Daniel McLaughlin et al.
Alan B. Rubenstein et al
MEMORANDUM AND ORDER ON PLAINTIFFS' SPECIAL
MOTION TO DISMISS PURSUANT TO THE ANTI-SLAPP STATUTE
P. Leibensperger, Justice
legal malpractice action, plaintiffs, Daniel and Rachel
McLaughlin (" McLaughlin" ), move to dismiss an
abuse of process counterclaim asserted by the defendant law
firm, Rackemann, Sawyer & Brewster, P.C. ("
Rackemann" ). McLaughlin's motion is a "
special motion to dismiss" based on the so-called
anti-SLAPP statute, G.L.c. 231, § 59H. For the reasons
stated below, the motion will be denied.
commenced this action for legal malpractice on December 13,
2016. On February 17, 2017, Rackemann filed its answer to the
complaint and asserted a counterclaim in three counts: Count
I, Breach of Contract, Count II, Quantum Meruit/Unjust
Enrichment and Count III, Abuse of Process. McLaughlin's
special motion to dismiss is directed towards Count III,
abuse of process counterclaim alleges, in essence, that
McLaughlin executed a plan to collect a judicial award of
legal fees based on Rackemann's work but then failed to
pay the fees owed to Rackemann. McLaughlin allegedly used a
putative claim of legal malpractice to avoid paying over the
fee award to Rackemann.
alleged in the counterclaim, McLaughlin received an award of
attorney fees in an underlying action under G.L.c. 176D
against an insurer for unfair claim settlement practices.
Rackemann represented McLaughlin in that action. The award of
approximately $775,000, issued by the court in September
2014, was based primarily on the bills submitted by Rackemann
for work done in the underlying insurance case. McLaughlin
subsequently received payment of the award of fees from the
insurer. Nevertheless, McLaughlin did not pay Rackemann for
approximately S400,000 of its bills.
fact, McLaughlin had stopped paying bills from Rackemann in
2013. Nevertheless, McLaughlin continued to engage Rackemann
to perform legal services, including the trial in 2014 of the
c. 176D case against the defendant insurance company (in
which the defendant insurance company was found to have
violated c. 176D and G.L.c. 93A) and the subsequent "
damages" trial later in 2014 (in which the fees charged
by Rackemann was the major part of the asserted damages).
McLaughlin authorized and approved evidence offered by
Rackemann to the effect that the fees charged by Rackemann
were reasonable and, therefore, recoverable from the
insurance company. It can reasonably be inferred that the
parties operated on an implied agreement between McLaughlin
and Rackemann that Rackemann should wait to be paid its
outstanding invoices until after a decision was rendered by
the court as to whether the insurance company would be
obligated to pay the attorney fees charged by Rackemann.
Rackemann continued to represent McLaughlin without being
paid though the appeal process. In August 2016, the Appeals
Court affirmed the trial court's decisions, including the
award of attorney fees to McLaughlin.
of paying the unpaid bills from the fees awarded, on February
18, 2016, McLaughlin asserted in a letter to Rackemann that
McLaughlin was investigating a claim of malpractice.
McLaughlin requested that Rackemann enter into a tolling
agreement. Thereafter, according to the affidavit of
Rackemann's outside counsel, McLaughlin " made a
demand for a sum of money far in excess of the legal fees due
and owing to Rackemann for its work on the bad faith case,
and did not offer to pay any of Rackemann's unpaid legal
fees." Rackemann attempted to open negotiations
regarding a settlement by way of reducing the amount of
unpaid legal fees it was seeking. In response, McLaughlin
commenced this action. Based on these facts, Rackemann
asserts in its counterclaim for abuse of process that "
McLaughlins' claim against Rackemann was not filed with
the sincere and good faith belief that it has merit, but was
filed as a pretense not to pay the legal bills of
Rackemann." Counterclaim, ¶ 101.
on the other hand, avers that Rackemann committed malpractice
allegedly by failing to relay a settlement offer from the
insurer/defendant in the c. 176D case to McLaughlin and by
adopting and executing legal strategies that ran up legal
bills to excessive amounts. McLaughlin points to the decision
of the judge awarding fees in the c. 176D case, where it was
held that approximately $200,000 of legal fees billed to
McLaughlin by Rackemann were not recoverable as reasonable
attorneys fees from the insurer. Consequently, McLaughlin
contends that it has a valid malpractice claim supported, as
to the claim of excessive fees, by a decision of a Superior
Court judge. McLaughlin argues that the abuse of process
claim is merely a tactic to chill McLaughlin's right to
pursue the legal malpractice claim and, if allowed to stand,
would encourage an abuse of process claim in every legal
malpractice claim where there exists a dispute over unpaid
anti-SLAPP statute, G.L.c. 231, § 59H, " was
enacted by the Legislature to provide a quick remedy for
those citizens targeted by frivolous lawsuits based on their
government petitioning activities." Kobrin v.
Gastfriend, 443 Mass. 327, 331, 821 N.E.2d 60 (2005).
The Supreme Judicial Court noted that the anti-SLAPP statute
" had its genesis as a legislative attempt to protect
private citizens when exercising their constitutional right
to speak out against development projects or other matters of
concern to them and their communities and to seek government
relief." Kobrin, supra at 337. " SLAPP
suits [are] generally meritless suits brought by large
private interests to deter common citizens from exercising
their political or legal rights or to punish them from doing
so." Duracraft v. Holmes Prods. Corp., 427
Mass. 156, 161, 691 N.E.2d 935 (1998). The Court also has
found that the language of the statute is broader than that
prototype. See Baker v. Parsons, 434 Mass. 543, 549,
750 N.E.2d 953 (2001) (the legislative history indicates that
the anti-SLAPP statute was intended to go beyond the "
said, however, the Supreme Judicial Court has imposed a
significant, narrowing construction of the statute in order
to avoid constitutional problems. Recently, the Court "
augment[ed]" the framework" for analyzing a motion
to dismiss brought under the statute. Blanchard v.
Steward Carney Hospital, Inc., 477 Mass. 141, 143, 75
N.E.3d 21 (2017). The augmented framework adds an additional
test to apply when evaluating an anti-SLAPP motion so as
" to distinguish between meritless claims targeting
legitimate petitioning activity and meritorious claims with
no such goal." Id. at 157.
now three-pronged framework for analyzing an anti-SLAPP
statute is as follows. First, the moving party must make a
threshold showing through the pleadings and affidavits that
claims against it are " based on" the petitioning
activities alone and have no substantial basis other than or
in addition to the petitioning activities.
Duracraft, 427 Mass. at 167-68. If such a showing is
made by the moving party, the burden shifts to the non-moving
party to show " (1) the moving party's exercise of
its right to petition was devoid of any reasonable factual
support or any arguable basis in law, and (2) the moving
party's acts caused actual injury to the responding
party." G.L.c. 231, § 59H. Blanchard adds
a third prong to the framework. The non-moving party may
defeat an anti-SLAPP motion by establishing " that its
suit was not 'brought primarily to chill' the special
movant's legitimate exercise of its right to
petition." Blanchard, 477 Mass. at 159, quoting
Duracraft, supra at 161. The non-moving party must
persuade the court that its " primary motivating goal in
bringing its claim, viewed in its entirety, was 'not to
interfere with and burden [the moving party's] . . .
petition rights, but to seek damages for the personal harm to
[it] from [the moving party's] alleged . . . [legally
transgressive] acts." Blanchard, supra at 160,
quoting Sandholm v. Kuecker, 2012 IL 111443 ¶
57, 356 Ill.Dec. 733, 962 N.E.2d 418 (2012).
special motion to dismiss under the anti-SLAPP statute is
directed only to Rackemann's counterclaim for abuse of
process. The abuse of process counterclaim is necessarily
based on McLaughlin's protected petitioning activity;
i.e., the commencement of this malpractice action. "
[A]n actionable abuse of process claim will always be, at
least in part, based on a special movant's petitioning
activities . . . As we noted in Fabre [ Fabre v.
Walton, 436 Mass. 517, 781 N.E.2d 780 (2002)], however,
this does not mean that an abuse of process claim will always
be solely based on a special movant's
petitioning activities." 477 Harrison Ave., LLC v.
Jace Boston LLC, 477 Mass. 162, 169, 74 N.E.3d 1237
(2017) (emphasis in original). Thus, the first issue
presented is ...