Daniel J. McCarthy v. Ashley Daurie. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-271
DANIEL J. MCCARTHY
vs.
ASHLEY DAURIE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Daniel J. McCarthy, appeals from an order of
a Superior Court judge staying the assessment of attorney's fees
awarded pursuant to the "anti-SLAPP" statute, G. L. c. 231,
§ 59H, until final disposition of the case. We affirm.
Background. In December 2020, the plaintiff filed a
complaint against the defendant, Ashley Daurie, in Middlesex
Superior Court, alleging libel and slander per se based on
statements the defendant made alleging that the plaintiff
sexually assaulted the defendant.1 The defendant filed an answer
and counterclaims for slander per se (defamation) (count one),
injurious falsehood/libel (defamation) (count two), assault and
1 This was the second complaint the plaintiff filed against the
defendant. The first was filed in Worcester Superior Court and
dismissed without prejudice.
battery (count three), abuse of process (count four), attorney's
fees (count five), and fraud, deceit, lack of good faith, abuse
of Massachusetts civil provisions (count six). In February
2021, the plaintiff filed a special motion to dismiss under the
anti-SLAPP statute, as to all of the defendant's counterclaims
except the assault and battery claim. After a hearing, the
motion judge granted the special motion to dismiss as to counts
one, two, four, and six.2 The judge noted that, "[f]rom the
exhibits, it is clear that [the plaintiff] admitted that he got
on top of [the defendant] when she was too intoxicated to resist
his physical advances," and denied the request for dismissal of
the defendant's counterclaim for assault and battery (count
three), which is now the only remaining counterclaim.
After a hearing, the motion judge endorsed the plaintiff's
motion for assessment of attorney's fees and awarded $6,893.34
related to the anti-SLAPP motion, but stayed the order until
final disposition of this case. The plaintiff's motion for
reconsideration of the order, to the extent it stayed the fee
award, was denied. The plaintiff appealed the stay.
Discussion. The anti-SLAPP statute is meant to "immunize
parties from claims 'based on' their petitioning activities."
2 The judge also granted the plaintiff's motion to dismiss count
five pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754(1974).
2
Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167
(1998). It does so by permitting a party to file a special
motion to dismiss early in the litigation. "If the court grants
such special motion to dismiss, the court shall award the moving
party costs and reasonable attorney's fees, including those
incurred for the special motion and any related discovery
matters." G. L. c. 231, § 59H. The awarding of the fees is
"mandatory." North Am. Expositions Co. Ltd. Partnership. v.
Corcoran, 452 Mass. 852, 872 (2009). The intent of the statute
is to end frivolous suits based on protected petitioning
activity, "quickly with minimum cost to citizens." Duracraft
Corp., 427 Mass. at 161, quoting 1994 House Doc. No. 1520,
preamble.
The anti-SLAPP statute's effect is two-fold. First, it
halts litigation of frivolous claims, by staying discovery while
the special motion to dismiss is under consideration and
dismissing frivolous claims if the moving party prevails. See
G. L. c. 231, § 59H. In that way it protects the petitioner
"against the harassment and burdens of litigation." Fabre v.
Walton, 436 Mass. 517, 521 (2002). Second, the awarding of
attorney's fees ensures that the petitioner is reimbursed for
the costs of defending against the frivolous claims. McLarnon
v. Jokisch, 431 Mass. 343, 350 (2000).
3
Permitting the judge discretion to stay an order awarding
attorney's fees is consistent with the purpose of the statute.
Here, the plaintiff's anti-SLAPP motion was "resolved quickly,"
as the challenged claims were dismissed just a few months after
the answer was filed. See Duracraft Corp., 427 Mass. at 161.
Consequently, the plaintiff no longer faces the "burdens of
litigat[ing]" those claims. Fabre, 436 Mass. at 521. The only
counterclaim the plaintiff now must defend against was not
included in his special motion to dismiss. In addition, the
plaintiff has been awarded attorney's fees, ensuring that he is
reimbursed for the costs of defending against that claim, either
through the fee award or by an offset against any damages he may
owe at the resolution of the case. Thus, the dual purposes of
the anti-SLAPP statute are satisfied.
Further, nothing in the anti-SLAPP statute suggests that we
should disturb the power courts have to manage their own
dockets, including by staying a fee award. Certainly, the anti-
SLAPP statute specifically curtails some of a judge's
discretionary power. It instructs judges that they "shall
grant" the special motion to dismiss if the petitioner can meet
their burden, that all discovery "shall be stayed," and that the
judge "shall award the moving party costs and reasonable
attorney's fees." G. L. c. 231, § 59H. See McLarnon, 431 Mass.
at 350 ("The judge has no discretion in deciding whether to
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award costs and fees.") Yet, judges retain broad discretion in
the award of attorney's fees under the anti-SLAPP statute,
including the discretion to determine the amount of the fees or
to reduce them. Polay v. McMahon, 468 Mass. 379, 388-390
(2014); Cargill, Inc. v. Beaver Coal & Oil Co., 424 Mass. 356,
363 (1997).
Judges also have broad discretion to issue stays to
effectively manage their cases. See Landis v. North Am. Co.,
299 U.S. 248, 254 (1936) ("the power to stay proceedings is
incidental to the power inherent in every court to control the
disposition of the causes on its docket with economy of time and
effort for itself, for counsel, and for litigants"); Sommer v.
Maharaj, 451 Mass. 615, 621 (2008) (courts have "inherent power
. . . to manage [its] own affairs so as to achieve the orderly
and expeditious disposition of cases" [citation and quotation
omitted]); Travenol Lab., Inc. v. Zotal, Ltd., 394 Mass. 95, 97
(1985) (decision "to stay proceedings is ordinarily a matter
addressed to the sound discretion of the trial judge"). Where a
statute is silent on a matter of judicial power, we do not
assume the Legislature intended to impose limitations on the
judiciary. Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209,
215 (2011).
We conclude it was within the judge's discretion to award
the attorney's fees but stay the payment of the fees until all
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claims are resolved.3 Doing so is consistent with effectuating
the purpose of the anti-SLAPP statute, and with the general
broad discretionary powers trial judges are granted to stay
proceedings and manage the award of attorney's fees.4
Order dated January 27, 2022,
affirmed.
By the Court (Green, C.J.,
Henry & Englander, JJ.5),
Clerk
Entered: April 21, 2023.
3 Given our conclusion that the stay of the fee award was proper,
we need not address the defendant's argument that this
interlocutory appeal was not properly before us.
4 The plaintiff's request for attorney's fees is denied, as he
has not prevailed on appeal; the defendant's request is denied
as she has not identified any fee-shifting statute that would
justify the award.
5 The panelists are listed in order of seniority.
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