United States Court of Appeals For the First Circuit
No. 25-1149
REBECCA BLAKESLEY,
Plaintiff, Appellee,
v.
JENNIFER MARCUS; COLLEEN MARCUS,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]
Before
Rikelman, Lynch, and Aframe, Circuit Judges.
Michael G. McDonough, with whom Edward J. McDonough Jr., Paul M. Bromwich, and Egan, Flanagan & Cohen, P.C., were on brief, for appellants.
Shaun M. Khan, with whom Keith L. Sachs and DDSK Law LLC were on brief, for appellee.
October 31, 2025 RIKELMAN, Circuit Judge. This case presents difficult
questions about the application of the Massachusetts anti-SLAPP
statute.1 In 2021, Colleen and Jennifer Marcus reported alleged
misconduct by Rebecca Blakesley, a nurse, to a number of
governmental and private organizations. In response, Rebecca sued
them for defamation and tortious interference with business
relations. She contended that they made false allegations against
her in retaliation for her recent decision to dissolve her marriage
with Colleen's son.
The Marcuses moved to dismiss Rebecca's case under the
anti-SLAPP statute, Massachusetts General Law chapter 231, § 59H.
This statute allows defendants to obtain early dismissal of a
lawsuit if they can demonstrate that the claims against them were
brought to discourage them from exercising their right to petition
the government. The district court denied the special motion to
dismiss. It concluded that Rebecca's claims were not based solely
on "petitioning activity" because the Marcuses' reports to the
private organizations did not qualify as petitioning, and as a
result, the anti-SLAPP statute did not apply. The Marcuses then
filed this interlocutory appeal. We choose to bypass the thorny
questions surrounding our appellate jurisdiction because we
resolve the merits in favor of the party who opposes our
1SLAPP stands for "strategic lawsuit against public participation."
- 2 - jurisdiction, Rebecca. Thus, we affirm the district court's
ruling.
I. BACKGROUND
A. Relevant Facts
Rebecca Blakesley married Andrew Blakesley in 2019.2 She
alleges that Andrew often threatened or abused her throughout their
tumultuous relationship, which ended in January 2021. In one
episode in April 2020, during the COVID pandemic, Andrew threw a
punch that hit Rebecca's hand and broke her finger. According to
Rebecca, Andrew then pulled her out of her chair by her hair, threw
her on the bed, and struck her in the head, abdomen, and thighs.
The next day, Andrew offered to help Rebecca with data entry for
her nursing job, given the injury to her finger. She eventually
accepted his help, fearful that he would retaliate if she declined.
At the time, Rebecca was working under contract as a nurse
evaluator with several private healthcare agencies. In her role,
she conducted virtual evaluations of patients with disabilities
and drafted written reports that she entered into an online portal.
Rebecca gave Andrew access to these online databases from April to
December 2020 so that he could input patient information on her
behalf.
2We refer to Rebecca, Andrew, Colleen, and Jennifer by their first names to avoid confusion.
- 3 - In the second half of 2020, as the COVID pandemic
continued, their relationship deteriorated. One night in early
December, Rebecca sought police assistance when Andrew became
violent, resulting in Andrew's arrest for domestic assault and
battery. Rebecca ended their relationship after this incident.
Less than a week later, on December 11, Rebecca received a text
from Andrew that read, in part, "Get ready for the
investigation . . . ive [sic] got friends and family who actually
care about me who are actually interested in all this. The jig is
up [] and I'm not playing your games." Rebecca ultimately obtained
an abuse prevention order against Andrew on January 7, 2021. Later
that month, she filed for divorce.
Just days after a state court granted Rebecca a
protective order against Andrew, Colleen and Jennifer, Andrew's
mother and sister-in-law respectively,3 reported alleged
misconduct by Rebecca to various public and private organizations.
They claimed that Rebecca had shared confidential patient
information in violation of the Health Insurance Portability and
Accountability Act of 1996 (HIPAA), § 101(a), 29 U.S.C. § 1181 et
seq.; fraudulently billed her time as a nurse evaluator; cheated
and committed plagiarism while at nursing school; and faked a COVID
test so that she could undergo a medical procedure. Jennifer filed
Colleen is "not Andrew's biological mother but she raised 3
him since he was an infant and Andrew considers her his mother."
- 4 - a report with the U.S. Department of Health and Human Services,
Office of Civil Rights (OCR), on January 15, 2021, and with the
State of Connecticut Department of Public Health several days
later. She also contacted Rebecca's nursing school and several of
Rebecca's private healthcare employers via phone and email to
report the same alleged instances of HIPAA violations, fraudulent
billing practices, and cheating. On January 25, 2021, Colleen
filed a complaint with the Board of Registration in Nursing (BORN),
which is part of the Massachusetts Department of Public Health.
In her complaint, Colleen explicitly referenced Jennifer's reports
to OCR and Rebecca's nursing school.
After receiving Colleen's complaint, BORN launched an
investigation of the allegations against Rebecca that would last
three years. The private healthcare companies terminated
Rebecca's employment, and the Commonwealth halted its review of
her application to become a licensed psychiatric nurse
practitioner.
B. Procedural History
On January 24, 2024, Rebecca filed this lawsuit against
Colleen and Jennifer in federal court, relying on diversity
jurisdiction under 28 U.S.C. § 1332. She alleged that the Marcuses
maliciously published false statements to destroy her career in
retaliation for her decision to divorce Andrew. Count I alleged
defamation for the publication of these false statements. Count
- 5 - II alleged intentional interference with business relations for
depriving Rebecca of her relationships with her previous
employers.
In response, the Marcuses brought a special motion to
dismiss under the Massachusetts anti-SLAPP statute. This statute
provides a procedural mechanism for the early dismissal of
"meritless suits brought to discourage individuals from exercising
their constitutional right of petition." Bristol Asphalt, Co. v.
Rochester Bituminous Prods., Inc., 227 N.E.3d 1019, 1026 (Mass.
2024) ("Bristol").
The district court denied the Marcuses' anti-SLAPP
motion to dismiss. It did so after closely examining Bristol, a
recent decision by the Massachusetts Supreme Judicial Court (SJC),
which explained that the anti-SLAPP statute is not "applicab[le]
to claims with a substantial basis other than or in addition to an
individual's exercise of the right of petition." Id. at 1026
(discussing Duracraft Corp. v. Holmes Prods. Corp., 691 N.E.2d 935
(Mass. 1998)). Citing Bristol and other authority, the district
court determined that the Marcuses had failed to show that
Rebecca's claims of defamation and tortious interference were
based solely on their petitioning activity. As the court
explained, because the Marcuses' complaints to Rebecca's employers
and former school did not qualify as "petitioning activity,"
- 6 - Rebecca's case against them concerned "mixed claims," and thus the
anti-SLAPP statute did not apply.
Colleen and Jennifer timely appealed.
II. STANDARD OF REVIEW
We consider both (1) whether we have interlocutory
jurisdiction over this appeal and, if so, (2) the merits of the
district court's ruling denying the anti-SLAPP motion to dismiss.
Both of those issues present questions of law. See Lee-Barnes v.
Puerto Ven Quarry Corp., 513 F.3d 20, 25-26 (1st Cir. 2008) (citing
Will v. Hallock, 546 U.S. 345, 347 (2006)). Thus, we review the
district court's ruling de novo. See Steinmetz v. Coyle & Caron,
Inc., 862 F.3d 128, 136 (1st Cir. 2017) (citing Godin v. Schencks,
629 F.3d 79, 85 (1st Cir. 2010)).
As a federal court sitting in diversity jurisdiction, we
"look to [Massachusetts] law for the substantive rules of decision
governing [the] state law arguments" under the anti-SLAPP statute.
Smith v. Prudential Ins. Co. of Am., 88 F.4th 40, 47 (1st Cir.
2023) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)).
So "we endeavor to predict how the Commonwealth's highest court
would" rule on the special motion to dismiss. Lawrence Gen. Hosp.
v. Cont'l Cas. Co., 90 F.4th 593, 598 (1st Cir. 2024) (citing Aubee
v. Selene Fin. LP, 56 F.4th 1, 4 (1st Cir. 2022)).
- 7 - III. DISCUSSION
As we explain, we bypass the complicated questions about
our statutory appellate jurisdiction over this interlocutory
appeal because we resolve the case in favor of Rebecca, the party
opposing our jurisdiction.
A. Jurisdiction
The Marcuses contend we have jurisdiction under the
collateral order doctrine, an "exception to 28 U.S.C. § 1291's
statutory grant of jurisdiction over final decisions" by the
district courts. Doe v. Town of Lisbon, 78 F.4th 38, 44 n.2 (1st
Cir. 2023). The collateral order doctrine allows review of a
"narrow class of decisions that do not terminate the litigation,
but must, in the interest of 'achieving a healthy legal system,'
nonetheless be treated as 'final.'" Digit. Equip. Corp. v. Desktop
Direct Inc., 511 U.S. 863, 867 (1994) (citation omitted) (quoting
Cobbledick v. United States, 309 U.S. 323, 326 (1940)); see also
Lee-Barnes, 513 F.3d at 25. To qualify for review under the
collateral order doctrine, an "interlocutory order must present:
(1) a conclusive decision, (2) distinct from the merits of the
action, (3) on an important issue, (4) which would effectively be
unreviewable on appeal from a final judgment." Godin, 629 F.3d at
84 (citing Awuah v. Coverall N. Am. Inc., 585 F.3d 479, 480 (1st
Cir. 2009)).
- 8 - The parties' jurisdictional dispute centers on the
second prong of the collateral order test: whether the anti-SLAPP
motion to dismiss raises legal issues that are separate and
"distinct" from the merits of Rebecca's underlying defamation and
tortious interference claims. Id. To answer this question, we
must evaluate the interplay between Massachusetts law on
anti-SLAPP motions and the federal collateral order doctrine.
The SJC recently clarified the correct legal analysis
for special motions to dismiss under the Massachusetts anti-SLAPP
statute. See generally Bristol, 227 N.E.3d 1019. As the SJC made
plain in Bristol, its goal was to replace an existing analytical
framework that "ha[d] not provided an efficient or practical
solution to the problem it was designed to address" with a
simplified two-stage framework that "hews to the statutory
language." Id. at 1027 (the "Bristol framework").
Under stage one of the Bristol framework, it was the
Marcuses' burden (as the proponents of the special motion to
dismiss) to make a "threshold showing through the pleadings and
affidavits" that their conduct, which Rebecca has challenged in
this lawsuit, consists solely of their petitioning activity. Id.
at 1037 (quoting Duracraft, 691 N.E.2d at 943). If the Marcuses
failed to meet this initial burden, it was incumbent upon the
district court to deny their special motion to dismiss under
Bristol. See id. If they succeeded, then the burden would have
- 9 - shifted to Rebecca (as the special motion opponent) to demonstrate,
in stage two, that the Marcuses' petitioning activity was "devoid
of any reasonable factual support or any arguable basis in law"
and "caused [her] actual injury." Id. at 1038 (quoting Mass. Gen.
Laws ch. 231, § 59H).
Here, the district court's analysis of the anti-SLAPP
motion started and ended with stage one of the Bristol framework.
The court decided that, "even assuming the [Marcuses'] decision to
report [Rebecca] was petitioning activity, [Rebecca's] claims are
not based solely on protected activity. Rather, [the Marcuses]
proceeded to also contact [Rebecca's] employers (and potentially
her former school) after they had already made the governmental
reports." The court concluded these "later efforts," targeted at
private entities, "are not petitioning activity" under
Massachusetts law and thus denied the motion. The court closed
the order with a reminder that the Marcuses retained the
opportunity to assert defenses to Rebecca's claims and move for
summary judgment after discovery.
With the district court's stage one analysis in mind, we
turn back to the question of whether the district court's ruling
resolves a "distinct" legal issue, separate and apart from the
merits of the case, that we can review under the collateral order
doctrine. Godin, 629 F.3d at 84. This is a complex question that
has divided other federal circuit courts.
- 10 - A number of federal courts of appeals have declined to
exercise interlocutory jurisdiction over orders denying anti-SLAPP
motions to dismiss. See, e.g., Gopher Media LLC v. Melone, No.
24-2626, 2025 WL 2858761 (9th Cir. Oct. 9, 2025) (en banc)
(overruling Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003)); Coomer
v. Make Your Life Epic LLC, 98 F.4th 1320 (10th Cir. 2024); Ernst
v. Carrigan, 814 F.3d 116 (2d Cir. 2016). In some of these
decisions, the courts focused on the equivalent of stage two of
the Bristol framework, which requires examining whether the
petitioning activity was devoid of any factual or legal support,
an analysis that those courts concluded is inevitably intertwined
with the merits of the underlying action.4 And even on this issue,
the federal circuit courts are split.5
4See Coomer, 98 F.4th at 1327 (rejecting interlocutory jurisdiction over the order denying the anti-SLAPP motion to dismiss because evaluating step two of Colorado's anti-SLAPP statute, whether the plaintiff has shown that he will prevail on his claim, "necessarily involve[s] fact weighing and thus cannot be completely separate from the merits" of the defamation claim); Ernst, 814 F.3d at 119-20 (holding that the denial of relief under Vermont's anti-SLAPP statute was not appealable because step two of the analysis is "entangled in the facts" and not completely separate from the merits of the underlying defamation claim). 5The U.S. Court of Appeals for the Fifth Circuit concluded that a ruling denying an anti-SLAPP motion to dismiss under a Louisiana statute did satisfy the second prong of the collateral order doctrine, even when considering the factual basis of the claims under stage two. See Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 175-177 (5th Cir. 2009) (holding that a decision on the Louisiana anti-SLAPP motion to dismiss "is not a ruling on the ultimate merits; it is merely tangential to the merits," and the "minor possibility of minimal entanglement [of
- 11 - We do not wade into this debate today. As our precedent
makes clear, we may assume appellate jurisdiction when, as here,
the case poses a difficult question of statutory jurisdiction and
our decision on the merits will favor the party challenging our
jurisdiction. See In re Fin. Oversight & Mgmt. Bd. for P.R., 91
F.4th 501, 508-09 (1st Cir. 2024); see also Nisselson v. Lernout,
469 F.3d 143, 151 (1st Cir. 2006) (assuming statutory jurisdiction
to avoid "sort[ing] out [the] thorny jurisdictional tangles" that
the collateral order doctrine presents).
B. Merits
To recap, the district court held that the Marcuses could
not survive stage one of the Bristol framework and denied their
anti-SLAPP motion to dismiss. Specifically, it concluded that
Rebecca alleged "mixed claims" that were not based solely on their
petitioning activity. The Marcuses insist that the district court
erred, arguing that their reports to government agencies plainly
qualified as petitioning activity and their reports to Rebecca's
private employers were "made in connection with" their valid
petitioning activity and so are also protected under the anti-SLAPP
statute. (Quoting Mass. Gen. Laws ch. 231, § 59H.)
The Massachusetts anti-SLAPP statute provides, "[i]n any
case . . . in which a party asserts that the [claims] against [it]
the issues] is insufficient to overcome the interests that favor a finding of immediate appealability").
- 12 - are based on [its] exercise of its right of petition under the
[C]onstitution of the United States or of the [C]ommonwealth,
[that] party may bring a special motion to dismiss." Mass. Gen.
Laws ch. 231, § 59H. The anti-SLAPP statute defines a party's
"exercise of its right of petition" as:
[A]ny written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by [such body or proceeding]; any statement reasonably likely to encourage consideration or review of an issue by [such body or proceeding]; any statement reasonably likely to enlist public participation in an effort to effect such consideration; or any other statement falling within constitutional protection of the right to petition government.
Id.
Under the statute, a court "shall grant" a special motion
to dismiss "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. Finally, the statute
instructs a court to "consider the pleadings and supporting and
opposing affidavits stating the facts upon which the liability or
defense is based" when making its determination whether to grant
the special motion. Id.
- 13 - Recently, in Bristol, the SJC emphasized the "need to
clarify and simplify" the analytical framework for evaluating
anti-SLAPP special motions to dismiss. 227 N.E.3d at 1027. As it
explained, over the years, parties had invoked the anti-SLAPP
statute in an effort "to dismiss a wide array of [] claims
concerning conduct far afield of the petitioning activity that the
[Massachusetts] [l]egislature originally sought to protect." Id.
at 1026. The court recognized that the complexity of the
then-existing framework for analyzing anti-SLAPP motions had
detracted from one of the "principal purposes" of the statute: "to
obtain the expeditious dismissal of meritless claims that are based
on petitioning alone." Id. at 1027. Overall, the SJC instructed
courts to "proceed cautiously" before administering the "strong
medicine" of granting an anti-SLAPP motion to dismiss. Id. at
1036. This caution was necessary, the court explained, because
"both proponents and opponents of special motions to dismiss are
engaged in petitioning activity," given that a plaintiff who files
a lawsuit is, of course, exercising their own right of petition.
In setting out a new, simplified framework in Bristol,
the SJC explicitly held that its goal was to return to the "narrow
and strict construction of the [anti-SLAPP] statute" initially set
out in Duracraft, 691 N.E.2d 935. Bristol, 227 N.E.3d at 1037.
Under that approach, the SJC took a strict view "of § 59H's
- 14 - reference to claims 'based on' a party's petitioning
activity . . . to 'exclude motions brought against meritorious
claims with a substantial basis other than or in addition to the
petitioning activities implicated.'" Id. at 1033 (quoting
Duracraft, 691 N.E.2d at 943). As the SJC explained, this focus
on whether a case involves claims based on petitioning activity
alone is a "necessary part of a simplified anti-SLAPP framework"
that "ensures that [a plaintiff's] own petitioning activity is not
infringed." Id. at 1037.
Under the streamlined Bristol framework, the district
court was required to evaluate at stage one whether Rebecca's
underlying claims were based solely on the Marcuses' petitioning
activity. See id. at 1036-37. In performing this analysis, the
court was permitted to consider only the Marcuses' alleged conduct,
not their motivations for that conduct. See 477 Harrison Ave.,
LLC v. Jace Boston, LLC, 74 N.E.3d 1237, 1244-46 (Mass. 2017).
The Marcuses argue that all their alleged conduct
constitutes petitioning activity, whereas Rebecca maintains that
only their complaints to the governmental entities qualify as
petitioning. Thus, the parties' disagreement focuses on the
complaints to the private entities: Rebecca's employers and her
nursing school.
According to the Marcuses, their complaints to Rebecca's
private employers qualify as petitioning activity because they
- 15 - were statements "made in connection with an issue under
consideration" by the government. Mass. Gen. Laws ch. 231, § 59H.
In particular, they claim the employers were potential "witnesses"
in any BORN investigation of Rebecca. They offer no argument,
however, that their complaints to the nursing school qualify under
this provision of section 59H, even though both the district court
and Rebecca have emphasized this conduct as one reason why her
claims are "mixed."
We thus turn to the "in connection" requirement. The
SJC has stated that for statements to qualify as being "in
connection with an issue under consideration" by a governmental
body, there must be "a plausible nexus between the statement and
the governmental proceeding." Blanchard v. Steward Carney Hosp.,
Inc., 75 N.E.3d 21, 30 (Mass. 2017), overruled on other grounds
by, Bristol, 227 N.E.3d at 1035-36.6 To assess if this "plausible
nexus" exists, the SJC analyzes "objective indicia of a party's
intent to influence a governmental proceeding," such as the timing,
audience, and content of the statement. Id. at 30-33. But
paramount to the analysis is whether the "communication [was] 'made
to influence, inform, or at the very least, reach governmental
bodies -- either directly or indirectly.'" Id. at 30 (quoting
The SJC clarified in Bristol that the precedent "prior to 6
Blanchard[] concerning mixed claims remains sound" and that the court was "not upend[ing] [its] jurisprudence concerning other aspects of the threshold inquiry." 227 N.E.3d at 1038 n.17.
- 16 - Global NAPs, Inc. v. Verizon New England, Inc., 828 N.E.2d 529,
532 (Mass. App. Ct. 2005)).
The Marcuses claim that their statements to Rebecca's
employers qualify under this standard because the employers were
likely to be witnesses in any BORN investigation. In support of
this contention, they argue that statements they made to
"third[ ]parties" that merely "reiterated" what they reported to
the government qualify as part of their petitioning activity. They
point to three cases that they maintain stand for this proposition:
Blanchard, 75 N.E.3d 21; Plante v. Wylie, 824 N.E.2d 461 (Mass.
App. Ct. 2005); and Wynne v. Creigle, 825 N.E.2d 559 (Mass. App.
Ct. 2005).
The difficulty for the Marcuses, however, is that none
of these three cases support their argument. First, none of these
cases concern potential witnesses to a governmental proceeding,
nor have we found any Massachusetts cases that address whether and
when statements to a potential witness would qualify as petitioning
activity under the anti-SLAPP statute. Second, the cases do not
come close to suggesting that any statements to third parties that
merely reiterate a statement to a governmental body qualify as
petitioning activity; instead, they stand for much narrower
principles. For example, Blanchard and Wynne concern statements
to newspapers. See Blanchard, 75 N.E.3d at 32; Wynne, 825 N.E.2d
at 565-66. In Blanchard, the statements were made by a hospital
- 17 - president and communicated his views about an ongoing governmental
investigation of the hospital. 75 N.E.3d at 31-32. In Wynne,
Creigle (the defendant) made the statements to the newspaper in
direct response to comments by the plaintiff, the opponent in the
underlying governmental proceeding. 825 N.E.2d at 565. What is
more, Creigle's statements were "mirror images" of what she had
reported to the governmental body. Id. at 565-66 (describing
Creigle's statements as "mere repetition[s]" of those she had
already made during the underlying investigation of the
plaintiff). On these facts, the courts in both Wynne and Blanchard
concluded that the statements to the newspapers were "in
connection" with the party's own attempts to influence the
governmental body.7 Id.; Blanchard, 75 N.E.3d at 30-31. Moving
on to Plante, the court in that case held that statements made in
settlement negotiations between the two adversaries in a
governmental proceeding were "in connection" with that proceeding.
824 N.E.2d at 463, 467-69. As it explained, statements designed
7 To be clear, Massachusetts courts have ruled that statements to the media can qualify under the "in connection" provision of the anti-SLAPP statute in some circumstances but not others. For example, in Global NAPS, the court concluded that a statement to the press did not qualify as petitioning activity, even though it was about an ongoing governmental proceeding, because it was merely an "oblique reference" to that proceeding and not a "mirror image[]" of what was said in the governmental forum. 828 N.E.2d at 530, 534. As the court explained, not just "any statement about an issue under some form of government consideration . . . [is] protected by the statute." Id. at 532.
- 18 - to resolve the governmental proceeding would, inevitably,
influence the outcome of that proceeding. Id. at 468-69.
We see no basis under Massachusetts law for extending
these cases to the facts here or for concluding that the Marcuses'
statements to Rebecca's private employers would inevitably
influence or reach BORN. Further, the Marcuses have failed to
provide any argument at all about why the complaint to Rebecca's
school should qualify as petitioning activity, thus waiving any
basis for challenging the district court's ruling on that point.
See United States v. Zannino, 895 F.2d 1, 16-17 (1st Cir. 1990);
Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29 (1st
Cir. 2015) ("Our precedent is clear: we do not consider arguments
for reversing a decision of a district court when the argument is
not raised in a party's opening brief.").
As a federal court sitting in diversity, we "must
exercise considerable caution when considering the adoption of a
new application" of state law. Doyle v. Hasbro, Inc., 103 F.3d
186, 192 (1st Cir. 1996). And because it is "quintessentially the
province of state courts" to "extend state law," Markham v. Fay,
74 F.3d 1347, 1356 (1st Cir. 1996), we decline to do so here by
concluding that statements to potential witnesses in governmental
proceedings always satisfy the "in connection" requirement. Thus,
based on the arguments presented, we see no basis for disturbing
the district court's ruling that the Marcuses' reports to private
- 19 - entities did not qualify as petitioning activity under current
Massachusetts law and, as a result, the Marcuses failed to meet
their burden at stage one of the Bristol framework. For that
reason, we affirm the district court's decision denying the
anti-SLAPP motion to dismiss.
Finally, the Marcuses point out that Colleen did not
personally contact any non-governmental entities, and thus she
should prevail on her anti-SLAPP motion to dismiss, even if
Jennifer cannot. The district court found it plausible, however,
that Colleen and Jennifer coordinated their actions, so it saw no
reason to dismiss Colleen at that stage of the proceedings. The
Marcuses argue that the district court erred in this analysis.
But the pleadings and affidavits support the district court's
ruling about coordination between Colleen and Jennifer. As we
discussed above, Colleen's complaint to BORN references the
complaints that Jennifer filed with OCR and Rebecca's nursing
school. The Marcuses provide no legal authority for their position
that the district court erred in so concluding, based on its review
of their own exhibits filed in support of their special motion to
dismiss. And because the SJC instructs "courts to proceed
cautiously" before applying the "strong medicine" of granting an
anti-SLAPP motion to dismiss, we determine that the Marcuses have
failed to present any well-developed ground to overrule the
- 20 - district court's decision on this point. Bristol, 227 N.E.3d at
1036.
Our holding aligns with the SJC's instruction to take a
narrow view of when claims are "based on" a party's exercise of
its right to petition. Id. at 1036-37. As the SJC explained, the
"powerful procedural protections" of the anti-SLAPP statute "were
intended to be employed in a limited context: to ensure the
expeditious elimination of meritless lawsuits based on petitioning
activities alone." Id. at 1037. For that reason, "[m]ixed claims,
that is, those based on a proponent's petitioning along with
substantial conduct other than or in addition to the petitioning
activities, . . . [are] best addressed in the course of ordinary
litigation, where both sides' claims and defenses can be fully
analyzed based on a more complete record, not special motions to
dismiss." Id. at 1036. The district court held as much here.
IV. CONCLUSION
For all these reasons, we affirm the district court's
order denying the special motion to dismiss and remand for further
proceedings.
- 21 -