Heard: January 8, 2019.
action commenced in the Superior Court Department on May 24,
2013. Following review by this court, 477 Mass. 141 (2017), a
special motion to dismiss was heard by Joseph F. Leighton,
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Jeffrey A. Dretler for the defendants.
C. Rudavsky (Ellen J. Messing also present) for the
A.W. Shaw, Jasper Groner, & Donald J. Siegel, for
Massachusetts AFL-CIO, amicus curiae, submitted a brief.
Present: 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 (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 (1998)
(Duracraft), vacated the denial of the hospital
defendants' motion, and remanded the case for further
proceedings. Blanchard I, supra at 155-161.
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
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 (2017). See Blanchard
I, 477 Mass. at 160. 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
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. 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.
William Walczak, then president of the hospital, issued
statements "both to the hospital's 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
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. 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 (2016), and we granted
further appellate review. We concluded that Walczak's
statements to hospital employees were not protected
petitioning activity, i.e., they had no "plausible nexus
to the hospital's efforts to sway [the government's]
licensing decision."Blanchard I, 477 Mass. at
152. We therefore affirmed the denial of the anti-SLAPP
motion concerning that aspect of the defamation claim.
respect to the portion of the nurses' defamation claim
that concerned Walczak's statements to Boston Globe,
however, we concluded that the statements were protected
petitioning activities. Id. at 150-151. In that
regard, we reasoned that it could be "reasonably
inferred" that the statements "were intended to
demonstrate to [the government] the hospital's public
commitment to address the underlying problems at the
unit." Id. at 150. Although we vacated the
order denying the hospital's 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. 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.
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 hospital's anti-SLAPP
motion, he considered the pleadings and affidavits in the
over-all context of the nurse's defamation claim and the
record before him. Following the 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 (2002),
S.C., 441 Mass. 9 (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. 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 claims.
The augmented Duracraft framework.
anti-SLAPP motion is filed, the burden-shifting framework
devised in Duracraft, and augmented in Blanchard
I, applies. See Blanchard I, 477 Mass. at
147-148, 159-160. In applying the framework, "the court
shall consider the pleadings and supporting and opposing
affidavits stating the facts upon which the liability or
defense is based." G. L. c. 231, § 59H. See
Blanchard I, supra at 160. We review the
judge's ruling for an abuse of discretion or error of
law. See Blanchard I, supra; Baker
v. Parsons, 434 Mass. 543, 550 (2001).
threshold stage, the moving party--the party alleging it has
been the target of a SLAPP suit (here, the hospital
defendants)--bears the burden of establishing by a
preponderance of the evidence that the putative SLAPP suit
(i.e., the nurses' defamation claim) was "solely
based on [the moving party's] own petitioning
activities." Blanchard I, 477 Mass. at 159. See
Cardno ChemRisk, LLC v. Foytlin,
476 Mass. 479, 484 (2017). There is no dispute, in this case,
that the hospital defendants successfully met their burden at
the threshold stage. See Blanchard I, supra
threshold is crossed, the burden shifts to the nonmoving
party (here, the plaintiff nurses) to demonstrate that the
anti-SLAPP statute does not require dismissal of the claim.
See Blanchard I, 477 Mass. at 159-160. As augmented
in Blanchard I, there are two alternative paths that
the nonmoving party may use to satisfy this second stage
burden. See Id. at 160. Evidence that is