Civil practice – SLAPP – Abuse of process

Listen to this article

Where a plaintiff filed a special motion under the anti-SLAPP statute to dismiss an abuse of process counterclaim, that motion should have been allowed because the defendant has not demonstrated that the underlying lawsuit is devoid of any reasonable factual support or arguable legal basis.

Reversed.

“In Bristol Asphalt Co. v. Rochester Bituminous Prods., Inc., 493 Mass. 539, 553 (2024) (Bristol Asphalt), this court significantly revised the framework for analyzing special motions to dismiss under our ‘anti-SLAPP’ statute, G.L.c. 231, §59H, and provided an extensive discussion of how it should be properly applied. In the instant case, the analysis of both the motion judge and the Appeals Court deviated from that guidance, and we take this opportunity to clarify its proper application here.

“The defendant in this appeal, Harbor View Hotel Owner LLC (Harbor View), asserted a counterclaim alleging that the plaintiff, Lynne Allegaert, abused process by commencing the underlying lawsuit. Allegaert responded by filing a special motion to dismiss, pursuant to G.L.c. 231, §59H, arguing that the counterclaim targeted her for engaging in her constitutional right to petition the courts. A judge in the Superior Court (motion judge) denied Allegaert’s motion. The motion judge agreed that the abuse of process counterclaim was based solely on Allegaert’s act of petitioning the court, but concluded that the counterclaim need not be dismissed because Allegaert’s petitioning activity (i.e., her lawsuit) was devoid of any merit. Allegaert then appealed.

“On appeal, the parties do not dispute that Allegaert met her threshold burden of demonstrating that the abuse of process counterclaim was based solely on her petitioning activity, or that, pursuant to the Bristol Asphalt framework, the burden then shifted to Harbor View to establish, by a preponderance of the evidence, that Allegaert’s lawsuit ‘was devoid of any reasonable factual support or any arguable basis in law.’ Bristol Asphalt, 493 Mass. at 557, quoting G.L.c. 231, §59H. The parties do, however, dispute whether the motion judge misapplied that standard, and whether Harbor View met its burden. When this matter came before the Appeals Court, a panel of the court stated that it could not ‘conclude at this stage of the proceedings that Allegaert’s claims lack any reasonable factual support or any arguable basis in law’ as the ‘challenged claims in the lawsuit have not been resolved.’ … In so doing, the panel short-circuited the required analysis that we recently clarified in Bristol Asphalt.

“Regardless of whether Allegaert’s lawsuit remains ongoing, it constitutes petitioning activity, and our anti-SLAPP statute explicitly provides that a counterclaim targeting that act of petitioning must be dismissed unless the petitioning activity ‘was devoid of any reasonable factual support or any arguable basis in law.’ G.L c. 231, §59H. As we explained in Bristol Asphalt, this presents a significant hurdle. However, that hurdle is not insurmountable, and we have provided guidance to litigants about the ways in which this standard can be, and has been, met in particular cases. …

“Here, the party who filed the abuse of process counterclaim, Harbor View, had the burden to make this showing in order to defeat Allegaert’s special motion to dismiss the counterclaim. Because we conclude, unlike the motion judge, that Harbor View has not demonstrated that all of the claims raised in Allegaert’s lawsuit are frivolous, Harbor View failed to meet this burden. In doing so, we arrive at the same conclusion as the Appeals Court panel, but apply the proper analysis. Accordingly, we reverse the order of the Superior Court denying the special motion to dismiss. …

“Because we conclude that Harbor View has failed to meet its burden with respect to count one of Allegaert’s amended complaint, Harbor View has not demonstrated that the underlying lawsuit is devoid of any reasonable factual support or arguable legal basis. In light of this conclusion, we need not analyze the factual support or legal basis for the other claims raised in Allegaert’s lawsuit, and do not address whether Harbor View met its additional burden of establishing actual injury. … Accordingly, the Superior Court order denying Allegaert’s special motion to dismiss Harbor View’s amended counterclaim is reversed, and the matter is remanded to the Superior Court for further proceedings consistent with this opinion, including a determination as to the appropriate award of attorney’s fees in connection with the special motion to dismiss.”

Allegaert v. Harbor View Hotel Owner LLC, et al. (Lawyers Weekly No. 10-030-26) (32 pages) (Kafker, J.) A special motion to dismiss was heard by Elaine M. Buckley, J., in Superior Court. A. Neil Hartzell (Ben N. Dunlap also present) for the plaintiff; Kevin P. O’Flaherty (Mariana Korsunsky also present) for Harbor View Hotel Owner LLC; the following submitted briefs for amici curiae: Dana A. Curhan and Richard A. Goren for Jane Doe and another; Kathleen M. Heyer for NAIOP Massachusetts, Inc.; Kimberly Kroha for Joseph Smith (Docket No. SJC-13788) (March 25, 2026).

Click here to read the full text of the opinion.