January 8, 2019.
N.E.3d 1246] CIVIL ACTION commenced in the Superior Court
Department on May 24, 2013., Following review by this court,
477 Mass. 141, 75 N.E.3d 21 (2017), a special motion to
dismiss was heard by Joseph F. Leighton, Jr., J.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
A. Dretler, Boston, for the defendants.
C. Rudavsky, Boston (Ellen J. Messing, Boston, also present)
for the plaintiffs.
A.W. Shaw, Jasper Groner, Boston, & Donald J. Siegel, for
Massachusetts AFL-CIO, amicus curiae, submitted a brief.
Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
the second time the defendants have appealed from the denial
of their special motion to dismiss the plaintiffs defamation
claim, pursuant to the "anti-SLAPP" statute, G. L.
c. 231, § 59H. See Blanchard v. Steward Carney
Hospital, Inc., 477 Mass. 141, 75 N.E.3d 21 (2017)
(Blanchard I ). In Blanchard I, we
augmented the anti-SLAPP framework devised in Duracraft
Corp. v. Holmes Prods. Corp., 427 Mass. 156, 160 n.7,
161, 691 N.E.2d 935 (1998) (Duracraft ), vacated the
denial of the hospital defendants motion, and remanded the
case for further proceedings. Blanchard I, supra at
155-161, 75 N.E.3d 21. On remand, the plaintiff nurses
again defeated the special motion to dismiss, this time by
establishing -- under the augmented framework -- that the
challenged defamation claim is not a "strategic lawsuit
against public participation," known as a
"SLAPP" suit. See id. at 157, 75 N.E.3d
appeal, the hospital defendants maintain that the motion
judge erred in applying the augmented Duracraft
framework. They argue that the judge failed to determine with
"fair assurance" that the entirety of the
plaintiffs defamation claim was "colorable" and
that it "was not primarily brought to chill the
defendants legitimate petitioning activity." 477
Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162, 164,
168, 74 N.E.3d 1237 (2017). See Blanchard I, 477
Mass. at 160, 75 N.E.3d 21. The hospital defendants also
contend that the judge erred in denying their request for
discovery in the form of depositions of the nine plaintiff
nurses. For their part, the plaintiff nurses contend that the
appeal is premature. We transferred the case to this court on
our own motion to apply the newly augmented framework. We
N.E.3d 1247] 1. Background.
this is the second time the parties have been before us, we
do not repeat the background of the case. See Blanchard
I, 477 Mass. at 144-146, 75 N.E.3d 21. In summary,
however, in the spring of 2011, all of the registered nurses
and mental health counsellors who worked in the adolescent
psychiatric unit (unit) of Steward Carney Hospital, Inc.,
were fired following reports of abuse at the unit.
Id. at 142, 75 N.E.3d 21. William Walczak, then
president of the hospital, issued statements "both to
the hospitals employees and to the Boston Globe Newspaper
Co. (Boston Globe), arguably to the effect that the nurses
had been fired based in part on their culpability for the
incidents that took place at the unit." Id.
plaintiffs, nine of the nurses, filed an action against the
defendants for, among other things, defamation. Id.
Pursuant to G. L. c. 231, § 59H, the anti-SLAPP statute, the
hospital defendants filed a special motion to dismiss the
defamation claim. Id. at 142-143, 75 N.E.3d 21. A
Superior Court judge denied the motion, and the hospital
defendants appealed. The Appeals Court reversed in part, see
Blanchard v. Steward Carney Hosp., Inc., 89
Mass.App.Ct. 97, 98, 46 N.E.3d 79 (2016), and we granted
further appellate review. We concluded that Walczaks
statements to hospital employees were not protected
petitioning activity, i.e., they had no "plausible nexus
to the hospitals efforts to sway [the governments]
licensing decision." Blanchard I, 477 Mass. at
152, 75 N.E.3d 21. We therefore affirmed the denial of the
anti-SLAPP motion concerning that aspect of the defamation
respect to the portion of the nurses defamation claim that
concerned Walczaks statements to Boston Globe, however, we
concluded that the statements were protected petitioning
activities. Id. at 150-151, 75 N.E.3d 21. In that
regard, we reasoned that it could be "reasonably
inferred" that the statements "were intended to
demonstrate to [the government] the hospitals public
commitment to address the underlying problems at the
unit." Id. at 150, 75 N.E.3d 21. Although we
vacated the order denying the hospitals anti-SLAPP motion,
we augmented the Duracraft framework to permit a
nonmoving party, here the nurses, to defeat an anti-SLAPP
motion by establishing that the claim nonetheless "does
not give rise to a SLAPP suit." Id. at 160,
75 N.E.3d 21. We remanded the case for further proceedings
under the augmented framework, where "the burden will
shift to the plaintiff nurses to make a showing adequate to
defeat the motion." Id. at 143, 75 N.E.3d 21.
remand, the judge denied the hospital defendants request to
conduct discovery in the form of depositions of the nine
plaintiff nurses. Then, applying the augmented
Duracraft framework to the hospitals anti-SLAPP
motion, he considered the pleadings and affidavits in the
over-all context of the nurses defamation claim and the
record before him. Following the [130 N.E.3d 1248] path
outlined in Blanchard I, he determined that the
plaintiff nurses defamation claim was colorable. The judge
then concluded that the claim was not a SLAPP suit, because
it was not brought primarily to chill the hospital
defendants exercise of the right to petition.
hospital defendants again appealed from the denial of their
anti-SLAPP motion, as is their right. See Fabre v.
Walton, 436 Mass. 517, 521-522, 781 N.E.2d 780 (2002),
S . C ., 441 Mass. 9, 802 N.E.2d 1030
(2004). Under the augmented Duracraft framework,
they argue that the judge failed to apply the "fair
assurance" standard articulated in Blanchard I
to evaluate the nature of the plaintiff nurses defamation
claim. They also contend that the judge erred in determining
that the plaintiffs defamation claim is colorable and that
it was "not primarily brought to chill [the hospital
defendants] legitimate petitioning activities."
Blanchard I, 477 Mass. at 160, 75 N.E.3d 21.
Finally, the hospital defendants maintain that the judge
erred in denying their request for discovery in the form of
depositions in support of their special motion to dismiss.
For the reasons described below, we reject each of those
2. The augmented ...