MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Joseph Amato brought suit against Susy G. Perlera for malicious prosecution, abuse of process, defamation, and negligent infliction of emotional distress. A Superior Court judge allowed Perleras special motion to dismiss the claims under the “anti-SLAPP” statute, G. L. c. 231, § 59H, and Amato appeals.
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We affirm.
Background. We take the following facts from the second amended complaint and the affidavits and exhibits submitted by the parties in connection with Perleras special motion to dismiss. See G. L. c. 231, § 59H (in resolving special motion to dismiss, “the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based”).
On October 4, 2018, Perlera, an employee of the Center, was taking the vital signs of Amatos mother, who was there for a doctors visit accompanied by Amato. As Perlera was working, Amato made contact with her. The parties have differing accounts of the nature of the contact. According to Amato, he “lightly bumped into” Perlera, and “[t]here was absolutely nothing inappropriate about the contact.” According to Perlera, Amato “pressed himself against [her],” “hard enough that [she] could feel his genitals”; then, after Perlera twice told him to step away, Amato stated, “[W]atch when you get old.”
The next day, Perlera reported the incident to the police. After the police interviewed Perlera, the Suffolk County District Attorney filed a criminal complaint charging Amato with indecent assault and battery on a person over fourteen. Ultimately, on July 18, 2019, Amato agreed to a disposition of pretrial probation for eighteen months with conditions, including that he stay away from the Center and from Perlera and that he have no contact with her.
Forty days later, Amato initiated this lawsuit. All of his claims against Perlera are based on her statements to the police. Amato alleges that the statements were false and forced him to hire an attorney to defend against the criminal charge. He further alleges that, because of Perleras actions, he has been unable to visit the Center for his own medical appointments or accompany his mother there.
Discussion. A special motion to dismiss under the anti-SLAPP statute is governed by a two-stage framework. “At the first stage, a special movant must demonstrate that the nonmoving partys claims are solely based on [the special movants] own petitioning activities.” Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141, 159 (2017) (Blanchard I). There is no dispute here that Perlera, the special movant, met her first-stage burden. The analysis thus proceeds to the second stage, which shifts the burden to the nonmoving party, Amato, to demonstrate that dismissal of his claims was nonetheless not required by the anti-SLAPP statute. Amato could meet this burden through one of two paths: (1) by showing that Perleras petitioning activities “lack[ed] a reasonable basis in fact or law” and caused him injury, id.; or (2) by showing that his “primary motivating goal in bringing [his] claim[s]” was not to interfere with Perleras petitioning activities, id. at 160. The judge concluded that Amato did not make an adequate showing under either path. We review this conclusion only for an abuse of discretion or other error of law. See Blanchard v. Steward Carney Hosp., Inc., 483 Mass. 200, 203 (2019) (Blanchard II).
We discern no error. As an initial matter, the judge did not find that Perlera knowingly filed a false police report, as Amato contends. Rather, it is plain that the judge merely accepted that allegation in the second amended complaint as true for purposes of deciding the Centers motion to dismiss under Mass. R. Civ. P. 12 (b) (6).
With respect to Perleras special motion to dismiss, however, the judge expressly found that Amato failed to meet his burden of showing that Perleras statements to the police lacked any reasonable basis in fact or law. In challenging this ruling, Amato points to alleged inconsistencies between Perleras initial account and statements she made during her interview. Specifically, Amato claims that Perlera mentioned for the first time in the interview that a coworker witnessed the incident, and that she gave differing accounts of where Amato was when he commented, “[W]atch when you get old.” These claims find no support in the record: the report of Perleras initial account identifies the coworker as a potential witness, and the report of the interview is silent as to where Amato was when he made his comment. In any event, even if there were minor discrepancies, the judge properly determined that “Perleras accounts in both statements are overwhelmingly consistent with respect to the alleged criminal conduct.”
Amato further argues that Perleras statements had no reasonable basis in law because he did not have the intent to commit the crime of indecent assault and battery. Contrary to his contention, however, the judge did not need to determine that he had the requisite intent. Rather, in the context of an anti-SLAPP motion, it was Amatos burden to “show that no reasonable person could conclude that there was [a basis in law] for [the petitioning activity].” Wenger v. Aceto, 451 Mass. 1, 7 (2008), quoting Baker v. Parsons, 434 Mass. 543, 555 n.20 (2001). The judge permissibly found that a reasonable person could conclude from Perleras account of the incident that Amato committed an indecent assault and battery. Amatos differing account, as set out in his affidavit, was insufficient to meet his burden of proving otherwise. See 477 Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162, 173 (2017) (“plaintiff cannot meet its burden merely by presenting affidavits contradicting the factual basis of the special movants petitioning activities”). Moreover, that Amato was criminally charged after an independent police investigation supports a finding that Perleras reports were objectively reasonable. Cf. Fabre v. Walton, 436 Mass. 517, 524-525 (2002); OGara v. St. Germain, 91 Mass. App. Ct. 490, 500 (2017).
The judge was also within her discretion to conclude that Amato failed to meet his burden of showing that his primary motivating goal was not to interfere with Perleras petitioning activities. To prevail under this path, Amato had to demonstrate two elements: that his claims were “colorable,” and that they were “not brought primarily to chill [Perleras] legitimate exercise of [her] right to petition” (quotations omitted). Blanchard II, 483 Mass. at 204. Amato had to make a sufficient showing on both elements so that the judge could say with “fair assurance” -- i.e., with “confiden[ce]” -- that this action “is not a ‘SLAPP’ suit.” Id. at 205.
Amatos primary argument is that this is not a typical SLAPP case in that it was not brought by “a large private company seeking to chill a private citizens right to free speech to protect its bottom line.” This is a relevant factor in the analysis, see Blanchard II, 483 Mass. at 206, as the judge acknowledged. But it is not dispositive, and the judge rightly went on to consider that “[Amato] ha[d] ․ sued the victim/witness in an ongoing criminal proceeding.” See id. at 206-207 (other factors include “whether the lawsuit was commenced close in time to the petitioning activity” and “the centrality of the challenged claim in the context of the litigation as a whole”). The judge observed that the criminal case was still open, Amatos probation was ongoing, and Perlera “remain[ed] the primary witness against him” should the criminal case proceed. In light of these factors, the judge stated that she was “not convinced that [Amatos] primary motivating goal was not to interfere with or burden Perleras petition rights.” Mindful that “[i]t rests within the exercise of the judges sound discretion to determine ․ whether he or she is fairly assured that the challenged claim is not a SLAPP suit,” we conclude that, in the circumstances here, the judge did not abuse her discretion. Id. at 207.
Amato failed to meet his burden under the second path for an additional reason -- he made no showing that each of his claims was colorable. See Blanchard II, 483 Mass. at 204. “[A] necessary but not sufficient factor in [the] analysis [is] whether the nonmoving partys claim at issue is ‘colorable or ․ worthy of being presented to and considered by the court.’ ” Id. at 207-208, quoting Blanchard I, 477 Mass. at 160-161. Even on appeal, Amato does not address this part of the analysis, beyond asserting that “his claims are obviously true” given that the judge found that “Perlera knowingly lied to the police.” As explained above, the judge made no such finding. Thus, Amatos failure to address the colorability of his claims independently supports the judges decision.
Finally, the judge did not abuse her discretion by denying Amatos request for further discovery. The purpose of the anti-SLAPP statute is to provide “a procedural remedy for early dismissal of ․ SLAPP suits.” Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161 (1998). Judges should therefore be “parsimonious” in allowing discovery at this stage. Blanchard II, 483 Mass. at 212. Amato has failed to show that this is one of those “exceptional cases” warranting an exception to the rule. Id., quoting Burley v. Comets Community Youth Ctr., Inc., 75 Mass. App. Ct. 818, 822 (2009).
Perlera has requested an award of appellate attorneys fees and costs, which she is entitled to under G. L. c. 231, § 59H. See OGara, 91 Mass. App. Ct. at 501. Accordingly, Perlera may submit a petition with documentation supporting her request to the clerk of this court within fourteen days of the date of this decision. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). Amato shall then have fourteen days to respond. See id.
Amended judgment affirmed.
FOOTNOTES
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. The judge also allowed the Centers motion to dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). Amato does not challenge that ruling on appeal. Furthermore, although Amato separately appealed from the amended judgment, which included an award of attorneys fees, that notice of appeal was not timely. Amato does not, in any event, challenge the reasonableness of the award on appeal. Amatos notice of appeal from the original judgment was timely.