Pylypenko v. Bennett

• Court: Superior Court of Maine
• Decided: December 16, 2011
• Docket: CUMcv-09-690
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUlvlBERLAI\ID, 55. CIVIL ACTION DOCKET NO: CV -09-690 (..2 j l" I

OLENA PYLYPENKO,

Plaintiff, ORDER ON DEFENDANTS' MOTIONS TO DISMISS AND v. SPECIAL MOTIONS TO DISMISS PURSUANT TO 14 M.R.S. § 556 JEFFREY BENNETT and DARLENE COPP STATE OF MAINE Curnberland. SS Clerk's Olficr~ Defendants ';;FP 2• .J') "1r'j' '.~ ••/ (, ,1 I

l~ ff_ ,. 'I .•••. C"t'~' ;',' _ ~ .. I f ,"~ \ - !.,.....~ ~.~. ...._ 1 1; :1..... a.".

Pl

Bennett and Darlene Copp alleging defamation, intentional infliction of

emotional distress, malicious prosecution, and false imprisonment. The

defendants have filed motions for dismissal, and have filed special motions to

dismiss pursuant to 14 M.R.S.A. § 556 (2009), Maine's so-called anti-SLAPP I

sti.1tute.

BACKGROUND

This is the latest legal battle spawned by the storied divorce of Scott

Liberty and Darlene Copp. Plaintiff Olena Pylypenko, a Ukrainian-born United

Sti.1tes citizen, is Scott Liberty's current wife. Her claims arise from three events

involving Mr. Liberty and Ms. Copp's middle daughter, Cassandra Liberty,

which occurred in the fall of 2008. Ms. Copp has sole cLlstody of Cassandra

I SLAPP is an acronym for "Strategic Lawsuit Against Public Participation," and

was coined by George W. Pring and Penelope Canan. Dl/racm!t Corp. v. Holllles Products Corp., 427 Mass. 156, 160 n.7, 691 N,E.2d 935, 939 n.7 (Mass. 1998) (citing Pring & Canan, SLAPPs: Strategic Lawsl/its Agail/st Public Participatioll, 7 Pace Envt.l L. Rev. 3,4(1989)). 1 Liberty. First, Ms. Pylypenko alleges that Mr. Bennett and Ms. Copp told

Cass,mdrl1 Liberty that Ms. Pylypcnko: 'NilS a mail-order bride who had pClid Mr.

Libedy for ,1 sh,u11 marriage; was a stripper; WClS Cl prostitute; Clnd hc1d engaged in

sexu,ll c1Cts with Scott Liberty's uncle, Michael Liberty. (Pl.'s C0l11plaint <[I

3h.)

Tlw secolLd event occurred on or c1round October 30, 2008. That morning,

Cass'lndra Liberty rdn awc1Y from Ms. Copp's home. Ms. Copp testifies that she

SllW ~vls. Pylypenko w,liting outside the home in her car, and that \lIs. Pylypenko

drove ,1W,ly when confronted. (Copp Aff. <]J 61.) Ms. Copp then reported the

incIdent to the [<'llmouth Police. (Copp Afl.

PyIypenko on Route 100 in Falmouth, questioned her about C(1ss(1ndra, ,Lnd

sl~,lrched her vehicle. (Pylypenko Aff. <]I 11.) Ms. Pylypenko denies driving by the

home on that d'lle. (Pylypenko Afl. 9[9[ 9-10.)

The thi rd ,md finel1 event occurred on the night of November 30, 2008. Ms.

Copp testifies thdt dround 9:00 p.m. she he

Afl.

the end of the driveway (1nd get into the passenger seClt. (Copp Aff.

Copp (1]so ran to the car and grclbbed the steering wheel through the open

driver's side window. (Copp Aff. <[ 71.) The car began to drive awClY, dragging

Iv[s. Copp for somL' distClnce until she fell. (Copp Aff. <[ 71.) When police arri vcd,

tvIs. Copp told them that Ms. Pylypenko hlld been driving the CCir. (Copp Aff.

PolicL' immediately begCln an investigation, and 1Clter that evening went to

Ms. F'y1nx'nko's home to question her and search for Cassandra Liberty.

(Pylypenko Aff. 9[ 19.) Ms. Pylypenko told them that she had been al a friend's

2 home in PmtIclnd elt the time Cassandra Liberty left Ms. Copp's residence.

(Pylypenko ,\If. (~I(lrl(), 19.) The police left Ms. Pylypenko thut evening, but she

\VelS la ter cklrged \Vi th feckless conduct for dragging Ms. Copp with her cur.

(f)ylypcnko AfL (n 20.) ]\/[s. Pylypcnko missed her urraignment bcccll1se the

SUlllmons \Vas meliled to the incorrect address, and she WtlS Jutcr elrrcsted for this

fuilure to appear. (Pylypcnko Aff. (Ir~[ 20-21.) She hired tin uttomey 'lild the (uSC

was dismissl'd, but only after she incurred $7,500 in legal fees. (Pylypenko Aft.

(:1 2-1.)

011 December 31,2009, two weeks after oole1ining her Uni ted St,ltes

citi/.enship, fv[s. Pylypenko filed u four-countcomp]aint

Iv[s. Copp. Count r

due to the st'ltements allegedly mtlde to Cuss'llldrtl Liberty tlnd the accusutions of

erimillcll conduct. Count II usserts thut these stutelllents tlnd Ms. Copp's police

reports CC)(lstitUtl' intentional infliction of emotional distress. Count fIl focuses on

the police reports ellld tI(cuses the defendants of malicious prosecutioJl, while

Count IV asserts a claim for fulse imprisol1ment stemming from Ms. rylypenko's

ulTest. On Februl1ry 16, 2010, Mr. Bennett and Ms. Copp etlch filed tI specitll

motioll to dismiss purc;u

pursuc1l1t to Rule 12(b)(6).

DISCUSSION

As ,1 preliminary mtltter, the court must determine the order in which to

proceed on the ddendtlnts' motions. Motions for dismissal l1rL:' gellerully decided

solely on the plcadlllgs, t1nd are converted into motiolls for summary judgment if

tbe court Cllnsiders extraneous mtllerial. M.R. Civ. P. 12(b); Moody v. Stote Lil/llor

2 Ms. Copp excludes Count r from her special motion to dismiss. 3 {-f Lottery Co 111111 'ii, 2ClD..J. fvIE 20,

speci,l] motions require the court to cXZlmine both the pleadings ,11lLi supporting

affid,wits. Morse Urns., fllc. u. Wehster, 2001 :rv1i~ lO,

trL',ltnwnt of thl~ spl'ciaJ motiolls rl'quirl's the court to cOllsidl'r materia] Ol! tsidl'

the plL'cldings, thl' wurt will Llddrl'ss thl' Rule 12(b)(6) motions first.

I. The Defendants' Motions to Dismiss

While (',lch ddclldZlnt has filed a sepclnltc rnotioll to disrniss, the

,1JIl'gi1tions c1gdinst them Zlre identiGll LInd arise fronl. the SZllllC bclsic felets. Their

motions will thL'rdore be tre<1ted togethl'r.

"i\ motion to dismiss tests the Ieg,l! sufficiency of the complaint./f Ncf)('/' v.

Jollccmc-ill-A1nillc Villnge Corp., 2000 ~1El 37,

N1cA[ec u. Cofe, 6:17 ;\.2d 463,465 (Me. 1994)). The Court eXdmines tIthe compbint

in the lipht ,) m.ost favor,lble to the nlLlintiff I to ddernlinc whether it sets forth

clements of c1 Cdllse of dction or dJJeges fZlds thdt would entitle the plaintiff to

\'elid pursuLlnt to some legdl theory." fri. (quoting ivreA/ec, 637 A.2d (It 4(5). "r~or

purposes of ,112(b)(h) motion, the lll<1teri<1] dllegcltiollS of the COlllpldint llluSt bl'

tLlken as Cldmittcd./f NfcAj{'l', 637 A.2d clt4h5. "Disl1l.isscll is wLlrranted when it

dp~)eJrs bl'yond cl doubt that thl' plaintiff is entitled to no relief L1llder ,IllY set of

felets thclt [s/hc might proVl' in support of [herl claim." [of/nllsoll II. Dl/llllillgtOll,

2001 M F: 169,

1. Count I: LJd

The pl

defamation and inv,lsion of privacy. DefaJll<1tion consists of:

(a)

4 (d) either ,lctionilbility of the stiltement irrespective of speciill hMITl or the C'xistence of special hilrm GlUsed by the pubJicotiun.

'-ester [I. Pmlle!'s, 596 A.2d 65, 69 (fVle.1991) ('ldopting Rest"lenwnt (Second) of

Torts S 551) (1CJn)). The lcrm "publiccltion" is il term of ilrt th'lt rdct-s lo ,lilY

intentional or ncgligent communicJtion to il third pilrty. Restiltcillent (Second) of

Torts § 577 (I CJ77); see (ole v. OWl/rile!', 2000 l\'fE 104, <;j 17, 752 A.2dlJ K9, 11 CJ7

(compilring "publiGltion" required ten-ddilm'ltion to the "publicity" requireillent

of inV,lsion of privilcy).

Ms. PyJypenko's comp!clint "lIeges th'lt 1\1r. Bennett ilnd 1'\1s. Copp

intentiollilily told Cilss,l1ldr,l Liberty thdt Ms. Pylypenko's lllClrri,lge W,ls ,1 sh,llll,

that she was cl lll'lil-order bride who h'ld pelid to get lllClrried, lhat she WClS ,1

stripper and il prostitute,

Ijbcrty. (pl.'s COIllPJ. (n :12.) It <11so

police th'lt Ms. Pylypenko W<1S a kidnapper who ]l(ld <1ss,lulted 1\1s. Copp. (Pl.'s

Compl. (If 34.) They (llJegedly knew thelt these st"tcments were f<11se whcn thcy

lllilde them. (Pl.'s COlllpl. Til 33-34.) The st"tcments concern seXlW] 'll1d crilllinc:d

III iscon d 11 ct, so they i1 re ilcti ono bk per se. Resta teillen t (Second) of Torts s§ 571,

574 (1977). These 'llll'gations llli1kc out 0 prim,l fucie c"se of dcfZllll'ltioll.

!'vIr. Bennett clnd Ms. Copp both clzlim that the Clllcged stiltements were

privileged, though on different grounds. Mr. Rennert mgues thClt (lily of his

Cllieged stZltelllents wcre mode in lhe context of his "ttortwy-c!ient rel'ltiollShip

with 1\1s. Copp ,md therefore should be privileglc'd under section SH6 of tc

Restlltemcnt (Second) of Torts. Section 5K6 privileges defCllllolory !l1clteri,,1 thZlt ,m

Clttomey publishes during the lead-up to, "institution of, or during the course

and ClS pilrt of, (\ judicii11 procceding in \vhich he pZlrticipCltl's as counsel, if it hclS

5 some relation to the pmceeding." Rest"ternent (Second) of Torts § 580 (1977). The

privilege only extends to attorneys while they arc acting as sLIch. [(1. Cnlt. c.

j\i!"inc h"s recogni;/,ed that ddclmatory "

absolutely privileged," as arc statements mc,de by witnesSl'S during testimony.

Dilleell u. Dnllglloll, 3Rl A.2d 003, ()64 (:vre.l (78). Attorneys arc also privileged to

assert ddam,ltory statements in motions so long as the statements ,lre relev'lnt to

the judicia] proceeding. [ri. Clt 064-oS; sec TOIIS;lIoy 'ii. ASCII, 1998 ME 277,117, 722

A.2d 49, 50 (rewgni;:ing th'lt a potentially cldam"tory statement made to the

parties' child in ,1 divorce proceeding fell \vithin "'It leClst Cl CJLIalified privilege of

couilsel to inCJuire Jnd develop evidence re]evClnt to" a proceeding). While Maille

h,ls Ilot explicitly "dopted sl'ction 586, the protections it hilS recogni;:ed Clre

comp'lrClble.

The question here, however, is whether any privilege is appclrl'nt from the

pleCldings. There is none. vVhatever privilege may ultim,ltely apply to Mr.

Bennett's statements, the com~)lClint docs not show that he spoke in his cClpacity

as an ClttOrJ1CY, To the contrary, the cumplClint alleges that Mr. Bennett slandered

the plaintiff's charCletcr to ClssClndra Liberty becCluse he wanted to exert persona]

control over her L11ld to degrClde l'vls. rylypenko. (rl.'s Com pI. (!,(1l15, 27-28,32.)

Accepting the p],lintiff's allegCltions as true ,lnd drcHving all reasonable inferences

in her felVor, the plCCldings do not indicate thclt Mr. Bennett published the

statements pursuant to ,\ prlvilcge. lvls. Pylypenko h"s ulll'ged 'I prim'l facie

claim for ddanl"tioll sufficient to survive Mr. Bennett's l\.ulc 12(b)(6) motion to

dismiss.

j\,ls. Copp seeks the sheller of t\\'o different privileges. The fi rst is the

privilege uccorded tu statements m"de to law enforcement or rcgu]utory

6 agencies. Tl'l/lllnll v. BroWII, 2001 ME 182,

Me privileged so long CIS they arc made in the good-fClith belief "thClt thtlt the

stcltement is truc ,md indiccltes that a sttltutorv standclrd cldministered bv the J ~

clgency mclY hclVe been vioIJted." /ri. In this GlSe the compl"int JIJcgcs thclt !'v'Is.

Copp communicJted with JClI\' enforcement in bcld fClith, so the privilegc does not

Clpply. (P1.'s Comp1.

Ms. C()PP'S second Clsscrted privilege is Cl pJrent-child privilege not-yet

recognized in l\/ltline. She cites section 597 uf the Rl:'stCltement (Second) uf Turts,

vvhich grClnts cl conditi()]Icll privilcgl' when "circumstCllKes induce Cl correct or

reasonclblc belid thClt (CI) thl're is informCltion thJt affects the well-being uf a

member of the immedic,te ftlmily of the publisher, tlnd (b) the recipient's

knowledge of the ddClmcltory mcltter will be of service in the lcHvful protection of

the" family-member's well-being. l\1s. Cupp contends thtlt tlny cl!leged

statements she mClde to CClSSClndrtl Liberty were clttempts t() protect Ms. Liberty

from hersl'lf during her emtlncipcltion ~Jroceedings.

Even if the court were to recognize this privilege, the complaint cl!leges

thClt Ms. Copp llltlde the stCltements knowing they were fCllse. (P1.'s COlllp1.

(IT9I 36-3/).) This obviates the privilege by section 597's own terms. It ,llso

constitutes ,lbuse of tl privilege under RestCltement (Second) of Torts section hOO.

FinCllly, Ms. Co~}p's discussion of Maine Rule uf rvidence 504, the spous'll

testimonial privilege, is irrdevClnt in this context. Ms. Copp hcls not shown thc,t

Ms. Pylypenku's plc~Clding is deficient, Clnd Count I for ddCllllcltion survives.

The pltlintiff's clClims for invilsion of privacy me not so fortunc,te. A c!Clim

for invClsion of privacy lies when the plclintiff shows thClt the dcfend"nt: "(I)

intruded upon her physiGl1 Clnd mental solitude or seclusion, (2) publicly

7 disclosed privJte facts, (3) placed hC'r in

t1pproprielted her nclme or likeness for the [defend

interests in prive1Cy is distinct e,nd is subject to different kinds of inVclsion." toe v.

T/IOII1I7StOIl, 60l) A.2d]()l)O, 1093 (Jde.1991) (citations omitted).

Ms. Pylypenko C1ccuses the dcfendzmts of publicly disclosing privt1tl' bcts

about her e,nd pl

dcfendllnts to hC1ve publicized tl1l' objectionc,ble materi

ClI(7IIr1/cr, 2()O() iv'IE 104,

requirement of defelmation, the ~Jublicity required to m"intelin a cL:,im for

invasion of privacy requires the ddende,nt to have made the matter public "by

commUniGlting it to the pllblic at lC1rge, or to so me111Y persons that the matter

must be fC'gC1rded as substantiC1lly Cl'rtain to become (mc' of public knowledge."

Clll7l1d/cr, 200() [VIE 104,

Torts § 6520 cmt. a (1977)). lvls. Pylypenko's compl

defamatory stC1tcnwnts were communic

someone elt the Falmouth Police. (PI.'s Comp1. (IiCII 33-34.) Such

f"lls short of gener'lting the "public knowledge" requir('d to m"intC1in her clC1ims,

cmd they arc' dismissed.

2. Count 11: [ntentioncll Infliction of Emotion,ll Distress

Tn order for Ms. Pylypenko's cl,lim for intentional infliction of emotional

distress to survi ve, she must show:

(1) the defendants "intention"lly or recklessly inflicted severe C'motionel] distress or [were] certain or substiHltial1y certC1in that such distress would result from [theirj conduct"; (2) the "conduct was so extrenle and outrageous as to exceed C111 possible bounds of decencv and must be re~TC1rded elS atrocious, utterly intolerclblC' .I c) .J

in a civilized community"; (3) the C1ctions of the defend"nts caused ... emotional distress; C1nd (4) [Ms. Pylypenko] suffered

8 emotional distress "so severe that no reasonelble [person] could be expected tu end me it."

Loe, 600 A.2d cIt 1093 (quoting Fillll v. Lip/llnll, 326 A2dl380,IJ82 (NIl'. 1987)).

Ms. Pylypl'nko claims that the defendants' allegedly false statements to

Cassandri1 Libl'rty, coupled with lhe allegedly false police reports, constituted

outrllgeous conduct ,md caused her emotionCl) distrl'ss including "humiliCltion,

tlnxidy, distrClction and loss of reputation." (Pl.'s Compl. (11 57.) Assuming that

her distress is severe, Ms. PyJypenko's clClim Gmnol survive unless the alleged

conduct WelS extreme Clnd outr'lgeous ClS Cl mClttcr of 1'1\v. See Colford v. CI/lIhb Ufe

Co. O/AII/., 687 A2d (J09, 616 (Me. 199()) (court must determine whether conduct

could reelsonably be deemed sufficiently extreme <111d outr<1geoLIs lo incur

liClbilily).

The LClw Court hClS ruled that filing Cl police report, even if done without

justificcltion, docs not "exceed Cl]] possible bounds of decency" and will not

support a claim for emotional distress. Hollalld v. Sc!7/llIyn, 2000 T\1E160, (if 17,759

A.2d 205,212. Insulting or abusive language hCls likewise been found short of the

extreme cllld outrageous conduct required. Botkn v. S.c. Noyes ti Co., 2003 ivIE

128,9[<116,10,19,834 A.2d 947,950-52; sec YI/rick v. SI/perior COl/rt, 209 ell. App.

3d 1116, 1123 (CII. App. 3d Dist. 1989), disllpproved on another point in

Carll/iellnel v. AI{r7110 Tell/p. Pers., 233 Cal. App. 3d 1126, 1130 (('<11. App. 4th Dist.

1991); Restatel11l'nt (Sccond) of Turts § 46 cmt. d (1965) (liThe liabilIty clcclrly docs

not cxtend to mere insults, indigni ties, threclts, clnnoyances, petty oppressions, or

other trivialities.")

Ms. Pylypcnko's claim rests on hvo llllegcdly bllsl'less police reports and a

series of insulting statements made to CassClndrCl Liberty. None of these instances

alone would be enough to support her claim. Ms. Pylypl'nko argues that together

9 tIley form ,I p(lUern of outrageous conduct, but three discrete instclnces do not

transcend the re111m of Clnnoyances thclt" re(lson(lble person could be expected to

endure. Sec toc, ADO /\.2d cit I 093. Slc1ndcr

while distressing, arc cOlllmonplelce enough such thclt an "ordinarily sensitive

person" should be ablc to cope with the aggrcwation they engender. Scc Ho/lr711ri,

2000 t\!fE lAO, 9l 18,759 A.2d at 212. The same Gin be said of being stopped by

police and accused of a crime. fri. Any harm Glused by such behavior is

rccovcrclble under the theories of sLmder "nd m"licious prosecution. This uncivil

behcwior, even taken together, is insufficiently outrageous to support the

sepClrate cl(lim of intentional infliction of emotion,,] distress.' Ms. Pylypcnko's

Count II is dismissed as Clgelinst both dcfendelnts.

3. Count III: M"licious Prosecution

The ddcnd"nts will be liClble for Illcilicious prosecution if Ms. Pylypenko

shows that (l criminlll complllint WelS "(1) instituted [or continued] age1inst [her1

without probable cause, (2) with lTICllice, "nd (3) th(lt [she] received a favorable

termination of the proceedings." Hol/nllri, 2000 MEl60 (1120,759 A.2d 205, 212-13

(quoting Crl1Y u. 5111(1', A24 A.2d 479,483 (Me. 19(3)). "Prob(lble CCluse is an

objective stand(lrd lhelt" asks vvhether the ddendClllts had reClsolle1ble grounds to

justify their clCtions. fri. ~r 20, 759 A.2d at 213. "Reclsonable grounds are grounds

sufficient to justify (lmeln v\'ho was calm, and not governed by passion, prejudice

or want of ordin(lry caution and carl', in believing the party guilty." fri. (quoting

Price v. Pl1tfcrSOIl, 606 A2d 783, 785 (Me. 1992)).

~ At hearing, Ms. 17 ylypenko's counsel discussed other actions the defendcll1ts had allegedly tClken agClinst individuals not party to this litigCltion. The court will not consider the defendants' history with Scott, MichClcl, and CelssClndrCl Liberty when examining whether they have engagcd in a pattern of conduct directed toward Lhe plclintiff, !'vIs. Pylypenko.

lD The plaintiff a]]eges that the defendants f(\]scly and maliciously told police

that she held kidnClppcd CassClndr8 Liberty, that she \V,lS ultimellely charged, and

th8t those chclrges were dismissed in her favor. (Pl.'s Com pI. (119f J4, 59-nJ.) The

defendelllts contend that while the chelrges were dismissed, this did not

constitute a fclVorLlblc termination of lhe proceedings for Ms. Pylypenko. '1'0

CVCl]uatl' the ddcndants' c1fgumenl emd the prima facie vellidity of the plaintiff's

G1SC, the court must consider the docket record of the crimi tlCll ch(lrges

underlying her c]elim. !\s the docket record is a pllbJic document centre-l1 to the

plainliff's clelin, whose authenticity is unchallenged, its consideration willnot

convert the motion into one for summary judgmenl. Nfoody '(I. State Liquor (7'

Lottery COl/ill/'ll, 2004 fvrE 20, (I[ 11, H43 A.2d 43, 48,

The record shows that the prosecutor dismissed the charges against T\1s.

PyJypenko due lo insufficient evidence. (Whitman Afl. Exh. A at 3, 1n-17.) There

is no indication that Ms. Pylypenko objected to the dismissell. The defendants

argue that this \\felS not a favorelble outcome for Ms. Pylypenko. For support, they

look to the c(\se of Caril/g (I. Fmscr, 7n Me. 37 (11)1)4). In Corillg, the Law Court

held the,t an entry of lIolle prosc1llli was not a felVorable tcrmin<,tion that could

support el subsequenl Clction fur millicious prosL'cution. Garillg, 7n Me. <,t 42. Ms.

I)ylypenko counters by rderring to the earlier G,se of Page v. Cushillg, 31) fvfe. 523

(1854), in which the Len\! Court held th(lt CI uolle prosequi would be ,,1 sufficient

basis for the che,rge of tnellicioLlS prosecution. Page, 31) tvIe. al527. Thl' Law Court

did not refer to Page when it decided Garillg.

The Law Court acknowledged this conflict in the]LJ7t\ case of Bickford u.

Lalltay, 394 A.2d 281 (Me. 197R). In Hiclford the Court noted the,t the law We,S

inconsistent, but declined to "determine whether to follow, or overrule, the

11 holding in Corillg v. FmsCI'." Bickforri, 394 A.2d e1t 2R3. Instead, the Court narrowly

held that "the entry of a lIollc prosclJlli ovcr tllc olljedioll of tllc OC(/{scri is sufficient to

prove t]le essential clement of the tort thi1t the crinlini1] prosecution tcrmine1tcd in

c1n outcome felVoruble to the plaintiff." Jri. (emphi1sis in original). folJowillg

Bickford, the rule laid down in Coring clppears to be in doubt.

Mc1SSC1chusetts addressed this question squarely in the 1984 case of Wyllllc

V. ROSCII, 3Y1 Mass. 7Y7, 4(14 N.E.2d 1348 (M<1ss. 1984). Massachusetts requires the

same clements for (1 c1uim of mc1licious prosecution c1S Maine, cmd held f(llJo'vved

the same rule ,111nounced in Cnrillg since 1849. 1 WI/lilli', ]YI Me1SS. at 79Y, 464

N.E.2d atl 350. By 1984, however, Mc1SSclChusetts recognized that it held fclllen

Clmong the minority. Jri. at 799-800, 464 N.E.2d at 1350-51. The majority rule

adopted by the Resteltement (Second) of Torts holds that

a criminal proceeding is terminated in favor of the accused when the public prosecutor formally Clbandons the proceeding by way of <1 !101ft: IHOSCI7"i or motion to dismiss, unless such abandonment is the result of an agreement of compromise with the clCcused or if new proceedings for the same offense have been instituted.

Tri. (ci ting Restcltement (Second) of Torts §§ 659 cmt. c, 660 (1977) ,md collected

cases). The court noted that tIle only other state following the older rule was

Maine, ellld that the case of BiLNcmi v. Lnlllny, 394 A.2d 281 (l'vlc. 1978), held picKed

the rule's continuing vitcllity in question. WyllllC, 391 M<1ss. <1t 79Y n.3, 464 N.E.2d

Clt 1350 n.3. "In light of overwhelming support for" the Restc1tement's position,

MasselChusetts <1bClndoned the old rule cmd left rvbine's company to join the

m<1jority position. Tri. at sao, 464 N.E.2d at 1351.

If this court had to rule definitively on this point in this G1Se, it would join

rl/\i1ssachusctts <1nd embrace the RcstCltel11ent's rule thClt "the forme1]

-\ The CoriJlg Court ci ted Mass<1chusctts precedent. 76 Me. <1t 42.

12 abandonment of the proceedings by the public prosecutor" constitutes J

fa.vorable terminCition of proceedings sufficient to support a c1'lim for malicious

proSt'cution, C1bsent evidence tha.t the dismiss'll is inconsistent "wi th the

innocence of tIlc Zlccused." Iri. i:lt BOO-ell, 464 N.E.2d Zit 1351; Rcstdtemcnt

(Second) of Torts §§ 659, 660 (1977). Applying the rule to this casc, the

prosecutor's dismissal of the charges ogainst Ms. Pylypenko due to 0 lack of

evidence would be 0 favori:lble termini:ltion consistent with her innocence. She

would thus hove propcrly plei:lded il prill1i:l facic Cclse of ll1i:llicious prosecution

able to withsti:lnd the defend'lnts' motion to dismiss.

The court docs not need to clddress this question, however beci:lusc Ms.

Pylypcnko's Count 1fT suffers from other deficiencies revealed by the defendants'

specidl motions to dismiss pursu,lllt to '14 rvLR.5.A. § 556. Even if Count lfl

survived the defc'ndants' Rule 'J 2(b)(6) m()tions to dismiss, the court dismisses

the clCiims pursudnt to tlle defendants' anti-SLAPP motions as discllssed below.

4. Count IV: False lmprisonment

After beimlJr chorged with reckless conduct, the st:lle issued a SUITlmons to

Ms. Pylypenko but mCiiled it to the wrong c1ddress. As,cl result, she foiled to

appcar at her (llTCiignment and was subsequcnt] y ,1rrested and jailcd. (Whi tmon

Aff. Exh. A Clt 13.) Ms. Pylypenko seeks to hold thc defendants liable for her

illlprisonment because it would llot hClve occurrcd but for thcir allegedly fi:llse

and baseless police reports. However, tl1ese 'lllegations on1 y show thilt the

defendants invoked the legal process llgainst the plaintiff. As ,1 general rule, the

defcndi:lnts must h,lVC t'l.kcn somc indepcndent action of their own before they

can be said to have fCllscly imprisollcd thl' plaintiff. l-fOlll7l1ri, 2UOO rvfE 160, ~r 19,

759 A.2d at 212. "Even if [the defand,mts'] actions in resorting to police help \vcrc

13 without justificcltion, [they] cannot be liable to [Ms. Pylypenko] for false

imprisonment." The defend

In sum, the court grclllts the ddcndc11lts' motions to dismiss on Counts If

clnd IV for intcntional infliction of emotionC11 distress and false imprisonment,

and on [vrs. Pylypenko's invasion of privc1CY claims. The court denies the motions

to dismiss Counts rand rff for defcunZltion ell1d mC1licious prosecution.

II. The Defendants' Special Motions to Dismiss Pursuant to 14 M.R.S.A. § 556

Maine's Zlnti-SLAPP legislation W,lS created to provide cerl,lin tClrgetcd

defend<1l1ts \\'ith expedited relief from punitive litigation. A SL/\rp suit, or

Strategic Lawsuit Against Public Participeltion, "is litigation without merit filed

to dissuade or punish the exercise of First Amendment rights of ddend'll1ts."

Morse Bros., llle. u. We!Jster, 20m ME 70, ([I W, 772 A.2d 842, 846 (quoting lenfnyelle

More/wl/sc, Illc. v. CfJrollicle Pu/J!'S Co., 44 Cal. I\.ptr. 2d 46, 4K (Cal. Ct. App. 19(5)).

SLAPP plaintiffs do not intend to win their suits, but rather to punish Clctivists

,1nd whistleblo\Vers by imposing delay, distr,lction, and litigation expense. ld.

While clzlssic SLAPP litlgC1tion was "directed elt individual citizens of modest

m('<1I1s for spe'lking publicly against developrnent projects," the Clnti-SLAPP

legislation protect~ alt1uch broader r,1I1ge of activity. ld. (quoting DI/mcmft Corp.

v. HolJl/cs Prods. Corp., 427 Mass. 156, 161,691 N.E.2d 935, 940 (rVIClSS. 1998)). The

statute defines the protected "right to peLition" to include:

[A]ny written or orell stCltement m,lde bdore or submiLted to Cl legislative, executive or judicial body, or any other governml'lltCll proceeding; ,1111' written or ora] stutement mucie in connection with an issue under consideration or review by a legislative, executive or judicial body ... ; or <1111' other statement falling within constitutional protection of the right to petition government.

14 14 M.R.S.A. § 556 (2009); see Sclzelling v. Lilldell, 2008 -',lIE 59, err 11, 942 A.2d 1226,

1230.

The statute operates by allowing defendants to file a "specicl! motion to

dismiss" that the court will hear "with as liltle delay as possible." § 556; Schellillg,

20GS ME 59, (1[6, 942 A.2d at 1229. The defendant bmrs the initial burden of

"showing through the pleadings Clnd affidavits that t]le claims against it ,1re

'based on' the petitioning clctivities alone and have no substantial basis other

than or in addition to the petitioning activities." Oflmcm{t, 427 Mass. at 167-68,

691 N.E.2d at 943.' "Once the defendant denwnstriltes ... that the stLltue llpplies,

"the burden falls on the plaintiff to demonstrate that the defend ll1l t's llctivity (1)

was without 'reasonable fuctl1ill support,' (2) was vvithol1t em 'arguable basis in

law,' and (3) resulted in 'actual injury' to the plaintiff." Schellillg, 2008 ME 59, 9[ 7,

942 A,2d at 1229. After this shift, the court views the evidence in the light most

fuvorable to the moving defendant because the non-moving plaintiff bears the

burden of proof. lVIol'se Bros., [IIC., 2001 ME 70,

1. Count f: Defmnation

Defendclnt Dennett moves under section 5S() to dismiss Count f; I'v1s. Copp

does not seek to do so in her special motion. As hL' did in his Rule 12(b)(6)

motion, Mr. Bennett argues that any defamatory statellwnts he made ubout Ms.

Pylypenko were col11lllul1icuted in his professional capacity as Ms. Copp's

attorney in connection with ongoing litigCltion. As such, they constitute

"statement[s] Illl1de in connection with an issue under considerCltion or review by

S Massachusetts's anti-SLAPP legislation is "nei1rJy identical to 14 tvtKS.f\. § 556" and the Supreme Judicial Court of Maine hus freely looked to I'vIassachusetts precedent for guidance in its interpretation. See Moores Bros., fnc" 2001 ME 70, 9I 15, 772 A.2d at 848 (citing and expldining D01lovan v. Gardner, 50 Mass. App. Ct. 595, 740 N.E.2d 639, 642 (Mass. App. Ct. 2000)). 15 a ... judicial body" and section 5SI1 Clpplies. For support he notes that the

complaint admits that he was representing Ms. Copp in ongoing "divorce,

pClrental rights ,md rL'sponsibiJities, 'lnd other vclried and extensive Jitigdtion

involving Scott Liberty" at the time in question. (Pl.'::; C01l1p1. 1r 7.) He also offers

his mvn affidavi t in which he claims that he never made the alleged stCltements

"to a third party outside of [his] legal representation of Darlene Copp in ongoing

litigation rnatters ...." (Bennett Aff. ([[ 5.)

Mr. Bennett hilS not met his burden to establish thilt the pl'lintiff's Count [

is based solely on protected petitioning ilctivity. Ms. Pylypenko continues to

ilrgue (lS in her complaint thclt Mr. Bennett made the slanderous statements for

personal re;-lsons unrelated to his representation of Ms. Copp. The dcfend'lnt has

not provided ,lny evidence to refute this other thiln his own condusory

statement.

At this juncture the court docs not have any evidence of when, where, or

why the al1eged slanderous statements vvere made. The record only reveclls that

Mr. Bennett milY hilve !llcldc them to Cassandril Liberty, ilnd that they de,1! wi th

mClteriaJ thClt milY have been relevant to some issue in litigiltion. "[T]hat a

statement concerns a topic that has attrclcled governmental attention, in itself,

does not give that statement the [petitioning] ch(1f(lCter conternplated by the

statute." nl(' Codlc Co. v. Sc/i/ic/ltlll(/[lll, 448 Mass. 242, 254, 859 N.E.2d 858, 8611-117

(Mass. 20(7) (quoting Glol7(7/ NAPs, Illc. u. Verizoll New Ellg/nlln, IIIC., 63 MClss.

App. Ct. 600,605 (2005)) (quotcltions omi tted).

vVithout more information the court Cilnnot SCly wllether J'v1r. Bennett

Illade the statements solely in his capacity as an attorney, ilS he concludes, or as

part of an "attempt to take over SceM Liberty's former role in the Copp

16 household," as Ms. Pylypenko asserts. (P!.'s Camp!. err 15.) As Mr. Bennett has

not shown thut there is not a substantiul non-petitioning related b

Pylypenko's claim, he has

the plainti ff's Count 1. His special motion is thus be denied as to Ms. Pyl ypenko' s

defamation c1

2. Count f1I: tvralicious Prosecution

Mr. Bennett and Ms. Copp both argue that Count rII for mcdicious

prosecution should be disnlissed pursuunt to their special motions brought

under the

mulicious prosecution claim is based solely on their petitioning activities. The

claim (lfiscs entilT~ly out of two incidents in which the defendants allegedly told

the police that Ms. Pylypenko had hel ped C

home,

alleged crime to the police is clearly the sort of petition to a government body

that section 556 is designed to protect, t11ld there is no other basis for the claim.

Sec Belloit v. FredericA-SOli, 454 r-.1ass. 148, 908 N.r.2d 714 (Mass. 2009) (reporting

rape to police is protected petitioning activity); McLnruoll II, [okisell, 431 Mass.

343,344-45,348-49, 727 N.E.2d 813, 815, 818 (Mass. 2(00) (mother's Gl11 to police

to report perceived violation of a restraining order and subsequent efforts to

extend order were petitioning activity protected by anti-SLAPP Jegisl

The burden thus shifts to Ms. Pylypenko to show that the defendants'

actions "(1) [were) without 'reasonable factual support,' (2) [were) without an

'arguable basis in law,' and (3) resulted in 'actual injury' to the plaintiff."

Schellillg, 2008 ME 59, (J[ 7, 942 A.2d at 1229. rvlust of the evidence Ms. Pylypenko

submitted to support her case deals with prior legal battles between the

17 defendants and Scott or Cassandra Liberty, and is not relevant here. The

affidavits that

engaged in the clccused conduct. for example, Cclssandra Liberty testi fies in her

affid(wit that t-ds. Pylypenko was not driving the car that allegedly dragged r,,1s.

Copp on November 30,2008. (Pl.'s Exh. 12, Cassc1l1dra Liberty Aff.

evidence

question is not whether Ms. Pylypenko '1CtuaJly engClged in crimil1C11 conduct, but

whether the defendants had ,,1 reasonable b"sis to provide her name to the police.

\Vhen the plClintiff's evidence is examined for its relevance to the current

question, it reveals that the defendants likely did have a rei:lsonable basis to

suspect Ms. Pylypenko 011 the night of November 30, 200S. In her C1ffidcwit,

CassClndr

driving a silver Volvo <1nd WCl') young, blond, and Russian. (Pl.'s Exh.12,

Cassandra Liberty Aff. (ji 4.) Through the affidavit of Thomas 1 faIldl, Ms.

Pylypenko has submitted the police records from that evening. (Pl.'s Exh. 6.)

These show that Ms. Pylypenko was 27 years old at the time of the incident and

has blond hair with blue eyes. (PI.'s Exh. 6, Hallett Aff. Exh. 4.) Given that the

incident occurred quickly and after d'lrk, tl1L~ defendants would have some

factual b,1sis to believe that Ms. Pylypenko WClS the driver, even if she did own ,,1

different sort of car.

Regarding the incident on October 30,2008, rvls. Pylypenko h,ls only

offered her own clffidavit denying that she W

IVis. Copp h

favorClble inferences in the defendants' fcwOf, this "shc-said-shc-said" argument

falls short of the affirmative showing section 356 r('quires Ms. Pylypenko to

IS l1lClKe. Sec AiJoorcs Bros., [l1C., 2001 t\,/rE 70, ~l9I 18,20, 772 A.2d at 85D. Since Ms.

Pylypcnko has flli led to meet her burden, both defendants' special motions to

dismiss 11IT~ granted as to Count III, rnalicious prosecution. BeGluse the evidence

lvle;. Pylypenko offered actually supported Ms. Copp's argulllent thc1t she held

reasonable grounds to report the plllintiff to the police, the court grants Ivls.

Copp's request for attorney's fees pursuant to 14 IVLR.S. § 556, for fees incurred

in relation to the special motion.

The only remaining claim is Count 1, for defamation, agdinst both

defendants.

The entry is:

The defend,lllts' Rule 12(b)(6) motions to dismiss arc granted on Counts II

and IV, and Oil the plaintiffs claims fur invasion of privdcy. DdendelntJeffrey

Bennett's special cl.nti-SLAPP rnotion to dismiss pursuant to 14 M.RS.l\.. § 556 is

denied on Count I. Both defendants' special motions

Count III.

DATE: J¥;o/l

19 OLENA PYLYPENKO VS JEFFREY BENNETT ET AL UTN:AOCSsr -2009-0141509 CASE #:PORSC-CV-2009-00690

01 000000314 2 ;;,;;H;;,;;A;=:;L:::;;;L~ET~Tc;:;..L..'_T::..;H;.;;.O;:.:MA=S:-....;;F~ _ 75 MARKET STREET SUITE 502 PO BOX 7508 PORTLAND ME 04112 F OLENA PYLYPENKO PL RTND 12/31/2009

02 0000002062 ~T;;,;;HA=LE~R:..:.L..,....;J;;..;E;:.:F:;,.;F:;..:R;.:.:E;;..;Y~ _ 100 MIDDLE ST PO BOX 9729 PORTLAND ME 04104-5029 F JEFFREY BENNETT DEF RTND 01/25/2010

03 00000 000 3 5 ~W.;;;H~I~TMA~N'-'-L-.'_J;..O;:.:H;;.;N~ _ 465 CONGRESS STREET PO BOX 9545 PORTLAND ME 04112-9545 F DARLENE COPP DEF RTND 01125/2010 STATE OF MAINE SUPERIOR COURT CUNIBERLAND, ss. CIVIL ACTION DOCKET NO: CV-09-6?0 J ftl

Plaintiff,

v. ORDER

JEFFREY BENNETT

and

DARLENE COPP ,._.~ . -.-- -:.,.-_.-"

Defendants

Plaintiff's motion to disqualify counsel, defendant Darlene Copp' s motion to

treat Count III of her counterclaim as an affirmative defense, and plaintiff's

motion to dismiss the case without prejudice for failure to file Report of ADR

Conference are before the court. The court will consider each matter separately.

MOTION TO DISQUALIFY COUNSEL

1. Background

Plaintiff Olena Pylypenko is the wife of Scott Liberty. Between December

2006 and May 2009 Attorney Martha Gaythwaite represented David van Dyke

and Berman & Simmons, P.A., in a legal malpractice action brought by Mr.

Liberty. Mr. van Dyke had been Mr. Liberty's attorney during his divorce and

spousal torts cases. Ms. Gaythwaite is now representing defendant Jeffrey

Bennett in several cases against Mr. Liberty and various members of his family,

including this case.

In a separate case, Mr. Liberty also filed a motion to disqualify Ms.

Gaythwaite as counsel for Mr. Bennett. The Superior Court denied the motion to

1 disqualify counsel. PORSC-CV-05-66/CV-03-421 (Me. Super. Ct. Cum. Cty. Oct.

28, 2011). An appeal is currently pending before the Law Court.

2. Discussion

"'The standard of review for orders disqualifying or refusing to disqualify

counsel is highly deferential.'" Estate of AnnaL. Markheim v. Markheim, 2008 ME

138,

(Me. 1995)). The plaintiff asserts that this court should defer its decision on the

motion to disqualify until the Law Court has ruled on Mr. Liberty's appeal. The

court has declined this option and will rule based on the current law.

In order to disqualify counsel the evidence must support two findings. 1

Morin v. Me. Educ. Ass'n, 2010 ME 36, 9[ 9, 993 A.2d 1097. First, the

"disqualification must serve the purposes supporting the ethical rules." Id.

Second, the party moving for the disqualification must show "that continued

representation by the attorney would result in actual prejudice." Id. at

"actual prejudice" requirement is an intentionally stringent standard requiring

the moving party to point to "specific, identifiable harm" she will suffer if the

representation continues, not just a mere allegation that the attorney holds some

confidential information. Id.

Here, Mrs. Pylypenko has not demonstrated actual prejudice. While Ms.

Gaythwaite may have acquired confidential information about Mr. Liberty in a

prior representation, Mrs. Pylypenko has not demonstrated how she is

specifically harmed by this information. The court denies the motion.

1The plaintiff argues for the application of the Markheim test instead ofthe Morin test. See Estate of Markheim, 2008 ME 138, <[<[ 23-24, 957 A.2d 56. The lviarklzeim test does not apply in this case, however, because the plaintiff is not a former client of Ms. Gaythwaite.

2 MOTION TO TREAT COUNT III AS AN AFFIRMATIVE DEFENSE

Defendant Darlene Copp filed a motion to treat Count III of her

counterclaim as an affirmative defense or, in the alternative, to dismiss the count.

Count III is a defamation claim regarding an exchange that took place between

the plaintiff and the District Attorney on November 30, 2008. (Copp's Countercl.

4.) The counterclaim was filed on March 22, 2011. Realizing that the statute of

limitations governing defamation bars this claim the defendant asserts that the

court should treat the claim as an affirmative defense. 2 See 14 M.R.S. § 753 (2010)

(providing a two-year statute of limitation for defamation claims). The court

may treat a counterclaim as a defense "if justice so requires." M.R. Civ. P. 8(c).

Alternatively, defendant Copp requests that the court dismiss Count III

pursuant to M.R. Civ. P. 41(a)(2). The court may dismiss a claim upon the

claimant's request if the dismissal does not prejudice the other party. See lTV

Direct, Inc. v. Healthy Solutions, LLC, 445 F.3d 66, 70 (1st Cir. 2006) (upholding a

refusal to dismiss due to third-party's interests); Holbrook v. Andersen Corp., 130

F.R.D. 516, 519 (D. Me. 1990) ("While the basic purpose of Rule 41(a)(2) is to

allow a plaintiff to dismiss an action without prejudice to future litigation, the

dismissal must not unfairly jeopardize the defendant's interests. Accordingly,

the dismissal should in most instances be granted, unless the result would be to

legally harm the defendant." (quoting 5 J. Moore et al., Federal Practice

(2d ed. 1988))); Charles Harvey, Maine Practice Series§ 41:1 (3d ed. 2011).

2 Regarding the treatment as a defense, the defendant argues "Ms. Copp's allegation of

defamation would not be an affirmative claim against Ms. Pylypenko; but if Ms. Pylypenko were to prevail on her surviving claim of defamation, then Ms. Copp's affirmative defense of defamation would give rise to the potential opportunity for a set-off against the Plaintiffs similar claim." (Mot. Treat Ct. Ill Aff. Def. 1.)

3 The plaintiff opposes this motion and asserts that Count III should be

dismissed pursuant to the anti-SLAPP statute so that she can obtain attorney's

fees. 3 This argument has a basis in judicial equity since the defamation claim

against defendant Copp was dismissed under the anti-SLAPP statute with the

court awarding attorney's fees.

The court should not reinterpret Count III as an affirmative defense

because justice does not require such a reinterpretation. Instead the

reinterpretation would allow the plaintiff to assert arguments that would

otherwise be barred by the statute of limitations or, potentially, the anti-SLAPP

statute. Additionally, dismissing Count III does prejudice the plaintiff since it

removes her ability to assert a claim for attorney's fees under the anti-SLAPP

statute when a similar claim for attorney's fees has been successful against her.

MOTION TO DISSMISS THE CASE WITHOUT PREJUDICE

On October 18, 2011, this court issued an Order for Failure to File

Alternative Dispute Resolution (ADR) Notification and imposed $150 sanctions

on the plaintiff's counsel. The order said that this case would be dismissed

without prejudice unless the parties took specified steps towards the ADR

process within 15 days. CUMSC-CV-2009-690 (Me. Super. Ct., Cum. Cty., Oct.

18, 2011). No progress has been reported in the ADR process. The plaintiff

asserts that this case, including the counterclaims, should be dismissed without

3 On August 11,2011, the plaintiff filed a special motion to dismiss Count III based on the anti-SLAPP statute's application to the claim and the fact that the court had dismissed the plaintiffs defamation claim regarding statements the defendant made to police. (Pl.'s Special M. Dismiss 1-2.) This special motion is currently stayed pending the resolution of the motion at hand. The motion to treat Count III as an affirmative defense was filed August 31,2011.

4 prejudice. See Merrifield v. Hadlock, 2009 ME 1, 9I9I 1, 3, 961 A.2d 1107 (upholding

the Superior Court's dismissal due to failure to file an ADR notification).

During a conference in chambers the case was stayed pursuant to the

motion to disqualify counsel. Therefore, the court will vacate the prior order and

return the $150 payment to plaintiff's counsel. Parties have 30 days from the

date of this order to fulfill with the requirements set forth in the October 18

order.

1. Plaintiff's motion to disqualify counsel is denied.

2. Defendant Copp' s motion to treat Count III as an affirmative

defense or to dismiss the motion is denied.

3. Plaintiff's motion to dismiss the case without prejudice is

denied.

4. The October 18, 2011, Order for Failure to File AD lOTI

is vacated and the associated fine will be reror.Fle

DATE:~ 15,2DI(

5 OLENA PYLYPENKO VS JEFFREY BENNETT ET AL UTN:AOCSsr -2009-0141509 CASE #:PORSC-CV-2009-00690

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02 0000000402 DETROY, PETER 415 CONGRESS STREET PO BOX 4600 PORTLAND ME 04112-4600 F OLENA PYLYPENKO PL RTND 04/27/2011

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