Pylypenko V. Bennett

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STATE OF MAINE CUlvlBERLAI\ID, 55. SUPERIOR COURT CIVIL ACTION DOCKET NO: CV -09-690 (..2 j l" I OLENA PYLYPENKO, Plaintiff, ORDER ON DEFENDANTS' MOTIONS TO DISMISS AND SPECIAL MOTIONS TO DISMISS PURSUANT TO 14 M.R.S. § 556 v. JEFFREY BENNETT and DARLENE COPP STATE OF MAINE Curnberland. SS Clerk's Olficr~ Defendants ';;FP 2 .J "1r'j'I '.~ ¢ ¢/ ¢ ') (, ,1 l~ . ¢ ¢ ¢. ,. ff_ 'I C" ;',' t'~' ~ .. I f ,"~ ! ~ _ \ - .,..... ~.~. ...._ 1 1; :1..... a.". Pl<lintiff Olena Pylypenko brought this action against attorney Jeffrey Bennett and Darlene Copp alleging defamation, intentional infliction of emotional distress, malicious prosecution, and false imprisonment. The defendants have filed motions for dismissal, and have filed special motions to dismiss pursuant to 14 M.R.S.A. § 556 (2009), Maine's so-called anti-SLAPP I sti.1tute. BACKGROUND This is the latest legal battle spawned by the storied divorce of Scott Liberty and Darlene Copp. Plaintiff Olena Pylypenko, a Ukrainian-born United Sti.1tes citizen, is Scott Liberty's current wife. Her claims arise from three events involving Mr. Liberty and Ms. Copp's middle daughter, Cassandra Liberty, which occurred in the fall of 2008. Ms. Copp has sole cLlstody of Cassandra I SLAPP is an acronym for "Strategic Lawsuit Against Public Participation," and was coined by George W. Pring and Penelope Canan. Dl/racm!t Corp. v. Holllles Products Corp., 427 Mass. 156, 160 n.7, 691 N,E.2d 935, 939 n.7 (Mass. 1998) (citing Pring & Canan, SLAPPs: Strategic Lawsl/its Agail/st Public Participatioll, 7 Pace Envt.l L. Rev. 3,4(1989)). 1 Liberty. First, Ms. Pylypenko alleges that Mr. Bennett and Ms. Copp told Cass,mdrl1 Liberty that Ms. Pylypcnko: 'NilS a mail-order bride who had pClid Mr. Libedy for ,1 sh,u11 marriage; was a stripper; WClS Cl prostitute; Clnd hc1d engaged in sexu,ll c1Cts with Scott Liberty's uncle, Michael Liberty. (Pl.'s C0l11plaint <[I<I[ 32, 3h.) Tlw secolLd event occurred on or c1round October 30, 2008. That morning, Cass'lndra Liberty rdn awc1Y from Ms. Copp's home. Ms. Copp testifies that she SllW ~vls. Pylypenko w,liting outside the home in her car, and that \lIs. Pylypenko drove ,1W,ly when confronted. (Copp Aff. <]J 61.) Ms. Copp then reported the incIdent to the [<'llmouth Police. (Copp Afl. <j) 62.) An officer stopped Ms. PyIypenko on Route 100 in Falmouth, questioned her about C(1ss(1ndra, ,Lnd sl~,lrched her vehicle. (Pylypenko Aff. <]I 11.) Ms. Pylypenko denies driving by the home on that d'lle. (Pylypenko Afl. 9[9[ 9-10.) The thi rd ,md finel1 event occurred on the night of November 30, 2008. Ms. Copp testifies thdt dround 9:00 p.m. she he<lrd her front-door alarm go off. (Copp Afl. <![ 71.) On investigating, she witnessed Cassandra run toward a car parked Clt the end of the driveway (1nd get into the passenger seClt. (Copp Aff. <II 71.) Ms. Copp (1]so ran to the car and grclbbed the steering wheel through the open driver's side window. (Copp Aff. <[ 71.) The car began to drive awClY, dragging Iv[s. Copp for somL' distClnce until she fell. (Copp Aff. <[ 71.) When police arri vcd, tvIs. Copp told them that Ms. Pylypenko hlld been driving the <IT<IT CCir. (Copp Aff. 71-72.) PolicL' immediately begCln an investigation, and 1Clter that evening went to Ms. F'y1nx'nko's home to question her and search for Cassandra Liberty. (Pylypenko Aff. 9[ 19.) Ms. Pylypenko told them that she had been al a friend's 2 home in PmtIclnd elt the time Cassandra Liberty left Ms. Copp's residence. (Pylypenko ,\If. (~I(lrl(), 19.) The police left Ms. Pylypenko thut evening, but she \VelS la ter cklrged \Vi th feckless conduct for dragging Ms. Copp with her cur. (f)ylypcnko AfL (n 20.) ]\/[s. Pylypcnko missed her urraignment bcccll1se the SUlllmons \Vas meliled to the incorrect address, and she WtlS Jutcr elrrcsted for this fuilure to appear. (Pylypcnko Aff. (Ir~[ 20-21.) She hired tin uttomey 'lild the (uSC was dismissl'd, but only after she incurred $7,500 in legal fees. (Pylypenko Aft. (:1 2-1.) 011 December 31,2009, two weeks after oole1ining her Uni ted St,ltes citi/.enship, fv[s. Pylypenko filed u four-countcomp]aint <lgainst Mr.l3enllett ulld Iv[s. Copp. Count r <lccuses the defendants of deftlm ati 011 and invasion of privacy due to the st'ltements allegedly mtlde to Cuss'llldrtl Liberty tlnd the accusutions of erimillcll conduct. Count II usserts thut these stutelllents tlnd Ms. Copp's police reports CC)(lstitUtl' intentional infliction of emotional distress. Count fIl focuses on the police reports ellld tI(cuses the defendants of malicious prosecutioJl, while Count IV asserts a claim for fulse imprisol1ment stemming from Ms. rylypenko's ulTest. On Februl1ry 16, 2010, Mr. Bennett and Ms. Copp etlch filed tI specitll motioll to dismiss purc;u<lnt to 14 M.R5.A. §556,2 and a motion to dismiss pursuc1l1t to Rule 12(b)(6). DISCUSSION As ,1 preliminary mtltter, the court must determine the order in which to proceed on the ddendtlnts' motions. Motions for dismissal l1rL:' gellerully decided solely on the plcadlllgs, t1nd are converted into motiolls for summary judgment if tbe court Cllnsiders extraneous mtllerial. M.R. Civ. P. 12(b); Moody v. Stote Lil/llor 2 Ms. Copp excludes Count r from her special motion to dismiss. 3 {-f Lottery Co 111111 'ii, 2ClD..J. fvIE 20, <Il~ 8-9, 843 A.2d 43, 47-4~. In contrast, sl'ction 556 speci,l] motions require the court to cXZlmine both the pleadings ,11lLi supporting affid,wits. Morse Urns., fllc. u. Wehster, 2001 :rv1i~ lO, <II 20, 772 A.2d R42, S49. As trL',ltnwnt of thl~ spl'ciaJ motiolls rl'quirl's the court to cOllsidl'r materia] Ol! tsidl' the plL'cldings, thl' wurt will Llddrl'ss thl' Rule 12(b)(6) motions first. I. The Defendants' Motions to Dismiss While (',lch ddclldZlnt has filed a sepclnltc rnotioll to disrniss, the ,1JIl'gi1tions c1gdinst them Zlre identiGll LInd arise fronl. the SZllllC bclsic felets. Their motions will thL'rdore be tre<1ted togethl'r. "i\ motion to dismiss tests the Ieg,l! sufficiency of the complaint./f Ncf)('/' v. Jollccmc-ill-A1nillc Villnge Corp., 2000 ~1El 37, <IT 7, 7,S5 A.2dl Oil4, 1Oilil (quoting N1cA[ec u. Cofe, 6:17 ;\.2d 463,465 (Me. 1994)). The Court eXdmines tIthe compbint in the lipht m.ost favor,lble to the nlLlintiff to ddernlinc whether it sets forth ,) I clements of c1 Cdllse of dction or dJJeges fZlds thdt would entitle the plaintiff to \'elid pursuLlnt to some legdl theory." fri. (quoting ivreA/ec, 637 A.2d (It 4(5). "r~or purposes of ,112(b)(h) motion, the lll<1teri<1] dllegcltiollS of the COlllpldint llluSt bl' tLlken as Cldmittcd./f NfcAj{'l', 637 A.2d clt4h5. "Disl1l.isscll is wLlrranted when it dp~)eJrs bl'yond cl doubt that thl' plaintiff is entitled to no relief L1llder ,IllY set of felets thclt [s/hc might proVl' in support of [herl claim." [of/nllsoll 2001 M F: 169, 1. II. Dl/llllillgtOll, <If 5, 7S5 A.2d 1244, 1245-46. Count I: LJd<lll1ation & fnvasioll of Privacy The pl<linti ff's Count 1 accuses both Mr. Gennett and Ms. Copp of defamation and inv,lsion of privacy. DefaJll<1tion consists of: (a) <l fcllse ,md debmatory stcltement concerning dnother; (b) all unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; clnd 4 (d) either ,lctionilbility of the stiltement irrespective of speciill or the C'xistence of special hilrm GlUsed by the pubJicotiun. hMITl '-ester [I. Torts S 551) (1CJn)). The lcrm Pmlle!'s, 596 A.2d 65, 69 (fVle.1991) ('ldopting Rest"lenwnt (Second) of "publiccltion" is il term of ilrt th'lt rdct-s lo ,lilY intentional or ncgligent communicJtion to il third pilrty. Restiltcillent (Second) of Torts § 577 (I CJ77); see (ole v. OWl/rile!', 2000 l\'fE 104, <;j 17, 752 A.2dlJ K9, 11 CJ7 (compilring "publiGltion" required ten-ddilm'ltion to the "publicity" requireillent of inV,lsion of privilcy). Ms. PyJypenko's comp!clint "lIeges th'lt 1\1r. Bennett ilnd 1'\1s. Copp intentiollilily told Cilss,l1ldr,l Liberty thdt Ms. Pylypenko's lllClrri,lge W,ls that she was cl ,1 lll'lil-order bride who h'ld pelid to get lllClrried, lhat she WClS stripper and il prostitute, <md that she hild Ijbcrty. (pl.'s COIllPJ. ,1 sh,llll, ,1 sexu,,1 rdeltionship \vith Mich<lel (n :12.) It <11so <llIcges th'lt the defend'lnts communic<1ted to police th'lt Ms. Pylypenko W<1S a kidnapper who ]l(ld <1ss,lulted 1\1s. Copp. (Pl.'s Compl. (If 34.) They (llJegedly knew thelt these st"tcments were f<11se whcn thcy lllilde them. (Pl.'s COlllpl. Til 33-34.) The st"tcments concern seXlW] 'll1d crilllinc:d III iscon d 11 ct, so they i1 re ilcti ono bk per se. Resta teillen t (Second) of Torts s§ 571, 574 (1977). These 'llll'gations llli1kc out 0 prim,l fucie c"se of dcfZllll'ltioll. !'vIr. Bennett clnd Ms. Copp both clzlim that the Clllcged stiltements were privileged, though on different grounds. Mr. Rennert mgues thClt (lily of his Cllieged stZltelllents wcre mode in lhe context of his "ttortwy-c!ient rel'ltiollShip with 1\1s. Copp ,md therefore should be privileglc'd under section SH6 of tc Restlltemcnt (Second) of Torts. Section 5K6 privileges defCllllolory !l1clteri,,1 thZlt ,m Clttomey publishes during the lead-up to, "institution of, or during the course and ClS pilrt of, (\ judicii11 procceding in \vhich he pZlrticipCltl's as counsel, if it hclS 5 some relation to the pmceeding." Rest"ternent (Second) of Torts § 580 (1977). The privilege only extends to attorneys while they arc acting as sLIch. [(1. Cnlt. c. j\i!"inc h"s recogni;/,ed that ddclmatory "<lliegations made in pleadings al'e absolutely privileged," as arc statements mc,de by witnesSl'S during testimony. Dilleell u. Dnllglloll, 3Rl A.2d 003, ()64 (:vre.l (78). Attorneys arc also privileged to assert ddam,ltory statements in motions so long as the statements ,lre relev'lnt to the judicia] proceeding. [ri. Clt 064-oS; sec TOIIS;lIoy 'ii. ASCII, 1998 ME 277,117, 722 A.2d 49, 50 (rewgni;:ing th'lt a potentially cldam"tory statement made to the parties' child in ,1 divorce proceeding fell \vithin "'It leClst Cl CJLIalified privilege of couilsel to inCJuire Jnd develop evidence re]evClnt to" a proceeding). While Maille h,ls Ilot explicitly "dopted sl'ction 586, the protections it hilS recogni;:ed Clre comp'lrClble. The question here, however, is whether any privilege is appclrl'nt from the pleCldings. There is none. vVhatever privilege may ultim,ltely apply to Mr. Bennett's statements, the com~)lClint docs not show that he spoke in his cClpacity as an ClttOrJ1CY, To the contrary, the cumplClint alleges that Mr. Bennett slandered the plaintiff's charCletcr to ClssClndra Liberty becCluse he wanted to exert persona] control over her L11ld to degrClde l'vls. rylypenko. (rl.'s Com pI. (!,(1l15, 27-28,32.) Accepting the p],lintiff's allegCltions as true ,lnd drcHving all reasonable inferences in her felVor, the plCCldings do not indicate thclt Mr. Bennett published the statements pursuant to ,\ prlvilcge. lvls. Pylypenko h"s ulll'ged 'I prim'l facie claim for ddanl"tioll sufficient to survive Mr. Bennett's l\.ulc 12(b)(6) motion to dismiss. j\,ls. Copp seeks the sheller of t\\'o different privileges. The fi rst is the privilege uccorded tu statements m"de to law enforcement or rcgu]utory 6 agencies. Tl'l/lllnll v. BroWII, 2001 ME 182, Me privileged so long CIS <If 15,788 A.2d 168,172. Such statement.s they arc made in the good-fClith belief "thClt thtlt the stcltement is truc ,md indiccltes that a sttltutorv standclrd cldministered bv the J ~ clgency mclY hclVe been vioIJted." /ri. In this GlSe the compl"int JIJcgcs thclt !'v'Is. Copp communicJted with JClI\' enforcement in bcld fClith, so the privilegc does not Clpply. (P1.'s Comp1. <IT 38.) Ms. C()PP'S second Clsscrted privilege is Cl pJrent-child privilege not-yet recognized in l\/ltline. She cites section 597 uf the Rl:'stCltement (Second) uf Turts, vvhich grClnts cl conditi()]Icll privilcgl' when "circumstCllKes induce Cl correct or reasonclblc belid thClt (CI) thl're is informCltion thJt affects the well-being uf a member of the immedic,te ftlmily of the publisher, tlnd (b) the recipient's knowledge of the ddClmcltory mcltter will be of service in the lcHvful protection of the" family-member's well-being. l\1s. Cupp contends thtlt tlny cl!leged statements she mClde to CClSSClndrtl Liberty were clttempts t() protect Ms. Liberty from hersl'lf during her emtlncipcltion ~Jroceedings. Even if the court were to recognize this privilege, the complaint cl!leges thClt Ms. Copp llltlde the stCltements knowing they were fCllse. (P1.'s COlllp1. (IT9I 36-3/).) This obviates the privilege by section 597's own terms. It ,llso constitutes ,lbuse of tl privilege under RestCltement (Second) of Torts section hOO. FinCllly, Ms. Co~}p's discussion of Maine Rule uf rvidence 504, the spous'll testimonial privilege, is irrdevClnt in this context. Ms. Copp hcls not shown thc,t Ms. Pylypenku's plc~Clding is deficient, Clnd Count I for ddCllllcltion survives. The pltlintiff's clClims for invilsion of privacy me not so fortunc,te. A c!Clim for invClsion of privacy lies when the plclintiff shows thClt the dcfend"nt: "(I) intruded upon her physiGl1 Clnd mental solitude or seclusion, (2) publicly 7 disclosed privJte facts, (3) placed hC'r in <l false light in the public eye, ()r (4) t1pproprielted her nclme or likeness for the [defend<lnt's) benefit. EeKh of these interests in prive1Cy is distinct e,nd is subject to different kinds of inVclsion." toe v. T/IOII1I7StOIl, 60l) A.2d]()l)O, 1093 (Jde.1991) (citations omitted). Ms. Pylypenko C1ccuses the dcfendzmts of publicly disclosing privt1tl' bcts about her e,nd pl<lcing her in t1 blse light. Both of these c1l1ims require the dcfendllnts to hC1ve publicized tl1l' objectionc,ble materi<ll. frl. (public disclosure); ClI(7IIr1/cr, 2()O() iv'IE 104, <jf 17,752 A.2d C1t ]197 (fC1lse light). Unlike the publ ieltion requirement of defelmation, the ~Jublicity required to m"intelin a cL:,im for invasion of privacy requires the ddende,nt to have made the matter public "by commUniGlting it to the pllblic at lC1rge, or to so me111Y persons that the matter must be fC'gC1rded as substantiC1lly Cl'rtain to become (mc' of public knowledge." Clll7l1d/cr, 200() [VIE 104, <jf 17, 752 A.2d elt 1197 (quoting Restatement (S(~cond) of Torts § 6520 cmt. a (1977)). lvls. Pylypenko's compl<lint cl11eges that the defamatory stC1tcnwnts were communic<ltcd to Cassandra Liberty C1nd possibly someone elt the Falmouth Police. (PI.'s Comp1. (IiCII 33-34.) Such <l limited c,udiencC' f"lls short of gener'lting the "public knowledge" requir('d to m"intC1in her clC1ims, cmd they arc' dismissed. 2. Count 11: [ntentioncll Infliction of Emotion,ll Distress Tn order for Ms. Pylypenko's cl,lim for intentional infliction of emotional distress to survi ve, she must show: (1) the defendants "intention"lly or recklessly inflicted severe C'motionel] distress or [were] certain or substiHltial1y certC1in that such distress would result from [theirj conduct"; (2) the "conduct was so extrenle and outrageous as to exceed C111 possible bounds of decencv and must be re~TC1rded elS atrocious, utterly intolerclblC' in a civilized community"; (3) the C1ctions of the defend"nts caused ... emotional distress; C1nd (4) [Ms. Pylypenko] suffered .I c) .J 8 emotional distress "so severe that no reasonelble [person] could be expected tu end me it." Loe, 600 A.2d cIt 1093 (quoting Fillll v. Lip/llnll, 326 A2dl380,IJ82 (NIl'. 1987)). Ms. Pylypl'nko claims that the defendants' allegedly false statements to Cassandri1 Libl'rty, coupled with lhe allegedly false police reports, constituted outrllgeous conduct ,md caused her emotionCl) distrl'ss including "humiliCltion, tlnxidy, distrClction and loss of reputation." (Pl.'s Compl. (11 57.) Assuming that her distress is severe, Ms. PyJypenko's clClim Gmnol survive unless the alleged conduct WelS extreme Clnd outr'lgeous ClS Cl mClttcr of 1'1\v. See Colford v. CI/lIhb Ufe Co. O/AII/., 687 A2d (J09, 616 (Me. 199()) (court must determine whether conduct could reelsonably be deemed sufficiently extreme <111d outr<1geoLIs lo incur liClbilily). The LClw Court hClS ruled that filing Cl police report, even if done without justificcltion, docs not "exceed Cl]] possible bounds of decency" and will not support a claim for emotional distress. Hollalld v. Sc!7/llIyn, 2000 T\1E160, (if 17,759 A.2d 205,212. Insulting or abusive language hCls likewise been found short of the extreme cllld outrageous conduct required. Botkn v. S.c. Noyes ti Co., 2003 ivIE 128,9[<116,10,19,834 A.2d 947,950-52; sec YI/rick v. SI/perior COl/rt, 209 ell. App. 3d 1116, 1123 (CII. App. 3d Dist. 1989), disllpproved on another point in Carll/iellnel v. AI{r7110 Tell/p. Pers., 233 Cal. App. 3d 1126, 1130 (('<11. App. 4th Dist. 1991); Restatel11l'nt (Sccond) of Turts § 46 cmt. d (1965) (liThe liabilIty clcclrly docs not cxtend to mere insults, indigni ties, threclts, clnnoyances, petty oppressions, or other trivialities.") Ms. Pylypcnko's claim rests on hvo llllegcdly bllsl'less police reports and a series of insulting statements made to CassClndrCl Liberty. None of these instances alone would be enough to support her claim. Ms. Pylypl'nko argues that together 9 tIley form ,I p(lUern of outrageous conduct, but three discrete instclnces do not transcend the re111m of Clnnoyances thclt" re(lson(lble person could be expected to endure. Sec toc, ADO /\.2d cit I 093. Slc1ndcr<Jus st(ltements lI1(1de to one person, while distressing, arc cOlllmonplelce enough such thclt an "ordinarily sensitive person" should be ablc to cope with the aggrcwation they engender. Scc Ho/lr711ri, 2000 t\!fE lAO, 9l 18,759 A.2d at 212. The same Gin be said of being stopped by police and accused of a crime. fri. Any harm Glused by such behavior is rccovcrclble under the theories of sLmder "nd m"licious prosecution. This uncivil behcwior, even taken together, is insufficiently outrageous to support the sepClrate cl(lim of intentional infliction of emotion,,] distress.' Ms. Pylypcnko's Count II is dismissed as Clgelinst both dcfendelnts. 3. Count III: M"licious Prosecution The ddcnd"nts will be liClble for Illcilicious prosecution if Ms. Pylypenko shows that (l criminlll complllint WelS "(1) instituted [or continued] age1inst [her1 without probable cause, (2) with lTICllice, "nd (3) th(lt [she] received a favorable termination of the proceedings." Hol/nllri, 2000 MEl60 (1120,759 A.2d 205, 212-13 (quoting Crl1Y u. 5111(1', A24 A.2d 479,483 (Me. 19(3)). "Prob(lble CCluse is an objective stand(lrd lhelt" asks vvhether the ddendClllts had reClsolle1ble grounds to justify their clCtions. fri. ~r 20, 759 A.2d at 213. "Reclsonable grounds are grounds sufficient to justify (lmeln v\'ho was calm, and not governed by passion, prejudice or want of ordin(lry caution and carl', in believing the party guilty." fri. (quoting Price v. Pl1tfcrSOIl, 606 A2d 783, 785 (Me. 1992)). 7 ~ At hearing, Ms. 1 ylypenko's counsel discussed other actions the defendcll1ts had allegedly tClken agClinst individuals not party to this litigCltion. The court will not consider the defendants' history with Scott, MichClcl, and CelssClndrCl Liberty when examining whether they have engagcd in a pattern of conduct directed toward Lhe plclintiff, !'vIs. Pylypenko. lD The plaintiff a]]eges that the defendants f(\]scly and maliciously told police that she held kidnClppcd CassClndr8 Liberty, that she \V,lS ultimellely charged, and th8t those chclrges were dismissed in her favor. (Pl.'s Com pI. (119f J4, 59-nJ.) The defendelllts contend that while the chelrges were dismissed, this did not constitute a fclVorLlblc termination of lhe proceedings for Ms. Pylypenko. '1'0 CVCl]uatl' the ddcndants' c1fgumenl emd the prima facie vellidity of the plaintiff's G1SC, the court must consider the docket record of the crimi tlCll ch(lrges underlying her c]elim. !\s the docket record is a pllbJic document centre-l1 to the plainliff's clelin, whose authenticity is unchallenged, its consideration willnot convert the motion into one for summary judgmenl. Nfoody '(I. State Liquor (7' Lottery COl/ill/'ll, 2004 fvrE 20, (I[ 11, H43 A.2d 43, 48, The record shows that the prosecutor dismissed the charges against T\1s. PyJypenko due lo insufficient evidence. (Whitman Afl. Exh. A at 3, 1n-17.) There is no indication that Ms. Pylypenko objected to the dismissell. The defendants argue that this \\felS not a favorelble outcome for Ms. Pylypenko. For support, they look to the c(\se of Caril/g (I. Fmscr, 7n Me. 37 (11)1)4). In Corillg, the Law Court held the,t an entry of lIolle prosc1llli was not a felVorable tcrmin<,tion that could support el subsequenl Clction fur millicious prosL'cution. Garillg, 7n Me. <,t 42. Ms. I)ylypenko counters by rderring to the earlier G,se of Page v. Cushillg, 31) fvfe. 523 (1854), in which the Len\! Court held th(lt CI uolle prosequi would be ,,1 sufficient basis for the che,rge of tnellicioLlS prosecution. Page, 31) tvIe. al527. Thl' Law Court did not refer to Page when it decided Garillg. The Law Court acknowledged this conflict in the]LJ7t\ case of Bickford u. Lalltay, 394 A.2d 281 (Me. 197R). In Hiclford the Court noted the,t the law We,S inconsistent, but declined to "determine whether to follow, or overrule, the 11 holding in Corillg v. FmsCI'." Bickforri, 394 A.2d e1t 2R3. Instead, the Court narrowly held that "the entry of a lIollc prosclJlli ovcr tllc olljedioll of tllc OC(/{scri is sufficient to prove t]le essential clement of the tort thi1t the crinlini1] prosecution tcrmine1tcd in c1n outcome felVoruble to the plaintiff." Jri. (emphi1sis in original). folJowillg Bickford, the rule laid down in Coring clppears to be in doubt. Mc1SSC1chusetts addressed this question squarely in the 1984 case of Wyllllc V. ROSCII, 3Y1 Mass. 7Y7, 4(14 N.E.2d 1348 (M<1ss. 1984). Massachusetts requires the same clements for (1 c1uim of mc1licious prosecution c1S Maine, cmd held f(llJo'vved the same rule ,111nounced in Cnrillg since 1849. 1 WI/lilli', ]YI Me1SS. at 79Y, 464 N.E.2d atl 350. By 1984, however, Mc1SSclChusetts recognized that it held fclllen Clmong the minority. Jri. at 799-800, 464 N.E.2d at 1350-51. The majority rule adopted by the Resteltement (Second) of Torts holds that a criminal proceeding is terminated in favor of the accused when the public prosecutor formally Clbandons the proceeding by way of <1 !101ft: IHOSCI7"i or motion to dismiss, unless such abandonment is the result of an agreement of compromise with the clCcused or if new proceedings for the same offense have been instituted. Tri. (ci ting Restcltement (Second) of Torts §§ 659 cmt. c, 660 (1977) ,md collected cases). The court noted that tIle only other state following the older rule was Maine, ellld that the case of BiLNcmi v. Lnlllny, 394 A.2d 281 (l'vlc. 1978), held picKed the rule's continuing vitcllity in question. WyllllC, 391 M<1ss. <1t 79Y n.3, 464 N.E.2d Clt 1350 n.3. "In light of overwhelming support for" the Restc1tement's position, MasselChusetts <1bClndoned the old rule cmd left rvbine's company to join the m<1jority position. Tri. at sao, 464 N.E.2d at 1351. If this court had to rule definitively on this point in this G1Se, it would join rl/\i1ssachusctts <1nd embrace the RcstCltel11ent's rule thClt "the forme1] -\ The CoriJlg Court ci ted Mass<1chusctts precedent. 76 Me. <1t 42. 12 abandonment of the proceedings by the public prosecutor" constitutes J fa.vorable terminCition of proceedings sufficient to support a c1'lim for malicious proSt'cution, C1bsent evidence tha.t the dismiss'll is inconsistent "wi th the innocence of tIlc Zlccused." Iri. i:lt BOO-ell, 464 N.E.2d Zit 1351; Rcstdtemcnt (Second) of Torts §§ 659, 660 (1977). Applying the rule to this casc, the prosecutor's dismissal of the charges ogainst Ms. Pylypenko due to evidence would be 0 0 lack of favori:lble termini:ltion consistent with her innocence. She would thus hove propcrly plei:lded il prill1i:l facic Cclse of ll1i:llicious prosecution able to withsti:lnd the defend'lnts' motion to dismiss. The court docs not need to clddress this question, however beci:lusc Ms. Pylypcnko's Count 1fT suffers from other deficiencies revealed by the defendants' specidl motions to dismiss pursu,lllt to '14 rvLR.5.A. § 556. Even if Count lfl survived the defc'ndants' Rule 'J 2(b)(6) m()tions to dismiss, the court dismisses the clCiims pursudnt to tlle defendants' anti-SLAPP motions as discllssed below. 4. Count IV: False lmprisonment After beimr chorged with reckless conduct, the st:lle issued a SUITlmons to lJ Ms. Pylypenko but mCiiled it to the wrong c1ddress. As,cl result, she foiled to appcar at her (llTCiignment and was subsequcnt] y ,1rrested and jailcd. (Whi tmon Aff. Exh. A Clt 13.) Ms. Pylypenko seeks to hold thc defendants liable for her illlprisonment because it would llot hClve occurrcd but for thcir allegedly fi:llse and baseless police reports. However, tl1ese 'lllegations on1 y show thilt the defendants invoked the legal process llgainst the plaintiff. As ,1 general rule, the defcndi:lnts must h,lVC t'l.kcn somc indepcndent action of their own before they can be said to have fCllscly imprisollcd thl' plaintiff. l-fOlll7l1ri, 2UOO rvfE 160, ~r 19, 759 A.2d at 212. "Even if [the defand,mts'] actions in resorting to police help \vcrc 13 without justificcltion, [they] cannot be liable to [Ms. Pylypenko] for false imprisonment." The defend<lIlts' motion to dismiss Count IV is grell1ted. In sum, the court grclllts the ddcndc11lts' motions to dismiss on Counts If clnd IV for intcntional infliction of emotionC11 distress and false imprisonment, and on [vrs. Pylypenko's invasion of privc1CY claims. The court denies the motions to dismiss Counts rand rff for defcunZltion ell1d mC1licious prosecution. II. The Defendants' Special Motions to Dismiss Pursuant to 14 M.R.S.A. § 556 Maine's Zlnti-SLAPP legislation W,lS created to provide cerl,lin tClrgetcd defend<1l1ts \\'ith expedited relief from punitive litigation. A SL/\rp suit, or Strategic Lawsuit Against Public Participeltion, "is litigation without merit filed to dissuade or punish the exercise of First Amendment rights of ddend'll1ts." Morse Bros., llle. u. We!Jster, 20m ME 70, ([I W, 772 A.2d 842, 846 (quoting lenfnyelle More/wl/sc, Illc. v. CfJrollicle Pu/J!'S Co., 44 Cal. I\.ptr. 2d 46, 4K (Cal. Ct. App. 19(5)). SLAPP plaintiffs do not intend to win their suits, but rather to punish Clctivists ,1nd whistleblo\Vers by imposing delay, distr,lction, and litigation expense. ld. While clzlssic SLAPP litlgC1tion was "directed elt individual citizens of modest m('<1I1s for spe'lking publicly against developrnent projects," the Clnti-SLAPP legislation protect~ alt1uch broader r,1I1ge of activity. ld. (quoting DI/mcmft Corp. v. HolJl/cs Prods. Corp., 427 Mass. 156, 161,691 N.E.2d 935, 940 (rVIClSS. 1998)). The statute defines the protected "right to peLition" to include: [A]ny written or orell stCltement m,lde bdore or submiLted to Cl legislative, executive or judicial body, or any other governml'lltCll proceeding; ,1111' written or ora] stutement mucie in connection with an issue under consideration or review by a legislative, executive or judicial body ... ; or <1111' other statement falling within constitutional protection of the right to petition government. 14 14 M.R.S.A. § 556 (2009); see Sclzelling v. Lilldell, 2008 -',lIE 59, err 11, 942 A.2d 1226, 1230. The statute operates by allowing defendants to file a "specicl! motion to dismiss" that the court will hear "with as liltle delay as possible." § 556; Schellillg, 20GS ME 59, (1[6, 942 A.2d at 1229. The defendant bmrs the initial burden of "showing through the pleadings Clnd affidavits that t]le claims against it ,1re 'based on' the petitioning clctivities alone and have no substantial basis other than or in addition to the petitioning activities." Oflmcm{t, 427 Mass. at 167-68, 691 N.E.2d at 943.' "Once the defendant denwnstriltes ... that the stLltue llpplies, "the burden falls on the plaintiff to demonstrate that the defend ll1l t's llctivity (1) was without 'reasonable fuctl1ill support,' (2) was vvithol1t em 'arguable basis in law,' and (3) resulted in 'actual injury' to the plaintiff." Schellillg, 2008 ME 59, 9[ 7, 942 A,2d at 1229. After this shift, the court views the evidence in the light most fuvorable to the moving defendant because the non-moving plaintiff bears the burden of proof. lVIol'se Bros., 1. [IIC., 2001 ME 70, <I[ 18, 772 A.2d at 849. Count f: Defmnation Defendclnt Dennett moves under section 5S() to dismiss Count f; I'v1s. Copp does not seek to do so in her special motion. As hL' did in his Rule 12(b)(6) motion, Mr. Bennett argues that any defamatory statellwnts he made ubout Ms. Pylypenko were col11lllul1icuted in his professional capacity as Ms. Copp's attorney in connection with ongoing litigCltion. As such, they constitute "statement[s] Illl1de in connection with an issue under considerCltion or review by Massachusetts's anti-SLAPP legislation is "nei1rJy identical to 14 tvtKS.f\. § 556" and the Supreme Judicial Court of Maine hus freely looked to I'vIassachusetts precedent for guidance in its interpretation. See Moores Bros., fnc" 2001 ME 70, 9I 15, 772 A.2d at 848 (citing and expldining D01lovan v. Gardner, 50 Mass. App. Ct. 595, 740 N.E.2d 639, 642 (Mass. App. Ct. 2000)). S 15 a ... judicial body" and section 5SI1 Clpplies. For support he notes that the complaint admits that he was representing Ms. Copp in ongoing "divorce, pClrental rights ,md rL'sponsibiJities, 'lnd other vclried and extensive Jitigdtion involving Scott Liberty" at the time in question. (Pl.'::; C01l1p1. 1r 7.) He also offers his mvn affidavi t in which he claims that he never made the alleged stCltements "to a third party outside of [his] legal representation of Darlene Copp in ongoing litigation rnatters ...." (Bennett Aff. ([[ 5.) Mr. Bennett hilS not met his burden to establish thilt the pl'lintiff's Count [ is based solely on protected petitioning ilctivity. Ms. Pylypenko continues to ilrgue (lS in her complaint thclt Mr. Bennett made the slanderous statements for personal re;-lsons unrelated to his representation of Ms. Copp. The dcfend'lnt has not provided ,lny evidence to refute this other thiln his own condusory statement. At this juncture the court docs not have any evidence of when, where, or why the al1eged slanderous statements vvere made. The record only reveclls that Mr. Bennett milY hilve !llcldc them to Cassandril Liberty, ilnd that they de,1! wi th mClteriaJ thClt milY have been relevant to some issue in litigiltion. "[T]hat a statement concerns a topic that has attrclcled governmental attention, in itself, does not give that statement the [petitioning] ch(1f(lCter conternplated by the statute." nl(' Codlc Co. v. Sc/i/ic/ltlll(/[lll, 448 Mass. 242, 254, 859 N.E.2d 858, 8611-117 (Mass. 20(7) (quoting Glol7(7/ NAPs, Illc. u. Verizoll New Ellg/nlln, IIIC., 63 MClss. App. Ct. 600,605 (2005)) (quotcltions omi tted). vVithout more information the court Cilnnot SCly wllether J'v1r. Bennett Illade the statements solely in his capacity as an attorney, ilS he concludes, or as part of an "attempt to take over SceM Liberty's former role in the Copp 16 household," as Ms. Pylypenko asserts. (P!.'s Camp!. err 15.) As Mr. Bennett has not shown thut there is not a substantiul non-petitioning related b<lsis for Ms. Pylypenko's claim, he has <llso failed to show th<lt 14 i'v'f.R.5.A. § 556 <lpplies to the plainti ff's Count 1. His special motion is thus be denied as to Ms. Pyl ypenko' s defamation c1<lim. 2. Count f1I: tvralicious Prosecution Mr. Bennett and Ms. Copp both argue that Count rII for mcdicious prosecution should be disnlissed pursuunt to their special motions brought under the <lnti-SLAPP stcltute. The defendants h<lve successfully shown that the mulicious prosecution claim is based solely on their petitioning activities. The claim (lfiscs entilT~ly out of two incidents in which the defendants allegedly told the police that Ms. Pylypenko had hel ped C<lssandra Liberty run a\,vay from home, <lIld on one occasion had dragged Ms. Copp with her car. Reporting an alleged crime to the police is clearly the sort of petition to a government body that section 556 is designed to protect, t11ld there is no other basis for the claim. Sec Belloit v. FredericA-SOli, 454 r-.1ass. 148, 908 N.r.2d 714 (Mass. 2009) (reporting rape to police is protected petitioning activity); McLnruoll II, [okisell, 431 Mass. 343,344-45,348-49, 727 N.E.2d 813, 815, 818 (Mass. 2(00) (mother's Gl11 to police to report perceived violation of a restraining order and subsequent efforts to extend order were petitioning activity protected by anti-SLAPP Jegisl<ltion). The burden thus shifts to Ms. Pylypenko to show that the defendants' actions "(1) [were) without 'reasonable factual support,' (2) [were) without an 'arguable basis in law,' and (3) resulted in 'actual injury' to the plaintiff." Schellillg, 2008 ME 59, (J[ 7, 942 A.2d at 1229. rvlust of the evidence Ms. Pylypenko submitted to support her case deals with prior legal battles between the 17 defendants and Scott or Cassandra Liberty, and is not relevant here. The affidavits that <Ire relevant focus on whether or not t-As. Pylypenko Clctu<llly engaged in the clccused conduct. for example, Cclssandra Liberty testi fies in her affid(wit that t-ds. Pylypenko was not driving the car that allegedly dragged r,,1s. Copp on November 30,2008. (Pl.'s Exh. 12, Cassc1l1dra Liberty Aff. <JI 4.) This evidence <lnd the argument Ms. Pylypenko construcls from it miss the point. The question is not whether Ms. Pylypenko '1CtuaJly engClged in crimil1C11 conduct, but whether the defendants had ,,1 reasonable b"sis to provide her name to the police. \Vhen the plClintiff's evidence is examined for its relevance to the current question, it reveals that the defendants likely did have a rei:lsonable basis to suspect Ms. Pylypenko 011 the night of November 30, 200S. In her C1ffidcwit, CassClndr<l Liberty states that the woman who picked her up that evening was driving a silver Volvo <1nd WCl') young, blond, and Russian. (Pl.'s Exh.12, Cassandra Liberty Aff. (ji 4.) Through the affidavit of Thomas 1 faIldl, Ms. Pylypenko has submitted the police records from that evening. (Pl.'s Exh. 6.) These show that Ms. Pylypenko was 27 years old at the time of the incident and has blond hair with blue eyes. (PI.'s Exh. 6, Hallett Aff. Exh. 4.) Given that the incident occurred quickly and after d'lrk, tl1L~ defendants would have some factual b,1sis to believe that Ms. Pylypenko WClS the driver, even if she did own ,,1 different sort of car. Regarding the incident on October 30,2008, rvls. Pylypenko h,ls only offered her own clffidavit denying that she W<lS present at Ms. Copp's household. IVis. Copp h<ls countered with an affidClvit claiming the opposite. DrClwing ell! favorClble inferences in the defendants' fcwOf, this "shc-said-shc-said" argument falls short of the affirmative showing section 356 r('quires Ms. Pylypenko to IS l1lClKe. Sec AiJoorcs Bros., [l1C., 2001 t\,/rE 70, ~l9I 18,20, 772 A.2d at 85D. Since Ms. Pylypcnko has flli led to meet her burden, both defendants' special motions to dismiss 11IT~ granted as to Count III, rnalicious prosecution. BeGluse the evidence lvle;. Pylypenko offered actually supported Ms. Copp's argulllent thc1t she held reasonable grounds to report the plllintiff to the police, the court grants Ivls. Copp's request for attorney's fees pursuant to 14 IVLR.S. § 556, for fees incurred in relation to the special motion. The only remaining claim is Count 1, for defamation, agdinst both defendants. The entry is: The defend,lllts' Rule 12(b)(6) motions to dismiss arc granted on Counts II and IV, and Oil the plaintiffs claims fur invasion of privdcy. DdendelntJeffrey Bennett's special cl.nti-SLAPP rnotion to dismiss pursuant to 14 M.RS.l\.. § 556 is denied on Count I. Both defendants' special motions Count III. DATE: J¥;o/l 19 OLENA PYLYPENKO VS JEFFREY BENNETT ET AL UTN:AOCSsr -2009-0141509 CASE #:PORSC-CV-2009-00690 01 000000314 2 ;;,;;H;;,;;A;=:;L:::;;;L~ET~Tc;:;..L..'_T::..;H;.;;.O;:.:MA=S:-....;;F~ 75 MARKET STREET SUITE 502 PO BOX 7508 PORTLAND ME 04112 F OLENA PYLYPENKO PL 02 0000002062 ~T;;,;;HA=LE~R:..:.L..,...;J;;..;E;:.:F:;,.;F:;..:R;.:.:E;;..;Y~ . 100 MIDDLE ST PO BOX 9729 PORTLAND ME 04104-5029 F JEFFREY BENNETT DEF 03 00000 000 3 5 ~W.;;;H~I~TMA~N'-'-L-.'_J;..O;:.:H;;.;N~ 465 CONGRESS STREET PO BOX 9545 PORTLAND ME 04112-9545 F DARLENE COPP DEF _ RTND 12/31/2009 _ RTND 01/25/2010 _ RTND 01125/2010

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