Weinstein v. Old Orchard Beach Family Dentistry, LLC

CourtSupreme Judicial Court of Maine (US)
Citation2022 ME 16
Decision Date08 March 2022
Docket NumberYor-20-325

2022 ME 16



No. Yor-20-325

Supreme Court of Maine

March 8, 2022

Argued: November 4, 2021

Neal L. Weinstein (orally), appellant pro se

Janna L. Gau, Esq., and Alfred J. Falzone III, Esq. (orally), Eaton Peabody, Bangor and Portland, for appellees Old Orchard Beach Family Dentistry, LLC, and Marina Narowetz




[¶ 1] Neal L. Weinstein appeals from a judgment of the Superior Court (York County, Douglas, J.) dismissing Weinstein's seven-count complaint against Old Orchard Beach Family Dentistry, LLC, and Marina Narowetz. Weinstein challenges the court's dismissal of portions of four of those counts based on the application of 14 M.R.S. § 556 (2021) and argues that the court erred by dismissing the remainder of his complaint pursuant to M.R. Civ. P. 12(b)(6). We affirm the judgment.


[¶ 2] In 2020, Weinstein, an attorney, filed a complaint against Marina Narowetz, DDS, and her dental practice, Old Orchard Beach Family Dentistry,


LLC (collectively, Narowetz). Weinstein alleged that, in response to Narowetz's handling of Weinstein's request for the dental records of his client, he had filed a complaint against Narowetz with the Board of Dental Practice, [1] prompting Narowetz to file complaints against him with the Maine Board of Overseers of the Bar, the Massachusetts Board of Bar Overseers, and the United States Postal Service. Based on statements that Narowetz made in her written answer to and testimony before the Board of Dental Practice and in her complaints to the Boards of Overseers and the Postal Service, Weinstein alleged seven counts: (1) libel, (2) slander, (3) defamation, (4) intentional infliction of emotional distress, (5) negligent infliction of emotional distress, (6) negligence, and (7) punitive damages.

[¶ 3] Narowetz moved to dismiss all counts of the complaint on two alternative grounds-first, that the counts were subject to dismissal pursuant to 14 M.R.S. § 556, Maine's statute prohibiting "Strategic Lawsuits Against Public Participation" (the anti-SLAPP statute), Thurlow v. Nelson, 2021 ME 58, ¶ 8, 263 A.3d 494, and, alternatively, that the counts failed to state claims,


see M.R. Civ. P. 12(b)(6). Applying the anti-SLAPP statute, the court dismissed those portions of Counts 1, 3, 4, and 5 that were based on Narowetz's statements to the Boards of Overseers and the Postal Service. The court dismissed Count 2 and those portions of Counts 1, 3, 4, and 5 that were based on Narowetz's statements to the Dental Board on grounds of privilege. Finally, the court dismissed Count 6 based on Weinstein's failure to allege a duty as a matter of law, and it dismissed Count 7 for the absence of any remaining underlying tort. Weinstein appeals.


[¶ 4] The anti-SLAPP statute, 14 M.R.S. § 556, is intended to provide for the swift and early dismissal of frivolous lawsuits that are meant to discourage the defendant's exercise of his or her First Amendment right to petition. Hamilton v. Drummond Woodsum, 2020 ME 8, ¶¶ 15, 17, 223A.3d 904; Desjardins v. Reynolds, 2017 ME 99, ¶ 6, 162 A.3d 228. To that end, the 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." 14 M.R.S. § 556.


[¶ 5] Although we have recently refashioned the multi-step procedure that applies to the consideration and disposition of such special motions to dismiss, Thurlow, 2021 ME 58, ¶ 19, 263 A.3d 494, the initial steps-which were applied to the present matter-remain unchanged. First, "the defendant must file a special motion to dismiss and establish, based on the pleadings and affidavits, that the claims against him are based on his exercise of the right to petition pursuant to the federal or state constitutions." Gaudette v. Davis [Gaudette I), 2017 ME 86, ¶ 16, 160 A.3d 1190 (alterations and quotation marks omitted); see Thurlow, 2021 ME 58, ¶ 22, 263 A.3d 494. If the defendant meets the burden of establishing that the claims are based on petitioning activity, the burden shifts to the plaintiff to establish, "through the pleadings and affidavits, prima facie evidence that the defendant's petitioning activity was devoid of any reasonable factual support or any arguable basis in law and that the defendant's petitioning activity caused actual injury to the plaintiff." Gaudette I, 2017 ME 86, ¶ 17, 160A.3d 1190 (quotation marks omitted); see 14 M.R.S. § 556; Thurlow, 2021 ME 58, ¶¶ 25-26, 263 A.3d 494. The plaintiff's failure to meet either portion of this burden requires that the court grant the special motion to dismiss with no further procedure. Gaudette I, 2017 ME 86, ¶ 17, 160 A.3d 1190.


[¶ 6] Weinstein argues that the court erred by dismissing on anti-SLAPP grounds those portions of Counts 1, 3, 4, and 5 that relate to Narowetz's statements to the Maine and Massachusetts Boards of Overseers and to the Postal Service based on its conclusion that Weinstein failed to meet his prima facie burden of establishing actual injury.[2] We review de novo the trial court's granting in part of Narowetz's special motion to dismiss as to these four counts. See Gaudette v. Mainely Media, LLC [Gaudette II), 2017 ME 87, ¶ 10, 160 A.3d 539.

[¶ 7] Although section 556 does not define "actual injury," we have interpreted the term to mean "a reasonably certain monetary valuation of the injury suffered by the plaintiff." Desjardins, 2017 ME 99, ¶ 14, 162 A.3d 228 (quotation marks omitted); see Maietta Constr., Inc. v. Wainwright, 2004 ME 53, ¶ 10, 847 A.2d 1169. "Actual injury could include . . . quantifiable losses of money or other resources or identifiable special damages." Nader v. Me. Democratic Party [Nader I), 2012 ME 57, ¶ 38, 41 A.3d 551. We do not require the plaintiff to provide an "actuarial analysis" of such damages,


Schelling v. Lindell, 2008 ME 59, ¶ 18, 942 A.2d 1226; damages may instead be determined based on "the exercise of judgment applied to facts in evidence" as long as those facts allow a calculation based on "reasonable, as distinguished from mathematical, certainty by the exercise of sound judgment." Dairy Farm Leasing Co. v. Hartley, 395 A.2d 1135, 1140-41 (Me. 1978) (quotation marks omitted) (stating that damages "must not be left to mere guess or conjecture" (quotation marks omitted)).

[¶ 8] The existence of actual injury may be considered in this analysis only to the extent that the asserted injury was both alleged in the complaint and established on a prima facie basis in opposition to the special motion to dismiss. Desjardins, 2017 ME 99, ¶ 19, 162 A.3d 228 ("[B]oth parties must be limited in their anti-SLAPP filings to the universe of facts as actually alleged in the plaintiff's complaint"). In Desjardins, for example, we affirmed the trial court's conclusion that the plaintiff failed to establish actual injury in the form of an attorney's retainer fee when the plaintiff did not seek that fee as a portion of his damages until filing the opposition to the special motion to dismiss. Id. ¶¶ 15, 19, 21. In Nader v. Maine Democratic Party [Nader II), we concluded that the plaintiff had not met his prima facie burden when he referenced facts in his complaint but provided no evidence of those facts, either in documents


attached to the complaint or in opposition to the defendant's special motion to dismiss. 2013 ME 51, ¶¶ 7, 20, 66 A.3d 571; see Desjardins, 2017 ME 99, ¶ 19, 162 A.3d 228.

[¶ 9] The corresponding requirements for both the complaint and the opposition allow the plaintiff to meet his prima facie burden while also preventing him from "alleging a new form of harm for the first time solely in response to the special motion to dismiss," thereby "thwart[ing] the purpose of the anti-SLAPP statute by expanding the scope of the litigation that [the defendant] must defend against." Desjardins, 2017 ME 99, ¶ 19, 162 A.3d 228. In this way, among others, complaints challenged by an anti-SLAPP special motion to dismiss differ from other civil complaints because a complaint's notice pleading may be insufficient in the face of a special motion to dismiss. See id. 17. The forgiving nature of notice pleading requires a plaintiff to provide only "fair notice of the cause of action by providing a short and plain statement of the claim showing that the pleader is entitled to relief." Id. (quotation marks omitted); see M.R. Civ. P. 8(a)(1).

[¶ 10] As we have noted, however, "[t]he special motion to dismiss procedure in anti-SLAPP matters is ... a more precise mechanism" for which notice pleading is insufficient. Desjardins, 2017 ME 99, ¶ 17, 162 A.3d 228;


see Maietta Constr., Inc., 2004 ME 53, ¶ 10, 847 A.2d 1169 (requiring "affirmative evidence of an injury"). This precision is mandated by the language of the anti-SLAPP statute, which requires that the opponent of a special motion to dismiss show "that the moving party's acts caused actual injury to [him]." 14 M.R.S. § 556. We recognize that a plaintiff may not always foresee that his complaint will be subject to such a special motion to dismiss, but a plaintiff who otherwise follows the edicts of notice pleading and is later required to defend against a special motion to dismiss may preserve his claim through the anti-SLAPP process by seeking to amend his complaint to allege actual injury with greater specificity, and such motions to amend should be liberally granted. See Desjardins, 2017 ME 99, 19 & n.4, 162 A.3d 228. The anti-SLAPP statute also permits a plaintiff to bolster...

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