de Lench v. Archie

• Decision Date: 08 August 2019
• Docket Number: Civil No. 18-12549-LTS
• Citation: 406 F.Supp.3d 154
• Parties: Brooke DE LENCH, Plaintiff, v. Kimberly ARCHIE, Defendant.
• Court: U.S. District Court — District of Massachusetts

406 F.Supp.3d 154

Brooke DE LENCH, Plaintiff,

v.Kimberly ARCHIE, Defendant.

Civil No. 18-12549-LTS

United States District Court, D. Massachusetts.

Filed August 8, 2019

Lindsey M. Straus, Law Office of Lindsey M. Straus, Brewster, MA, for Plaintiff.

Elizabeth S. Zuckerman, Francis D. Dibble, Jr., Mary Ellen MacDonald, Bulkley Richardson & Gelinas, Springfield, MA, for Defendant.

ORDER ON MOTION TO DISMISS

SOROKIN, United States District Judge Plaintiff Brooke de Lench's claims in this case, according to her complaint, arise out of a Twitter war waged against her by defendant Kimberly Archie.¹ Both plaintiff and defendant are active in public discourse on chronic traumatic encephalopathy ("CTE"), a neurological disease linked to head impacts, and were acquainted before the events giving rise to this case. Doc. No. 23 ¶¶ 13, 15, 31.

On July 11, 2014, de Lench sent an email to a mutual friend of both women in which she wrote "that she was ‘troubled by Kimberly and her attempts to take simple tweets off topic and into her own direction, but as many privately pointed out to me last night, she is brain damaged as are many other confused tweeters.’ " Doc. No. 23 ¶ 32. The mutual friend replied that she could not "believe someone said such a mean spirited ... thing about Kimberly," who is open about the traumatic brain injury she suffered as a result of a childhood car accident. Id. ¶¶ 16, 33. After another back-and-forth, de Lench wrote to the mutual friend, "You are good to be her friend. Sorry to have passed on our conversation. In our world of research and writing we tend to talk facts." Id. ¶ 36. The mutual friend then shared the entire exchange with Archie. Id. ¶ 37.

On September 1, 2014, Archie's son died in a motorcycle accident. Id. ¶ 38. Archie has alleged in another pending lawsuit that an autopsy determined that her son was "suffering at the time of his death from so-called ‘Stage 1’ CTE." Id. ¶ 39. On September 4, 2014, De Lench emailed Archie to "express[ ] condolences on the loss of her son." Id. ¶¶ 38, 44. Archie responded in an email "in which she viewed Ms. de Lench's email as intended to hurt and exploit her as a grieving mother." Id. ¶ 45. In reply, De Lench wrote "that her words of condolence were sincere, and that she meant no harm to Ms. Archie." Id. ¶ 46. Thereafter, beginning in November 2015 and continuing through January 2019, Archie made a series of postings on social media that de Lench alleges were defamatory to her.

De Lench's sprawling amended complaint, Doc. No. 23, brings fourteen counts of libel based on those postings. Archie now moves to dismiss de Lench's amended complaint, arguing that it fails to state a claim upon which relief can be granted and that Massachusetts' strategic litigation against public participation ("anti-SLAPP") statute, Mass. Gen. L. c. 231, § 59H, mandates early dismissal of de Lench's claims. Doc. No. 25.

As an initial matter, the Court acknowledges that "a federal court sitting in diversity jurisdiction applies the state's substantive law and the federal procedural rules." Godin v. Schencks, 629 F.3d 79, 85 (1st Cir. 2010). In Godin, the First Circuit concluded that Maine's anti-SLAPP statute is substantive and therefore applies in federal court. See id. at 88. Judge Casper thereafter held that Massachusetts's anti-SLAPP statute also applies in federal court because it is "in all relevant respects the same as the Maine anti-SLAPP statute." Steinmetz v. Coyle & Caron, Inc., Civ. No. 15-13594-DJC, 2016 WL 4074135, at *3 (D. Mass. July 29, 2016). De Lench's opposition to the motion to dismiss does not dispute the application of Massachusetts's anti-SLAPP statute. See generally Doc. No. 30. When a defendant advances motions to dismiss based both on the anti-SLAPP statute and on other grounds, courts "first should decide ... whether to grant" the anti-SLAPP motion before deciding other grounds for dismissal. Kobrin v. Gastfriend, 443 Mass. 327, 821 N.E.2d 60, 70 (2005). Because the Court agrees with Judge Casper's thoughtful opinion, it first proceeds to analyze the complaint under the anti-SLAPP statute.

The anti-SLAPP statute, which is intended to protect the constitutional right to petition from the burden of meritless lawsuits, provides for a special motion to dismiss so that courts can "dispose expeditiously of meritless lawsuits that may chill petitioning activity." See Town of Hanover v. New England Reg'l Council of Carpenters, 467 Mass. 587, 6 N.E.3d 522, 528 (2014). The review of such a motion relies on a burden-shifting test: Once the defendant "make[s] a threshold showing through the pleadings and affidavits that the claims against it are based on the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities," Duracraft Corp. v. Holmes Prod. Corp., 427 Mass. 156, 691 N.E.2d 935, 943 (1998), "the burden shifts to [plaintiff] to demonstrate by a preponderance of the evidence that [defendant's] petitioning activity was devoid of any reasonable factual support or any arguable basis in law." Fabre v. Walton, 436 Mass. 517, 766 N.E.2d 474, 480 (2002).

The anti-SLAPP statute defines a party's exercise of its right to petition broadly to include: "[1] any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; [2] any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; [3] any statement reasonably likely to encourage consideration or review of an issue by a legislative executive, or judicial body or any other governmental proceeding; [4] any statement reasonably likely to enlist public participation in an effort to effect such consideration; or [5] any other statement falling within constitutional protection of the right to petition government."

Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141, 75 N.E.3d 21, 29 (2017) (quoting Mass. Gen. Laws ch. 231, § 59H ). With the anti-SLAPP statute, "the Legislature intended to enact very broad protection for petitioning activities." Duracraft, 691 N.E.2d at 940.

None of Archie's statements at issue in this case "are based on ... petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities." Duracraft, 691 N.E.2d at 943. All of the statements are personal in nature, directly addressing de Lench's supposed conduct. See Doc. No. 27-9 (collecting the statements). While Archie's public interactions on social media may often address issues of public concern regarding youth sports safety and CTE, none of the statements now at issue contain any material that has such general relevance. Indeed, many of the statements do not even refer to CTE or youth sports safety directly, referring only to de Lench. To read the statements as petitioning activity on those issues is therefore essentially to interpret any reference to de Lench in any context whatsoever as petitioning activity on youth sports safety.

Given that the statements at issue were made on social media, they clearly were not "made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding," Mass. Gen. Laws ch. 231, § 59H, and Archie advances no suggestion that any were made in connection with such a proceeding.

No statement at issue is "reasonably likely to encourage consideration or review of an issue by a legislative executive, or judicial body or any other governmental proceeding" or "to enlist public participation in an effort to effect such consideration." Id. All of the challenged statements lack the requisite "plausible nexus between the statement and [a] governmental proceeding." Blanchard, 75 N.E.3d at 30. Accordingly, none of de Lench's claims are dismissed under the anti-SLAPP statute.

Archie advances three alternative grounds for dismissal of de Lench's libel claims. She first argues that that the supposedly libelous statements at issue in Counts III, IV, V, VI, VIII, IX, X, XI, and XII² are protected opinion that is not capable of being defamatory. Doc. No. 26 at 4–9. The Supreme Court has "held that only statements that present or imply the existence of facts that can be proven true or false are actionable under state defamation law." Gray v. St. Martin's Press, Inc., 221 F.3d 243, 248 (1st Cir. 2000). "But to say ‘I think’ is not enough to turn fact into opinion, where what is supposedly ‘thought’ is, or implies, a proposition of fact." Id. (citations and internal quotations omitted). Rather, statements are protected when they "involve[ ] expressions of personal judgment, especially as the judgments become more vague and subjective in character." Id.

The statements at issue in Counts III, IV, V, VI, VIII, IX, X, XI, and XII all present or imply essentially the same statement of fact: that de Lench used multiple Twitter accounts, in violation of Twitter's policies and despite Twitter's attempts to stop this behavior, to hide her persistent harassment of Archie. See Doc. Nos. 23-42, 23-43, 23-45, 23-47, 23-53, 23-54, 23-56, 23-63. Whether de Lench in fact used multiple Twitter accounts is plainly capable of being true or false, as is whether Twitter took action to block those accounts or hinder de Lench's use of the social media platform through other means. These specific facts, which together suggest that de Lench used Twitter accounts that concealed her real name to communicate a message about Archie and then continued to do so despite Twitter's attempts to block her, "could damage [de Lench's] reputation in the community" and are therefore capable of being defamatory. Ravnikar v. Bogojavlensky, 438 Mass. 627, 782 N.E.2d 508, 510 (2003). The defamation does not depend on Archie's characterization of the message de Lench supposedly disseminated as trolling or harassment. Rather, the means that the...