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SJC-12618
LYNNE BLANCHARD & others1 vs. STEWARD CARNEY HOSPITAL, INC.,
& others.2
Suffolk. January 8, 2019. - September 23, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
"Anti-SLAPP" Statute. Practice, Civil, Motion to dismiss,
Discovery, Deposition, Review of interlocutory action.
Constitutional Law, Right to petition government.
Civil 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, Jr.,
J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Jeffrey A. Dretler for the defendants.
1 Gail Donahoe, Gail Douglas-Candido, Kathleen Dwyer, Linda
Herr, Cheryl Hendrick, Kathleen Lang, Victoria Webster, and
Nydia Woods.
2 Steward Hospital Holdings, LLC; Steward Health Care
System, LLC; and William Walczak.
2
Dahlia C. Rudavsky (Ellen J. Messing also present) for the
plaintiffs.
James A.W. Shaw, Jasper Groner, & Donald J. Siegel, for
Massachusetts AFL-CIO, amicus curiae, submitted a brief.
LENK, J. This is 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.3 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 157.
On appeal, the hospital defendants maintain that the motion
judge erred in applying the augmented Duracraft framework. They
3 We refer to Steward Carney Hospital, Inc., Steward
Hospital Holdings, LLC, Steward Health Care System, LLC, and
William Walczak collectively as the "hospital defendants," the
"hospital," or the "defendants." We refer to the plaintiffs
collectively as "the plaintiff nurses," the "nurses," or the
"plaintiffs."
3
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
affirm.4
1. Background. Because 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
4 We acknowledge the amicus brief submitted by Massachusetts
AFL-CIO.
4
the nurses had been fired based in part on their culpability for
the incidents that took place at the unit." Id.
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."5
Blanchard I, 477 Mass. at 152. We therefore affirmed the denial
5 The anti-SLAPP statute, G. L. c. 231, § 59H, defines "a
party's exercise of its right of petition" to mean:
"[1] any written or oral statement made before or submitted
to a legislative, executive, or judicial body, or any other
governmental proceeding; [2] any written or oral statement
made in connection with an issue under consideration or
review by a legislative, executive, or judicial body, or
any other governmental proceeding; [3] any statement
reasonably likely to encourage consideration or review of
an issue by a legislative, executive, or judicial body or
any other governmental proceedings; [4] any statement
reasonably likely to enlist public participation in an
effort to effect such consideration; or [5] any other
statement falling within constitutional protection of the
right to petition government."
5
of the anti-SLAPP motion concerning that aspect of the
defamation claim.
With 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.
On 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
6
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.
The 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.
2. The augmented Duracraft framework. When an 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
7
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).
a. Threshold stage. At the 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 at 151.
b. Second stage. If the 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 insufficient for
8
purposes of the first path may, of course, be considered in
connection with the second path.
i. First path. The parameters of the first path echo the
language of the anti-SLAPP statute. See Duracraft, 427 Mass. at
165. As outlined in Duracraft, the nonmoving party (here, the
plaintiff nurses) must establish by a preponderance of the
evidence, see Baker, 434 Mass. at 544, that "(1) the moving
party's [(the hospital'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 [(the hospital's)] acts caused
actual injury to the responding party [(the nurses)]." G. L.
c. 231, § 59H. Proving that the moving party's petitioning
activity was, in essence, a sham presents a "high bar."
Blanchard I, 477 Mass. at 156 n.20. The nurses, in this case,
do not attempt to make that showing. Id.
ii. Second path. Under the newly augmented Duracraft
framework, a nonmoving party (here, the nurses) that cannot
demonstrate that the moving party (here, the hospital
defendants) engaged in sham petitioning nonetheless may defeat a
special motion to dismiss its claim by following an alternative
second path. See Blanchard I, 477 Mass. at 160. This second
path requires the nonmoving party (here, the nurses) to
demonstrate, "such that the motion judge may conclude with fair
assurance," id., two elements: (a) that its suit was
9
"colorable"; and (b) that the suit was not "'brought primarily
to chill' the special movant's [(the hospital's)] legitimate
exercise of its right to petition," i.e., that it was not
retaliatory. Id. at 159-161, quoting Duracraft, 427 Mass. at
161. See Sandholm v. Kuecker, 2012 IL 111443, ¶ 57 (cited in
Blanchard I).6 Following this path, we first address the fair
assurance standard announced in Blanchard I. Applying that
standard, we then conclude that the motion judge neither erred
nor abused his discretion in determining that the plaintiff
nurses established both elements required for the second path,
and that the defamation claim therefore was not a SLAPP suit.
A. Fair assurance standard. The judge's task with regard
to the second path is to assess the "totality of the
circumstances pertinent to the nonmoving party's asserted
primary purpose in bringing its claim," and to determine whether
the nonmoving party's claim constitutes a SLAPP suit. Blanchard
I, 477 Mass. at 159, 160 ("a claim that is not a 'SLAPP' suit
Under the Illinois anti-SLAPP act, 735 Ill. Comp. Stat.
6
110/1, it is the moving party's burden to demonstrate that the
nonmoving party's suit is both "meritless" and "retaliatory."
See Chadha v. North Park Elementary Sch. Ass'n, 2018 ILL App
(1st) 171958, ¶¶ 91-93, and cases cited. Unlike the Illinois
anti-SLAPP act, the Massachusetts anti-SLAPP act allocates the
burden to the nonmoving party, here the plaintiff nurses. Among
other things, the facts relevant to the determination are within
the nonmoving party's sphere of knowledge, a consideration that
facilitates expedited resolution of the special motion to
dismiss at an early stage of the proceedings.
10
will not be dismissed"). We ask the judge to be "fair[ly]
assur[ed]" in his or her conclusion. Id. at 160. This requires
the judge to be confident, i.e., sure, that the challenged claim
is not a "SLAPP" suit. See Commonwealth v. Lodge, 431 Mass.
461, 468 (2000) (applying fair assurance standard, and
concluding "confident" verdict would have been same);
Commonwealth v. Knowles, 92 Mass. App. Ct. 617, 624 (2018)
(where "confident" outcome would have been same, court can say
with "fair assurance" that error was not prejudicial);
Commonwealth v. Young, 22 Mass. App. Ct. 237, 241-242 (1986)
("fair assurance" standard met where court "sure" result would
have been same).
For purposes of this second path, an anti-SLAPP motion to
dismiss will be denied if the motion judge concludes, with fair
assurance, that the challenged claim is both colorable and not
brought primarily to chill the moving party's legitimate
exercise of its right to petition.7 See Blanchard I, 477 Mass.
at 159-161. It is the nonmoving party (here, the plaintiff
nurses) that bears the burden of proof.
7 Although the motion judge must be fairly assured in his or
her conclusion, talismanic words are not required. Here, the
judge's citation to Blanchard I, discussion of the newly
augmented Duracraft framework, and application of the facts to
that framework make it readily apparent that he applied the
correct standard.
11
We recognize that this fair assurance standard typically
has been applied in the context of criminal proceedings to
evaluate whether a preserved error is nonprejudicial.8 See,
e.g., Commonwealth v. Helfant, 398 Mass. 214, 223-224 (1986)
("fair assurance" achieved where court concludes any prejudice
arising from error "did not possibly weaken [defendant's] case
in any significant way"). We employ it in the anti-SLAPP
context both because the same degree of assuredness is required
and because an analogous contextual assessment is involved.
In both contexts, the court is asked to "ponder[] all that
happened without stripping [the challenged claim] from the
whole." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
In an anti-SLAPP context, the motion judge considers "[t]he
course and manner of proceedings, the pleadings filed, and
affidavits 'stating the facts upon which the liability or
defense is based.'" Blanchard I, 477 Mass. at 160, quoting
G. L. c. 231, § 59H. If the judge determines that the nonmoving
party's claim "was not primarily brought to chill the special
movant's [(the hospital's)] legitimate petitioning activities,"
but instead was brought to seek redress for harm caused by the
8 The fair assurance standard has, however, also been
applied in other contexts. See Abbott v. John Hancock Mut. Life
Ins. Co., 18 Mass. App. Ct. 508, 522 (1984) (concluding with
"fair assurance" that findings adopted by judge reflect
independent judgment).
12
moving party's (the hospital's) conduct, then the anti-SLAPP
motion to dismiss the nonmoving party's (the nurses') claim
properly is denied. Blanchard I, supra.
In making that determination, the judge may consider
whether the case presents as a "classic" or "typical" SLAPP
suit, i.e., whether it is a "lawsuit[] directed at individual
citizens of modest means for speaking publicly against
development projects." Baker, 434 Mass. at 548-549 & n.12,
quoting Duracraft, 427 Mass. at 161. See Blanchard I, 477 Mass.
at 156 & n.21; Cardno ChemRisk, LLC, 476 Mass. at 480-482.
Although we recognize that the anti-SLAPP statute is not limited
in application to "typical" cases, see Baker, supra at 548-549,
the presence or absence of the classic indicia may be
considered.
Other factors that may be helpful in distinguishing an
ordinary lawsuit from a SLAPP suit include, by way of example,
whether the lawsuit was commenced close in time to the
petitioning activity;9 whether the anti-SLAPP motion was filed
promptly;10 the centrality of the challenged claim in the context
9 A relatively close proximity in time between the
petitioning activity and the nonmoving party's claim (or threat
to bring the claim) may suggest that the claim was retaliatory
and intended to chill further participation in petitioning.
10The anti-SLAPP statute is intended to secure early,
inexpensive dismissal of SLAPP suits. When a special motion to
dismiss is filed beyond "sixty days of the service of the
13
of the litigation as a whole, and the relative strength of the
nonmoving party's claim;11 evidence that the petitioning activity
was chilled;12 and whether the damages requested by the nonmoving
party, such as attorney's fees associated with an abuse of
process claim, themselves burden the moving party's exercise of
the right to petition.13 Cf. Commonwealth v. Torres, 437 Mass.
460, 465 (2002) (considering similar factors in nonprejudicial
error analysis). See also Blanchard I, 477 Mass. at 156 & n.21.
We recognize that these factors are not exhaustive; that no
single factor is dispositive; and that not every factor will
complaint," as the anti-SLAPP statute contemplates, the judge
may consider whether the delay in asserting the claim supports
an inference that the moving party does not regard the claim as
a SLAPP suit and that the nonmoving party likewise did not
intend it as such. See G. L. c. 231, § 59H.
11While the determination whether each individual claim is
based solely on petitioning activity is the focus of Duracraft's
threshold inquiry, at the second stage of the inquiry, the judge
may consider the significance of that particular claim in the
context of the litigation as a whole in assessing whether it was
brought primarily to chill petitioning activity.
12Evidence that the moving party's petitioning activity was
or was not affected by the nonmoving party's lawsuit may be
considered.
13Where a nonmoving party asserts a claim predicated on the
moving party's petitioning activity, and the claim is one for
which an award of attorney's fees and costs may be available,
the judge may consider whether the specter of such an award
suggests an intent to forestall petitioning activity. Cf. Van
Liew v. Stansfield, 474 Mass. 31, 40 (2016) (defense costs for
improper petitioning activity constitute "actual injury" for
purposes of G. L. c. 231, § 59H).
14
apply in every case. We leave it to the motion judge to
consider and weigh these and other factors as appropriate, in
light of the evidence and the record as a whole. It rests
within the exercise of the judge's sound discretion to
determine, based on that assessment, whether he or she is fairly
assured that the challenged claim is not a SLAPP suit. If the
claim is not a SLAPP suit, then, under the augmented Duracraft
framework, the claim "will not be dismissed." Blanchard I, 477
Mass. at 159.
Applying this standard to the second path of the second
stage Duracraft framework, we discern no abuse of discretion in
the judge's assuredness that the plaintiff nurses' defamation
claim was not a SLAPP suit. As described infra, the judge did
not err in determining either that the nurses' defamation claim
was colorable or that it was not brought for retaliatory
purposes.
B. Colorable claim. "SLAPPs are by definition meritless
suits." Duracraft, 427 Mass. at 164, quoting Barker, Common Law
and Statutory Solutions to the Problems of SLAPPs, 26 Loy. L.A.
L. Rev. 395, 399 (1993). Therefore, "[a] necessary but not
sufficient factor in this analysis will be whether the nonmoving
party's claim at issue is 'colorable or . . . worthy of being
presented to and considered by the court." Blanchard I, 477
Mass. at 160-161, quoting L.B. v. Chief Justice of the Probate &
15
Family Court Dep't, 474 Mass. 231, 241 (2016). In essence, this
requires consideration whether the claim "'offers some
reasonable possibility' of a decision in the party's favor."
Blanchard I, supra at 161, quoting Commonwealth v. Levin, 7
Mass. App. Ct. 501, 504 (1979).
This "colorable" concept of merit has been applied in a
variety of contexts, see L.B., 474 Mass. at 241 & n.17 (citing
cases), including the type of early assessment required here.
See General Motors Corp., petitioner, 344 Mass. 481, 482 (1962)
("A meritorious case means one that is worthy of presentation to
a court, not one which is sure of success"). It is a "lighter,
less technical burden" of presenting a claim where threshold
considerations are implicated, see L.B., supra at 241, 242, at a
stage in the litigation when discovery typically has not yet
occurred. It properly balances the parties' respective rights
with the Legislature's purpose in expediting dismissal of
"meritless" SLAPP suits. See Duracraft, 427 Mass. at 161.
In this case, we discern no abuse of discretion in the
judge's determination that the plaintiff nurses' defamation
claim was "colorable."14 Following investigation of a report of
14The plaintiff nurses are not required to demonstrate, as
the hospital defendants contend, that their defamation claim has
a "reasonable likelihood of success" in comparison to the
hospital defendants' defenses. The anti-SLAPP remedy is not
intended as a dress rehearsal for summary judgment or trial.
16
an employee's alleged sexual assault on a patient, the hospital
president's statements published in the Boston Globe implicated
the entire "staff of [the hospital's] adolescent psychiatry
unit" in "serious concerns about patient safety and quality of
care," and described the unit as "not functioning properly."
The plaintiffs were nine of only thirteen nurses who worked on
the unit. The judge fairly characterized the statements as
"implicat[ing] the plaintiffs in patient abuse and describ[ing]
their work as unacceptable and as contributing to an unsafe
medical environment." If the statements falsely implicated the
plaintiff nurses, as they claim, the statements are of a type
that reasonably discredit the plaintiffs. See Draghetti v.
Chmielewski, 416 Mass. 808, 811 (1994).
The colorability of the nurses' claim additionally is
supported by the fact that, by the time the complaint was filed,
one group of the plaintiffs had prevailed in another forum -- a
labor arbitration where their union had filed grievances
challenging their employment terminations. The arbitrator found
that the hospital did not establish that the individual nurses
committed dischargeable misconduct, and that the hospital
violated the collective bargaining agreement by discharging
them. The arbitrator ordered that any allegations or findings
of wrongdoing be expunged from the nurses' personnel files. He
also ordered that the nurses be reinstated with back pay and
17
benefits.15 Cf. Fabre, 436 Mass. at 524 (issuance of G. L.
c. 209A order conclusive evidence, for purposes of second stage,
first path, that the moving party's petitioning not "devoid of
any reasonable factual support or arguable basis in law").
Although the hospital defendants had challenged the award in
Federal court, at the time they brought the defamation claim,
the plaintiff nurses had achieved a measure of success, which
lends weight to its colorability.
C. Nonretaliatory claim. In addition to showing that its
claim is colorable for purposes of the second path, the
nonmoving party (here, the plaintiff nurses) also must
demonstrate that the claim is not "retaliatory," see Fabre, 436
Mass. at 520, i.e., that it is not a strategic suit "primarily
brought to chill the special movant's [(the hospital's)]
legitimate petitioning activities." Blanchard I, 477 Mass. at
160. See Matter of the Discipline of an Attorney, 442 Mass.
660, 673-674 (2004). This requires the nonmoving party to
establish that the "primary motivating goal in bringing its
claim, viewed in its entirety, was 'not to interfere with and
burden [the hospital] defendants' . . . petition rights, but to
seek damages for the personal harm to [the plaintiff nurses]
Before the labor arbitration for the remaining plaintiffs
15
commenced, all nine of the plaintiff nurses entered into a
settlement agreement with the hospital.
18
from [the hospital] defendants' alleged . . . [legally
transgressive] acts." Blanchard I, supra, quoting Sandholm,
2012 IL 111443, ¶ 57.
Although the standard is expressed in subjective terms, a
party's intent ordinarily may be inferred from objective facts
and circumstances. See Parreira v. Commonwealth, 462 Mass. 667,
670-671 (2012) (intent inferred "from objective facts and
circumstances"); McLaughlin v. Selectmen of Amherst, 422 Mass.
359, 364 (1996) (parties' intent ascertained from relevant
instrument and objective circumstances). To determine the
"primary motivating goal" of the nurses in this case, the motion
judge was required to evaluate their "asserted primary purpose
in bringing [their] claim," Blanchard I, 477 Mass. at 160, in
light of the objective facts presented and any reasonable
inferences that may be drawn from them, see id. at 149. This
includes consideration of the "course and manner of
proceedings," the pleadings filed, and the affidavits providing
"objective indicia of a party's intent." Id. at 149, 160. Cf.
Matter of the Discipline of an Attorney, 442 Mass. at 674
(objective not to intimidate exercise of rights of petitioning
but, rather, to impose professional discipline for violation of
rules of professional conduct). If the judge, considering each
claim as a whole, and holistically in light of the litigation,
is fairly assured that "each challenged claim does not give rise
19
to a 'SLAPP' suit," then the special motion to dismiss the
plaintiff nurses' defamation claim properly is denied. See
Blanchard I, supra at 160 & n.25.
The nine plaintiff nurses maintained that their defamation
claim is a "legitimate suit based on real injuries and damages
(lost earnings, persistent unemployment or underemployment,
humiliation and other emotional distress, loss of reputation),
and not a SLAPP suit designed to chill defendants' petitioning."
The five-count complaint named (in relevant part) the then
president of the hospital where they had worked, the hospital
itself, and related corporate entities. Only a portion of one
of those counts -- alleging defamation based on the hospital
president's statements to the Boston Globe -- implicated the
hospital defendants' petitioning activity. At the time the
complaint was "brought," despite the labor arbitration award,
the nurses had not been reinstated to their employment, and had
not been compensated for lost earnings or emotional or
reputational injuries.
After considering the defamation claim, in light of the
pleadings, affidavits, and the record as a whole, the motion
judge concluded that the portion of the plaintiff nurses'
defamation claim that rested on the statements published in the
Boston Globe "was not primarily brought to chill the [hospital
defendants'] legitimate petitioning activity." Blanchard I, 477
20
Mass. at 160. The judge was warranted in his assurance that the
nurse's defamation claim was not a SLAPP suit.
In reaching his decision, the judge considered the extent
of the plaintiff nurses' cooperation with the investigation into
the reports of abuse at the hospital unit; evidence of the
plaintiff nurses' "restraint" in commenting publicly during the
investigation of the hospital unit; and that the defamation
claim rested both on statements made by the hospital defendants
that were not petitioning activity, as well as on statements
that were. The judge also considered the conflicting evidence
about whether economic considerations rather than seeking
redress for reputational damage, emotional distress, and other
harm may have motivated the plaintiff nurses to bring their
claim. In the end, there was sufficient objective evidence to
permit the judge to conclude with fair assurance that the
nurses' primary goal in bringing the defamation action was not
to chill the hospital defendants' right to petition, or to
interfere with the defendants' right to do so. The plaintiff
nurses met their burden of establishing that their defamation
claim was not a SLAPP suit.
Although we affirm the denial of the hospital defendants'
special motion to dismiss, we pause briefly to address two other
points. We conclude that the motion judge did not err in
denying the hospital defendants' request for discovery in the
21
form of depositions of the nine plaintiff nurses. We also
conclude that the doctrine of present execution continues to
apply to the denial of an anti-SLAPP motion under the augmented
Duracraft framework.
3. Discovery request. The purpose of the anti-SLAPP
statute is to provide "a procedural remedy for early dismissal"
of meritless SLAPP suits, Duracraft, 427 Mass. at 161, with a
"specific goal of resolving 'SLAPP' litigation quickly with
minimum cost," Office One, Inc. v. Lopez, 437 Mass. 113, 126
(2002). That purpose would be ill-served if, as the hospital
defendants contend, discovery were required to ascertain each
plaintiff nurse's subjective motivation in filing the targeted
claim. We reject that argument and conclude that the motion
judge did not abuse his discretion in denying the request for
depositions of each of the plaintiff nurses.
The anti-SLAPP statute "contemplates that a special motion
to dismiss will be made within sixty days of the service of the
complaint, and that once made, all discovery will be stayed
until the motion is decided." Donovan v. Gardner, 50 Mass. App.
Ct. 595, 601 (2000). See Cardno ChemRisk, LLC, 476 Mass. at
483-484 (special motion to dismiss may be filed prior to
completing discovery). Not only can such a motion "be brought
prior to engaging in discovery," Blanchard I, 477 Mass. at 147,
22
but the statute expressly provides that any associated discovery
is permitted only by leave of court, see G. L. c. 231, § 59H.
Unnecessary discovery, like strategic delays in filing
anti-SLAPP motions, unfairly burdens the nonmoving party,
because the "attorney's fees and costs are mandatory for
successful special motions, and the amount of the award need not
be limited to legal work incurred in bringing the special motion
itself." Office One, Inc., 437 Mass. at 126. See also Donovan,
50 Mass. App. Ct. at 602. See also Blanchard I, 477 Mass. at
159 ("expedited special motion to dismiss . . . tak[es] place
early in the litigation and with limited discovery available
only by leave of court").
Because discovery at this stage generally is inconsistent
with the expedited procedural protections established by the
anti-SLAPP statute, judges should be parsimonious in permitting
it. We recognize that "there may be exceptional cases where
discovery may be required before the moving party is in a
position to learn the facts that indicate that a special motion
to dismiss is warranted," Burley v. Comets Community Youth Ctr.,
Inc., 75 Mass. App. Ct. 818, 822 (2009), or to test the veracity
of factual allegations. See Benoit v. Frederickson, 454 Mass.
148, 155 (2009) (Cordy, J., concurring). But this is not such a
case.
23
The hospital defendants allege that discovery is necessary
to ascertain the plaintiff nurses' subjective motives in bring
the defamation claim. As we have said, however, the judge's
task is to evaluate whether the reasons they asserted were
supported by reasonable inferences that could be drawn from the
objective facts presented in the pleadings and affidavits, in
light of the record as a whole. The anti-SLAPP statute is meant
to shield a litigant from a meritless SLAPP attack, not to
provide an arsenal of weapons, of which discovery might be one,
to attack ordinary lawsuits. In this case, the litigation has
been ongoing for approximately six years and, during that
period, the parties have engaged in substantial paper discovery.
In the circumstances here, there was no abuse of discretion in
the motion judge's decision to deny the hospital defendants'
request for discovery in the form of depositions of the nine
plaintiff nurses.
4. Doctrine of present execution. Finally, we address
briefly the plaintiff nurses' contention that the doctrine of
present execution should not apply to an anti-SLAPP motion
denied under the augmented portion of the Duracraft framework.
We disagree. Under the doctrine of present execution, an
interlocutory order may be immediately appealed from "if the
order will interfere with rights in a way that cannot be
remedied on appeal from the final judgment." Fabre, 436 Mass.
24
at 521. The anti-SLAPP statute "provides broad protections for
individuals who exercise their right to petition from harassing
litigation and the costs and burdens of defending against
retaliatory lawsuits." Id. at 520.
Similar to the "protections afforded public officials by
the doctrine of governmental immunity," the anti-SLAPP statute
is intended to "immunize parties from claims 'based on' their
petitioning activities." Id., quoting Duracraft, 427 Mass. at
167. The protections accorded by the statute "are in large
measure lost if the petitioner is forced to litigate a case to
its conclusion before obtaining a definitive judgment through
the appellate process." Fabre, supra at 521. See Benoit, 454
Mass. at 151-152.
We acknowledge the plaintiff nurses' claim that the
arguments raised by the hospital defendants are not "collateral"
to the appeal in the manner often associated with other
applications of the doctrine of present execution. See Elles v.
Zoning Bd. of Appeals of Quincy, 450 Mass. 671, 674 (2008). The
doctrine of present execution, however, applies to anti-SLAPP
cases in order to preserve a moving party's "immunity" from
being required to litigate a SLAPP suit. See Benoit, 454 Mass.
at 151-152. The determination whether the nonmoving party's
claim is "colorable" at the second stage, second path, like the
determination whether a moving party's petitioning claim is
25
"devoid of merit" at the second stage, first path, is not a
judgment on the merits of the claim. See id. at 158 n.3 (Cordy,
J., concurring). It is an assessment relevant only to the
determination whether the anti-SLAPP statute does or does not
apply. Regardless of the arguments raised on appeal,
interlocutory appeals from the denial of anti-SLAPP motions are
governed by the doctrine of present execution.16
5. Conclusion. An ordinary lawsuit is not a SLAPP suit.
See Matter of the Discipline of an Attorney, 442 Mass. at 673
(statute not intended to "be misused to allow motions for
expedited dismissal of nonfrivolous claims"). In this case, the
motion judge did not err in concluding that the plaintiff
nurses' colorable defamation claim was not a SLAPP suit because
it was not brought with the primary motivating goal of chilling
the hospital defendants' right to petition. Accordingly, we
affirm the denial of the hospital defendants' special motion to
dismiss. We also affirm the denial of the hospital defendants'
request for discovery. The matter is remanded to the Superior
Court for further proceedings.
16In keeping with the Legislature's intent that anti-SLAPP
motions be resolved expeditiously, and with minimum cost, see
Office One, Inc., 437 Mass. at 126, parties may seek leave of
the appellate court to expedite an interlocutory appeal. We
caution, however, that an appeal that is "frivolous, immaterial
or intended for delay" is subject to sanction. See G. L.
c. 211, § 10; G. L. c. 211A, § 15; Mass. R. A. P. 25, as
appearing in 481 Mass. 1654 (2019).
26
So ordered.