MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendants appeal from the denial, in part, of their special motion to dismiss the plaintiffs complaint, pursuant to G. L. c. 231, § 59H, the so-called “anti-SLAPP” statute.
3
The sole issue before us is whether the plaintiffs claim for intentional infliction of emotional distress should have been dismissed pursuant to § 59H. We conclude that it should have been dismissed, and reverse.
To assess an anti-SLAPP special motion to dismiss, courts apply a two-prong, burden-shifting framework. See Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141, 143-144 (2017) (Blanchard I); Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167–168 (1998) (Duracraft). The first prong requires the defendants to “make a threshold showing through pleadings and affidavits that the claims against [them] are based on the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities” (quotations and citation omitted). Blanchard I, supra at 147. See Duracraft, supra. If the defendants make that threshold showing, the analysis proceeds to the second prong, under which the burden shifts to the plaintiff to establish, by a preponderance of the evidence, either (1) that the defendants were engaged in “sham” petitioning (i.e., petitioning activity “lack[ing] a reasonable basis in fact or law”) that caused actual injury to the plaintiff; or (2) that “each challenged claim ․ was not primarily brought to chill the [defendants’] legitimate petitioning activities.” Blanchard I, supra at 159-160. We review the judges ultimate ruling on a special motion to dismiss made pursuant to G. L. c. 231, § 59H, “for an abuse of discretion or error of law.” Blanchard v. Steward Carney Hosp., Inc., 483 Mass. 200, 203 (2019) (Blanchard II). See Reichenbach v. Haydock, 92 Mass. App. Ct. 567, 572 & n.14 (2017) (de novo review for first prong; abuse of discretion for second prong). The judges conclusion regarding the plaintiffs claim for intentional infliction of emotional distress rested on his view that, to the extent the plaintiffs claim arose from the disclosure of certain bank records in separate litigation between the parties (Cataldo action), allegedly in violation of a court order that had been entered in yet another action between the parties (OCV litigation), the defendants’ actions were not protected petitioning activity because the court order was analogous to the confidentiality agreement involved in Duracraft, 427 Mass. at 165-166.
To the contrary, the defendants’ alleged violation of the court order against disclosure of the bank records by providing records to third parties in the Cataldo action does not fall outside protected petitioning activity. The court order itself was, of course, imposed by the court and derivative of the OCV litigation. See 477 Harrison Ave., LLC v. JACE Boston, LLC, 483 Mass. 514, 520-521 (2019). By contrast, the confidentiality agreement involved in Duracraft was the result of a private contract between the parties, antecedent to and independent of the litigation. In addition, as the defendants contend and the motion judge recognized, the question whether the defendants’ alleged disclosure actually contravened the court order was subject to at least some room for disagreement. In our view, on this record, the proper avenue to challenge the alleged violation of the court order would have been an action for contempt brought against the parties alleged to have committed the violation.
4
In addition, the plaintiffs claim fails to clear the hurdles otherwise applicable under the second prong of the anti-SLAPP analysis, see Blanchard I, supra at 159-160, to claims based on protected petitioning activity. The claims in the Cataldo action are not lacking in reasonable support in fact and law, and indeed had sufficient heft to persuade a Superior Court judge to allow Vilma Cataldos motion for summary judgment (albeit improvidently, by virtue of the presence of disputed questions of material fact). And we discern no abuse of discretion in the determination by the motion judge that the plaintiff failed to carry his burden to establish that his “primary motivating goal in bringing [his] claim, viewed in its entirety, was ‘not to interfere with and burden defendants’ ․ petition rights, but to seek damages for the personal harm to [him] from [the] defendants’ alleged ․ [legally transgressive] acts’ ” (citation omitted). Blanchard I, supra at 160.
So much of the order as denied the defendants’ special motion to dismiss the plaintiffs claim for intentional infliction of emotional distress is reversed. The defendants are entitled, pursuant to G. L. c. 231, § 59H, to their reasonable appellate attorneys fees and costs for this appeal, which they have requested in their brief. See DeCicco v. 180 Grant St., LLC, 484 Mass. 1037, 1038 (2020). Consistent with the procedure set out in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the defendants shall submit a detailed fee application, supported by affidavit(s), within two weeks following the rescript of this decision. The plaintiff may submit an opposition, if any, within two weeks thereafter.
So ordered.
Reversed
FOOTNOTES
3
. The motion judge denied the defendants’ motion as to the plaintiffs claim for intentional infliction of emotional distress but allowed it as to the plaintiffs claims for fraud and defamation. The plaintiff did not file a cross appeal from the allowance of the defendants’ motion concerning the fraud and defamation claims, and the judges ruling on the defendants’ motion to dismiss the complaint as an improper collateral attack, or for failure to state a claim on which relief may be granted, is not before us.
4
. We note that the bank records could have been -- and in fact subsequently were -- available independently by subpoena, and their disclosure would not have been improper but for the alleged violation of the court order.