Hearts with Haiti, Inc. v. Paul Kendrick , 2019 ME 26 ( 2019 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 26Docket: Cum-18-98
Argued: December 11, 2018
Decided: February 21, 2019
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
HEARTS WITH HAITI, INC., et al
v.
PAUL KENDRICK
JABAR, J.
[¶1] Hearts with Haiti, Inc., and Michael Geilenfeld (collectively “HWH”)
filed a multicount complaint alleging defamation, false light, tortious
interference with advantageous business relationships, and intentional
infliction of emotional distress by Paul Kendrick. Kendrick subsequently filed
a special motion to dismiss pursuant to Maine’s anti-strategic lawsuit against
public participation statute (anti-SLAPP statute), 14 M.R.S. § 556 (2018).
Kendrick also moved for partial judgment on the pleadings based on the statute
of limitations, 14 M.R.S. § 753 (2018), and for dismissal of HWH’s intentional
infliction of emotional distress claim on the ground that the claim was
subsumed by HWH’s defamation claim. See M.R. Civ. P. 12(c). The Superior
Court (Cumberland County, Mills, J.) denied Kendrick’s special motion to
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dismiss and his motion for partial judgment based on the statute of limitations,
but it granted in part his motion for partial judgment by dismissing HWH’s
intentional infliction of emotional distress claim.
[¶2] Kendrick appeals from the court’s order denying his special motion
to dismiss pursuant to the anti-SLAPP statute and the portion of the court’s
order denying his motion for partial judgment on the pleadings based on the
statute of limitations. HWH cross-appeals from the portion of the court’s order
dismissing HWH’s claim for intentional infliction of emotional distress.
Because we hold that Kendrick’s appeal and HWH’s cross-appeal of the court’s
order on the motion for partial judgment on the pleadings are interlocutory, we
address only the court’s denial of Kendrick’s special motion to dismiss.
Discerning no error, we affirm that part of the court’s judgment and remand the
matter to the trial court.
I. BACKGROUND
[¶3] The following facts are derived from HWH’s complaint and
Kendrick’s affidavit filed in conjunction with his special motion to dismiss
pursuant to the anti-SLAPP statute. See Nader v. Me. Democratic Party
(Nader II), 2013 ME 51, ¶ 2, 66 A.3d 571; Nader v. Me. Democratic Party
(Nader I), 2012 ME 57, ¶ 33, 41 A.3d 551.
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[¶4] Michael Geilenfeld, a United States citizen, founded the St. Joseph’s
Home for Boys in Haiti, which provides residence and schooling to
disadvantaged children. Hearts with Haiti, Inc., is a nonprofit organization
registered in North Carolina and supports St. Joseph’s Home for Boys through
fundraising and mission trips. Paul Kendrick is a resident of Freeport, Maine,
who describes himself as a volunteer and advocate who acts for the protection
of children by bringing those whom he alleges are perpetrators of sexual abuse
to justice.
[¶5] Kendrick alleges that he received information that Geilenfeld was
sexually abusing children being cared for at St. Joseph’s in Haiti. Kendrick
claims that he reached out to HWH with this information but that HWH
provided no assistance in addressing these allegations. As a result, Kendrick
began to publicly speak out about the alleged sexual abuse for the purpose of
raising public awareness to pressure law enforcement agencies into an
investigation. Over the next several years, Kendrick continuously contacted the
donors of both HWH and St. Joseph’s with allegations that Geilenfeld was
sexually abusing children and that HWH was complicit in covering up the abuse.
[¶6] In February 2013, HWH filed a complaint in the United States
District Court for the District of Maine alleging that Kendrick’s actions have
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resulted in severe financial loss as a result of decreased support and irreparable
harm to its reputation. After two years of litigation, a federal jury found in favor
of HWH, awarding a total of $14.5 million in damages. Kendrick appealed to the
United States Court of Appeals for the First Circuit, but while the appeal was
pending it was discovered that the federal court lacked subject matter
jurisdiction from the outset, and the case was ultimately dismissed. See Hearts
with Haiti, Inc. v. Kendrick, 192 F. Supp. 3d 181, 184, 208 (D. Me. 2016).
[¶7] In August 2016, HWH filed an almost identical complaint in the
Maine Superior Court (Cumberland County). In response, Kendrick filed a
motion for partial judgment on the pleading, arguing that HWH’s complaint was
barred by the applicable statute of limitations and that HWH’s claim for
intentional infliction of emotional distress was subsumed by its defamation
claim. A stay was granted pending the outcome of HWH’s appeal of the
dismissal in the federal case, which was ultimately affirmed. See Hearts with
Haiti, Inc. v. Kendrick, 856 F.3d 1, 4 (1st Cir. 2017). Following the First Circuit’s
affirmance, Kendrick filed a special motion to dismiss HWH’s complaint in the
Superior Court pursuant to Maine’s anti-SLAPP statute, alleging that his activity
was protected by the First Amendment. The court denied Kendrick’s special
motion to dismiss and his motion for partial judgment based on the statute of
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limitations, but it partially granted his motion for partial judgment by
dismissing HWH’s intentional infliction of emotional distress claim. Kendrick
timely appealed the denials, and HWH cross-appealed the dismissal of its
emotional distress claim. See 14 M.R.S. § 1851 (2018); M.R. App. P. 2B(c)(1),
2C(a)(2).
II. DISCUSSION
A. Kendrick’s Special Motion to Dismiss
[¶8] Kendrick first appeals from the court’s denial of his special motion
to dismiss, arguing that the court erred by finding that the activity alleged in
HWH’s complaint is not protected petitioning activity.1 “We review the denial
of an anti-SLAPP motion de novo.” See Gaudette v. Mainely Media, LLC
(Gaudette II), 2017 ME 87, ¶ 10, 160 A.3d 539.
[¶9] A “Strategic Lawsuit Against Public Participation (SLAPP) refers to
litigation instituted not to redress legitimate wrongs, but instead to dissuade or
punish the defendant’s First Amendment exercise of rights through the delay,
Although Kendrick’s appeal from the court’s denial of his special motion to dismiss is
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interlocutory, we have consistently allowed such appeals “because a failure to grant review
of these decisions at this stage would impose additional litigation costs on defendants, the
very harm the statute seeks to avoid, and would result in a loss of defendants’ substantial
rights.” Schelling v. Lindell, 2008 ME 59, ¶ 8, 942 A.2d 1226; see also Morse Bros., Inc. v.
Webster, 2001 ME 70, ¶ 15, 772 A.2d 842 (“Precluding the moving party from appealing a
decision on the motion would result in continued litigation, which is the precise harm that
the statute seeks to prevent.”).
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distraction, and financial burden of defending the suit.” Gaudette v. Davis
(Gaudette I), 2017 ME 86, ¶ 4, 160 A.3d 1190 (quotation marks omitted); see
also Morse Bros., Inc. v. Webster, 2001 ME 70, ¶ 10, 772 A.2d 842. To combat
such lawsuits, Maine enacted its anti-SLAPP statute, 14 M.R.S. § 556, which
“purports to provide a means for the swift dismissal of such lawsuits early in
the litigation as a safeguard on the defendant’s First Amendment right to
petition.” Gaudette I, 2017 ME 86, ¶ 4, 160 A.3d 1190. In relevant part, the
anti-SLAPP statute provides that
[w]hen a moving party asserts that the civil claims, counterclaims
or cross claims against the moving party are based on the moving
party’s exercise of the moving party’s right of petition under the
Constitution of the United States or the Constitution of Maine, the
moving party may bring a special motion to dismiss. . . . The court
shall grant the special motion, unless the party against whom the
special motion is made shows that the moving party’s exercise of
its right of petition was devoid of any reasonable factual support or
any arguable basis in law and that the moving party’s acts caused
actual injury to the responding party. In making its determination,
the court shall consider the pleading and supporting and opposing
affidavits stating the facts upon which the liability or defense is
based.
14 M.R.S. § 556.
[¶10] The application of the anti-SLAPP statute results in an inherent
tension between the coexisting constitutional right to freedom of speech and
the right to access the courts to seek redress for claimed injuries. See
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Gaudette I, 2017 ME 86, ¶¶ 6, 15, 160 A.3d 1190. Accordingly, in addressing a
special motion to dismiss, the reviewing court must be careful to recognize
these competing rights and work to achieve an appropriate balance. See
Nader I, 2012 ME 57, ¶¶ 21-22, 41 A.3d 551. In an effort to achieve this balance,
we require that the reviewing court use a three-step burden-shifting
procedure. See Gaudette I, 2017 ME 86, ¶¶ 16-22, 160 A.3d 1190.
[¶11] At the first step, “the moving party (usually the defendant) must
demonstrate, as a matter of law, that the anti-SLAPP statute applies to the
conduct that is the subject of the plaintiff’s complaint by establishing that the
suit was based on some activity that would qualify as an exercise of the
defendant’s First Amendment right to petition the government." Desjardins v.
Reynolds, 2017 ME 99, ¶ 8, 162 A.3d 228 (footnote omitted) (quotation marks
omitted). If the moving party fails to meet this burden, then the special motion
to dismiss must be denied. See Gaudette I, 2017 ME 86, ¶ 16, 160 A.3d 1190.
Here, the court found that Kendrick failed to meet his burden at the first step,
and it properly denied his special motion to dismiss.
[¶12] Pursuant to the anti-SLAPP statute, petitioning activity includes
“any written or oral statement made before or submitted to a legislative,
executive or judicial body, or any other governmental proceeding.” 14 M.R.S.
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§ 556; see Nader II, 2013 ME 51, ¶ 16, 66 A.3d 571. “This definition is informed
by the First Amendment,” and therefore, “a petition conveys the special
concerns of its author to the government and, in its usual form, requests action
by the government to address those concerns.” Nader II, 2013 ME 51, ¶ 16,
66 A.3d 571 (quotation marks omitted).
[¶13] HWH’s complaint alleges a string of conduct and statements by
Kendrick that were specifically aimed at HWH’s benefactors and various other
third parties, not governmental entities. The statements generally urge
benefactors not to donate to HWH and pressure third parties not to do business
with HWH. Few of the statements include any call to action; rather, the
statements include multiple threatening or derogatory messages. Such
statements are fundamentally different from those that we have previously
held to be protected by the anti-SLAPP statute. See, e.g., Gaudette I, 2017 ME
86, ¶¶ 2, 23, 160 A.3d 1190 (statements about sexual abuse by a police officer
made to a local newspaper and read aloud at a public forum); Schelling v.
Lindell, 2008 ME 59, ¶¶ 3, 13, 942 A.2d 1226 (letter submitted to local
newspaper); Maietta Constr., Inc. v. Wainwright, 2004 ME 53, ¶ 7, 847 A.2d 1169(letters addressed to the city council and mayor, and statements made to
newspapers); see also Morse Bros., 2001 ME 70, ¶ 10, 772 A.2d 842 (recognizing
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that “[t]he typical mischief that the anti-SLAPP legislation intended to remedy
was lawsuits directed at individual citizens of modest means for speaking out
publicly against development projects” (quotation marks omitted)).
[¶14] While the court did acknowledge that some of Kendrick’s
statements could be considered petitioning activities, it correctly determined
that a substantial majority of his statements and conduct are not. The purpose
of the anti-SLAPP statute is to protect against meritless claims brought to delay,
distract, and punish activists for speaking out. See id. (“Because winning is not
a SLAPP plaintiff’s primary motivation, defendants’ traditional safeguards
against meritless actions[] (suits for malicious prosecution and abuse of
process, requests for sanctions) are inadequate to counter SLAPPs.” (quotation
marks omitted)). Thus, the statute seeks to protect those exercising their First
Amendment rights from retaliatory lawsuits. Id. But where a lawsuit alleges a
string of tortious and defamatory conduct, only a small portion of which
possibly includes petitioning activity, the protections of the anti-SLAPP statute
are not applicable.
[¶15] Accordingly, because HWH’s complaint is not based on Kendrick’s
petitioning activities within the meaning of the anti-SLAPP statute, the court
did not err by denying Kendrick’s special motion to dismiss.
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B. Kendrick’s Motion for Partial Judgment
[¶16] Kendrick also appeals the court’s order denying his motion for
partial judgment based upon the statute of limitations, and HWH cross-appeals
the court’s order dismissing HWH’s intentional infliction of emotional distress
claim. Neither of these appeals is taken from a final judgment, and therefore,
an exception to the final judgment rule must be applicable for these appeals to
be cognizable. See Dep’t of Human Servs. v. Poulin, 2002 ME 54, ¶ 3, 794 A.2d
639. These exceptions include (1) the death knell exception, (2) the collateral
order exception, and (3) the judicial economy exception. See Tornesello v.
Tisdale, 2008 ME 84, ¶ 12, 948 A.2d 1244. None of these exceptions is
applicable here.
[¶17] For either the death knell or the collateral order exception to be
applicable, a party must suffer an irreparable loss of rights absent immediate
review. U.S. Dep’t of Agric., Rural Hous. Serv. v. Carter, 2002 ME 103, ¶¶ 8, 12,
799 A.2d 1232. Because Kendrick’s statute of limitation defense can be
reviewed on an appeal from a final judgment, no irreparable loss of right exists
if the case proceeds to trial. See Tornesello, 2008 ME 84, ¶ 18, 948 A.2d 1244;
Porazzo v. Karofsky, 1998 ME 182, ¶ 5, 714 A.2d 826. Likewise, the dismissal of
HWH’s claim for intentional infliction of emotional distress would not result in
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irreparable harm or “be effectively mooted if not immediately addressed,” as it
could also be reviewed on an appeal from a final judgment. See State v. Me. State
Emps. Ass’n, 482 A.2d 461, 464 (Me. 1984).
[¶18] The third exception, judicial economy, is applicable only “in those
rare cases in which appellate review of a non-final order can establish a final,
or practically final, disposition of the entire litigation.” Carter, 2002 ME 103,
¶ 13, 799 A.2d 1232 (quotation marks omitted). Immediate review of the
court’s order on Kendrick’s motion for partial judgment would not accomplish
this goal of finality as a substantial number of issues would remain in dispute.
Further, any finality that immediate review could provide would depend on the
outcome of our decision, which “would eviscerate the final judgment rule
because we would have to decide the merits in order to determine if the appeal
was properly before us.” Carter, 2002 ME 103, ¶ 13, 799 A.2d 1232.
[¶19] Therefore, because no applicable exception to the final judgment
rule exists, we do not reach the merits of the appeals from the other portions of
the court’s judgment.
The entry is:
Denial of Kendrick’s special motion to dismiss
affirmed. Remainder of the appeal dismissed as
interlocutory. Remanded to the Superior Court
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for further proceedings consistent with this
opinion.
F. David Walker, IV, Esq., Brent A. Singer, Esq. (orally), and Jonathan P. Hunter,
Esq., Rudman Winchell, Bangor, for appellant Paul Kendrick
Russell B. Pierce, Jr., Esq. (orally), and David A. Goldman, Esq., Norman, Hanson
& DeTroy, LLC, Portland, for cross-appellants Hearts with Haiti, Inc., and
Michael Geilenfeld
Cumberland County Superior Court docket number CV-2016-313
FOR CLERK REFERENCE ONLY