservation Group hired Coyle & Caron “to create renderings of Plaintiffs’ [proposed
construction] that would improperly make it look like a ‘seven-story Taj Mahal.’” Id. ¶ 16.
Plaintiffs allege that the Renderings “did exactly what they were designed to do” by resulting in
“the wrongful denial of Plaintiffs’ Project.” Id. ¶ 27. Moreover, Plaintiffs expressly disputed the
accuracy of the Renderings at the time of the hearing. Id. ¶¶ 22-26. Thus, Plaintiffs cannot argue
that they reasonably relied upon the Renderings or that they had a reasonable expectation that the
Renderings would be anything other than contrary to Plaintiffs’ interests. Indeed, in their
opposition, Plaintiffs concede that they did not rely upon the Renderings and that doing so would
“simply make[] no sense.” D. 7 at 16-17. Accordingly, both negligence claims, counts I and II,
must be dismissed because Plaintiffs have not and cannot allege that Plaintiffs reasonably relied
upon the Renderings or that Coyle & Caron, as professionals, owed Plaintiffs, a non-contractual
third party, any duty of care.5
5
Plaintiffs’ belated attempt in their opposition to cast their negligence claim as a negligent
misrepresentation claim, D. 7 at 17, does not alter this conclusion. Even if Plaintiffs’ claims in
count I and/or II are treated as negligent misrepresentation claims, the claims fail because negligent
misrepresentation also requires reasonable reliance. See Marram v. Kobrick Offshore Fund, Ltd.,
442 Mass. 43, 59 n.25 (2004) (explaining that “[a] defendant is liable for negligent
misrepresentation if in the course of his business, he supplies false information for the guidance
of others in their business transactions, causing and resulting in pecuniary loss to others by their
justifiable reliance on the information, with failure to exercise reasonable care or competence in
obtaining or communicating the information”). For all of the reasons discussed above, Plaintiffs
21
2.
Coyle & Caron Is Entitled to Dismissal of Plaintiffs’ Defamation Claim
In Count III, Plaintiffs also assert a claim for defamation. D. 1 ¶¶ 34-36. To state a claim
for defamation, a plaintiff must adequately allege that (1) the defendant made a statement to a third
party that concerned the plaintiff (2) the statement was defamatory in that it could damage the
plaintiff’s reputation in the community (3) the defendant was at fault in making the statement and
(4) the statement either caused economic loss or is actionable without economic loss. See Walker
v. President & Fellows of Harvard Coll., 82 F. Supp. 3d 524, 532 (D. Mass. 2014) (quoting Shay
v. Walters, 702 F.3d 76, 81 (1st Cir. 2012)). Plaintiffs allege that the Renderings were “false,
fraudulent and defamatory.” D. 1 ¶ 34. Plaintiffs allege that “[b]y creating and publishing the
Renderings, Defendant did injure Plaintiffs’ reputation within the community at large.” Id. ¶ 35.
The Renderings do not constitute a defamatory statement because the Renderings do not
contain an objective statement. “[D]efamation requires a false statement at its core.” Piccone v.
Bartels, 785 F.3d 766, 771 (1st Cir. 2015). Therefore, opinions are typically insufficient. Id.
Instead, “a statement generally must contain an ‘objectively verifiable assertion,’ to be
defamatory.” Saad v. Am. Diabetes Ass’n, 123 F. Supp. 3d 175, 177 (D. Mass. 2015) (citing
Levinsky’s, Inc. v. Wal–Mart Stores Inc., 127 F.3d 122, 127 (1st Cir.1997)). A statement that
expresses “a subjective view, an interpretation, a theory, conjecture, or surmise, rather than
claiming to be in possession of objectively verifiable facts” is not defamatory. Id. (quoting Piccone
v. Bartels, 785 F.3d 766, 771 (1st Cir. 2015)).
The Renderings constitute interpretations – Coyle & Caron’s interpretation of Plaintiffs’
proposed construction. Plaintiffs allege that the Renderings were “created” by Coyle & Caron’s
have conceded that they did not rely upon the Renderings and even if Plaintiffs had relied upon
the Renderings, that reliance would be unreasonable.
22
president, Coyle.
D. 1 ¶ 17. As alleged, at the time the Renderings were created, Plaintiffs’
“house” was only a proposed design. Id. ¶¶ 10, 12, 13-23. Plaintiffs also describe the Renderings
as “drawing[s],” “depiction[s]” and “model[s].” Id. ¶ 22-23.
Even if, as Plaintiffs allege, the
Renderings were “gross distortions,” id. ¶ 17, the Renderings were mere interpretations of a
proposal. D. 1-3 at 2; D. 1-4 at 2. The Renderings cannot be proven false because, as alleged, the
proposed house the Renderings depict does not exist. See Veilleux v. Nat’l Broad. Co., 206 F.3d
92, 108 (1st Cir. 2000) (explaining that “only statements that are ‘provable as false’ are actionable);
Feld v. Conway, 16 F. Supp. 3d 1, 4 (D. Mass. 2014) (granting motion to dismiss defamation claim
where the statement plaintiff pointed to “was obviously intended as criticism—that is, as opinion—
not as a statement of fact”).
Moreover, the subjective nature of the Renderings is supported by the fact that the
Renderings were created within the context of the ongoing dispute regarding Plaintiffs’ proposed
house and the resolution of Plaintiffs’ application before the Conservation Commission. See
Vranos v. Skinner, 77 Mass. App. Ct. 280, 296 (2010) (explaining that “[i]n deciding whether a
statement is defamatory, both the context in which and the circumstances under which the
statement was made are important considerations”); Saad, 123 F. Supp. 3d at 178 (explaining that
determination of whether allegedly defamatory statement may be described as an opinion “requires
an examination of the totality of the circumstances in which the specific challenged statements
were made, including the general tenor and context of the conversation and any cautionary terms
used by the person publishing the statement”).
Because Plaintiffs have failed to allege a
defamatory communication, they have failed to state a claim for defamation. See e.g., Amrak
Prods., Inc. v. Morton, 410 F.3d 69, 72-73 (1st Cir. 2005) (affirming the dismissal of a defamation
claim where “[t]he miscaptioned photograph in the instant case [was] not reasonably susceptible
23
of a defamatory meaning” after considering the photograph “in light of the entire context of the
publication”).
3.
Coyle & Caron is Entitled to Dismissal of Plaintiffs’ Mass. Gen. L. c.
93A Claim
Plaintiffs’ Mass. Gen. L. c. 93A claim fails because Plaintiffs have not alleged the requisite
business transaction between Plaintiffs and Coyle & Caron. To state a claim under Mass. Gen. L.
c. 93A, a plaintiff must allege (1) that a person who is engaged in trade or business committed an
unfair or deceptive trade practice and (2) that the unfair practice caused the plaintiff to suffer a loss
of money or property. See Kozaryn v. Ocwen Loan Servicing, LLC, 784 F. Supp. 2d 100, 102 (D.
Mass. 2011) (citing Morris v. BAC Home Loans Servicing, L.P., 775 F. Supp. 2d 255, 259, 2011
WL 1226974, *3 (D. Mass. April 4, 2011)). “Apart from claims of unfair competition, a plaintiff
must allege some sort of transaction between the parties for liability to attach.” Swenson v. Yellow
Transp., Inc., 317 F. Supp. 2d 51, 56 (D. Mass. 2004) (quoting L.B. Corp. v. Schweitzer-Mauduit
Int'l, Inc., 121 F. Supp. 2d 147, 152 (D. Mass. 2000)). Where “there [is] no relationship between
the plaintiffs and the defendants at all prior to the accident . . . it is axiomatic that the alleged
wrongful conduct did not arise in a business context between them.” Id. at 57.
Plaintiffs have alleged no business relationship between themselves and Coyle & Caron.
Instead, Plaintiffs allege that Coyle & Caron were hired by the Opposition Group. D. 1 ¶ 16.
While Plaintiffs correctly note that the absence of privity of contract is not an automatic bar to a
Mass. Gen. L. c. 93A claim, D. 7 at 19, “[t]he lack of any business relationship between [Plaintiffs]
and [Coyle & Caron] is fatal to the 93A claim.” Noel v. CitiMortgage, Inc., No. 13-cv-3035-SF,
2014 WL 2802864, at *2 (Mass. Super. June 12, 2014), aff’d sub nom. Noel v. Citibank, 87 Mass.
App. Ct. 1124 (2015). Thus, Plaintiffs’ Mass. Gen. L. c. 93A claim must be dismissed. Id.
24
(dismissing Mass. Gen. L. c. 93A claim where a business relationship or transaction was not
alleged).6
VI.
Conclusion
For the foregoing reasons, the Court ALLOWS Coyle & Caron’s special motion to dismiss.
D. 5.
So Ordered.
/s/ Denise J. Casper
United States District Judge
6
Plaintiffs have also argued that Coyle & Caron’s motion to dismiss should be denied because
Coyle & Caron violated Local Rule 7.1(a)(2) by bringing the motion to dismiss without first
conferring with Plaintiffs. D. 7 at 3. Although compliance with the Local Rules is expected,
“omitting to confer prior to filing a motion certain to be opposed does not warrant so severe a
sanction as summary denial.” Gerakaris v. Champagne, 913 F. Supp. 646, 651 (D. Mass. 1996).
Plaintiffs have conceded that, if Coyle & Caron had conferred with Plaintiffs prior to filing this
special motion, Plaintiffs would have simply “explained . . . all the reasons for why [the] motion
is without merit and should not be filed.” D. 7 at 3. Thus, even if Coyle & Caron had complied
with the Local Rules, Plaintiffs would have maintained their opposition to the motion, which for
all of the reasons discussed above, was a sound motion on the merits. Here, in the absence of
prejudice, the punishment of summary denial would be excessive. See, e.g., Travelers Prop. Cas.
Co. of Am. v. Noveon, Inc., 248 F.R.D. 87, 92 (D. Mass. 2008); Laporte v. Lab. Corp. of Am.
Holdings, No. 13-cv-12084-FDS, 2014 WL 2818591, at *7 (D. Mass. June 20, 2014).
Accordingly, the Court does not grant Plaintiffs’ request for denial of the motion on this basis.
25
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