issue of some public interest or concern." Dllracrajt, 691 N.E.2d 935, 940. The
pClrty moving for disn,issal under the anti-SLAPI' stCltute has the initial burden to
demonstrate that the statute applies. Morse Bros., IIlC., 91 20, 772 A.2d at 849. To
prevail on an anti-SLAPP special motion to dismiss, the defendant must "show
that the suit was based on some activity that would qualify as an exercise of the
defendant's First Amendment right to petition the government." Scl/ellillg v.
Li/ldell, 2008 ME 59, 9[ 7, 942 A.2d 1226, 1229 citing 14 M.RS. § 556. If this
showing is made, the burden then shifts to the responding party, in this case the
Plaintiffs, to establish through pleadings and affidavits (1) "that the moving
party's exercise of its right of petition was devoid of any reasonable factual
support or any arguable basis in law," and (2) that "the moving party's acts
caused actual injury to the responding party." Morse Bros., IIIC., 9f 20, 772 A.2d at
849.-1
J The court notes that the events leading to this suit occurred bctween March 22"0 and March 31 S\, 2009, and that Plaintiffs' Complaint was not filed until Novcmbcr 9, 2009. If the Plaintiffs' suit is a SLAPP action, based on this seven-month dclay between DeCcndants' alleged petitioning activities and the commencement of this suit, it is clear that this suit was not filed to "delay or distract" Defendants' petitioning, but rather to punish them for their petitioning activities. ~ 14 M.R.S. § 556 provides: "This court shall grant the [moving party's] special motion, unless the party against whom the special motion is made shows that the moving party's exercise of its right of petition was devoid of any reasonable factual support or any
8 The Court notes that while the anti-SLAPP statute aims to protect a
party's exercise of its right to peti tion, the statute also impinges on a plaintiff's
right to seek redress on a valid claim. DllrrJcroft, 691 N.E.2d at 943. "[C]areful
consideration should be given 'before a statute designed to protect one party's
exercise of its right to petition is interpreted to impinge on another party's
exercise of its own right to petition - specifically, its right to petition the courts
for redress of grievances by filing a lawsuit.'" Liberty v. BellI/eft, CV-09-459 (Me.
Super. Ct., Cum. Cty., January 19,2010) (\;Yheeler, ].) citing ]oJllisOIl v. GrIl, 2005
Me. Super. LEXIS 161 (Nov. 28, 2005) (Warren, J.).
By raising the anti-SLAPP statute, a defendant moving for anti-SLAPP
protection is able to alter traditional burdens in civil procedure in two ways.
Generally, when a plaintiff files a complaint and a defendant files a motio~1 to
dismiss or a motion for summary judgment, the plaintiff's complaint is viewed in
the light most favorable to permitting the claim to go forward. However, when a
defendant moves for ,111 anti-SLAPP special motion to dismiss, if the defendant
demonstrates that he was engaged in "petitioning activity," the burden shifts so
that the plaintiff's claim is at risk of being dismissed unless the plaintiff can
demonstrate that the defendant was not really engaged in a valid petitioning
activity. Rebecca Ariel Hoffberg, Note, TIle Special Motion Require/llents of tile
Massachllsetts Allti-SLAPP Stotute: A Real Slap in tile Face for Traditiol/al Civil
Practice alld Procedure, 16 B.U. Pub. lnt. L.J. 97, 109 (1996).
By removing the favorable inference that a complaint should come forward, [the anti-SLAPP] law has forced plaintiffs to demonstrate a higher burden of proof, while permitting defendants to dismiss
arguable basis in law and that the moving party's acts caused actual injury to the responding party."
9 clclims under a lower burden of proof. When claims are more easily dismissed, more plaintiffs will lose the opportunity to have their day in court. Id. Second, "beclluse the special motion requires the consideration of both
pleadings and affidavits, the standard of review should resemble the standard
for reviewing a motion for summary judgment./I Morse Bros., Inc., at 9I 17, 772
A.2d at 848. However, typically a defendant will raise an anti-SLAPP special
motion to dismiss earl y in the proceedings. When the burden shifts to the
plaintiff to show that moving party's exercise of its right to petition was sham
petitioning and to show that the moving party's acts caused actual injury, the
plaintiff is forced to make these showings well before a plaintiff has had an
opportunity to conduct discovery to (1) obtain evidence to show the defendant
was engaged in sham peti tioning, (2) produce evidence of actual injury, and (3)
develop supporting facts for his claim or claims.
An additional problem exists for a plaintiff who asserts a valid defamation
claim. Generally SLAPP suits filed to dissuade petitioning activities are
camouflaged as ordinary ci vil actions such as defamation or abuse of process.
Hoffman, The Speciall'·/lolioll, supra, at 97. What happens if the movant is
engaged in a petitioning activity that is defamatory? Does an anti-SLAPP motion
in that scenario defeat a valid defamation claim?
The caselaw interpretations of the anti-SLAPP statutes in Maine and
Massachusetts attempt to restore a modicum of balance to the traditional right of
pl aintiffs to peti tion the court for redress of grievances, which is eroded by the
anti-SLAPP statute's burden shifting.
10 In Dltmcmft Corporntiolt v. Holllles Products Corpomtiolt" the Massachusetts
Supreme Court addressed the fact that the anti-SLAPP statute could undermine a
plaintiff's ability to bring a valid claim. The Massachusetts Supreme Court
recognized that claims under Massachusetts' anti-SLAPP statute" can be used as
a litigation tactic - as a sword instead of a shield - to deter a plaintiff's valid
cl<:lim and recognized a need to balance the interests of the parties. The
MClssachusetts Supreme Court analyzed the anti-SLAPP statute's phrase "li]n
any case in wliich a party asserts that the civil claims, counterclaims, or cross
claims against said party are based on said party's exercise of its right of petition
under the constitution ...." MASS. GEN. LAWS ch. 231, § 59H. The court adopted
a construction of "based on" that limits the use of anti-SLAPP motions made
against apparently meritorious claims. Dllrncrnft, 691 N.E.2d at 943. 7 Under this
construction the moving party needs "to make a threshold showing through the
pleadings and affidavits that the claims against it are "based on" the [moving
party's] petitioning activities alone and have no substantial basis other than or in
addition to the petitioning activities." Id.
5 In J)urocrc!/i, the parties were business competitors engaged in a tradcmark dispu1c. Dumcm/i, 691 N.E.2d at 937. Holmes hired a former Duracraft employec, who had been a witness in thc trademark dispute and had signed a nondisclosure agreement with Duracraft. Dumcrafi, 69 I N.E.2d at 937-38. After Holmes hired the employee, the cmployce's dcposition was taken. Duracraft filed suit alleging the employee made statements during the deposition which breached his nondisclosure contract with Duracraft, breached his 1iduciary duties, and violated attorney-client and work-product privileges. lei. Holmes filed a special motion to dismiss pursuant to Massachusetts' anti SLAPP statute. ld. at 939.
() See supra n. 2. Massachusetts' anti-SLAPP statute is nearly identical to Maine's anti SLAPP statute.
7 Thc court stated "we adopt a construction of' based on' that would exclude motions brought against meritorious claims with a substantial basis otl1er than or in addition to the petitioning activities implicated." Dumcrnft, 691 N.E.2d at 943
11 This interpretation is bolstered by the use of the plural nouns "claims,"
"counterclaims," and "cross-claims" in the statute. The legislatures could have
enacted laws which provided that an anti-SLAPP motion to dismiss may be
brought if" any" of the claims against the moving party were based on the
moving party's right to petition. Instead, the legislatures made "claims" plural,
which suggests that they intended for an anti-SLAPP motion to apply only to
those claims against the moving party that were based on the moving party's
right to petition.
In Morse Brothers Ille. v. Webster, the Law Court adopted the reasoning of
Dnmcraft. In Morse Brat/leI's, the Law Court stated that the first step in deciding
an anti-SLAPP claim required thc court to "determinc whether the claims against
the moving party arc based on the moving party's exercise of the right to
petition." Morse Brat/leI's file., at 9I 19, 772 A.2d at 849 citing Donoval/ v. Cantller,
740 N.E. 2d 639, 642 (Mass. App. Ct. 2000). Citing Oumcrajt, the Massachusetts
Court of Appeals in DOlJovalJ stated that in order "to gain the prophylactic effect
of the statute, the special movant must make a threshold showing through the
pleadings and affidavits that the asserted claims against it are 'based on the
petitioning activities alone and have no substantial basis other than or in
addition to the petitioning activities.'" Donovan, 740 N.E.2d at 642, citing
DumemJi, 691 N.E.2d at 943. This court recites this history to highlight that a
moving party asserting that Maine's anti-SLAPP statute applies, has the initial
burden to show that the claims against it are based on the moving party's
petitioning activities alone.
2. Defendants' Anti-SLAPP Claims
12 As an initial 111.atter, the anti-SLAPP claims of Defendants WGME and
[cthon must fail because neither was petitioning on its own behalf, but both were
instead petitioning to the Scarborough Police Department and the Cumberland
County District Attorney on behalf of Defendant Beaulieu. See Kobrill v.
Gas~frielld, 821 N.E.2d 60, 63 (Mass. 2005) (finding that the anti-SLAPP statute
does not apply on the ground that "the defendant was not seeking from the
government any forn\ of redress for a grievance of his own or otherwise
petitioning on his own behalf, he was not exercising his "right of petition under
the constitution" within the mellning of the statute."). The anti-SLAPP statute "is
designed to protect overtures to the government by parties petitioning in their
status as citizens." Kobrill, 821 N.E.2d at 64. While the anti-SLAPP statute has
afforded protections to the attorney of a petitioning citizen, see Maietta COllsfr.
Ille. v. Wai1l'lurig1Jt, 2004 ME 53, 847 A.2d 1169; see also Plallfe v. Wylie, 824 N.E.2d
46] (Mass. App. Ct. 2005), it was not intended to protect the news media, or its
representatives, who have an independent responsibili ty to report news
accurate] y.
The Court now turns to Defendant Beaulieu's anti-SLApr claim. Plaintiffs
underlying claims against Beaulieu are defamation (Count 1), and false light and
invasion of privacy (Count II). Beaulieu allegedly petitioned by contacting the
Scarborough Police and/ or the Cumberland County District Attorney's office,
and by contacting WGME and Ichton to investigate and air a story on lchton's
show. In filing this special motion to dismiss, Beaulieu is claiming that the
Plaintiffs filed suit in response to his petitioning activities, apparently in an effort
to punish him for petitioning. See supra n. 3. The Court notes that Beaulieu's
petitioning activities do not involve the typical subject matter that the anti
13 SLAPP statute was intended to address. Instead of petitioning against a
development project, Morse Brothers, err 10, 772 ME at 846, or a corporation's
violation of environmental regulations, Hoffberg, The Special Motiol/, supra at 97,
Beaulieu's petitioning activities concerned aJJeged ownership of a dog.
However, because "petitioning activities" are broadly defined under the statute,
Beaulieu's peti tioning qualifies as an exercise of his First Amendment right to
petition.
A review of the pleadings and supporting and opposing affidavits
supports the court's determination that Plaintiffs have shown that (1) Becmlieu's
right to peti bon was devoid of any reasonable factual support or any arguable
basis in law, and (2) Beaulieu's actions caused actual injury to the party.
Beaulieu's petitioning was premised on his dispute with Demeuse over
unauthorized veterinary charges, and his belief that Demeuse had no legal right
to withhold possession of the dog. Demeuse attached to her <1ffidavit as Exhibit
A, the signed authorization for treatment that Beaulieu's girlfriend signed after
Demeuse treated the dog. Demeuse also attached to her affidavit as Exhibit B,
the ownership contract Beaulieu's girlfriend signed on his behalf, whic1l
transferred ownership of the dog to Demeuse, and waived Beaulieu's clilim of
ownership of the dog. s Demeuse further states in her affidavit that she explained
8 The ownership contract states: [, Jason Beaulieu, do here state that 1 am the legal owner or guardian or Rocky, a 3 year old yellow Labrador Retriever. I do hereby release Rocky into the care and custody of Tender Touch Veterinary Hospital and Dr. Rita Demcuse. I no longer have any claim to this animal and will not have access to information about his health or whereabouts. [have verbally consented to this over the phone, as verified by the last 4 digits of my SSN, 9346. Sara Hanson signs below as a witness to my intentions. Demeuse AfT., Jan. 13,2010, Ex. B.
14 to IchtOll on March 26th that she owned tIle dog by virtue of this contract. In the
story aired on the show "On Your Side," neither Beaulieu nor lchton mentioned
the signed authorization of treatment or the contract. Beaulieu did not file any
affidavit at all and relies on the denials contained in his answer to Plaintiffs'
complaint. Plaintiffs also met their burden in showing that Defendants caused
actual injury. Plaintiffs engaged Jeffrey Wortlling, a certified public accountant,
to estimate Plaintiffs' lost revenue resulti ng from the broadcast of the story.
Worthing states in his affidavit that Plaintiffs lost $570,277.00 as a result of
Defendants' broadcast. See Worthing Aff., Ex. A.
Because Plaintiffs have met their burden to show that Beaulieu's
petitioning activity was devoid of any reasonable factual support or arguable
basis in 1m'll and because Beaulieu's acts caused actual injury, Beaulieu's motion
to dismiss based on ]4 M.R.S. § 556 is denied.
III. Defamation Claim
Plaintiffs allege Defendants made and reported false and defamatory
statements that were broadcast during the TV show "On Your Side," by
Defendcll1t WCME. A statement is defamatory "if it tends to harm the reputation
of another as to lower him in the estimation of the community or to deter third
persons from associating or dealing with him." Balcal v. Weare, 583 A.2d 1028,
1029 (Me. 1990) (quoting Restatement (Second) of Torts § 559). A claim of
defamation consists of:
1) a false and defamatory statement 2) an unprivileged publication to a third party 3) fault amounting at least to negligence on the part of the publisher; and 4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.
15 Lester v. Powers, 596 A.2d 65, 69 (Me. 1991). While all the facts and details
surrounding a claim of defamation do not need to be stated to withstand a
motion to dis1l1iss, a complaint alleging defamation must allege all of the
elements of the tort in order to place the defendant on notice of the claim against
them. ValJlsing C}lristi71a Corp. v. Stanley, 487 A.2d 264, 267 (Me. 1985). A
complaint alleging dcfamlltion will not be dismissed so long as the plaintiff hlls
"adequately alleged the necessary elements of defamation, and sufficiently
apprised the defendant of the nature of the claim." Id., 487 A.2d at 267. The
court addresses the defendants' alleged statements separatel y.
1. lehton's and WGME's alleged defamatory statements
Defendants lchton and WCME contend that Plaintiffs' defamation claim
should be dismissed because Plamtiffs failed to specificall y allege which
statements were false, and which statements could be attributed to them. The
court disagrees that this provides grounds for dismissal. At the motion to
dismiss stage,Y a plaintiff's failure to specifically allege the defamatory material is
not necessarily fatal to the plaintiff's claim. Valtlsing ClJristiIJa Corp., 487 A.2d at
267. In order to prevail in a defamation claim, the plaintiff need not provide
exact proof of all of the alleged words in the statement, but must prove the
material words essential to the defamation claim. SmUlders v. VanPelt, 497 A.2d
1125-26 (Me. 1985). Plaintiffs defamation claims are concerned with the
"Modern pleading and proof rules have relaxed old technicalities of defamation <)
pleading. A pleading is tested by whether it 'alleges facts which would entitle plainliffto relief on some theory or if it avers every essential clement of a claim. '" Simmons, ZilJman & Gregory, Maine Tort Law § 13.04 (1999 cd.) at 363 quoting Vahlsing Christina Corp. v. Stanley, 487 A.2d 264, 267 (Me. 1985).
16 statements reported, the omission of facts from the rcport, and the tenor of the
report.
Plaintiffs allege that the story Ichton and WGME broadcast consisted of
Ichton interviewing Beaulieu or reporting Beaulieu's side of the story. Despite
interviewing Demeuse and getting her side of the story, the story stated that
Demcuse was unwilling to give the dog back to Beaulieu because he would not
pay the $900 bill, he had not had the dog microchipped, and because he had let
the dog get loose. Plaintiffs allege lchton 01l1itted the fact that Beaulieu released
ownership of the dog after he stated he would rather have euthanized it than pay
for its treatment. Plaintiff also alleges lchton reported as fact that Demeuse was
"wrong" in keeping possession of the dog and did not have a legal right to keep
the dog.
Defendants Ichton and WGME claim that Plaintiffs' defamation claim
should be dismissed because the claim rests on non-actionable statements of
opinion. A defamation claim requires that the statement be an assertion of fact,
and not merely an opinion. Lester, 596 A.2d 65, 69. Under the First Amendment,
"statements arc protected as opinion unless "provably false" and capable of
being reasonably interpreted as making or implying false and defamatory
statements concerning actual facts." Lester, 596 A.2d at 71 n. 9.
"Whether an allegedly defamatory statement is a statement of fact or
opinion is a question of law." Ballard v. Wagller, 2005 ME 86, 91 11, 877 A.2d 1083,
1087. ''In assessing whether a statement expresses fact or opinion, [the court]
looks to the totality of the circumstances and to whether the statement was
intended to state an objective fact or a personal observation." Id., (~11, 877 A.2d
1087-88. The crucial difference between statements of fact and opinion depends
17 upon whether ordinary persons hearing or reading the matter complained of
would be likely to understand it as an expression of the speaker's or writer's
opinion, or a statement of existing fact." ld., 9112,877 A.2d at 1088. In assessing
whether words are defamatory, "they must be taken in their ordinary and usual
meaning." ld.
Plain tiffs' Complaint against Ichton and WGME alleges two statements.
The first is that Ichton's report stated that Dr. Demeuse was unwilling to give the
dog back to Beaulieu because he would not pay the $900 bill, while omitting the
facts that Beaulieu released ownership of the dog to Demcuse, and stated he
would have had the dog euthanized. The second alleged statement is that Ichton
reported as fact that Demeuse was "wrong" in keeping the dog and that she did
not have a legal right to keep the dog. Both of these statements are capable of
being understood by an ordinary person as expressions of fact. Accordingly,
Plaintiffs defamation claim against lchton and WGME should not be dismissed
on the ground that the statements are non-actionable opinion.
2. Beaulieu's alleged defamatory statements
The Amended C01l1plaint alleges that Beaulieu made the following three
statements, which aired on WGME's show "On Your Side," in Ichton's report:
"We offered to pay half the invoice and she told us there is no such thing as free veterinary care."
"We never authorized to have $900 put into the dog."
And, Beaulieu claimed that Rocky [the dog] "should be home" with his family.
Pl.'s CompI. (Feb. 4, 2010) 11 30-32. The third statement, that the dog "should be
home," is dismissed as a non-actionable expression of opinion. However, the
first two statements could be defamatory and could be "provably false" by the
18 Plaintiffs. Therefore, Defendant Beaulieu's motion to dismiss the defamation
cl aim is gran ted in part and denied in part.
IV. False Light and Invasion of Privacy Claims
Defendants lchton, WGME, and Beaulieu claim that Plainti££s' claim for
false light and invasion of privacy should be dismissed because the alleged
statements are not highly o££ensive. Defendant Beaulieu claims that there is
nothing in the Complaint that would indicate that Beaulieu made any highly
offensive statements. Defendants Ichton and WGME claim that Plaintiffs'
dispute with Beaulieu was a commercial dispute, in which Demeuse was not
willing to return the dog because the owner would not pay for the surgery and
because she had concerns about Beaulieu's fitness as an owner.
The Law Court adopted the Restatement (Second) of Torts § 652E for the
definition of false light claims. Nelsoll v. Maille Til/les, 373 A.2d 1221, 1223 (Me.
1977). The Restatement provides:
One who gives publicity to a matter concerning another that plclces the other before the public in a false light is subject to liability lo the other for invasion of his privacy, if (a) the false light in which the other was pI aced would be highl y offensive to a reasonabl e person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
Restatement (Second) of Torts § 652E. The substance of BeauLieu's and 1chton's
statements is that Demeuse would not return the dog to Beaulieu because
Beaulieu did not want to pay the bill and because Demeuse was concerned about
the dog's welfare. None of their statements mentioned that Demeuse had a legal
right to the dog because Beaulieu surrendered ownership over it and had his
girlfriend Hanson sign an authorization giving ownership to Demeuse. The
story aJJegedly broadcast by Defendants' could be considered highly offensive to
19 a rcason(lblc person. As alleged in the Amended Complaint, Defendants
portrayed Demeuse as (l veterinarian who withheld a dog from its owner
because the owner would not pay, and the story mentioned th(lt the police had to
take the dog from Demeuse. Based on the (lllegations in the Complaint,
Plaintiffs' false light claim should not be dismissed.
V. Punitive Damages
Punitive damages are a remedy and not a cause of action. "A demand for
punitive damages is not severable as a separate claim." Cole v. Petersoll Really,
1llC., 432 A.2d 752, 756 (Me. 1981). At most, Count VI of Plaintiff's Complaint can
be construed as a prayer for relief in the form of punitive damages. "To award
punitive damages, a court must find by clear and convincing evidence, that
malice existed." Morgoll v. Koolstra, 2008 ME 26, <[[ 29,941 A.2d 447,455. Claims
alleging malice may be pled generally. M.R. Civ. P. 9(b). Plaintiffs allege that
Defendants' actions were motivated by in will or were so outrageous that malice
toward the Plaintiffs could be inLplied. At the motion to dismiss stage, it is too
carl y to dismiss Plaintiffs' request for punitive damages.
VI. Vicarious Liability and Conspiracy
Count IV of Plaintiffs' Complaint alleges WGME is vicariously liable for
the conduct of Defendant lchton that caused damages to the Plaintiffs. Plaintiffs
allege that lchton was acting as an employee and agent of WGME at all relevant
times, and tllilt she acted within the course and scope of her employment.
WGME docs not deny Ichton's employment. Count VI of Plaintiffs' Complaint
alleges all of the Defendants conspired to 1) force Plaintiff to give up the
possession of the dog and 2) to defame the Plaintiffs. Vicarious liability is not a
cause of action, but is a principle by which a principal can be held liable for an
20 <1gent's actionable conduct. The principal or his agent cannot be liable in tort
unless the agent committed tortious conduct. Simmons, Zillman & Gregory,
Maille Tort Lmu § 16.02 (1999 cd.) at 524. Similarly, lJ[i]n Maine, conspiracy is not
a separate tort but rather a rule of vicarious liability." McNally v. Mokarzel, 386
A.2d 744, 748 (Me. 1978). Much like Plaintiffs' reguest for punitive damages,
Counts IV and VI provide Plaintiffs with an avenue for relief rather than a cause
of action.
The Court grants Defendants WGME and lchton's mOlion to dismiss
Counts IV and VI. The factual allegations in Counts IV and VI remain, but they
are dismissed as independent grounds for relief. Accordingly Derneusc may still
reach WGME through a theory of vicarious liability and all of the Defendants
through a theory of conspiracy.
VII. A huse of Process
Count V of Plaintiffs' Complaint asserts a claim of abuse of process
against Defendants \NGME and Ichton. A claim for abuse of process is IJthe
employment of process in a manner not contemplated by the law." Packnrd v.
CClltra! Maillc Power Co., 477 A.2d 264,267. The law court has stated that the
clements of an abuse of process claim are "that a defendant: (i) initiated or used a
court document or process in a manner not proper in the regular cond LId of
proceedings, (ii) with the existence of an ulterior motive, and (iii) resulting in
damage to the plaintiff." Tanguay v. Asell, 1998 ME 277, 5, 722 A.2d 49, 50. The
timing of an action giving rise to an abuse of process claim is important. A claim
for abuse of process "covers the allegedly improper use of individual legal
procedures after a suit has been filed properly." SimoJl v. Navoll, 71 F.3d 9 (1 sl
Cir. 1995).
21 Plaintiffs allege:
WCME and Ichton acted with malice and without legal justification when they pressured the Cum.berland District Attorney's Office to becoJTle involved in a civil matter in order to (1) forcefully and unlawfully take the dog away from Dr. Demeuse; [and] (2) intilTlidate Dr. Demeuse and prevent her from pursuing legal remedies available to her as guaranteed by the United States and Maine Constitutions....
(Compl., (If 56). Plaintiffs allege that Defendants WGME and lchton pressured the
District Attorney's Office before Plaintiffs filed sui t. PI ai ntiffs' abuse of process
claim fails because it does not allege the Defendants used a legal process
Pl
document or initiation of court process that is alleged to have been used
improperly.
VIII. WGME's and lchton's Assertion of Conditional Privilege
Defendants WCME and lchton assert that Plaintiffs' claims for
defamation, false light, and abuse of process must fail because their alleged
pressuring of the Cumberland County District Attorney's office and the
broad casted report on liOn Your Side" are conditionally privileged. The Law
Court discussed conditional privilege in Morgml v. Kooistm, 2008 ME 26, 941 A.2d
447.
An allegedly false statement, published to a third party, is subject to a conditional privilege if (1) the statement is made through "normal channels" to further an important public interest; (2) the third party's knowledge of the information will serve the lawful protection of that interest; and (3) the publisher of the statement does not act ':Vith malice or a reckless disregard for the truth or falsity of the statement.
A conditional privilege protects against liability for defamation when "society has an interest in promoting free, but not absolutely unfettered, speech." Whether a conditional privilege exists is a question of law. The determination of whether such a privilege
22 exists is based on the tota.lity of the circumstances, looking at the "interests of the publisher a.nd the recipient."
Morgrlll, 919I 31-32, 941 A.2d a.t 455-56 (internal citations omitted). Sta.tements
made by a person living in the community to a police officer for the purpose of
protecting one's property, and to communicate to a police officer for the purpose
of aiding in the detection of a crime are conditionally privileged. Rocllc v. Egall,
433 A.2d 757, 765 (Me. 1981). A conditional privilege exists unless the speaker
abuses the privilege. Morgall, err 34, 941 A.2d at 456. A conditional privilege for a
defamatory statement can be lost if the statements claimed to be privileged
"were not published with an honest belief in their truth," if they were published
wi th reckless disregard for the tru th, Rocllc, 433 A.2d at 765, or if the statements
were made "outside the normal channels or with malice." Morgall, ([ 34, 941
A.2d at 456. At the Motion to Dismiss stage, it is too early for the court to
determine if WGME's and lchton's statements are protected by a conditional
privilege.
DECISION
Therefore, the entry is:
Defendants' anti-SLAPI' Motion to Dismiss are DENIED. Defendants
Ichton and WGME's Motion to Dismiss Plaintiffs' defamation claim is DENIED.
Defendants' Motion to Dismiss Plaintiffs' defamation claim against Defendant
Beaulieu is granted in part and denied in part, consistent wi th this Order.
Defendants' Motions to Dismiss Plaintiff's false light claims are DENIED.
Defendants' Motions to Dismiss Plaintiff's Counts IV (vicarious liability) and VI
(conspiracy) is granted in accordance with this Order. It is premature to
23 determine if Defendants lchton and WGME are protected by a conditionJ]
privilege. The Motion to Dismiss Plaintiffs' abuse of process claim is GRANTED.
Dated at Portland, Maine this q~ day of (dh , 201 O.
~'C Justice, Superior Court
24 --~-~--,..--- - DR. RITA DEMEUSE TENDER TOUCH VETERINARY HOSPITAL LLC
Plaintiffs Attomey(s)
AARON K BALTES ESQ BERNARD J BRODER III ESQ