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Carr v. Cesari & McKenna, LLP

Superior Court of Massachusetts, Suffolk

March 27, 2017

Kenneth Carr
Cesari & McKenna, LLP et al No. 136749


          Douglas H. Wilkins, Justice

         In this legal malpractice case brought by Kenneth Carr (" Carr"), the Defendants, Cesari and McKenna LLP and Thomas O'Konski, have filed a first amended answer, Affirmative Defenses, and Counterclaims of the Defendants Cesari and McKenna, LLP [" Cesari" ] and Thomas O'Konski." (" Counterclaims"). Carr has brought " emergency Special Motion by Plaintiff Kenneth Carr to Dismiss Defendants' Counterclaims under M.G.L.c. 231, § 59H and for a Mandatory Award of Attorneys Fees." (" Motion"). After hearing on March 20, 2017, for the reasons set forth below, the Motion is ALLOWED IN PART and DENIED IN PART.


         The court incorporates the description of the allegations of Carr's Complaint set forth in its Memorandum of Decision and Order on Defendants' Rule 12(b) Motion to Dismiss, dated January 31, 2017 (" January Decision"). It also considers the following facts and allegations from the Counterclaims, Affidavits and other papers before the Court. Where necessary the Court supplements this " Background" and resolves the conflicting factual assertions in the " Discussion" below.

         Cesari asserts that it represented Meridian Medical Systems, LLC (" MMS") and its predecessor since at least 1993 and provided intellectual property advice and services. Carr, supported by the Affidavit of John McKenna, Esq., a former Cesari partner, asserts that Cesari also represented him individually. All of the patents Cesari prosecuted for MMS on which Carr was the named inventor were assigned to MMS with one exception, which was assigned to MMS's intellectual property licensee. However, the parties dispute whether Carr and McKenna acknowledged that this practice would not apply to invention in question.

         The Court assumes that the following allegations of the Counterclaims are true: In the summer of 2013, when Cesari learned information about the extent and nature of the dispute between Carr and MMS, Cesari decided to withdraw from representing MMS. Carr asked Cesari to continue to represent MMS, according to Cesari. Carr allegedly told Cesari that there would be no conflict and that he would provide a comfort letter to that effect. Based on that representation, Cesari continued to represent MMS with respect to all of its intellectual property and patent matters. It is undisputed that Cesari never obtained a written waiver of conflict from Carr.

         In September 2013, Cesari learned that the law firm of Preti Flaherty Belliveau & Pachios, Chartered LLP (" Preti Flaherty") was representing Carr in connection with the patent application at issue and his dispute with MMS. On or about September 20, 2013, Preti Flaherty filed a power of attorney at the United States Patent and Trademark Office (" USPTO") with respect to the relevant patent application. Cesari filed a petition to recognize MMS as " applicant" of that patent application. Neither Carr nor his counsel objected to that petition or Cesari's representation of MMS.

         Cesari has not been paid $85, 000 for legal work it performed on patent applications for MMS, including work on patents and applications that, according to Carr, Cesari represented Carr and MMS.


         The Motion challenges the Counterclaim as a so-called SLAPP suit, subject to G.L.c. 231, § 59H (" § 59H"). See Chemrisk, LLC v. Foytlin, 476 Mass. 479, 68 N.E.3d 1180 (2017). Under § 59H, the moving party must show that the claims against it are based upon " the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities." Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-68, 691 N.E.2d 935 (1998), quoted in Fabre v. Walton, 436 Mass. 517, 522, 781 N.E.2d 780 (2002). " '[B]ased on' does not mean 'in response to': although claims and related pleadings filed in court may be classified as petitioning activities, plaintiffs are not thereby immunized from counterclaims filed in response to the claim." Duracraft, 427 Mass. at 168, n.20. The Court therefore does not evaluate the Motion generally to determine whether, as Carr contends, the counterclaims are " retaliatory." See Keystone Freight Corp. v. Bartlett Consolidated, Inc., 77 Mass.App.Ct. 304, 314, 930 N.E.2d 744 (2010) (" attribution of a motive, alone is never sufficient"). A substantial counterclaim is not necessarily a SLAPP suit simply because it may be retaliation for being sued. " A special motion to dismiss will not succeed against a 'meritorious claim[ ] with a substantial basis other than or in addition to the petitioning activities implicated' (emphasis added)." Fabre, 436 Mass. at 524, quoting Duracraft, 427 Mass. at 167. If the moving party makes the threshold showing, the burden shifts to the opposing party to " demonstrate by a preponderance of the evidence that the [moving party's] petitioning activity was devoid of any reasonable factual support or any arguable basis in law." Fabre, 436 Mass. at 524.


         Carr must prove by a preponderance of the evidence " that the activity at issue is 'petitioning' activity within the purview of the anti-SLAPP statute and that the claims in the litigation 'are based on the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.'" Fabre v. Walton, 436 Mass. 517, 522, 781 N.E.2d 780 (2002), quoting Duracraft Corp. v. Holmes Prods. Crop., 427 Mass. at 167-68. See also Office One, Inc. v. Lopez, 437 Mass. 113, 122, 769 N.E.2d 749 (2002); Baker v. Parsons, 434 Mass. 543, 550, 750 N.E.2d 953 (2001). Section 59H defines " a party's exercise of its right of petition" to include " any written or oral statement made before or submitted to a[n] . . . executive or judicial body . . ."

         Here, many of the Counterclaims challenge Carr's complaint itself and the allegations made therein. Filing a lawsuit " is the paradigm of petitioning activity" within the definition of § 59H. Ehrlich v. Stern, 74 Mass.App.Ct. 531, 538, 908 N.E.2d 797 (2009), citing Wenger v. Aceto, 451 Mass. 1, 5-6, 883 N.E.2d 262 (2008) (" criminal claim brought in the Dedham District Court"). See also McLarnon v. Jokisch, 431 Mass. 343, 345, 727 N.E.2d 813 (2000) (application for an abuse prevention order under G.L.c. 209A). Moreover, the Anti-SLAPP Act protects more than just the filing of the lawsuit; it also protects statements in connection with the lawsuit, including, most obviously, the allegations of the complaint itself. " [A] party's exercise of its right to petition" the judiciary, specifically includes " any written or oral statement made in connection with an issue under consideration or review by a . . . judicial body, " or " reasonably likely to encourage consideration or review of an issue by a . . . judicial body . . ." G.L.c. 231, § 59H. See generally Chemrisk, 476 Mass. at 484-85. Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. at 161-64; Office One, Inc. v. Lopez, 437 Mass. at 123 (2002) (noting the " broad definition of petitioning activity protected by the statute").

          " Were filing the [lawsuit] the only conduct on which the complaint in this action focused, then it is clear that the case could not proceed." Ehrlich, 74 Mass.App.Ct. at 538. However, it is possible for a lawsuit to give rise to a cause of action that has a " substantial basis other than or in addition to the petitioning activities." Duracraft, 427 Mass. at 168. For instance, in that case, violation of a " nondisclosure agreement, . . . constitute[d] a substantial basis other than Marino's petitioning activity to support Duracraft's claims." Id. Other examples of legitimate claims arising from filing suit also exist:

Many preexisting legal relationships may properly limit a party's right to petition, including enforceable contracts in which parties waive rights to otherwise legitimate petitioning. A quintessential example of such a waiver is a settlement agreement, in which a party releases legal claims against an adversary that otherwise properly could be prosecuted by petitioning the court. [Note omitted.] But neither this example nor contractual or fiduciary relationships in general exhaust the conceivable occasions in which a party assumes obligations that in turn limit the party's subsequent free exercise of speech and petitioning rights.

Id. at 165-66. With this background, the Court follows the Appeals Court's instruction to rule upon each counterclaim on an all-or-nothing basis:

[T]he anti-SLAPP inquiry produces an all or nothing result as to each count the complaint contains. Either the count survives the inquiry or it does not, and the statute does not create a process for parsing counts to segregate components that can proceed from those that cannot.

Ehrlich, 74 Mass.App.Ct. at 536. It concludes that the plaintiff has shown that some, but not all, of the counterclaims are based upon an exercise of their right to petition.

          Section 6F : The Counterclaims contain three sections that establish their nature, purpose and function to challenge Carr's exercise of his right to file this lawsuit. The " Introduction" expressly and directly challenges Carr's complaint in this case on the ground that Carr " filed the instant lawsuit in bad faith and aware that his allegations are false and unsupportable." Counterclaims at 12. The Defendants essentially repeat these allegations in paragraphs 45-41 of the Counterclaims, which they later expressly incorporate into every count . See Counterclaims, ¶ ¶ 52, 58, 63, 67, 74. As a result, the Counterclaims, both as a whole and on an individual basis, all include allegations based on the allegedly wrongful filing of the complaint. Finally, the section entitled " Violation of Chapter 231, § 6F" states that " Carr's claims are wholly insubstantial, frivolous and not advanced in good faith." Counterclaims at 23. It seeks affirmative relief, reflected in paragraph C of the Counterclaims' prayer for relief and is, for all intents and purposes, Count VI of the Counterclaims, though not expressly labeled as such. These sections of the Counterclaims[1] go on to particularize these challenges to the Complaint and, ultimately to assert a right to relief in the form of attorneys and costs pursuant to G.L.c. 231, § 6F. Id., 12-13, 23-24. Carr's Motion (at 7-8) begins by challenging these passages.

          A counterclaim alleging violation of § 6F is based on petitioning activities. See Brooks Automation, Inc. v. Blueshift Technologies, Inc., No. 05-3973-BLS2 (Mass.Super. 1/24/2006) (Gants, J.) [20 Mass.L.Rptr. 541] (" This Court declared that, if Blueshift's counterclaim had been fashioned as a common-law claim of abuse of process or a statutory claim that Brooks' complaint was frivolous and in bad faith under G.L.c. 231, § 6F, the counterclaim would plainly have been based on Brooks' petitioning activities"), citing Fabre v. Walton, 436 Mass. at 523-24; Donovan v. Gardner, 50 Mass.App.Ct. 595, 740 N.E.2d 639 (2000). Moreover, there is no plausible claim for violation of § 6F until after " a finding, verdict, decision, award, order or judgment has been made by a judge or justice or by a jury, auditor, master or other finder of fact. G.L.c. 231, § 6F." [2] At this point, therefore, the § 6F claim is baseless. To bring such a claim at the pleadings stage, without legislative authorization, is squarely " based on petitioning activity" within the meaning of § 59H and has no substantial basis beyond the petitioning activity.

          Abuse of Process : After service of the Motion, but before filing, the Defendants amended the Counterclaims by, among other things, nominally removing their Abuse of Process count (although retaining much of the verbiage).[3] They argue that this deprives the Court of authority to consider their potential exposure under the Anti-SLAPP law for alleging abuse of process in the first place. Nothing in the statute supports that position.[4] Section 59H entitles a party to " bring a special motion to dismiss" if " the civil . . . counterclaims against said party are based on" the party's exercise of the right to petition. Unlike some other fee-shifting provisions, § 59H allows no safe harbor for a party who files an offending pleading, but withdraws it before the hearing. Compare Fed.R.Civ.P. 11(c)(2) (A motion for Rule 11 sanctions " must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets"). Nor does the statute confer jurisdiction on a count-by-count basis; as long as one count is dismissed under § 59H, the Court has discretion to award fees without necessarily even excluding time spent on a legitimate, surviving count. Polay v. McMahon, 468 Mass. 379, 388, 10 N.E.3d 1122 (2014). It follows a fortiori that, as long as the Court grants the special motion as to any count, the disposition of other counts imposes no jurisdictional limitation on the Court's consideration of the entire complaint. Because the Court in this case ultimately " grants [a] special motion to dismiss" the plain language of the statute provides that " the court shall award the moving party costs and reasonable attorneys fees." Connolly v. Sullivan, 76 Mass.App.Ct. 316, 318, 921 N.E.2d 1017 (2010), quoting G.L.c. 231, § 59H.[5]

         Moreover, allowing a party to file a SLAPP suit and avoid liability if the other side incurs the expense of defending and filing a special motion to dismiss would perpetrate the harm that § 59H seeks to prevent: " [t]he object of a SLAPP [footnote omitted] suit is not necessarily to prevail, but rather, through the difficulty and expense of litigation, to discourage and intimidate individuals from exercising their constitutional right of petition." Chemrisk, 476 Mass. at 483. Indeed, in this very case, the Defendants initially used their abuse of process counterclaim as a bargaining chip, in an attempt to leverage concessions from Carr before unilaterally withdrawing that claim. While that strategy may reduce the amount of fees incurred by the moving party, the Court does not agree that an offending party can avoid § 59H liability entirely, through hit-and-run tactics.

         Applying § 59H to abuse of process claims can be problematic, because the tort actually requires proof of petitioning activity, namely the use of judicial process. See Vittands v. Sudduth, 49 Mass.App.Ct. 401, 406, 730 N.E.2d 325 (2000). The Courts have interpreted and applied the anti-SLAPP statute to " continue to permit, where appropriate and consistent with the intent of § 59H, claims of abuse of process as delineated by the Massachusetts common law." Keystone Freight Corp. v. Bartlett Consolidated, Inc., 77 Mass.App.Ct. 304, 930 N.E.2d 744 (2010). Specifically addressing an abuse of process claim, the Appeals Court has stated the applicable test:

We are required to determine . . . whether Bartlett has established that there is no conduct on its part other than filing the claim . . . To hold that evidence of improper action, separate and distinct from the exercise of petitioning activity, is necessary as a threshold requirement simply means that attribution of a motive, alone is never sufficient . Considering the foregoing standard, properly understood, we believe that Bartlett failed to meet its threshold burden.

Id., 77 Mass.App.Ct. at 314 (Emphasis added.) The Appeals Court found that the plaintiff alleged improper conduct by the defendant " before, after and separate from Bartlett's petitioning activity." Id., 77 Mass.App.Ct. at 315. The defendant filed a collection action " immediately after being notified of" plaintiff's growing concerns over billing practices it later mailed an offer for " almost twice [the] estimated fair market value of" the defendant's services, a tactic which was " arguably consistent with an attempt . . . to coerce payment of its inflated bill." Id. These and other facts showed that the " abuse of process claim [was] more than a bald and ...

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