Tort – SLAPP

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Where a plaintiff filed a special motion to dismiss abuse of process and G.L.c. 93A counts asserted by a plaintiff adjoining building owner, a remand must be ordered for a determination of whether or not the abuse of process claim was brought primarily to chill the defendants’ legitimate petitioning activity.

“We consider first whether the defendants have met their threshold burden under the anti-SLAPP statute of showing that each claim is solely based on the defendants’ petitioning activity.  See Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, 167 (1998) (Duracraft).  We conclude that they have done so as to the abuse of process claim, but not as to the G.L.c. 93A claim.  The judge correctly denied the special motion to dismiss the latter claim.  The defendants having met their threshold burden as to the abuse of process claim, however, the burden then shifts to the plaintiff to show that the petitioning activity on which that claim is based lacks a reasonable basis in law or fact and has caused it actual injury, i.e., is not a valid exercise of the right to petition.  On the record before the motion judge, who did not reach the issue, it is evident that only a portion of the defendants’ petitioning activity that forms the basis for the plaintiff’s abuse of process claim was shown to lack such a reasonable basis.  Given this, predating today’s decision in Blanchard v. Steward Carney Hospital, Inc., 477 Mass. ___, ___ (2017) (Blanchard), the plaintiff could proceed on only so much of its abuse of process claim as alleges the invalid exercise of the right to petition, with the remainder dismissed pursuant to the special motion.  Notwithstanding this, however, in light of Blanchard, which augments the Duracraft framework, we remand the matter to the Superior Court.  The plaintiff will then have the opportunity to show that the entirety of its abuse of process claim was not primarily brought to chill the defendants’ legitimate petitioning activity.  A successful showing in this regard will defeat in full the special motion to dismiss.”

477 Harrison Ave., LLC v. JACE Boston, LLC, et al. (Lawyers Weekly No. 10-083-17) (26 pages) (Lenk, J.) Special motion to dismiss heard by Curran, J., in Superior Court. Mark S. Furman and Emily C. Shanahan, both of Tarlow, Breed, Hart & Rodgers, for the defendants; Andrew E. Goloboy and Ronald W. Dunbar Jr. for the plaintiff (Docket No. SJC-12150) (May 23, 2017).