KEVIN E. O'GARA
DORENE ST. GERMAIN.
Heard: September 12, 2016.
Statute. Practice, Civil, Motion to dismiss.
action commenced in the Superior Court Department on March
26, 2015. A special motion to dismiss was heard by
Christopher J. Muse, J.
J. Long for the defendant.
Gregory N. Jonsson for the plaintiff.
Present: Agnes, Neyman, & Henry, JJ.
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.
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."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
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.O'Gara, in turn, filed this
civil lawsuit against St. Germain alleging that she caused
Officer Barker to arrest him without probable
cause. 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
essential facts are not in dispute. 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." 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.
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.
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." 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
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.
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.
The legal framework governing the special motion to
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). 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.
Definition of petitioning.
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) .The shield established by § 59H has
been described as "similar in purpose to the protections