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Dever v. Ward

Appeals Court of Massachusetts, Plymouth

September 7, 2017

DAVID L. WARD & others.[1]

          Heard: May 3, 2017.

         Civil action commenced in the Superior Court Department on June 9, 2015.

         A special motion to dismiss was heard by Raffi N. Yessayan, J.

          Thomas A. Dougherty, III, for the plaintiff.

          Curtis B. Pooling for Aaron Foley & others.

          Timothy M. Pomarole for David L. Ward & others.

          MASSING, J.

         The plaintiff, James Dever, appeals from an order allowing the defendants' special motion to dismiss his amended complaint under the "anti-SLAPP" statute. See G. L. c. 231, § 59H, inserted by St. 1994, c. 283, § 1. Although we conclude that the Superior Court judge did not err or abuse his discretion in allowing the special motion, we remand the case for further proceedings under the "augmented" framework for evaluating § 59H motions set out in Blanchard v. Steward Carney Hosp., 477 Mass. 141, 159-161 (2017) (Blanchard).


         We recite the facts as alleged in the plaintiff's amended complaint, supplemented by the affidavits and exhibits submitted by the parties in connection with the defendants' special motion to dismiss. See G. L. c. 231, § 59H (in determining whether to grant special motion to dismiss, "the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based").[2]

         Dever was employed as a broker supervisor by defendant Moors & Cabot Investments, Inc. (M&C), a securities and financial planning firm. In early November, 2011, Dever was involved in a dispute with M&C and its president, defendant Daniel Joyce, over $2 million that Dever claimed was owed to him in salary and commissions. Around the same time, Dever learned that one of M&C's employees, defendant Aaron Foley, was engaging in improper stock sales, and he reported Foley's conduct to Joyce. Shortly thereafter, on November 9, 2011, M&C fired Dever. In response, Dever filed a claim for arbitration against M&C and Joyce before the Financial Industry Regulatory Authority (FINRA), alleging breach of contract and wrongful termination.

         In July, 2012, while the arbitration was pending, Joyce, Foley, and M&C's office manager reported to the Boston police that Dever had made between sixteen and nineteen threatening and harassing telephone calls to them at M&C's Boston office and on their personal cellular telephones. Joyce claimed that Dever had threatened to harm Joyce's family, the office manager said that Dever harassed and cursed him, and Foley reported that Dever had made a profanity-laced death threat.

         As a result of these reports, two criminal complaints against Dever issued out of the Boston Municipal Court Department (BMC), charging him with making annoying telephone calls, see G. L. c. 269, § 14A, and threatening to commit a crime, see G. L. c. 275, § 2. The BMC also issued harassment prevention orders against Dever under G. L. c. 258E, ordering him not to contact or abuse Joyce or the office manager and to stay away from their residences and from M&C's Boston office. Issued ex parte on July 12, 2012, the harassment prevention orders were extended for one year on July 23, 2012. On August 13, 2012, Joyce and the office manager moved to voluntarily dismiss the harassment prevention orders "solely because of the jurisdictional issue" -- neither man resided in Suffolk County[3] -- and the orders were terminated.

         In addition, Foley reported Dever's threats to the Hanover police department, applied for a criminal complaint in the Hingham Division of the District Court Department (District Court), and obtained an ex parte harassment prevention order. When the Hanover police contacted Dever about making these calls to Foley, Dever said that he remembered making the calls but did not remember making any threats. He claimed that he had been taking prescription medication for an injury and that his memory was cloudy as a result. The application for a criminal complaint was denied after a magistrate's hearing.

         Dever moved to dismiss the BMC criminal complaints prior to arraignment for lack of jurisdiction. In his motion, Dever argued that although some of the phone calls were made to M&C's Boston office, "Joyce testified that he received the call from . . . Dever in the driveway of his home ... in Marshfield." A BMC judge allowed the motion to dismiss on October 28, 2013.

         Finally, Dever alleged that during the course of the FINRA arbitration the defendants, through pleadings and other communications, conveyed to the arbitrators information about Dever's threatening and harassing conduct, including copies of the criminal complaints and harassment prevention orders. The defendants communicated this information "with the sole intent of disparaging [p]laintiff and prejudicing him in the eyes of the three member arbitrator panel." According to Dever, these efforts were successful, causing the FINRA ...

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