United States District Court, D. Massachusetts
MARK G. DOWGIEWICZ
THE TOWN OF WEBSTER, et al.
MEMORANDUM AND ORDER ON DEFENDANTS' SPECIAL
MOTION TO DISMISS
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE
memorandum, the court will address only the issue of
defendants' special motion to dismiss brought under Mass.
Gen. Laws ch. 231, § 59H, more often known as the
“anti-SLAPP statute.” Because the statute is
intended to protect a non-moving party's right of
petition and speech under the First Amendment from any
excessive burden of harassing and meritless litigation, it
intends to provide an early, inexpensive avenue to a
dismissal. For that reason, it would be only in the rarest of
cases that a court would authorize discovery before the
motion to dismiss is decided. See Blanchard v. Steward
Carney Hosp., Inc., 483 Mass. 200, 212 (2019)
(Blanchard II). This is not one of those cases.
prevail on a special motion to dismiss, the moving party must
make a threshold showing by a preponderance of the evidence
that the claims against it are based on its petitioning
activities alone and have no reasonable basis in fact or in
law other than or in addition to the petitioning activities
themselves. Duracraft Corp. v. Holmes Prods. Corp.,
427 Mass. 156, 167-168 (1998). The burden then shifts to the
nonmoving party to establish by a preponderance of the
evidence that the special movant lacked any reasonable
factual support or arguable basis in law for its petitioning
activity,  or that its claim was not brought
“primarily to chill the special movant's .
. . exercise of its right to petition.” Blanchard v.
Steward Carney Hosp., Inc., 477 Mass. 141, 143-144
(2017) (Blanchard I) (“broadening”
Duracraft) (emphasis added).
face, this case falls into a depressingly familiar category
of a small-town intra-governmental political feud, here
involving a former member of the Town of Webster's Board
of Selectmen, Mark Dowgiewicz (the plaintiff), and defendants
- the Town itself, Timothy Bent, the former Webster Chief of
Police, and Pamela Leduc. the former Webster Town
Administrator (the moving parties). The pleadings are riddled
with allegations of discrimination, nepotism, racism,
retaliation, libel, slander, financial impropriety, and
intimidation. As best as can be determined from the
pleadings, the quarrel began over the refusal of the
defendants to hire a relative of the plaintiff as a Town
police officer. Broadly read, the Complaint alleges that when
plaintiff objected to what he (in his role as a Selectman)
perceived to be discriminatory hiring practices on the part
of the Town in passing over his soon-to-be son-in-law
(alleged to be a “minority”), the defendants
embarked on a campaign of harassment and retaliation against
him. The Complaint alleges violations of federal Title VII,
42 U.S.C. § 2000 et seq, the federal Civil
Rights Act, 42 U.S.C. § 1983, the Massachusetts
Anti-Discrimination in Employment Act, Mass. Gen. Laws ch.
151B, and the Massachusetts Whistleblowers Statute, Mass.
Gen. Laws ch. 149, §185, broken into thirteen separate
counts asserted against the defendants collectively and
gist of the defendants' anti-SLAPP argument is the claim
that plaintiff's lawsuit is based “solely” on
and with the primary motive of chilling the petitioning
activity of Chief Bent and Administrator Leduc, namely
statements that they made in connection with complaints they
filed against Dowgiewicz with the State Ethics and Civil
Service Commissions. Defendants recognize that the Town of
Webster, as a municipality, is not a proper anti-SLAPP moving
party. “Because the constitutional right is understood
as the right of citizens to seek redress from
the government for grievances, . . . the government
cannot ‘petition' itself within the meaning of G.L.
c. 231, § 59H.” Moriarty v. Mayor of
Holyoke, 71 Mass.App.Ct. 441, 448 (2008) (emphasis in
original). But as defendants also acknowledge, Bent
and Leduc are proper parties only to the extent that their
“petitioning” was undertaken to redress a
personal grievance and not done in their official capacities
as agents of the Town. Id. at 447. The
defendants' attempt to squeeze into this exception by way
of the explanation that “their affidavits and
letters” submitted in connection with the ethics and
civil service complaints demonstrate that they acted
“out of concern for their own mental, physical, and
financial wellbeing, as well as out of concern for the
appropriate conduct of Town affairs for the sake of its
citizens, ” Defs.' Mot. at 19, is a leaky bucket,
particularly where, as here, the lawsuit was filed long after
the State Ethics Commission proceedings had concluded in
Dowgiewicz's favor. See Blanchard II, 483 Mass.
foregoing reason, the special motion to dismiss is
DENIED.The parties will advise the court no later
than October 29, 2019, as to those documents the authenticity
of which are not disputed and are sufficiently central to the
plaintiff's claims to be appropriately considered by the
court on a Rule 12(c) motion for judgment on the pleadings.
See Curran v. Cousins, 509 F.3d 36, 44 (1st Cir.
2007) (“The court may supplement the facts contained in
the pleadings by considering documents fairly incorporated
therein and facts susceptible to judicial notice.”),
quoting R.G. Fin. Corp. v. Vergara-Nuñez, 446
F.3d 178, 182 (1st Cir. 2006).
 “Proving that the moving
party's petitioning activity was, in essence, a sham
presents a ‘high bar.'” Blachard
(II), 483 Mass. at 204 (2019).
 In this regard, the court should
consider whether the case fits the “classic” mode
of a lawsuit brought against citizens of modest means
speaking publicly against a development project.
 While the Town of Webster (2017 pop.
17, 020) may not be the “massive entity with vast
resources, ” described by the plaintiff, see
Pl.'s Opp'n at 14, the asymmetrical balance of power
between the contending parties suggests the reverse of the
classic “mode” of lawsuit that the Supreme
Judicial Court had in mind in Blanchard II.
 To be clear, in denying the special
motion to dismiss, I am not offering any judgment as to the
merits of the issues raised under Fed.R.Civ.P. 12, including
those involving the statutes of ...