Pylypenko v. Bennett

Maine Superior

Pylypenko v. Bennett

Superior Court of Maine·Decided December 16, 2011·No. CUMcv-09-690·Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUlvlBERLAI\ID, 55. CIVIL ACTION DOCKET NO: CV -09-690

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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'

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Pl<lintiff Olena Pylypenko brought this action against attorney Jeffrey 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)).

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<I[ 32, 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. <j) 62.) An officer stopped Ms. 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<lrd her front-door alarm go off. (Copp Afl. <![ 71.) On investigating, she witnessed Cassandra run toward a car parked Clt the end of the driveway (1nd get into the passenger seClt. (Copp Aff. <II 71.) Ms. 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. <IT<IT 71-72.)

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

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 <lgainst Mr.l3enllett ulld Iv[s. Copp. Count r <lccuses the defendants of deftlm ati 011 and invasion of privacy 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<lnt to 14 M.R5.A. §556,2 and a motion to dismiss 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.

{-f Lottery Co 111111 'ii, 2ClD..J. fvIE 20, <Il~ 8-9, 843 A.2d 43, 47-4~. In contrast, sl'ction 556

speci,l] motions require the court to cXZlmine both the pleadings ,11lLi supporting affid,wits. Morse Urns., fllc. u. Wehster, 2001 :rv1i~ lO, <II 20, 772 A.2d R42, S49. As 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, <IT 7, 7,S5 A.2dl Oil4, 1Oilil (quoting 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

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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, <If 5, 7S5 A.2d 1244, 1245-46. 1. Count I: LJd<lll1ation & fnvasioll of Privacy The pl<linti ff's Count 1 accuses both Mr. Gennett and Ms. Copp of defamation and inv,lsion of privacy. DefaJll<1tion consists of:

(a) <l fcllse ,md debmatory stcltement concerning dnother;

(b) all unprivileged publication to a third party;

(c) fault amounting at least to negligence on the part of the publisher; clnd

(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).

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