Heard: May 3, 2017.
action commenced in the Superior Court Department on June 9,
special motion to dismiss was heard by Raffi N. Yessayan, J.
A. Dougherty, III, for the plaintiff.
B. Pooling for Aaron Foley & others.
Timothy M. Pomarole for David L. Ward & others.
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)
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").
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.
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.
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 -- and the orders were terminated.
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
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.
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