Superior Court of Massachusetts, Suffolk, Business Litigation Session
July 21, 2016
MEMORANDUM AND ORDERS ON PLAINTIFF'S MOTION FOR
VOLUNTARY DISMISSAL, DEFENDANTS' CROSS MOTION TO COMPEL
DISCOVERY RESPONSES AND FOR SANCTIONS, AND PLAINTIFF'S
CROSS MOTION FOR A PROTECTIVE ORDER
P. Leibensperger, Justice
Cardno ChemRisk, LLC (" ChemRisk"), moves that this
action alleging defamation be dismissed pursuant to
Mass.R.Civ.P. 41(a)(2). Defendants oppose dismissal because
there is pending in the Supreme Judicial Court their appeal
from this court's denial of their motion to dismiss under
the Massachusetts anti-SLAPP statute, G.L.c. 231, § 59H.
If the Supreme Judicial Court determines that the anti-SLAPP
motion should have been allowed, defendants will be entitled
to " costs and reasonable attorneys fees, including
those incurred for the special motion and any related
discovery matters." Id., para. 5. Accordingly,
defendants contend that dismissal of the action is premature.
In addition, defendants argue that if there were to be a
voluntary dismissal of ChemRisk's claims, such dismissal
should be subject to the imposition of certain conditions.
that dismissal of the action would be premature given the
pending appeal. Defendants' potential claim for costs and
attorneys fees under the anti-SLAPP statute is, for all
intents and purposes, a counterclaim that remains alive. As a
result, ChemRisk's motion for voluntary dismissal must be
DENIED, without prejudice, of course, to renewal after the
Supreme Judicial Court decides the pending appeal.
said, what should occur in this case while the appeal is
pending? Defendants move to compel discovery responses from
ChemRisk which were due on March 18, 2016. On that date,
rather than serve discovery responses, ChemRisk notified
defendants that it intended to voluntarily dismiss the
action. When ChemRisk served its motion for
voluntary dismissal on March 22, 2016, defendants cross moved
to compel discovery responses and for sanctions. In response,
ChemRisk cross moved for a protective order.
represents to this court in its papers and at oral argument
that the voluntary dismissal it seeks shall be " with
prejudice." ChemRisk does not intend to pursue any claim
against defendants arising from the transactions and
occurrences alleged in the complaint. ChemRisk asks that, in
reliance upon that representation, a protective order should
enter barring all discovery.
assert no legitimate reasons for why they should obtain
discovery from ChemRisk when ChemRisk has decided not to
pursue its claims. Defendants are justifiably peeved that
ChemRisk insisted on discovery going forward after denial of
defendants' anti-SLAPP motion and then, when discovery
was due, suddenly decided to drop the case. But
defendants' frustration does not provide a basis to
continue discovery on the merits of the claims when there are
no claims. Thus, defendants' motion to compel is DENIED
and ChemRisk's motion for a protective order is ALLOWED.
Moreover, ChemRisk may not change its mind and pursue
defendants on these claims in this forum or elsewhere. The
reason a protective order preventing discovery is hereby
entered is because of ChemRisk's representation that it
will not attempt to pursue its claims. The doctrine of
judicial estoppel shall preclude such potential manipulation
of the judicial process, if it should occur. Otis v.
Arbella Mutual Insurance Company, 443 Mass. 634, 640,
824 N.E.2d 23 (2005).
their cross motion to compel and for sanctions, defendants
request " an award of their attorneys fees incurred in
connection with plaintiff's motion to dismiss and this
cross motion." Defendants cite, as grounds for an award
of attorneys fees, G.L.c. 231, § 6F, and Mass.R.Civ.P.
11(a) and 37. Even if it were appropriate to entertain a c.
231, § 6F motion at this juncture, defendants fail to
offer evidence for the court to find that " all or
substantially all of the claims . . . made . . . were wholly
insubstantial, frivolous and not advanced in good
faith." The statute requires satisfaction of two
elements: (1) the claims were wholly insubstantial or
frivolous, and (2) the claims were not advanced in good
faith. Defendants' argument focuses primarily on the
second element--the motivation of ChemRisk to commence this
action and then to decide to terminate it. On the record
presented, I cannot conclude that ChemRisk's litigation
conduct leads to a compelled conclusion that it acted in bad
faith. In addition, the mere fact that others allegedly
published similar defamatory material and were not sued by
ChemRisk is not evidence that ChemRisk's claims against
defendants were frivolous. Likewise, there is no basis to
find a violation of Rule 11. Finally, Rule 37(d) allows a
court to consider an award of attorneys fees "
caused" by the failure of a party to respond to
discovery. Such fees, in this case, could only include fees
incurred by defendants in preparing a motion to compel
discovery when they knew that ChemRisk intended to drop the
case. No award of fees is justified in that circumstance.
Defendants' request for sanctions in their cross-motion
to compel is DENIED. This action is STAYED until after the
Supreme Judicial Court takes final action on the pending
Two days earlier, on March 16, 2016, the
Supreme Judicial Court notified the parties that it had
granted a petition for direct appellate review of the
decision denying ...