Jay T. Nygard v. Patrick Walsh ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0011
Jay T. Nygard,
Appellant,
vs.
Patrick Walsh, et al.,
Respondents
Filed December 22, 2014
Affirmed
Peterson, Judge
Hennepin County District Court
File No. 27-CV-13-7049
Jay T. Nygard, Orono, Minnesota (pro se appellant)
Robert H. Tennant, Stringer & Rohleder, Ltd., St. Paul, Minnesota (for respondents)
Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and
Schellhas, Judge.
UNPUBLISHED OPINION
PETERSON, Judge
Appellant challenges the district court’s dismissal of his tort claims against
respondents, arguing that the district court erroneously ruled that the statute prohibiting
strategic lawsuits against public participation, Minn. Stat. §§ 554.01-.05 (2012) (anti-
SLAPP statute), immunized respondents from his claims. We affirm.
FACTS
Pro se appellant Jay Nygard has a history of confrontational interactions with his
neighbors. On August 1, 2011, respondents Patrick and Nancy Walsh sent a letter to the
City of Orono and the Orono Police Department that includes negative references to past
interactions with appellant. The letter refers to specific instances of appellant’s conduct,
including “yelling obscenities at us, damaging our property, filing false police reports or
challenging our presence in our own yard,” and describes appellant as “belligerent,
combative,” having an “anger issue,” and exhibiting harassing behavior. The letter twice
mentions that respondents fear for their safety.
In response to respondents’ letter, appellant sued them for defamation, defamation
per se, and negligence. Respondents moved to dismiss, relying on the anti-SLAPP
statute, which protects lawful speech from public liability when the speech constitutes
“public participation” and when the opponent of the statute’s application cannot meet the
burden to provide clear and convincing evidence that the speech constitutes a tort. Minn.
Stat. §§ 554.02, subd. 3; .04, subd. 2.
The district court granted respondents’ motion. The district court analyzed the
two prongs required for application of the anti-SLAPP statute: (1) whether respondents
“met the minimal burden of making a threshold showing that their speech constituted
public participation,” and concluded that they met this threshold; and (2) whether
appellant met his burden to produce clear and convincing evidence that the speech
constituted a tort, and concluded that he did not. Regarding the second prong, the district
court concluded that “most of the statements contained in [respondents’] letter are not
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properly subject to determinations of truth or falsity and cannot serve as the basis for a
claim of defamation,” and that “even applying the generous Rule 12 standard of taking all
statements in [appellant’s] complaint . . . as true and drawing all inferences in his favor,
[appellant] has not satisfied his heavy burden of showing clearly and convincingly that
[respondents’] letter constitutes defamation.” Appellant then brought this appeal.1
This court granted appellant’s motion to stay the appeal pending final disposition
of Leiendecker v. Asian Women United of Minnesota, et al., 848 N.W.2d 224, as modified
by 855 N.W.2d 233 (Minn. 2014). Following final disposition of Leiendecker, this court
dissolved the stay and set the matter for a nonoral conference.
DECISION
Appellate courts review matters of statutory interpretation de novo and must apply
the plain language of a statute as written. Axelberg v. Comm’r of Pub. Safety, 848
N.W.2d 206, 207 (Minn. 2014).
In Leiendecker, the supreme court explained the “unique burden-shifting
framework” that applies to the parties in anti-SLAPP cases. 848 N.W.2d at 229. The
anti-SLAPP statute provides that a party who is sued may move for dismissal of a claim
1
During the pendency of this appeal, this court released Nygard v. Walsh, No. A13-1103,
2014 WL 349761 (Minn. App. Feb. 3, 2014), review denied (Minn. Sept. 24, 2014), in
which this court applied the anti-SLAPP statute to dismiss appellant’s identical tort
claims against another of his neighbors who had spoken at an Orono City Council
meeting and “cited alleged difficulties the neighborhood was having with [appellant] . . .
and asked for a more responsive police force.” Id. at *1. This court ruled that the anti-
SLAPP statute applied to the neighbor’s speech because “the record show[ed] that [the
neighbor’s] statements were genuinely aimed at procuring favorable government
action—obtaining a more vigorous response from police and city officials concerning a
disruptive neighbor,” Id. at *3, and that appellant failed to produce sufficient evidence to
meet the clear-and-convincing-evidence standard to support his tort claims. Id. at *4-7.
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in reliance on the statute’s immunity provisions by making “a threshold showing that the
underlying ‘claim materially relates to an act of the moving party that involves public
participation.’” Id. (quoting Minn. Stat. § 554.02, subd. 1; other quotation omitted). In
response, the nonmovant, or responding party, bears the burden of proof, and the district
court must grant the motion to dismiss unless it “‘finds that the responding party has
produced clear and convincing evidence that the acts of the moving party are not
immunized from liability under section 554.03.’” Id. at 230 (emphasis omitted) (quoting
Minn. Stat. § 554.02, subd. 2(3)). Notably, “the [district] court is required to dismiss the
claim, even in the face of genuine issues of material fact, if the responding party has
failed to carry its burden of persuasion that the moving party is not immune by clear and
convincing evidence.” Id. at 231 (emphasis in original). The responding party can meet
this requirement by “establishing that the moving party’s conduct or speech was not
aimed in whole or in part at procuring favorable government action, that the conduct or
speech constituted a tort, or that the conduct or speech violated another’s constitutional
rights.” Id. at 229 (citing Minn. Stat. § 554.03).2 On a motion to dismiss in reliance on
the anti-SLAPP statute, “the responding party carries three distinct burdens[:] . . . the
burden of proof, the burden of production, and the burden of persuasion.” Id. at 231
(citing Minn. Stat. § 544.02, subd. 2(2)).
We agree with the district court that appellant has not offered sufficient evidence
to satisfy the clear-and-convincing standard of proof required to defeat application of the
2
Appellant does not argue that respondent’s speech or conduct violated his constitutional
rights.
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anti-SLAPP statute to his claims. The letter that respondents sent can only be read as an
attempt to procure favorable government action. The letter is addressed to the City of
Orono and the Orono Police Department, and the clear import of the letter is to call on
those entities to take action against appellant. The first and last lines of the letter state
that respondents have safety concerns regarding appellant’s conduct and behavior. The
City of Orono and the Orono Police Department are the proper parties to receive such
complaints about neighbors from Orono residents.
As the responding party to the motion to dismiss on anti-SLAPP grounds,
appellant has not met his burden to establish by clear and convincing evidence that the
letter was tortious. Each of the torts alleged by appellant includes elements that appellant
has failed to establish by clear and convincing evidence: a cause of action for defamation
requires a false statement, and a cause of action for negligence requires a duty owed to
another. See Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn. 2011) (“Generally a
defendant’s duty to a plaintiff is a threshold question because in the absence of a legal
duty, the negligence claim fails.”); Hunter v. Hartman, 545 N.W.2d 699, 705, 709 (Minn.
App. 1996) (describing a defamation claim as actionable only if the defamatory
statements were not “supportable interpretations of the situation being described” and
noting that in certain factual contexts non-defamatory statements are expected to include
“highly subjective opinions” rather than “assertions of verifiable, objective facts”). We
therefore affirm the district court’s dismissal of appellant’s action.
Affirmed.
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