"Knowledge or disregard of falsity is a purely subjective state of mind/' and
"there must be sufficient evidence to permit the conclusion that the defendant in fact
entertained serious doubts as to the truth of his publication." Lester, 596 A.2d at 71 (emphasis
added). Even evidence that demonstrates the alleged defamer's "factual premises
were objectiveiy false, or even that no reasonable person could have believed them to be
true, does not show that [he or she] knew or disregarded their falsity." Id. Plaintiffs
may rely on inference to prove Defendant subjectively entertained serious doubts as to
the truth of th~ statement. Bose Corp. v. Consumers Union, 692 F.2d 189, 196 (1st Cir.
1982); see also Levesque v. Doocy, 560 F.3d 82, 90 (1st Cir. 2009) ("Because direct evidence
of actual malice is rare, it may be proved through inference, and circumstantial
evidence."). However, personal animosity alone does not establish actual malice, but
may, along with other evidence, support such an inference; provided, however, that
additional evidence amounts to• more than mere "unsupported speculation" as to th~
critical question of whether Defendant, in fact, knew his statements were false, or made
the statements with reckless disregard of their truth or falsity. See Michaud, 381 A.2d at
1113; Lester, 596 A.2d at 72.
Thus, in opposing summary judgment a plaintiff must generate sufficient prima
facie evidence to establish a disputed material fact. Petit v. Key Bank of State, 688 A.2d
427, 430 (Me. 1996). Specifically in this instance, which involves a public official
because police are "vested with substantial responsibility for the safety and welfare of the citizenry in areas impinging most directly and intimately on daily living"). t
8 defamation claim, in order to avoid summary judgment Plaintiffs must put forward
sufficient prima facie evidence to generate a genuine issue of material fact with respect
to whether Defendant subjectively knew the falsity of, or recklessly disregarded the
falsity of, the statements in question; and that showing must be by clear and convincing
evidence. Michaud, 381 A.2d at 1114; Lester, 596 A.2d at 71; see also Picher v. Roman
Catholic Bishop of Portland, 2013 ME 99, 1 3, 82 A.3d 101 (applying clear and convincing
evidence standard on appeal from a summary judgment).
C. The Remaining Defamation Counts
Based on review of the summary judgment record, the court concludes that
Plaintiffs have not produced sufficient prima facie record evidence to demonstrate
clearly and convincingly that Defendant subjectively knew his statements to be false, or
that he made the statements recklessly without regard as to whether or not they were
true.
1. October 28, 2011 Emails (Counts II and III). Plaintiffs allege that the
following statements made by Defendant in his October 28, 2011 emails are defamatory:
(a) The statement that Bruce screamed, "Hey, do you want some of this?" and "Are you
fucking looking for me?"; (b) the statement that Bruce has tried to intimidate other
people by "this very behavior"; (c) the statement that Bruce is "clearly mentally
unstable"; and (d) Defendant's accusation that Bruce has been harassing Defendant.
Plaintiffs offer the following in support of their contention that they have carried their
burden in showing clearly and convincingly that Defendant acted with actual malice
and that there are genuine issues of material facts as to his subjective state of mind.
First, with respect to the statements in (a) above, Bruce Plante admits that he
shouted at Defendant but denies that he shouted the precise words Defendant claims.
(Opp. S.M.F. <[112-13; Pls.' Adcit'l S.M.F. 111.) Plaintiffs contend, therefore, that this
9 discrepancy constitutes a disputed material fact that is sufficient to avoid summary
judgment. In other words, they argue that this discrepancy permits an inference that
Defendant must have known the words he attributed to Plante in the October 28 emails
were false, or that he recklessly disregarded their falsity, because he, Defendant, had
personal knowledge of the incident and was telling an untrue version of what Plante
said.
This does not satisfy Plaintiffs' burden. While the discrepancy may generate a
disputed factual issue as whether Defendant's statements are in fact true, it does not
establish, without more, that Defendant seriously doubted the truth of the statements
he was making. To the extent the court could make the inference Plaintiffs urge, it
hardly reaches the level of clear and convincing evidence that applies to this threshold
inquiry, even when considered in connection with the other arguments that follow. ln
other words, simply denying that Bruce Plante made the statements attributed to him
may create an issue of fact as to whether Defendant's statements are true or accurate,
but it does not establish by clear and convincing evidence that Defendant knew his
statements were false or seriously doubted their truth, which represent his
interpretation of the October 27 incident. See Michaud, 381 A.2d at 1115 (judgment for
defendants appropriate, despite "widely varying perceptions and interpretations" of
plaintiff's conduct, where there was no evidence to suggest that defendant's letter,
"although possibly biased and exaggerated, was not an honest communication relating
the author's own interpretation of the plaintiff's conduct"); see also Lester, 596 A.2d at 71
("Evidence that some of [defendant's] factual premises were objectively false, or even
that no reasonable person could have believed them to be true, does not show that she
knew or disregarded their falsity.").
10 Second, with respect to the statement in (b), Plaintiffs contend that at the time
Defendant composed and sent the October 28 emails, he "was not aware of any
instances where Bruce had allegedly engaged in 'this very behavior' towards others."
(Pls.' Addt'l S.M.F. 9[ 18.) If accurate and supported, Statement 18 might create a
dispute as to whether Defendant seriously doubted that Bruce had intimidated others
by "this very behavior." However, Statement 18 is not supported by its accompanying
record citation. (See Long Dep. 85:19-86:16, 171:5-172:1.) On the contrary, the cited
portion of Defendant's testimony reveals that, on October 27, 2011, Defendant was
aware of instances in which Bruce Plante had engaged in behavior of a similar nature,
including banging on his steering wheel, hollering, "flipping off" a man named Gary
Day, and jumping in front of Ms. Wheeler's car. (Id. at 171 :5-172:1.)
In addition, Plaintiffs contend that Defendant's references in the email to the
experiences of another individual (Tom Lavigne) with Bruce Plante are evidence of
Defendant's subjective knowledge of the falsity of his statements in the October 28
email because Tom Lavigne testified in his deposition that he "did not tell anyone about
the alleged incidents where Bruce Plante jumped in front of his car, the alleged 'road
rage' incidents, or the incident where Bruce allegedly tolcl. Mr. Lavigne that he better
hope his house doe_sn't catch on fire." (Pls .' Addt'l S.M.F. 9[ 32.) Even if true, Statement
32 does not create a dispute as to whether Defendant seriously doubted that Bruce
Plante had engaged in "this very behavior" toward others because the record includes
other alleged instances of similar behavior by him on which Defendant could have
based his statement. (Def.' s Reply S.M.F. 9[ 23}
6 Paragraph 23 of Defendant's Reply to Plaintiffs' Additional Statement of Material Facts recites over a dozen incidents of which Defendant was aware that involved actions by Plaintiffs that could be fairly characterized as harassing toward him'self and others. (See Def.'s Reply S.M.F.
11 Finally, in light of the foregoing, Plaintiffs have not offered clear and convincing
evidence that generates a genuine material disputed factual issue as to whether
Defendant seriously doubted the truth of his statements that Bruce Plante is "clearly
mentally unstable" and has been harassing Defendant.
2. Complaint to Berwick P.D. (Count IV). Defendant's statements that he feels
uncomfortable with Bruce Plante coming to his house and does not want Bruce to make
contact with him are statements of opinion, which are not actionable. See Lester, 596
A.2d at 69; True v. Ladner, 513 A.2d 257, 261-62 (Me. 1986); Caron v. Bangor Publ'g Co.,
470 A.2d 782, at 784 (Me. 1984).
Even if the statement is considered a statement of fact and not opinion, Plaintiffs
have not adduced sufficient clear and convincing prima facie evidence to generate a
genuine issue of material fact with respect to whether Defendant subjectively knew the
falsity or recklessly disregarded the falsity of both his statement about feeling
uncomfortable with Bruce Plante coming to his house or the statement that he is being
harassed by Bruce Plante. On the contrary, the record as a whole suggests otherwise.
Plaintiffs have not met their threshold burden with regard to the statements in Count
N.
3. April 241 2012 Email (Count V). This count involves Defendant's statement
that "There is much more to that story as well as other abuses by Bruce and Dennis ...
following people, harassing people ...." Plaintiffs point to several statements of fact
which appear to create a dispute as to Defendant's state of mind, but ultimately fail to
do so either because they are not supported by the accompanying record citation or
12 because they create a dispute as to the truth of Defendant's statements, but not as to
whether Defendant seriously doubted their truth.
First, Plaintiffs state that, "[Defendant] knows of no other 'abuses' other than
those stated in the April 24, 2012 complaint." (Pls.' Addt'l S.M.F. 9I 29.) However, the
accompanying record citation makes clear that Defendant intended "other abuses" to
mean the allegations stated in his April 24 email, i.e., following and harassing people.
(Long Dep. 78:4-81:25.) The fact that Defendant did not know of abuses in addition to
those in his April 24 email, even if true, does not suggest that Defendant seriously
doubted the truth of the abuses alleged in the email.
Second, Plaintiffs state that "Neither [Bruce] nor [Dennis] have 'harassed,'
'bullied,' 'intimidated,' or 'followed' people" and "Neither Bruce nor Dennis has
followed people in town." (Pls.' Addt'l S.M.F. 9I9I 23, 25.) Although Statements 23 and
25 create a factual dispute as to whether Defendant's statement is true, again they do
not clearly and convincingly generate a factual dispute as to whether Defendant
seriously doubted that Bruce and Dennis have followed and harassed people, based on
Defendant's own experience and the alleged incidents that had been relayed to him by
others, including Ms. Wheeler, Chief Towne, and Captain Locke. (Supp.' g S.M..F. <[
22, 38-39.) See also Footnote 6, supra.
Third, Plaintiffs state that, "[Defendant's] only basis for claiming Dennis has
'followed' people is that he drove too closely behind him." (Pls.' Addt'l S.M.F. 9I 26.)
The accompanying record citation shows that Defendant testified that his basis for
believing Dennis Plante was following Defendant himself during his drive to New
Hampshire was the fact that Dennis was driving too close to Defendant's vehicle. (Long
Dep. 80:19-81:18.) This testimony says nothing about whether Defendant knew of
alleged instances in which Bruce or Dennis Plante have followed others and therefore
13 cannot be used to create a dispute as to whether Defendant entertained serious doubts
about the truth of his statement.
Finally, Plaintiffs state that, "[Defendant] does not have any information
suggesting Dennis has harassed people." (Pls.' Addt'l S.M.F. ':![ 30.) Plaintiffs cite to a
portion of Defendant's deposition testimony in which he admits he does not have
personal knowledge of any harassment by Bruce or Dennis Plante toward others, but
asserts he is relying on alleged instances of harassment that have been relayed to him
by others. (Long Dep. 85:9-86:16.) This citation does not support their claim that
Defendant had no information regarding harassment by Dennis Plante. On the
contrary, it supports the opposite conclusion. More importantly, Plaintiffs have
provided no evidence that Defendant seriously doubted the information relayed to him
or subjectively believed it to be false. Plaintiffs have not met their burden with regard to
countV.
4. May 23, 2012 Email (Count VI). Defendant's statements in issue in Count VI
are that Bruce and Dennis Plante "continually lie to further 'Their Cause' at any cost"
and that they, "with the help of more than a few have driven this town into the ground
and lied, followed, intimidated', and harassed people to get Their Cause' pushed' 1
1 through ... at any cost." Plaintiffs state that 'Neither [Bruce] nor [Dennis] have lied 1
to get 'their cause' pushed through at any cost." (Pls.' Addt'l S.M.F. ':![ 24.) Again, as
was the case with Statements 11 23, and 25 upon which Plaintiffs relied with respect to 1
their challenges to the foregoing counts and which are referenced above, their denial in
Statement 24 that they have not lied to advance their interests may create a disputed
fact as to whether Defendant's statements are false and therefore potentially
defamatory; however, it does not, without more, constitute clear and convincing I t
evidence that generates a factual dispute as to whether Defendant knew the falsity of
14 these statements or seriously doubted their truth. Plaintiffs have not made a clear and
convincing prima facie showing that Defendant subjectively made these, or the other
allegedly defamatory statements, "with the high degree of awareness of their probable
falsity" that is constitutionally required under the Supreme Court's decisions.
Michaud, 381 A.2d at 1116.
5. March 30, 2013 Email (Count VIII). Finally, Count VIII asserts that
Defendant's statements from the draft MRI report, specifically that "Several
[firefighters] cite Bruce as hostile, belligerent and bad for community relations" and
"Area fire chief cites Bruce 'impossible to work with"' are defamatory. Even if the
final MRI report did not include these statements or these statements turned out to be
false in whole or part, (Pls.' Addt'l S.M.F. 91 36), this, without more, does not satisfy the
threshold requirement of a clear and convincing prima facie showing that Defendant
subjectively knew these statements to be false or entertained serious doubts that the
statements were included in Lh.e report or that they were true. Plaintiffs therefore have
not met their burden with regard to count VIII.
Accordingly; Defendant's motion for summary judgment will be granted as to
Counts II, III, IV, V, VI and VIII.
D. The Punitive Damage Count
Count IX of the complaint sets out a claim for punitive damages based on the
alleged defamatory conduct in Counts I through VIII. Because summary judgment is
granted to Defendant on the predicate counts, the court likewise will enter summary
judgment for Defendant with respect to Count IX. See Jolovitz v. Alfa Romeo Distribs. of N.
Am., 2000 ME 174, 9111, 760 A.2d 625 (punitive damages not available where summary
judgment granted on underlying negligence claim because "a claim for punitive
15 damages will not lie unless the plaintiff receives compensatory or actual damages based
on the defendant's tortious conduct").
III. Order
In accordance with the foregoing, Defendant's motion for summary judgment is
GRANTED as to all remaining counts, namely Counts II, III, IV, V, VI, VIII, and IX.
The clerk may incorporate this order upon the docket by reference pursuant to
Rule 79(a) of the Maine Rules of Civil Procedure.
SO ORDERED.
DATE: November 7, 2016
16 EN I f R£ D DEC o g 20l4
STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, SS. DOCKET NO. CV-13-148 P/tf-'jVR-- l~-1J~_,14 BRUCE PLANTE and DENNIS PLANTE,
Plaintiffs
v. ORDER
Defendant
The defendant has filed a special motion to dismiss the complaint in its entirety
pursuant to 14 M.R.S. §556 and a motion to dismiss.
Those motions have been briefed and were argued with skill and careful
preparation. The motions will be denied for two reasons.
In 1995 Maine enacted an anti-Strategic Lawsuit Against Public Participation
statute at 14 M.R.S. §556. Its history and provisions have most recently been discussed
in Town of Madawaska v. Cayer, 2014 ME 121. The statute provides that, ''The special
motion to dismiss may be filed within 60 days of the service of the complaint or, in the
court's discretion, at any later time upon terms the court determines proper." Here the
defendant, who initially was without counsel, filed the motion some 161 days after
service of the complaint and more than 60 ·days after counsel entered the case. There
are no sufficient reasons to extend the 60-day period.
The second reason for denying the motion, beyond its being untimely, is that the
facts are not yet clear enough to decide whether this was an improper attempt by public officials to muzzle criticism or a proper suit by unjustly maligned and defamed
individuals. See generally Nader v. Maine Denwcratic Party (Nader II), 2013 ME 51.
The parties did agree that Counts I and Count VII of the complaint should be
dismissed. A stipulation of dismissal was previously entered dismissing those two
counts.
The entry is:
Defendant Ronald P. Long's motion to dismiss and special motion to dismiss are denied.
Dated: December 4, 2014
A. Fritzsche Justice, Superior Court
2 CV-13-148
ATTORNEYS FOR PLAINTIFFS: GENE LIBBY TYLER SMITH LIBBY O'BRIEN KINGSLEY & CHAMPION LLC 62 PORTLAND RD UNIT 17 KENNEBUNK ME 04043
ATTORNEYS FOR DEFENDANT: JONATHAN BROGAN JOHNATHAN G NATHANS NORMAN HANSON & DETROY LLC POBOX4600 PORTLAND ME 04112