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O'Gara v. Germain

Appeals Court of Massachusetts, Plymouth

May 11, 2017


          Heard: September 12, 2016.

         "Anti-SLAPP" Statute. Practice, Civil, Motion to dismiss.

          Civil action commenced in the Superior Court Department on March 26, 2015. A special motion to dismiss was heard by Christopher J. Muse, J.

          Sarah J. Long for the defendant.

          Gregory N. Jonsson for the plaintiff.

          Present: Agnes, Neyman, & Henry, JJ.

          AGNES, J.

         This case requires us to apply the "anti-SLAPP" statute, G. L. c. 231, § 59H, to a civil lawsuit filed against the protected party under a domestic violence restraining order. The defendant, Dorene St. Germain, the protected party, reported to the police her concern that her former husband, the plaintiff, Kevin E. O'Gara, violated the no-contact provision of the order by mailing documents to her. The police investigated the complaint and arrested O'Gara. Even though the criminal charges against O'Gara were dismissed, we conclude that St. Germain's conduct in reporting her concern to the police was petitioning activity under the anti-SLAPP statute and, in the circumstances of this case, the retaliatory civil suit filed against her was based entirely on her petitioning activity and therefore should have been dismissed.

         St. Germain obtained a permanent restraining order that barred O'Gara from contacting her, except to notify her of "court proceedings . . . by mail, or by sheriff, or other authorized officer when required by statute or rule."[1]St. Germain obtained the initial protective order in 1997, several years after her divorce from O'Gara. Thereafter, O'Gara sought unsuccessfully on several occasions to have the protective order modified or vacated.

         On April 1, 2014, St. Germain reported to the police that O'Gara contacted her by mail in violation of the permanent order. The New Bedford police department assigned Officer Randal Barker to investigate the matter. Later that day, as a result of his investigation, O'Gara was arrested and charged with a criminal violation of the abuse prevention order. That charge was later dismissed on the ground that there was insufficient evidence to prove that O'Gara violated the order.[2]O'Gara, in turn, filed this civil lawsuit against St. Germain alleging that she caused Officer Barker to arrest him without probable cause.[3] St. Germain responded by filing a special motion to dismiss under G. L. c. 231, § 59H, asserting that the lawsuit was based entirely on her protected petitioning activity. A judge of the Superior Court denied the motion.


         The essential facts are not in dispute.[4] On June 11, 1997, the New Bedford division of the Probate and Family Court issued a G. L. c. 209A abuse prevention order on behalf of St. Germain, directing O'Gara not to contact her except for "[n]otification of court proceedings -- by mail, or by sheriff or other authorized officer when required by statute or rule."[5] The c. 209A order contained the warning required by statute; namely, "VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE punishable by imprisonment or fine or both." See G. L. c. 209A, § 7.

         Subsequent to St. Germain's order becoming permanent, O'Gara filed a number of unsuccessful motions to vacate the order. In each instance, the papers sent by O'Gara to St. Germain bore a stamp indicating that they had been filed first with the registrar's office of the Probate and Family Court. On March 28 and 29, 2014, St. Germain received letters at her parents' home in New Bedford, an address covered by the permanent restraining order. One of the envelopes contained a handwritten motion on a preprinted Probate and Family Court form, dated February 23, 2014, and signed by O'Gara, who at the time was self-represented, again asking the Probate and Family Court to vacate the permanent abuse prevention order and to turn over statements and hospital records filed by St. Germain in support of her request for a permanent restraining order. The motion form also included handwriting indicating that it was scheduled to be heard by the court sitting in Taunton on April 7, 2014. There was a second page in the envelope, which was a handwritten certificate of service signed by O'Gara, also on a preprinted Probate and Family Court form, dated March 28, 2014. Neither the motion nor the certificate bear a court stamp or court seal, or any indication that they had actually been filed in the Probate and Family Court. A copy of this pleading is part of the record on appeal.[6]

         St. Germain did not simply assume that the papers mailed to her by O'Gara were not genuine documents in a court proceeding. Instead, on the following business day, St. Germain called the Probate and Family Court and spoke to an unidentified person. In her affidavit filed in support of her motion to dismiss, St. Germain stated that she was informed "by the clerk that there was no record whatsoever of the unstamped documents I had received." St. Germain next contacted the New Bedford police department and reported that O'Gara mailed "unstamped" documents to her and that she was "concerned" that he had "violated his restraining order." Officer Randal Barker was assigned to the case and met with St. Germain at her parents' home. Officer Barker inspected and obtained copies of the documents mailed to St. Germain by O'Gara. Officer Barker conducted his own investigation. In his written police narrative, he stated that he contacted the Probate and Family Court and learned that "the motions in question were not logged in the courts and do not exist."[7] Officer Barker then made arrangements with another local police department to arrest the defendant for violating the permanent restraining order. O'Gara was arrested without incident during the daytime at his place of business and brought to the New Bedford police department for booking.[8]

         From the outset, O'Gara told the police that "he sent those letters to the victim by the authority of the court." O'Gara was charged in the District Court with violating a c. 209A order. The charges were later dismissed by a judge who determined that the evidence to support them was insufficient. Following the dismissal of the criminal charges, O'Gara filed this lawsuit against St. Germain, seeking damages. In turn, relying on § 59H, St. Germain filed a special motion to dismiss, asserting that O'Gara's claims were based solely on her legitimate petitioning activity, namely, her communications with the police reporting her belief that O'Gara violated the permanent abuse prevention order.

         At the hearing on St. Germain's special motion to dismiss, additional facts emerged. It appears that prior to mailing the documents to St. Germain, O'Gara telephoned a court service that provides lawyers and parties with available dates for the hearing of motions so that proper notice can be given to the other side, and learned that April 7, 2014, was an available date. Furthermore, it appears that O'Gara mailed the papers in question to the Probate and Family Court contemporaneously with mailing them to St. Germain, but the papers were misplaced by court personnel and not docketed by the registrar's office until after St. Germain and Officer Barker telephoned the court to verify that they existed and subsequent to O'Gara's arrest.


         1. The legal framework governing the special motion to dismiss.

         General Laws c. 231, § 59H, provides a remedy for persons who find themselves targeted by a lawsuit based on their petitioning activity. See Duracraft Corp. v. Holmes Prods., Corp., 427 Mass. 156, 161 (1998) (Duracraft); Cardno Chemrisk, LLC v. Foytlin, 476 Mass. 479, 483-484 (2017) (Chemrisk).[9] The remedy provided by § 59H was designed to be inexpensive and quick, in the sense that the motion was designed to be heard before discovery is completed. See J_d. at 484. A § 59H special motion to dismiss must be filed within sixty days of service of the complaint. G. L. c. 231, § 59H fourth par. Upon a party's filing a § 59 special motion, the court "shall advance any such motion so that it may be heard and determined as expeditiously as possible." Section 59H first par. The result is that § 59H motions are to be decided at the very early stages of a case and on the basis of a documentary record comprised of the pleadings and any affidavits, "stating the facts upon which the liability or defense is based." Ibid.

         a. Definition of petitioning.

         As the Supreme Judicial Court recently explained, § 59H's definition of petitioning is "very broad, " Chemrisk, supra at 484, shielding those who exercise their constitutional right to seek redress from the government for wrongs done to them or grievances that they suffered as citizens from retaliatory civil lawsuits. See Kobrin v. Gastfriend, 443 Mass. 327, 332-333 (2005) (Kobrin) .[10]The shield established by ยง 59H has been described as "similar in purpose to the protections ...

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