“The court may supplement the facts contained in the pleadings by considering documents fairly incorporated therein and facts susceptible to judicial notice.”
How later courts described this case
- “The court may supplement the facts contained in the pleadings by considering documents fairly incorporated therein and facts susceptible to judicial notice.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 19-11131-RGS
MARK G. DOWGIEWICZ
v.
THE TOWN OF WEBSTER, et al.
MEMORANDUM AND ORDER
ON DEFENDANTS’ SPECIAL MOTION TO DISMISS
October 15, 2019
STEARNS, D.J.
In this memorandum, the court will address only the issue of
defendants’ special motion to dismiss brought under Mass. Gen. Laws ch.
231, § 59H, more often known as the “anti-SLAPP statute.” Because the
statute is intended to protect a non-moving party’s right of petition and
speech under the First Amendment from any excessive burden of harassing
and meritless litigation, it intends to provide an early, inexpensive avenue to
a dismissal. For that reason, it would be only in the rarest of cases that a
court would authorize discovery before the motion to dismiss is decided. See
Blanchard v. Steward Carney Hosp., Inc., 483 Mass. 200, 212 (2019)
(Blanchard II). This is not one of those cases.
To prevail on a special motion to dismiss, the moving party must make
a threshold showing by a preponderance of the evidence that the claims
against it are based on its petitioning activities alone and have no reasonable
basis in fact or in law other than or in addition to the petitioning activities
themselves. Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-
168 (1998). The burden then shifts to the nonmoving party to establish by
a preponderance of the evidence that the special movant lacked any
reasonable factual support or arguable basis in law for its petitioning
activity,1 or that its claim was not brought “primarily to chill the special
movant’s . . . exercise of its right to petition.”2 Blanchard v. Steward Carney
Hosp., Inc., 477 Mass. 141, 143-144 (2017) (Blanchard I) (“broadening”
Duracraft) (emphasis added).
On its face, this case falls into a depressingly familiar category of a
small-town intra-governmental political feud, here involving a former
member of the Town of Webster’s Board of Selectmen, Mark Dowgiewicz
(the plaintiff), and defendants – the Town itself, Timothy Bent, the former
Webster Chief of Police, and Pamela Leduc. the former Webster Town
1 “Proving that the moving party’s petitioning activity was, in essence,
a sham presents a ‘high bar.’” Blachard (II), 483 Mass. at 204 (2019).
2 In this regard, the court should consider whether the case fits the
“classic” mode of a lawsuit brought against citizens of modest means
speaking publicly against a development project. Id.
2
Administrator (the moving parties). The pleadings are riddled with
allegations of discrimination, nepotism, racism, retaliation, libel, slander,
financial impropriety, and intimidation. As best as can be determined from
the pleadings, the quarrel began over the refusal of the defendants to hire a
relative of the plaintiff as a Town police officer. Broadly read, the
Complaint alleges that when plaintiff objected to what he (in his role as a
Selectman) perceived to be discriminatory hiring practices on the part of the
Town in passing over his soon-to-be son-in-law (alleged to be a “minority”),
the defendants embarked on a campaign of harassment and retaliation
against him. The Complaint alleges violations of federal Title VII, 42 U.S.C.
§ 2000 et seq, the federal Civil Rights Act, 42 U.S.C. § 1983, the
Massachusetts Anti-Discrimination in Employment Act, Mass. Gen. Laws ch.
151B, and the Massachusetts Whistleblowers Statute, Mass. Gen. Laws ch.
149, §185, broken into thirteen separate counts asserted against the
defendants collectively and individually.
The gist of the defendants’ anti-SLAPP argument is the claim that
plaintiff’s lawsuit is based “solely” on and with the primary motive of chilling
the petitioning activity of Chief Bent and Administrator Leduc, namely
statements that they made in connection with complaints they filed against
3
Dowgiewicz with the State Ethics and Civil Service Commissions.
Defendants recognize that the Town of Webster, as a municipality, is not a
proper anti-SLAPP moving party. “Because the constitutional right is
understood as the right of citizens to seek redress from the government for
grievances, . . . the government cannot ‘petition’ itself within the meaning of
G.L. c. 231, § 59H.” Moriarty v. Mayor of Holyoke, 71 Mass. App. Ct. 441,
448 (2008) (emphasis in original).3 But as defendants also acknowledge,
Bent and Leduc are proper parties only to the extent that their “petitioning”
was undertaken to redress a personal grievance and not done in their official
capacities as agents of the Town. Id. at 447. The defendants’ attempt to
squeeze into this exception by way of the explanation that “their affidavits
and letters” submitted in connection with the ethics and civil service
complaints demonstrate that they acted “out of concern for their own mental,
physical, and financial wellbeing, as well as out of concern for the
appropriate conduct of Town affairs for the sake of its citizens,” Defs.’ Mot.
at 19, is a leaky bucket, particularly where, as here, the lawsuit was filed long
3 While the Town of Webster (2017 pop. 17,020) may not be the
“massive entity with vast resources,” described by the plaintiff, see Pl.’s
Opp’n at 14, the asymmetrical balance of power between the contending
parties suggests the reverse of the classic “mode” of lawsuit that the Supreme
Judicial Court had in mind in Blanchard II.
4
after the State Ethics Commission proceedings had concluded in
Dowgiewicz’s favor. See Blanchard II, 483 Mass. at 206.
ORDER
For the foregoing reason, the special motion to dismiss is DENIED.4
The parties will advise the court no later than October 29, 2019, as to those
documents the authenticity of which are not disputed and are sufficiently
central to the plaintiff’s claims to be appropriately considered by the court
on a Rule 12(c) motion for judgment on the pleadings. See Curran v.
Cousins, 509 F.3d 36, 44 (1st Cir. 2007) (“The court may supplement the
facts contained in the pleadings by considering documents fairly
incorporated therein and facts susceptible to judicial notice.”), quoting R.G.
Fin. Corp. v. Vergara-Nuñez, 446 F.3d 178, 182 (1st Cir. 2006).
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE
4 To be clear, in denying the special motion to dismiss, I am not
offering any judgment as to the merits of the issues raised under Fed. R. Civ.
P. 12, including those involving the statutes of limitation, waiver, and
privilege.
5