Livezey v. MTM Acquisition, Inc.

Opinion

STA TE OF MAINE BUSINESS & COUNSUMER DOCKET CUMBERLAND, ss. DOCKET NO. BCD-CV-18-22

WILLIAM LIVEZEY, ) ) Plaintiff, ) ) V. ) ORDER ON DEFENDANT'S MOTION ) TO DISMISS MTM ACQUISITION, INC., d/b/a/ ) MAINETODAY MEDIA, ) ) Defendant. )

This matte!' is before the Court on Defendant MTM Acqnisition, Inc., d/b/a/ MaineToday

Media's C'MTM") motion to dismiss the Complaint pursuant to M.R. Civ. P. 12(b)(6). Plaintiff

William Livezey opposes the motion. The Court heard oral argument on the motion otl August 28,

2018. MTM was represented by Jonathan Piper, Esq. and Mr. Livezey was repl'esented by Stephen

Whiting, Esq.

BACKGROUND

This claim arises from MTM's reporting on Mr. Livezcy's conduct as an undercover law

enforcement officer in connection with a two-year sting operation in Allagash. Mr. Livezey was

an undercover operative with the Maine Warden Service from 1996 to 2016. (PPs Compl. j~ 6-7 .)

In 2012 1 he began a covert investigation of suspected poaching in Allagash. (PJ's Comp!. ~ 9.)

There were three primary targets of Mr. Livezey's investigation, and he ingratiated himself with

the primary targets and their associates. (PJ's Compl. !~ 10-11.) Mr. Livezey's investigation

resulted in arrests, prosecutions, and convictions. (PJ's Comp!.~~ 15-16.)

Beginning on May 8, 2016, MTM published an investigative series of at least twenty-six

articles on the Maine Warden Service, including the Allagash prosecutions and prl01· undercover

1 investigations Mr. Livcz.cy conducted throughout his career. (PJ's Comp!.~~ 25-56.) Mr. Livezey

alleges that those articles included twelve untrne statements about him, which are explained in

more detail below. (Pl's Compl. ~~ 28-29, 31.) Mr. Livezey also alleges that eight of the statements

misrepresented the contents of a 2006 Maine Supreme Judicial Court opinion regat·ding a prior

investigation by Mr. Livezey in 2003: Star.e v. Perry, 2006 ME 76,899 A.2d 806. (PJ's Compl. ~~

30-31.)

STANDARD OF REVIEW

In reviewing a motion to dismiss under Rule 12(b)(6), courts "consider the facts in the

complaint as if they were admittcd: 1 Bonney v. Stephens Mem. Hosp., 2011 ME 46, 1f 16, 17 A.3d

123. The complaint is viewed "in the light most favorable to the plaintiff to determine whether it

sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief

pursuant to some legal theory.I> Id. (quoting Saunders v. Tisher, 2006 ME 94, ~ 8,902 A.2d 830).

"Dismissal is warranted when it appears beyond a doubt that the plaintiff is not entitled to relief

under ~ny set of facts that he might prove in support of his claim.» Id. "The legal sufficiency of a

complaint challenged pursuant to M.R. Civ, P. 12(b)(6) is a question of law,, and thus subject to

de novo appellate review. Marshalt v. Town ofDexter, 2015 ME 135, ~ 2, 125 A.3d 1141.

DISCUSSION

MTM's primal'y argument is that Mr. Livezey has failed to allege "actual malice" on the

part of MTM, which the Supreme Court of the United States has held to be an essential element

of defamation claims brought by "public figures." (Mot. Dcsmiss 6-8.) Mr. Livezey responds that

he "alleges over half a dozen times that the Defendant's statements were made 'maliciously, with

known falsity and reckless disregard for the truth,"' (Opp'n Mot. Dismiss 2.)

2 The parties agree thnt Mr, Livezey is a "public figure" under Maine law. See Roche v.

Egan, 433 A.2d 757,762 (Me, 1981). (Mot, Dismiss 7; see Opp'n Mot. Dismjss 1-3.) "Discussion

of public officials and public figures on matters of public concem , . , deserves special favor in a

democratic society, and thus such discussion is subject to a conditional privilege-the 'First

Amendment privilege' -that can be overcome only by clear and convincing evidence of

knowledge or disregard of falsity." Lester v. Powers, 596 A .2d 65, 69 (Me. 1991) (citing New York

Times v. Sultiva.n.,376 U.S. 254, 279-80, 285-86 (1964)). "Actual malice" in this context is a term

of art specific to defamation cases and means that a false statement was made "with knowledge

that it was false of with reckless disregard of whether it was false or uot.u New York Times, 376

U.S. at 280; see also Lester, 596 A .2d at 69 n.7,

MTM argues that Mi·. Livezey merely recites the legal standard for actual malice without

pleading any facts that, if true, would support the claim. Mr, Llvezey responds that general

allegations that the statements were made maliciously, with known falsity and reckless disregard

for the truth, is sufficient to survive a motion to dlsmiss, In the alternative, Mr. Livezey argues that

taken as true, and in a light most favorable to him, the allegations support a finding of actual

malice.

Mr. Livezey's first argument is without merit. To survive a motion to dismiss, "[t]be

complaint must allege facts with sufficient particularity so that, if true, they give rise to a cause of

action; merely reciting the elements of a claim is not enough." America v. Sunspray Condo. Ass'n,

20!3 ME 19,113, 61 A.3d 1249, see also Schatz v. Republican State Leadership Comm., 669 F.3d

50, 56-57 (1st Cir, 2012). If there arc no factual allegations to support the conclusion that MTM

acted with actual malice, then the Complaint should be dismissed, regardless of MJ'. Livezey's

3 charactel'ization of MTM's employees' states of mind when MTM published the allegedly false

statements about Mr. Livezey, See Schatz, 669 F.3d at 56.

The Court next turns to the Complaint to determine whether the factual allegations therein,

taken as true, could support a finding that Ml'M acted with actual malice. In so doiJ1g, the Court

considers not only the allegations in the Complaint but also the series of Maine Sunday Telegram

articles on which Mr. Livezey's Complaint is based, attached to MTM's motion as Defendant's

Exhibit 1. See Moody v. State Liquor & Lottery Comm'n, 2004 ME 20, , 11, 843 A.2d 43

("[D]ocuments that are central to the plaintiff's claim, and documents referred to in the complaint

may be properly considered on a motion to dismiss without converting the motion to one fo1· a

summary judgment when the 11uthenticity of such documents is not challenged,");

see also Schatz, 669 F.3d at 56.

The first allegedly defamatory statement is that Mr, Livezey ''hcal'd a lot of talk about

poaching, but he never caught either [primary target of the investigation] actually doing it." (Pl's

Comp!.~ 31.a.) Mr. Livezey points out that he earlier alleged that he "observed mol'e than three

httndred , , , wildlife crimes committed by the Primary Targets of the investigation" and that his

investtg,ttion resulted in numerous convictions. (Pl's Compl. ~1' 12, 20.) Mr. Livezey argues tha.t

these latter two allegations show that MTM's employees knew that the statement that "he never

caught either man actually [poaching]" was false, and yet MTM published it anyway.

The Court disagrees, The allegations in Paragrnphs Twelve and Twenty of the Complaint

could not support a finding that MTM 11cted with actual malice when it published the statement in

Paragraph 31, subparagraph a, At most, they could establish the faJsjty of the published statement,

not MTM's knowledge of its falsity . Furthermore, as MTM points out on page 2 of its rebuttnl

brief, the statements are not necessarily even factually inconsistent, "Poaching" is not synonymous

4 wlth "wildlife crimes," and the convictions c011ld have resulted whether or not Mr. Livezey

personally observed poaching.

Mr. Livezey next points to the following three allegedly defamatory statements, whlch

show that MTM's l'eporters read Mr. Livezey's reports. (Pl's Comp!, 9~ 31.b-31.d.) Mr. Livezey

alleges earlier in the Complaint that he "made detailed contemporaneous reports of his

investigation,'' (Pl 's Comp I. j 13 .) In defending againstthis motion to dismiss, Mr. Live'iey claims

that because MTM's journalists read his reports, they must have known that the statements in

Paragraph 31, subparagraphs a. through d. were not true based on what was in those rep01ts,

However, even Jf MTM published a statement that was inconsistent with what was in Mr.

Livczey's report, this does not show that MTM's journalists knew that the published statement

was false or were recklessly indifferent to its truthfulness. The articles and the Complaint m!lke

clear that Mr. Livezey's reports were not MTM's only sources. (Pl's Comp!. 1~ 24-25; Def's Ex.

I.) At most, these published statements show that MTM' s journalists did not accept everything in

Mr. Livezey's reports as true.

The last eight allegedly defamatory statements in the Complaint refer to an opinion of the

Maine Supreme Judicial Court sitting as the Law Court: Stare v, Perry, 2006 ME 76, 899 A.2d

806. (PJ's Comp!.~~ 31.e-31.l,) Mr. Livezey alleges that the articles "repeatedly and maliciously,

with known falsity and a reckless disregard for the truth, patently misstated and misrepresented

the contents of [the opinion] regarding a prior investigation by Plaintiff in 2003 in Oxford County,

Maine." (Pl's Compl. j 30.) The complained-of language is some variation of: "The court ruled

that Livezey's behavior in an Oxford County undercover operation might have been 'repugnant,'

but 'not so outrageous' that all criminal charges against the man targeted in that investigation

should be dismissed." (Pl's Comp!.~ 31.e; see PJ's Comp!.~~ 31.e-31.l,)

5 These allegations show that at most MTM reporters misinterpl'eted what the Perry opinion

says. The actual language from Perry is as follows:

We have acknowledged that there may be cases in which government officers are so enmeshed in the criminal activity that the prosecution of another participant in that activity might be "repugnant to our concept of criminal justice." State v. Smith, 615 A.2d 1162, 1165 (Me, 1992). The warden's activities here were clearly designed to ingratiate himself with Perry and Perry's friends and clients so that he could pel'sonally observe violations of the fish and wildlife laws. His testimony was replete with instances of how he attempted to avoid committing a crime personally. We fire not convinced that the warden's conduct was so outrageous that due process requires a dismissal of all charges. State v. Perry, 2006 ME 76, ~ 27,899 A.2d 806. The Perry opinion quotes Smirh, 615

A.2d at 1165 (quoting United States v. Russell, 411 U.S.423, 428, 431-32 (1973)):

When government investigators are enmeshed in the crimitrnl activity for which the defendant is prosecuted, the prosecution of that defendant is repugnant to our concept of criminal justice, This defense, however, is available only when the "conduct of law enforcement agents is so outrageous due process principles would absolutely bar the Government from invoking judicial processes to obtain a conviction." The Law Court's holding in Perry would be ambiguous to a layperson, and a person trained

in legnl research would understand that reading the citation to Smith is important to resolve that

ambiguity. While the complained-of language may be an error in legal interpretation,journalists

cannot be held to the same standard as a lawyer, judge, or legal scholar. See Time, Inc, v. Pape,

401 U.S. 279, 290 (1971) ("Time[ J ... adopll.ed] one of a number of possible rational

interpretations of a document that bristled with ambiguities, The deliberate choice of such an

interpretation, though arguably reflecting a misconception, was not enough to create a jury issue

of 'malice' under New York Times.") Mr, Livezey alleged that MTM acted •

6 known falsity and a reckless disregard for the truth" in interpreting a legal opinion of the Law

Court that would be ambiguous to a layperson, but does not allege any facts to support that

conclusion. Even if "the decision does not say what the Defendant purported to quote it to say," it

does not necessarily follow that "Defendant . , . must have made up those quotes, and knowingly

or recklessly falsified its reports[]" in the absence of any further allegations bearing on MTM's

reporters' states of mind,• (Opp'n Mot. Dismiss 3.)

[n sum, Mr. Livezey has failed to plead facts that could support a finding that MTM

published the allegedly defamatory statements with "11ctual malice," that ls, with knowledge that

the statements were false or with reckless disregard of whether they were false or not. As this is

an essential element Lo a public figure's defamation claim, Mr. Livezey's Complaint should be

dismissed.

CONCLUSION

Based on the foregoing it is hereby ORDERED:

That Defendant MTM's motion to dismiss is GRANTED. Plaintiff William Livezey's

Complaint is dismissed.

The Clet'k is requested to enter this Order on the docket for this case by incorporating it by

reference. M.R. Civ. P. 79(a).

, Furthermore, it Is unlikely that lhe statements in Pl 's Com pl. ~i 31.c-3 l.l. are defamatory. With the exception of~ 31,h, MTM described the Law Coul't as "finding" or "ruling" that Mr. Livczey's behavior "may" OI' "might'' have been "repugnant." Not only do MTM's Journalists (who presumably are no( lawyers) condition their interpretation of the Law Court's holdlng, but many courts have held that words like "repugnant" cannot be actionable in any event. Sea Levinsky's, Inc. v. \Val-Mart Stores, Inc., 127 F. 3d 122,129 (1st Cir. 1997) ("trashy"); Fleming v. Benzaquin, 454 N.E.2d 95, 99 n.7, 100 (Mass. 1983) ("reprehensible"); Hickey v. Capital Cities, 792 F, Supp.1195, l 199 (D, Or. 1992) (applying Oregon law) ("repulsive"),

7 Dated: M. Michaela Mm40­ Justice, Business and Consumer Court

Entered on the Docket: 9/:1,; /; f Copies sent via Mail_Electronically~

8 STATE OF MAINE BUSINESS & COUNSUMER DOCKET CUMBERLAND I ss' DOCKET NO. BCD-CV-18-22 /

WILLIAM LIVEZEY> ) ) Plaintiff> ) ) v. ) COMBINED ORDER ON PLAINTIFP S ) MOTION· FOR RECONSIDERATION MTM ACQUISITION, INC., d/b/a/ } AND MOTION TO AMEND MAINETODAy MEDIA I ) ) Defendant. )

Pending before the Court are Plaintiff William Livezeyis motion for reconsideration and

motion to amend complaint. The Defendant. MTM Acquisition. Inc., d/b/a MaineToday Media

("MTM 11) opposes both motions. Mr. Livezey is represented by Stephen Whiting, Esq. and MTM

is represented by Jonathan Piper, Esq., Sigmund Schutz, Esq., and Benjamin Piper, Esq. Pursuant to its discretionary authority under M.R. Civ. P. 7(b)(7) the Court elects to decide the motions

without holding oral argument.

BACKGROUND Mr. Livezey filed a complaint (the 11 Complaint) against MTM for libel and defamation

based on its reporting on his conduct investigating wildlife crimes undercover in Allagash, Maine

between 2012 and 2014. MTM did not answer the Complaint, instead filing a motion to dismiss

for failure to state a claim pursuant to M.R. Civ. P. 12(b)(6), Mr. Livezey opposed the motion to

dismiss on its merits, but did not bdng a motion to amend the Complaint. On September 21, 2018,

this Court entered its order granting MTM s motion to dismiss (the "Prior Order") on the grounds 1

that the Complaint failed to plead facts that could support a finding that MTM published the

alJegedly defamatory statement with "actual malice," an essential element to a defamation claim

brought by a 11public figure.. like Mr. Livezey. See, e.g., Roche v. Egan, 433 A.2d 757, 762 (Me.

1 1981). Mr, Livezey thereafter brought the two motions now under consideration and filed a

proposed amended complaint (the uAmended Complaint. 0 )

DISCUSSION

I. Plaintiff's Motion for Reconsidergitiou

"A motion for reconsideration of the judgment shall be tt·eated as a motion to alter or amend

the judgment," M.R. Civ. P. 59(e}. Courts shouJd order relief pursuant to M.R. Civ, P. 59(e) when

it is "reasonably clear that prejudicial error has been committed or that substantial justice has not

been done." Cates v. Farrington, 423 A.2d 539,541 (Me. 1980). Under M.R. Clv. P. 7(b)(5), a

motion for reconsideration "shall not be filed unless required to bring to the court's attention an

error, omission, or riew material that could _not previously have been presented." "Rule 7(b)(5) is

intended to deter disappointed litigants from seeking 'to reargue points that were or could have

been presented to the court on the underlying motion."' Shaw v. Shaw, 2003 ME 153,, 8, 839

A.2d 714 (quoting M.R. Civ. P. 7(b)(5) advisory committee's notes to 2000 amend., 3A Harvey &

Merritt, Maine Civil Practice 270 (3d, 2011 ed.)). A trial court's ruling on a motion fol'

reconsideration is reviewablefor ·an abuse of discretion. Shaw, 2003 ME 153, j 12,839 A.2d 7'14.

Mr. Livezey's stated grounds for reconsideration of the Prior Order is that he subsequently

filed a motion to amend his complaint, along with a proposed amended complaint, and-that·the

Amended Complaint alleges sufficient facts to support his claims. (Pl's Mot. Reconsideration ~i

2-4.) Mr. Livezey's motion does not bring to the Court's attention an error, omission, or new 0

material that could not previously have been presented; nor does it claim that prejudicial e1Tor has

been committed or that substantial justice has not been done.' The Court therefore concludes that

•The Court infers that Mr. Livezey brought the motion for reconsideration not to argue that·the motion to dismiss was wrongly decided, but rather as a prncedural mechanism to enable tho Court lo conside1· his motion to amend complaint given that an Ot'der dismissing a complaint pursuant to M.R. Clv. P. l2(b)(6) is genet'ally wl.th prejudice. See Potter, Prescolf, Jamieson & Nclso11, P.A.~·. Campbelt, 1998 ME 70.~ 9,708 A.2d 283. However, as explained in more detail

2 there is no basis for reconsideration of the Prior Order and Mr. Livezey's motion for

reconsideration is DENIED.

II. Plaintiff's Motion to Amend Co~plai11t

As a threshold matter, MTM claims that the Court need not reach the merits of Mr.

Livezey's motion to amend complaint because the Prior Order dismissed Mr. Livezey's Complaint

with prejudice and he did not move to amend his complaint until after that dismissal. Mr. Livezey

responds that it is reversible error for a court to deny a plaintifCs motion to amend his complaint

after granting a Rule 12(b)(6) motion to dismiss,

The general rule is that a "Rule 12(b)(6) dismissal is technically an adjudication on the

merits and is with prejudice." Potter, Prescott, Jam;eson & Nelson, P.A. ,,. Cwnpbell, 1998 ME

70, ~ 9, 708 A.2d 283. However, that general rule is subject to an important caveat: "unless, as is

usually the case, leave is granted to amend the complaint/' Id. (quoting Dutil v. Burns, 1997 MB

1, 95,687 A.2d 639). Put simply, 1'[a'I dismissal under Ru1e 12(b)(6) ls technically an adjudlcatiory

on the merits unde1· Rule 41(b)(3), It ol'dinarily does not have this effect, however, because leave

to amend is freely grnnted under Rule lS(a)," 2 Harvey & Merritt, Maine Civil Practice,§ 12: 11 ' nt422 (3d, 20'1 I ed.).

MTM argues thnt because Mr. Livezey did not formally move to amend his complaint until

after the Comt's ruling on MTM' s motion to dismiss, that he is now foreclosed from amending

the Complaint because the entire case was dismissed with prejudice. Generally, the common

practice in this Court is for a plaintiff to bl'ing a motion to amend her complaint in conjunction

with her opposition to a defendant's Rule 12(b)(6) motion to dismiss. When this procedure is

followed, the rule is well-estabI1shed: "a trial court should ordinarily rnle on a motion to amend

below, the Cou1t need not grant the motion for reconsideration in order to consider Mr. Livezey's motion to amend complaint on its merits.

3 before acting on a motion that could be dispositive of the original complaint." Sherbert v. Remmel,

2006 ME 116, ~ 8, 908 A.2d 622. AHhough Mi·. Livezey did not formally move to amend his

complaint or file a proposed amended complaint before the Prior Order was entered, in his

opposition to MTM 's motion to dismiss, Mr. Livezey did argue that "if the Cotut concludes that

the Complaint needs to contain more supporting facts, the Plaintiff's claims should not be

dismissed, but rather the Plaintiff should be giveu an oppol'tunity to amend his Complaint." (Pl's

Opp'n Mot. Dismiss 4.)

The Court cone! udes that although its dismissal of Mr. Liv~zey 's complaint was technically

an adjudication on the merits and with prejudice, he should nonetheless be allowed an opportunity

to amend his complaint. See 2 Harvey & Merritt, Maine CMl Practice,§ 15:3 at 478 (3d, 2011

ed.) ("After judgment on dismissal of a complaint for failure to state a claim, the right to amend

depends upon leave of court, but the admonition to allow amendment 'freely' still applies."). See

also Barkley v. Good Will Home Asso.,495 A.2d 1238, 1240 (Me. 1985) (citing M.R. Civ. P. 15(a)

for the proposition that C!leave lto amendJ shall be freely given when justice so requfres 11 even after

dismissal and holding that ln the absence of Heviclence of bad faith or dilatory motives" on the part

of the plaintiffs, or undue prejudice to the defendrmt, that denying the plaintiffs an opportunity to

amend their complaint was an abuse of discretion). Here, there is nothing suggesting bad faith or

dilatory motives on Mr. Livezey's part. There is likewise no undue prejudice to MTM, as MTM

also argues in its opposition memornndum that the Amended Complaint does not state a claim for

defamation. The Court thus treats MTM's substantive opposition to Mr. Livezey's motion to

·amend complaint as a motion to dismiss the Amended Complaint under M.R. Civ. P. 12(b)(6) and

proceeds to determine whether the Amended Complaint states a claim for defamation.

"The plaintiff in a defamation case must prove that the published statements made were

4 defamatory, meaning that the statements harmed his reputation so as to lower him in the estimation

of the community.u Schoff v, York County, 2000 ME 205,, 9 n.3, 761 A.2d 869. (quotation

omitted). "Moreover, the plaintiff must prove that the defamatory statements are false." Id., ~

9, "fWJords that on their face without fmther proof or explanation injure the ·plaintiff in his

business 01· occupation . , . are defamatory per se." Ramirez v. Rogers, 540 A.2d 475, 478 (Me.

1988).

Furthermore, Mr. Livezey is a ''public figure'' under Maine law. See Roche v, Egan, 433

A .2d 757 ,·762 (Me. 1981). 11 Discussion of public officials and public figures on matters of public

concern .. , deserves special favor in a democratic society, and thus such discussion is subject to

a conditional privilege-the 'First Amendment privilege'-that can be overcome only by clear

and convincing evidence of knowledge or disregard of falsity.'' Lester v. Powers, 596 A.2d 65, 69

(Me. 1991) (cit!ng New York Times v. Sullivan, 376 U.S. 254, 279-80, 285-86 (1964)). "Actual

malice'' in this context is a term of art specific to defamation cases and means that a false statement

was made "with knowledge that it was false of with l'eckless disregard of whether it was false or

not." New York Times, 376 U.S. at 280; see also Lester, 596 A.2d at 69 n,7,

In the Amended Complaint, Mr. Livezey clarifies that he is not necessarily claiming th?t

MTM 's statements about'his behaviOl' during the investigation were made with actual malice, but

t·ather that MTM's statements claiming that Mr. Livezey>s own reports reference this behavior

were made with nctual malice.• For example, a11 aUegedly defamatory statement is that ''Livezey

1 The Amended Complaint rei1erntes that the statement "Llvez.e~' heard a lot of talk about poaching, but he never caught either man nclually doing h" is dcfomnLory and was made with actual malice. (Am, Comp!.~ 31, 53-54.) However, beyond lhc bald allegation that MfM's Joumalist aclcd wilh actual malice, the Amended Complaint still

5 would spend 40 days in Allagash ... according to his own reports-doing his best to tempt locals

into violating fish, game and other laws." (Am. Comp!. ~ 58.) Mr. Livezey then alleges that

"nowhere in his own rnports did the Plaintiff state that he was 'doing his best to tempt locals into

violating fish, game and other laws."' (Am. Comp!. ~ 60.) This allegation, if proven, could

establish that MTM's employee knowingly and intentionally-or with reckless disregard as to it

veracity-published a false statement, if what MTM published was indeed inconsistent with what

is in his reports. (Am. Compl. ~ 61.) One othe1' allegedly defamatory statement similarly

characterizes Mr. Livezey's 1·eports themselves, as opposed to merely reporting on his behavior

during the investigation generally: "The agent's own reports say he gave a tmget n firearm and

ammunition-and that he even killed a deer in the target's presence-in an effort to entice him

poach." (Am. Comp[., 66.)

Mr. Livezey's reports were not presented to the CQurt when it decided the motion to

dismiss, and the Court therefore accepted Mr. Livezey's allegations with regards to those reports

as true. See Saunders v. Tisher, 2006 ME 94, 9 8, 902A.2d 830. MTM attached the reports to its

opposition to Mr. Livezey's instant motfon to amend, as they are 11documents that are central to

the plaintiff's claimf] and ... referred to in the complaint [andJ the authenticity of fthe.J documents

is not challenged." Moody v. State Ltquor & Lotte,y Comm'n, 2004 ME 20,, 11, 843 A.2d 43.>

Having reviewed the reports the Court concludes that Mr. Livezey cannot prove by cleur and

convincing evidence, as amatter of law, that MTM's employee knowingly and intentionally-or with reckless disregard-published a false statement when it published the two statements

reproduced above about Mr. Livezey's reports. l Mt·. Livezey points out that this is a motion for summary judgment, and the issue of MTM's

'As noted above, the Courl treats MfM's substantive opposition as a motion to dismiss the Amended Complaint.

6 employee's state of mind is a question of fact. See Marshall v. Town ofDexter, 2015 ME 135,, 2,

125 A.3d 1141 ("When the trial court acts on a motion to dismiss ptirsuant to M.R. Civ. P,

12(b)(6), facts nre not adjudicated''). "[A]s a general proposition, questions concerning the state of

mind a person had when he petformed a particular act" are factual questions to be answered by a

jury. Geary v. Stanley Med, Res. Inst., 2008 ME 9, ~ 20, 939 A.2d 86. However, this general

proposition can be abrogated in 11special case[s]" where a 11definitive standard" has been

established by which to judge a petson's conduct. Id. ,~ 20-21. The "actual malice'' standard

nnnounced in N.Y. Tim.es Co. v. Sullivan; 376 U.S. 254, 279-80 (1964) and adopted by om· Law

Court in Michaud v, Livermore Falls, 381 A.2d 1 I 10, I J 12-.13 (Me. 1978) is such a "definitive

standard." See. Tucci v. Guy Gan.net Pub. Co., 464A.2d 161,170 (Me. 1983) (affirming summary

jt~dgment for defendant in defamation case where jury could not reasonably infer actual malice as

a matter of law).

In Time, Inc. v. Pape, 401 U.S. 27,9, 290 (1971), the United States Supreme Court held that

because "Time[] ... adopt[ed] one of a number of possible rational interpretations of a document

that bristled with ambiguitiesf ,J [t]he deliberate choice of such an interpretation, though arguably ~ . .. reflecting a misconception, was not enough to create a jury issue of 'malice' under New York

Times.'' MTM's journalist's interpretation of Mr. Livezey's reports is analogous to that of Time's

journalist's interpretation of a government report in Time, Inc,, where the Supreme Courtjllstified

the rational interpretation "safe harbor" on the grounds that the actual malice requirement applies

... with even greater force to the situation where the al1eged libel consists in the claimed misintel'pretation of the gist of a lengthy government. document. Where the document reported on is so ambiguous as this one was, it is hard to imagine a test of Htruth" that would not put the publishet· virtually at the mercy of the unguided discretion of a jury.

7 ld., 401 U.S. at 291. ]n that case, the Supreme Court was concerned that anything less than

a strict application of the actual malice requirement woul~

... compel[] the critic of official conduct to guarantee the truth of all his factual assertions-and to do so on pain of Ii bel judgments virtually unlimited in amount­ leadjing] to ... "self-censorship.>' Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be detel'l'ed . . . . [W]ould-be critics of official conduct may be deterred from voicing their criticism> even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. Id. at 290 (quoting N.Y. Times Co., 376 U.S. at 279. This Court shares those concerns, and

detennlnes that. dismissal of Mr. Livezey's Amended Complaint is necessary to maintain the First

Amendment protections established by the United Stl\tes Supreme Comt a11d our Law Court. See

Time, foe., 401 U.S. 279; N.Y. Times Co., 376 U.S. 254; Lester, 596 A.2d 65; Tucci, 464 A.2d 161;

Roche, 433 A.2d 757; Michaud, 381 A.2d 1110.

Mr. Livezey's investigative reports are replete with examples of behavior that could be

rationally interpreted as efforts to entice his targets to commit wildlife crimes. In his reports, Mr,

Livezey recorded that he told one target that he would buy a large buck deer from hjm and then

late1: l

(Def's Ex. 1 at 16, 32.) Elsewhere, Mr. Livezey reports that he provided a target with his rifle,

sometimes loading it with his own ammunition, during night hunting expeditions. (Def's Ex. 1 at

67, 72, 80.) Mr. Livezey's reports also describe how he shot and killed a deer ..too smaII to l'egister" I from a vehicle while "night hunting" with a target. (Def's Bx. l at 70.) MTM cites several more •.

examples from Mr. Livezey's reports in lts memorandum that. could be rationally interpreted as

efforts to entice his targets to commit wildlife crimes. (Def's Opp 1 n Mot, Amend 5-6.) The Court

8 thus conclud~s as a matte!' of law that no reasonable juror could determine that the allegedly

defamatory statements found at paragraphs sixty-one and sixty-six of the Amended Complaint are

anything less than rational interpretatlo11s of what is included in those reports.

Finally, the Amended Complaint includes additional allegations surrounding MTM's

statements with regards to an opinion of the Maine Supreme Judicial Coul't sitting as the Law

Court: State v. Perry, 2006 ME 76,899 A.2d 806. In his reply memorandum, Mr. Livezey claims

that the Amended Complaint now states a claim for defamation as to those.statements because they

misrepresent what the Law Court actually said. Mr. Livezey also alleges an additional defamatory

statement in MTM's reporting on the Perry oplnion. (PJ's Am, Compl. ~ 75.)

In essence, Mr, Livezey's argument as to tliese statements merely rehashes what he

previously argued in opposition to MTM's first motion to dismiss-an argument this Court already

rejected. (Prior Order at 5~7,) The Court is not inclined to revisit that argument and merely

reiterates that even if MTM's statements misrepresent what the Perry opinion actually says, no

reasonable juror could determine that they are not ratlonal interpretations of the Peny opinion, and

the statements are thus insufficient to create a jmy issue of actual malice under New York Times

Co., 376 U.S. 254, See Time, Inc., 401 U.S. at 290.

Cb NCLUSiON

Based on the foregoing it is hereby ordered:

1. Plaintiff William Livezey's motion for reconsideration is DENIED.

2. Plaintiff William Livezey's motion to amend complaint is GRANTED; however, the

Amended Complaint ls DISMISSED for failure to state a claim for which 1·elief may be

granted.

9 The Clerk is 1·equested to entel' this 01·der on the docket for this case by incorporating It by

reference, M.R. Civ. P. 79(a),

Dated; M. Michaela Murphy Y Justice, Business and Consumer Court

Entered on the Docket: !/ /1 1 q Copies sent via Mail_Electronically 1/