Kaiser v. Kirchick

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

GRANT KAISER and

JOHN FURNISH,

Plaintiffs,

CIVIL ACTION NO.

21-10590-MBB

v.

WILLIAM DEAN KIRCHICK, CAROL

RUDNICK KIRCHICK, Individually

and as Trustee of the 41 SEAVIEW

TERRACE REAL ESTATE TRUST,

and RONALD STEVEN RUDNICK,

Defendants.

MEMORANDUM AND ORDER RE:

DEFENDANT RONALD STEVEN RUDNICK’S SPECIAL MOTION TO DISMISS

PURSUANT TO G.L. c. 231, § 59H AND PARTIAL MOTION TO DISMISS

PURSUANT TO FED. R. CIV. P. 12(c) (DOCKET ENTRY # 25);

DEFENDANTS WILLIAM KIRCHICK AND CAROL RUDNICK KIRCHICK’S SPECIAL

MOTION TO DISMISS PURSUANT TO G.L. c. 231, § 59H AND PARTIAL

MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) (DOCKET

ENTRY # 28)

December 16, 2021

BOWLER, U.S.M.J.

Pending before this court are two motions: (1) a special

motion to dismiss and partial motion to dismiss filed by

defendant Ronald Steven Rudnick (“Rudnick”) (Docket Entry # 25);

and (2) a special motion to dismiss and partial motion to

dismiss filed by defendants William Dean Kirchick and Carol

Rudnick Kirchick (together, “the Kirchicks”) (Docket Entry #

28). Plaintiffs Grant Kaiser (“Kaiser”) and John Furnish

(“Furnish”) (together, “plaintiffs”) oppose the motions.

(Docket Entry ## 40, 41). After conducting a hearing on

September 10, 2021, this court took the motions under

advisement. (Docket Entry # 52).

PROCEDURAL BACKGROUND

Plaintiffs initiated this action on April 9, 2021, bringing

five counts against Rudnick and the Kirchicks (together,

“defendants”): violation of Massachusetts General Laws (sections

11H, 11I, and 11J of chapter 12) and the Massachusetts

Declaration of Rights (Articles I, X, and XII) (Count I);

defamation (Count II); intentional infliction of emotional

distress (“IIED”) (Count III); conspiracy (Count IV); and abuse

of process (Count V). (Docket Entry # 1).

More specifically, the complaint alleges that defendants:

subjected plaintiffs to a nearly three-year “pattern of threats,

intimidation, harassment, coercion, and defamation” (Count I)

(Docket Entry # 1, p. 25, ¶ 82); “knowingly and intentionally,

and falsely, published to a substantial portion of the Chatham

community that” plaintiffs “engaged in bad behavior sufficient

to warrant the issuance of no trespass orders” (Count II)

(Docket Entry # 1, p. 25, ¶ 85); “intended to” and “did cause

plaintiffs emotional distress” and engaged in extreme and

outrageous conduct (Count III) (Docket Entry # 1, p. 26, ¶ 87);

“joined together to act in concert and by agreement over the

course of several years for the unlawful purpose of threatening,

intimidating, harassing and coercing [p]laintiffs . . . to

remove trees from [p]laintiffs’ own property” (Count IV) (Docket

Entry # 1, p. 26, ¶ 90); and “have filed various actions without

basis in fact or law . . . .” (Count V) (Docket Entry # 1, p.

27, ¶ 93).

Rudnick filed a special motion to dismiss counts II and V

pursuant to Massachusetts General Laws, chapter 231, section 59H

(the “anti-SLAPP statute”), and a partial motion to dismiss

counts II and V pursuant to Fed. R. Civ. P. 12(c) (“Rule

12(c)”). (Docket Entry # 25). The Kirchicks filed a special

motion to dismiss counts II and V pursuant to the anti-SLAPP

statute and a partial motion to dismiss counts II and III

pursuant to Fed. R. Civ. P. 12(b)(6) (“Rule 12(b)(6)”). (Docket

Entry # 28).

FACTUAL BACKGROUND1

Plaintiffs have seasonally resided at 39 Seaview Terrace in

Chatham, Massachusetts since July 2008. (Docket Entry # 1, pp.

4, 6, ¶¶ 8, 18). The Kirchicks have seasonally occupied the

adjacent home at 41 Seaview Terrace since 1999, when 41 Seaview

Terrace Real Estate Trust bought the property. (Docket Entry #

1, pp. 4–6, ¶¶ 12, 15, 19). The two homes are directly across

1 The factual background from the complaint applies to both

motions to dismiss (Docket Entry ## 25, 28). Additional facts

from the affidavits filed with respect to each motion are set

out in the Discussion section.

from each other. (Docket Entry # 1, p. 6, ¶ 20). Rudnick, Mrs.

Kirchick’s brother, operates Lighthouse Realty and “is a

licensed real estate broker and a licensed contractor who owns

and/or manages properties in Chatham and throughout Cape Cod.”

(Docket Entry # 1, p. 5, ¶ 14).

Between 2008 and 2009, the Kirchicks constructed a new home

on their property. (Docket Entry # 1, p. 6, ¶ 19). Plaintiffs

also made modifications to their property, including planting

trees along the 39 and 41 Seaview Terrace fence line. (Docket

Entry # 1, p. 6, ¶ 21). On May 4, 2011, plaintiffs emailed the

Kirchicks their landscaping plans, which included moving a pear

tree and removing a tree and bushes. (Docket Entry # 1-1, p.

2). In his reply two days later, the Kirchicks communicated

that they “were fine” with plaintiffs’ proposal. (Docket Entry

# 1-1, p. 2).

During the summer of 2017, however, the Kirchicks grew

concerned about the location of two mature pear trees on

plaintiffs’ property. (Docket Entry # 1, p. 7, ¶¶ 23–24)

(Docket Entry # 1-2, p. 2). In an email to Rudnick on July 27,

2017, Mrs. Kirchick expressed her concern that the height of the

two trees on plaintiffs’ property blocked “the ocean view from

the upstairs back bedroom.” (Docket Entry # 1-2, p. 2). During

a meeting with Kaiser on August 12, 2017, the Kirchicks

requested that plaintiffs remove the two pear trees and showed

Kaiser the obstructed view. (Docket Entry # 1, p. 6, ¶ 21).

After this meeting, plaintiffs contacted “landscape

architects, landscape maintenance companies, and arborists about

what options might be available” for relocating the two pear

trees. (Docket Entry # 1, p. 7, ¶ 26). Throughout August 2017,

Rudnick instructed his Lighthouse Realty workers to park their

vehicles “at the entrance of the private way leading to

[p]laintiffs’ home, which is the sole means of accessing

[p]laintiffs’ home.” (Docket Entry # 1, p. 8, ¶ 30). Mrs.

Kirchick emailed Rudnick to thank him for doing so. (Docket

Entry # 1, p. 9, ¶ 31) (Docket Entry # 1-3, p. 2). Further

communication between defendants included discussions as to

whether to contact the Cape Cod Chronicle to write a story about

plaintiffs or to “burn” plaintiffs’ trees. (Docket Entry # 1,

p. 9, ¶¶ 33-34) (Docket Entry # 1-5, p. 2).

In an email dated August 22, 2017, Kaiser informed Mr.

Kirchick that plaintiffs were “consulting with [their]

landscaping company to determine whether the tree can be

transplanted successfully somewhere else on [their] property.”

(Docket Entry # 1-5, p. 2). Defendants, however, wanted both

pear trees removed. (Docket Entry # 1-5, p. 2). On September

10, 2017, Kaiser emailed the Kirchicks to schedule a time to

meet and discuss their request. (Docket Entry # 1-9, p. 3).

On September 13, 2017, Kaiser emailed Mr. Kirchick and

noted that “[w]hile the Lighthouse Realty truck has been parked

at the entrance to [plaintiffs’] property for more than 3 weeks,

there have been no workers around.” (Docket Entry # 1-8, p. 2).

Mrs. Kirchick suggested to Mr. Kirchick that he reply: “‘Does

the truck bother you even though it doesn’t affect your

enjoyment of your property? Now you know what those damn trees

are doing to us.’” (Docket Entry # 1-8, p. 2). The following

day, Mrs. Kirchick suggested to Rudnick that plaintiffs had not

“received the message” and it was maybe “time to move the truck

back and start planting in the flatbed.” (Docket Entry # 1-4,

p. 2). Defendants discussed additional courses of action, such

as removing cobblestones from the private way and painting it

purple. (Docket Entry # 1, pp. 11–12, ¶¶ 41–42) (Docket Entry #

1-11, p. 2) (Docket Entry # 1-12, p. 2).

In a letter to plaintiffs dated March 23, 2018, an attorney

representing the Kirchicks communicated the results of a survey

of the Kirchicks’ property and the shared driveway. (Docket

Entry # 1-13, p. 2). The Kirchicks’ attorney stated that

plaintiffs’ mailbox and fence were on the Kirchicks’ property

and that the Kirchicks owned the portion of the shared driveway

in front of plaintiffs’ house. (Docket Entry # 1-13, p. 2). He

noted that the Kirchicks would “accept the placement of the

fence and mailbox” in exchange for plaintiffs’ removal of the

two trees and their granting the Kirchicks a “view easement over

the area where those trees are located.” (Docket Entry # 1-13,

p. 2). The Kirchicks would also “give up their right to park or

otherwise use the portion of the private way which [plaintiffs]

have planted and treat as [their] private drive.” (Docket Entry

# 1-13, p. 2). The letter asked that plaintiffs respond by

April 30, 2018. (Docket Entry # 1-13, p. 2). On April 11,

however, and before a response from plaintiffs, the attorney

notified them that Rudnick would be re-surfacing the Kirchicks’

portion of the driveway and asked where they “would like the

mailbox and fence placed.” (Docket Entry # 1-14, p. 2).

Beginning on April 12, 2018, Kaiser received several phone

calls from Rudnick threatening to “make plaintiffs’ lives

‘miserable’ and ‘drive’ [them] ‘out of town’” if they did not

capitulate to the Kirchicks’ demands and cut down the trees.

(Docket Entry # 1, p. 13, ¶ 48). Rudnick offered to “‘call off

the dogs’” if plaintiffs complied and threatened to “‘send the

suits in’” if they did not. (Docket Entry # 1, p. 14, ¶¶ 50–

51). In a call with Rudnick the following day, Kaiser offered

to cut down one of the two trees but Rudnick rejected the offer

and responded that he would “‘start tearing stuff out, like

bushes and mailboxes.’” (Docket Entry # 1, pp. 14–15, ¶ 52).

The same day, Mrs. Kirchick emailed Rudnick that “[plaintiffs]

should move” and suggested that defendants proceed with removing

the fence. (Docket Entry # 1-16, p. 2). On May 24, 2018,

Rudnick and his employees assisted the Kirchicks in “severely

butcher[ing] and damag[ing] the side of a mature privet lining

the private way leading to [p]laintiffs’ home.” (Docket Entry #

1, p. 16, ¶ 57). “On June 1, 2018, the Kirchicks’ attorney

informed [p]laintiffs’ attorney that [d]efendants . . . planned

to destroy [p]laintiffs’ property” and “remove vegetation on

June 8, 2018.” (Docket Entry # 1, p. 17, ¶ 59).

“Concerned that [d]efendants’ threats would escalate into

physical violence,” plaintiffs approached the Chatham police on

June 6, 2018. (Docket Entry # 1, p. 17, ¶¶ 59–60). On June 8,

2018, acting on the Chatham police’s recommendation, plaintiffs

obtained harassment prevention orders pursuant to Massachusetts

General Laws, chapter 258E (“chapter 258E orders”), from the

Orleans District Court against Rudnick and the Kirchicks.

(Docket Entry # 1, p. 18, ¶ 63). Although the chapter 258E

orders were set to expire July 2 and July 17, respectively, the

Kirchicks agreed to a 60-day extension. (Docket Entry # 1, p.

18, ¶¶ 64–65). However, the Orleans District Court denied an

extension of the chapter 258E order against Rudnick on July 17,

“indicating that the parties could pursue their remedies through

civil litigation.” (Docket Entry # 1, pp. 18-19, ¶ 66). As the

parties left “the courtroom after the hearing, [] Rudnick said

to [p]laintiffs, ‘Now the fun begins.’” (Docket Entry # 1, p.

18, ¶ 66).

On July 26, 2018, the Kirchicks filed a special permit

request with the Chatham Zoning Board of Appeals (the “ZBA”) for

“authority to pave over . . . the cobble and rock private way”

and to “remove [p]laintiffs’ mailbox and [] several mature

trees.” (Docket Entry # 1, p. 19, ¶ 68). On the same day, they

also initiated an action against plaintiffs in Barnstable

Superior Court, “alleging, among other things, abuse of process

(in connection with the [chapter 258E orders] issued against

them by the Orleans District Court) and trespass” (the “State

Action”). (Docket Entry # 1, p. 20, ¶ 69). After doing so,

Rudnick wrote in an email to Mrs. Kirchick: “The fun begins

remember I said that to [Kaiser].” (Docket Entry # 1-18, p. 2).

After the Kirchicks failed to comply with their discovery

obligations, however, the court entered a default judgment

against them. (Docket Entry # 1, pp. 20–21, ¶ 71). The

Kirchicks did not appeal. (Docket Entry # 1, pp. 20–21, ¶ 71).

On July 31, 2018, Rudnick procured no-trespass orders

against Kaiser from “numerous Chatham restaurants, stores

and other retail establishments that are otherwise open to the

public,” many of which were “located on land managed by and/or

in which Rudnick holds an ownership interest.”2 (Docket Entry #

1, pp. 21–22, ¶¶ 72–74). Rudnick sent the orders to the Chatham

police to serve on Kaiser, which the police did on August 2,

2018. (Docket Entry # 1, p. 21, ¶ 73). He also obtained a no-

trespass order from the Chatham Orpheum Theater, but the Chatham

police declined to serve it on Kaiser because Rudnick had no

ownership interest in that nonprofit or connection to that

property. (Docket Entry # 1, p. 22, ¶ 75).

Since that time, there have been several other incidents

involving Rudnick and the Kirchicks, notably:

a. On multiple occasions, Rudnick . . . was at and near

[p]laintiffs’ home taking photographs and talking on his

phone . . .

b. Rudnick and Mrs. Kirchick took photographs of

[p]laintiffs’ home and of [p]laintiffs working in their

yard. Rudnick and Mrs. Kirchick even used a golf cart from

the local golf course . . . to approach [p]laintiffs’

property from the backyard.

c. Rudnick regularly drove his . . . car to the front of

[p]laintiffs’ property, sometimes to just sit in his car

watching, and other times getting out of his car . . .

d. On September 4, 2018, [] four days after the extended

[chapter 258E orders] against the Kirchicks expired, Mrs.

Kirchick and Rudnick gathered once again in the private way

and directed his employees to severely butcher, cutback,

2 “Plaintiffs were permanently barred from entering, . . .

without limitation, Delmar Restaurant, Bistro Restaurant and Raw

Bar, Sandi’s Diner, Carmine’s Pizza, Focus Gallery, Ports &

Company, the Chatham Liquor Locker, Lighthouse Realty, parking

lots, and virtually every other establishment located in the

middle of downtown Chatham that is part of the 595 Main Street

complex.” (Docket Entry # 1, pp. 21-22, ¶ 74).

and damage the side of the privet lining the private way

leading to [p]laintiffs’ home.

e. Defendants regularly interfered with [p]laintiffs’

service providers . . . by [] approaching them and

photographing them . . .

f. Defendants continued periodically to park vehicles in

the private way leading to [p]laintiffs’ home to impede

[p]laintiffs’ (and their service providers’) ingress and

egress to their home.

g. The Kirchicks’ attorney sent an email to the Kirchicks

on March 29, 2019, confirming that one of the concrete

bounds erected for the purpose of designating the boundary

of [p]laintiffs’ property had been [] removed. Plaintiffs

did not authorize or request removal of the bound.

h. Defendants filed a [] complaint on June 11, 2019,

claiming that [p]laintiffs had violated the Special Permit

they obtained in 2011 in connection with configuring the

parking area in front of their house . . . . Instead of

litigating the [] matter, [p]laintiffs reconfigured the

parking area at a lesser, but substantial cost.

i. On July 23, 2019, while [p]laintiffs were in their

home, Rudnick [] walked up the private way leading to

[p]laintiffs’ home and into their backyard to examine the

pear trees [d]efendants want to cut down. Rudnick did not

have [p]laintiffs’ permission to enter their property.

j. Seven (7) days later, in a letter dated August 1, 2019,

Mr. Kirchick and Mrs. Kirchick issued another no trespass

notice, this time to both [p]laintiffs. The notice cited

G.L. c. 266 § 120, again threatening [p]laintiffs with the

risk of arrest and imprisonment.

k. Eighteen days later, on the morning of August 18, 2019,

Mr. Kirchick . . . repeatedly trespassed on [p]laintiffs’

property by bringing orange traffic cones onto

[p]laintiffs’ property, placing the cones there, removing

them and then replacing them there, doing so multiple

times.

(Docket Entry # 1, pp. 22–24, ¶ 77).

STANDARD OF REVIEW

I. Special Motion Pursuant to The Anti-SLAPP Statute

“The anti-SLAPP statute was enacted by the [Massachusetts]

Legislature to provide a quick remedy for those citizens

targeted by frivolous lawsuits based on their government

petitioning activities.” Kobrin v. Gastfriend, 821 N.E.2d 60,

62 (Mass. 2005). Under the statute, a party may “bring a

special motion to dismiss” if the civil claims “are based on

said party’s exercise of its right to petition under the” United

States or Massachusetts constitutions. Mass. Gen. Laws ch. 231,

§ 59H; Fustolo v. Hollander, 920 N.E.2d 837, 840 (Mass. 2010).

The party moving for dismissal under the anti-SLAPP statute

“bears the burden of establishing by a preponderance of the

evidence that the putative SLAPP suit . . . was ‘solely based on

[the moving party’s] own petitioning activities.’” Blanchard v.

Steward Carney Hosp., Inc., 130 N.E.3d 1242, 1248 (Mass. 2019)

(citation omitted) (“Blanchard II”). Once the moving party has

satisfied such burden, the burden then shifts to the nonmovant

to “show[] that: (1) the moving party’s exercise of its right to

petition was devoid of any reasonable factual support or any

arguable basis in law and (2) the moving party’s acts caused

actual injury to the [nonmoving] party.” Mass. Gen. Laws ch.

231, § 59H.

“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.” de Lench v.

Archie, 406 F. Supp. 3d 154, 158 (D. Mass. 2019) (quoting

Kobrin, 821 N.E.2d at 70). In ruling on a special motion to

dismiss under the anti-SLAPP statute, “courts consider pleadings

and affidavits without indulging inferences in favor of the non-

moving party.” Bargantine v. Mechs. Co-op. Bank, No. 13-11132-

NMG, 2013 WL 6211845, at *2 (D. Mass. Nov. 26, 2013). The

standard of review under the anti-SLAPP framework is therefore

“fundamentally different from a Rule 12 motion” or Rule 12(b)(6)

motion because it “incorporates additional fact-finding beyond

the facts alleged in the pleadings.” S. Middlesex Opportunity

Council, Inc. v. Town of Framingham, No. 07-12018-DPW, 2008 WL

4595369, at *10 (D. Mass. Sept. 30, 2008). Thus, to prevail,

the moving party must “make a threshold showing through

pleadings and affidavits that the claims against [him] are based

on the petitioning activities alone and have no substantial

basis other than or in addition to the petitioning activities.”

Fustolo v. Hollander, 920 N.E.2d 837, 840 (Mass. 2010) (citation

and internal quotation marks omitted).

II. Rule 12(b)(6) Motion

The standard of review for a Rule 12(b)(6) motion is well

established. To survive a Rule 12(b)(6) motion to dismiss, the

complaint and documents attached thereto “must contain ‘enough

facts to state a claim to relief that is plausible on its face’”

even if actual proof of the facts is improbable. Miller v. Town

of Wenham Massachusetts, 833 F.3d 46, 51 (1st Cir. 2016)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570

(2007)); see also Fed. R. Civ. P. 10(c) (providing that exhibits

to a pleading are “part of the pleading for all purposes”). The

“standard is ‘not akin to a “probability requirement,” but it

asks for more than a sheer possibility that a defendant has

acted unlawfully.’” Saldivar v. Racine, 818 F.3d 14, 18 (1st

Cir. 2016) (quoting Ashcroft v. Iqbal, 656 U.S. 662, 678

(2009)). “[A]ll reasonable inferences” are drawn “in the

pleader’s favor.” Sanders v. Phoenix Ins. Co., 843 F.3d 37, 42

(1st Cir. 2016).

In evaluating a Rule 12(b)(6) motion, a court may consider

certain narrow categories of documents outside the complaint

without converting the motion into one for summary judgment.

Ironshore Specialty Ins. Co. v. United States, 871 F.3d 131, 135

(1st Cir. 2017). These “‘narrow exceptions’” include

“‘documents the authenticity of which are not disputed by the

parties; official public records; documents central to the

plaintiff’s claim; and documents sufficiently referred to in the

complaint’ . . . .” Newman v. Lehman Bros. Holdings Inc., 901

F.3d 19, 25 (1st Cir. 2018) (ellipses and brackets omitted)

(quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)).

It is also appropriate for a court deciding a Rule 12(b)(6)

motion to consider “matters of public record and facts

susceptible to judicial notice.” U.S. ex rel. Winkelman v. CVS

Caremark Corp., 827 F.3d 201, 208 (1st Cir. 2016). Documents

susceptible to judicial notice include state court filings. See

United States v. Mercado, 412 F.3d 243, 247–48 (1st Cir. 2005)

(taking judicial notice of state court docket entries); Smith v.

Grondolsky, 299 F. Supp. 3d 287, 290 (D. Mass. 2018), aff'd, No.

18-1316, 2019 WL 10378245 (1st Cir. Sept. 4, 2019) (“[T]his

court can and does take judicial notice of the docket of other

courts.”). Accordingly, in evaluating the Kirchicks’ partial

motion to dismiss pursuant to Rule 12(b)(6), this court may

consider the filings in the parties’ various state court

proceedings. See Mercado, 412 F.3d at 247–48.

III. Rule 12(c) Motion

A Rule 12(c) motion for judgment on the pleadings “‘is

treated much like a Rule 12(b)(6) motion to dismiss.’”

Villeneuve v. Avon Prod., Inc., 913 F.3d 50, 43 n.2 (1st Cir.

Mar. 19, 2019) (citation omitted). “[T]he well-pleaded facts

and the reasonable inferences therefrom’” in the complaint are

viewed “in the light most favorable to the nonmovant (here, []

plaintiff[s]).” Kando v. R. I. State Bd. of Elections, 880 F.3d

53, 58 (1st Cir. 2018). Judgment on the pleadings “is proper

if—after accepting all well-pleaded facts as true and viewing

them in the light most favorable to [the plaintiff]—the

complaint fails to allege a plausible right to relief.”

Villeneuve, 913 F.3d at 49 (citations omitted). In the event

that “a court grants a . . . Rule 12(c) motion based on an

affirmative defense, the facts establishing that defense must:

(1) be ‘definitively ascertainable from the complaint and other

allowable sources of information,’ and (2) ‘suffice to establish

the affirmative defense with certitude.’” Gray v. Evercore

Restructuring L.L.C., 544 F.3d 320, 324 (1st Cir. 2008).

DISCUSSION

I. Rudnick

Because Rudnick “advances motions to dismiss based both on

the anti-SLAPP statute and” under Rule 12(c), this court will

begin with “the anti-SLAPP motion before deciding other grounds

for dismissal.” See de Lench, 406 F. Supp. 3d at 158 (quoting

Kobrin, 821 N.E.2d at 70).

A. Special Motion to Dismiss Counts II (Defamation) and

V (Abuse of Process) Pursuant to the Anti-SLAPP Statute

Rudnick seeks dismissal of counts II (defamation) and V

(abuse of process) on the basis that his activities underlying

those claims are protected forms of petitioning under the anti-

SLAPP statute. (Docket Entry # 26, p. 7) (Docket Entry # 48, p.

7). More specifically, he argues that his procurement and

transmittal of no-trespass orders from local business owners

against Kaiser: (1) are protected petitioning activities; and

(2) were “on a good-faith and reasonable factual basis,” thereby

fulfilling his burden under the anti-SLAPP statute. (Docket

Entry # 26, p. 1) (Docket Entry # 48, p. 8).

Plaintiffs, in turn, argue that: (1) Rudnick has failed to

meet his burden in establishing that their claims are solely

based on his petitioning activity; and (2) plaintiffs have met

their burden under the anti-SLAPP statute by showing that “(i)

Rudnick’s petitioning activity had no basis in law or fact”

(Docket Entry # 41, p. 6); “(ii) [p]laintiffs’ claims were not

brought primarily to chill Rudnick’s exercise of [his]

petitioning rights . . . .” (Docket Entry # 41, p. 6); and

(iii) Rudnick’s “sham petitioning” caused them actual injury in

the form of reputational harm, humiliation, and inability to

enjoy their property (Docket Entry # 41, pp. 10, 11–12).

Although the no-trespass orders were against only Kaiser,

plaintiffs allege that the orders “practically implicate[]

[Furnish]” by virtue of plaintiffs’ being a same-sex couple.

(Docket Entry # 1, pp. 21–22, ¶ 74).

i. Burden-Shifting Framework of the Anti-SLAPP Statute

The party moving for dismissal under the anti-SLAPP statute

“bears the burden of establishing by a preponderance of the

evidence that the putative SLAPP suit . . . was ‘solely based on

[the moving party’s] own petitioning activities.’” Blanchard

II, 130 N.E.3d at 1248 (citation omitted). Thus, “defendants do

not obtain dismissal through an anti-SLAPP motion just because

some of the allegations in the complaint are directed at conduct

by the defendants that constitutes petitioning activity.”

Haverhill Stem LLC v. Jennings, 172 N.E.3d 410, 418 (Mass.

2021). “[T]he key inquiry” at this stage “is whether ‘the only

conduct complained of is . . . petitioning activity.’” 477

Harrison Ave., LLC v. Jace Bos., LLC, 74 N.E.3d 1237, 1244

(Mass. 2017) (citation omitted).

Once the moving party satisfies its burden, “the nonmoving

party . . . must establish by a preponderance of the evidence .

. . that ‘(1) the moving party’s . . . exercise of its right to

petition was devoid of any reasonable factual support or any

arguable basis in law and (2) the moving party’s . . . acts

caused actual injury to the responding party . . . .’”

Blanchard II, 130 N.E.3d at 1248 (citation omitted).

Alternatively, the nonmoving party may demonstrate, “such that

the [court] could conclude with fair assurance, that” its suit

(a) was “‘colorable’” and (b) “not brought with the ‘primary

motivating goal’ of chilling the [moving party’s] exercise of

its petitioning rights, i.e., that it was not retaliatory.” 477

Harrison Ave., LLC v. JACE Bos., LLC, 134 N.E.3d 91, 101 (2019)

(quoting Blanchard II, 130 N.E.3d at 1249). The nonmoving

party’s claim is “colorable” if it “offers some reasonable

possibility of a decision in [that] party’s favor.” Blanchard

II, 130 N.E.3d at 1251 (citation and internal quotation marks

omitted).

Under the anti-SLAPP statute, the right to petition

encompasses:

[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.

Mass. Gen. Laws ch. 231, § 59H. Petitioning activities

include “all statements made to influence, inform, or at the

very least, reach governmental bodies—either directly or

indirectly.” Burley v. Comets Cmty. Youth Ctr., Inc., 917

N.E.2d 250, 254 (Mass. App. Ct. 2009); see also Garabedian v.

Westland, 59 Mass. App. Ct. 427, 431, 796 N.E.2d 439, 444 (2003)

(explaining that defendants’ activities “had the character of

‘petitioning activity’” because they had, inter alia, summoned

police and made representations to town and state officials to

obtain public intervention in the plaintiff’s land filling

work). Protected petitioning includes, for instance, contacting

the police regarding suspected criminal activity or the

procurement and transmittal of no-trespass orders. See O’Gara

v. St. Germain, 77 N.E.3d 870, 872 (Mass. App. Ct. 2017)

(reporting to police violation of no-contact order); Burley, 917

N.E.2d at 254 (transmittal of no-trespass letter to police).

However, the mere fact “[t]hat a statement concerns a topic that

has attracted governmental attention, in itself, does not give

that statement the [petitioning] character contemplated by the

statute.” Glob. NAPS, Inc. v. Verizon New England, Inc., 828

N.E.2d 529, 533 (Mass. App. Ct. 2005)).

Lastly, Massachusetts courts have interpreted the anti-

SLAPP statute as requiring a petitioner to undertake the

protected activities on his own behalf. Cardno ChemRisk, LLC v.

Foytlin, 68 N.E.3d 1180, 1188 (Mass. 2017); Kobrin, 821 N.E.2d

at 63 (holding defendant’s activities not protected by anti-

SLAPP statute because “he was not seeking from government any

form of redress for a grievance of his own or otherwise

petitioning on his own behalf . . . .”). Additionally, for

defamation claims, there must be a “‘plausible nexus between the

statement and the governmental proceeding.’” Blanchard v.

Steward Carney Hosp., Inc., 75 N.E.3d 21, 30 (Mass. 2017)

(“Blanchard I”).

ii. Rudnick Has Not Satisfied His

Burden Under the Anti-SLAPP Statute

As the moving party, Rudnick “bears the burden of

establishing by a preponderance of the evidence that”

plaintiffs’ defamation and abuse of process claims are “‘solely

based on [his] own petitioning activities.’” See Blanchard II,

130 N.E.3d at 1248 (citation omitted). At this initial stage,

Rudnick’s “motive behind [any] petitioning activity is

irrelevant . . . .” See Off. One, Inc. v. Lopez, 769 N.E.2d

749, 757 (Mass. 2002). According to Rudnick, “[i]t is

undisputed” that the defamation and abuse of process claims are

both solely based on his petitioning activities, namely his

procurement and transmittal of no-trespass orders. (Docket

Entry # 48, p. 7); see also (Docket Entry # 26, pp. 3–4). For

the following reasons, this court disagrees.

“Under the [anti-SLAPP] statute’s broad definitions,” the

procurement and transmittal of no-trespass orders can indeed

qualify as petitioning activities. See Burley, 917 N.E.2d at

254 (explaining that petitioning activity includes all

statements made to reach governmental bodies and that “if the

only defamatory conduct alleged by [the plaintiff] were the

sending of copies of the no-trespass letter to the police and

the court, . . . the complaint [would be] subject to dismissal

under the anti-SLAPP statute”); McLarnon v. Jokisch, 727 N.E.2d

813, 817 (Mass. 2000) (concluding that “any written or oral

statement made before or submitted to a . . . judicial body”

includes filing for abuse protection orders); Mass Gen. Laws ch.

231, § 59H. “[A]n actionable abuse of process claim will always

be, at least in part, based on a special movant's petitioning

activities” because “the invocation of process necessarily

constitutes petitioning activity for the purposes of the anti-

SLAPP statute.” 477 Harrison Ave., 74 N.E.3d at 1244-45.

“[H]owever, this does not mean that an abuse of process claim

will always be solely based on a special movant's petitioning

activities.” Id.

Rudnick has failed to meet his burden under the anti-SLAPP

statute for several reasons. To begin with, plaintiffs’

defamation claim is based on statements he allegedly made to

various members of the Chatham community, including local

businesses. See (Docket Entry # 1, pp. 25-26, ¶ 85). Under the

present facts, making such statements to local businesses “is

not constitutionally protected activity” and therefore the

defamation claim is “not based solely on petitioning activity.”

Radfar v. City of Revere, No. 1:20-CV-10178-IT, 2021 WL 4121493,

at *4 (D. Mass. Sept. 9, 2021) (concluding that, where defendant

made statements to plaintiff’s employer and later police,

statements to plaintiff’s employer were “not constitutionally

protected petitioning activity” and therefore plaintiff’s

defamation claim was “not solely based on petitioning

activity”).

For defamation claims, there must be a “‘plausible nexus

between the statement[s] and the governmental proceeding.’”

Blanchard I, 75 N.E.3d at 30. “[P]rivate statement[s] to a

select group of people do[] not, without more, establish a

plausible nexus to a governmental proceeding.” Id. The nexus

requirement could potentially still be satisfied, however, if

the private statements were “reasonably geared to reaching” the

government. See id. (finding no nexus between governmental

proceeding and executive’s statements to employees because

defendants did not show that employees forwarded or

communicated, or were reasonably expected to forward or

communicate, the statements to a governmental agency). In

addition, the private statements must be “essentially ‘mirror

images’ of those communicated to the police . . . .” See

Burley, 917 N.E.2d at 255 (quoting Wynne v. Creigle, 825 N.E.2d

559, 566 (Mass. App. Ct. 2005)).

Rudnick’s statements to Chatham businesses are insufficient

to satisfy the nexus requirement of defamation claims under the

anti-SLAPP statute. See Blanchard I, 75 N.E.3d at 30; Burley,

917 N.E.2d at 255. “An examination of the materials supporting

[Rudnick’s] motion does not indicate” that Rudnick’s comments

about plaintiffs to local businesses “had the potential or

intent to redress a grievance, or directly or indirectly to

influence, inform, or bring about governmental consideration of

the issue.” See Glob. NAPS, 828 N.E.2d at 534; see also Burley,

917 N.E.2d at 254. He also has not shown that his statements to

local businesses were essentially identical to those he made to

the police for transmittal of the no-trespass orders. See

Burley, 917 N.E.2d at 255; Wynne, 825 N.E.2d at 566 (concluding

that defendant’s statements to media were “mirror images” of

other admittedly protected statements made in course of

governmental investigation). Nor has he shown that the

businesses would reasonably be expected to communicate his

statements to the police (or other government entity). See

Blanchard I, 75 N.E.3d at 30. As such, his interactions with

the local businesses are not forms of petitioning protected

under the anti-SLAPP statute.

With respect to both the defamation and abuse of process

claims, Rudnick’s statements to businesses which he did not own

or otherwise control also fail to qualify as petitioning

activity because he was not petitioning on his behalf.3 In his

3 Rudnick is the owner of Lighthouse Realty but alleges that he

also “owns and/or controls” the other Chatham businesses that

issued no-trespass orders against Kaiser. See (Docket Entry #

26, p. 3). According to plaintiffs, however, he “had no

reply to plaintiffs’ opposition to his special motion to dismiss

(Docket Entry # 48), Rudnick does not address plaintiffs’

argument that he does not in fact own or control all of the

businesses that issued no-trespass orders. Nor does he address

plaintiffs’ contention that, because he transmitted other

businesses’ no-trespass orders, he was not petitioning on his

own behalf. As noted above, while the statutory definition of

petitioning activity is broad, it is limited to a “party’s

exercise of its right to petition.” Mass. Gen. Laws ch. 231, §

59H. The Massachusetts Supreme Judicial Court has interpreted

this phrase to mean that a special movant must show that he or

she has “‘petitioned the government on his or her own behalf . .

. in his or her status as a citizen.’” Cardno, 68 N.E.3d at

1187 (brackets omitted) (quoting Kobrin, 821 N.E.2d at 64). In

procuring and transmitting the no-trespass orders on behalf of

businesses which he does not own or control, Rudnick was not

ownership interest whatsoever in the Orpheum theater,” which

issued a no-trespass order, “and he did not ‘control’ the

premises of commercial properties that he (or businesses with

which he was affiliated) leased to other businesses.” (Docket

Entry # 41, p. 8, n. 2); see also (Docket Entry # 51-1, pp. 6-7)

(police report noting that Rudnick “does not own all property

from 595 – 641 Main St.,” including the Orpheum Theater). In

their opposition to Rudnick’s special motion to dismiss (Docket

Entry # 41), plaintiffs argue that Rudnick’s transmission of the

other businesses’ no-trespass orders, “even if done to promote

[his] rights as a business owner, is not Rudnick petitioning on

his own behalf . . . .” (Docket Entry # 41, p. 9).

petitioning on his behalf. See Cardno, 68 N.E.3d at 1188. Such

activity is therefore not protected by the anti-SLAPP statute.

Rudnick has also failed to show that the claims against him

“have no substantial basis other than or in addition to” his

purported petitioning activities. See Fustolo, 920 N.E.2d at

840. Even if “one could infer that [Rudnick’s] persistent

petitioning activities played a role in the plaintiffs' decision

to file the complaint, there was also an independent basis for

the complaint—that [] defendants were intentionally interfering

with [] plaintiffs' right to use and enjoy their property.”

Ayasli v. Armstrong, 780 N.E.2d 926, 933 (Mass. App. Ct. 2002).

The complaint is riddled with facts suggesting “[i]t was more

than [Rudnick’s] petitioning activities that promoted

[plaintiffs’] suit” against him. See id. To name just a

handful, for instance: (1) beginning in April 2018, Rudnick made

several calls to Kaiser, threatening to “make plaintiffs’ lives

‘miserable’ and ‘drive’ [them] ‘out of town’” if they did not

capitulate to the Kirchicks’ demands (Docket Entry # 1, p. 13, ¶

48); (2) he stated that he would “‘call off the dogs’” if

plaintiffs complied, and, if they did not, would “‘send the

suits in’” (Docket Entry # 1, p. 14, ¶¶ 50–51); he “took

photographs of [p]laintiffs’ home and of [p]laintiffs working in

their yard” (Docket Entry # 1, p. 23, ¶ 77); he regularly

approached and took photographs of plaintiffs’ service providers

(Docket Entry # 1, p. 23, ¶ 77); and he periodically parked (or

instructed his workers to park) vehicles in plaintiffs’ private

way, “which is the sole means of accessing [p]laintiffs’ home.”

(Docket Entry # 1, pp. 8, 23, ¶¶ 30, 77).

“These facts supported [] plaintiffs’ claim that [Rudnick

was] interfering with their use and enjoyment of their property”

and attempting to intimidate them into removing the two pear

trees on their property. See Ayasli, 780 N.E.2d at 934

(concluding “[i]t was more than the [defendants’] petitioning

activities that prompted the [plaintiffs’] suit” because one

defendant had, inter alia, “clearly stated that she wanted the

[plaintiffs’] home to ‘stay down,’ and that she intended to do

everything she could to stop the work on their house”); (Docket

Entry # 1, p. 24, ¶ 78).

Furthermore, even assuming that some of Rudnick’s

activities constituted petitioning, he is not entitled to

dismissal of the defamation and abuse of process claims “just

because some of the allegations in the complaint [may be]

directed at conduct by” him “that constitutes petitioning

activity.” See Haverhill, 172 N.E.3d at 418. Rudnick has

therefore failed to meet his “burden of establishing by a

preponderance of the evidence that” plaintiffs’ defamation and

abuse of process claims are “‘solely based on [his] own

petitioning activities.’” See Blanchard II, 130 N.E.3d at 1248

(citation omitted).

iii. Plaintiffs Have Met Their

Burden Under the Anti-SLAPP Statute

Even if Rudnick had successfully met his burden under the

anti-SLAPP statute, thereby shifting the burden to plaintiffs,

plaintiffs’ claims would still survive dismissal.4 To meet their

burden under the statute, plaintiffs may show by a preponderance

of the evidence that Rudnick: (1) lacked “reasonable factual

support or any arguable basis in law” when obtaining and

transmitting the no-trespass orders, and that such conduct (2)

injured plaintiffs. See Burley, 917 N.E.2d at 254.

Alternatively, plaintiffs could survive dismissal by

demonstrating, such that this court “could conclude with fair

assurance,” that their suit (a) was “‘colorable’” and (b) “not

brought with the ‘primary motivating goal’ of chilling

4 As discussed above, nonmovants can meet their burden under the

second stage of the anti-SLAPP statute in one of two ways.

Under the first, “the nonmoving party . . . must establish by a

preponderance of the evidence . . . that ‘(1) the moving party’s

. . . exercise of its right to petition was devoid of any

reasonable factual support or any arguable basis in law and (2)

the moving party’s . . . acts caused actual injury to the

responding party . . . .’” Blanchard II, 130 N.E.3d at 1248.

Under the second method, the nonmoving party must establish,

“such that the motion judge could conclude with fair assurance,”

that its claim was colorable and not “‘brought primarily to

chill the special movant's . . . legitimate petitioning

activities,’” meaning “that [the claim] was not retaliatory.”

477 Harrison Ave., LLC v. JACE Bos., LLC, 134 N.E.3d 91, 98, 100

(2019) (quoting Blanchard I, 75 N.3.3d at 38).

[Rudnick’s] exercise of [his] petitioning rights, i.e., that it

was not retaliatory.” See 477 Harrison Ave., 134 N.E.3d at 101

(quoting Blanchard II, 130 N.E.3d at 1249)). Plaintiffs argue

that they have satisfied their burden under both methods. See

(Docket Entry # 41, pp. 6, 10-12).

With respect to the first method, Rudnick argues that he

“had reasonable factual support for his petitioning activities,

wherein he sought to minimize future contact with Mr. Kaiser to

prevent him from asserting additional and exaggerated

allegations of harassment.” (Docket Entry # 26, p. 5). These

“allegations of harassment” are namely the chapter 258E orders

(harassment prevention orders) that plaintiffs obtained against

defendants in June 2018.5 (Docket Entry # 26, p. 26). Rudnick

claims that his seeking no-trespass orders against Kaiser was a

“prophylactic measure . . . to prevent future incidental

interactions with him” at properties that Rudnick either owned

or controlled. (Docket Entry # 26, p. 4).

Although Rudnick’s motive in obtaining and transmitting the

no-trespass orders is irrelevant at the threshold stage of the

burden-shifting framework, this court may consider the context

in which such activities occurred when evaluating the factual

5 After those orders expired, Rudnick solicited and obtained no-

trespass orders from various businesses in Chatham between July

31 and August 2, 2018. (Docket Entry # 1, p. 21, ¶¶ 72-73).

and legal basis for seeking the no-trespass orders. See

Keystone Freight Corp. v. Bartlett Consol., Inc., 930 N.E.2d

744, 752 (Mass. App. Ct. 2010) (explaining that “attribution of

a motive, alone, is never sufficient” to survive an anti-SLAPP

motion but “‘evidence of improper action, separate and distinct

from the exercise of petitioning activity, is necessary’”

(citation omitted)); N. Am. Expositions Co. Ltd. P'ship v.

Corcoran, 898 N.E.2d 831, 841 (Mass. 2009) (“In order to

determine if statements are petitioning, we consider them in the

over-all context in which they were made.”). This court may

therefore consider Rudnick’s conduct “before, after, and

separate from [his] petitioning activity.” See Keystone, 930

N.E.2d at 752–753.

To begin with, the complaint alleges that Rudnick:

threatened to “make [plaintiffs] lives ‘miserable’ and ‘drive’

[them] ‘out of town’” (Docket Entry # 1, p. 13, ¶ 48);

threatened to “‘send the suits in’” if plaintiffs did not

capitulate to the Kirchicks’ demands and cut down the pear trees

(Docket Entry # 1, p. 14, ¶ 51); and told plaintiffs “‘[n]ow the

fun begins’” after the chapter 258E order against him was

dismissed (Docket Entry # 1, pp. 18–19, ¶ 66) (Docket Entry # 1-

18, p. 2). Additionally, even after Rudnick obtained no-

trespass orders against Kaiser, he continued to take measures

that increased his contact with plaintiffs. He trespassed on

plaintiffs’ property on numerous occasions. (Docket Entry #1,

pp. 22–24, ¶ 77). Four days after the expiration of the chapter

258E orders, he gathered with Mrs. Kirchick on plaintiffs’

private way to direct his employees “to severely butcher,

cutback and damage the side of . . . the private way leading the

[p]plaintiffs’ home.” (Docket Entry #1, pp. 22–24, ¶ 77). On

July 23, 2019, he entered plaintiffs’ backyard without

permission. (Docket Entry #1, pp. 22–24, ¶ 77). The complaint

also suggests that Rudnick frequently approached plaintiffs’

property to take photographs of it and that he continued to park

vehicles in the plaintiffs’ private way to impede their (and

their service providers’) access to their home.6

Also compelling is the fact that Rudnick sought no-trespass

orders from a broader swath of businesses than those where he

would likely run into plaintiffs, such as parking lots and a

women’s clothing store. See (Docket Entry # 1, pp. 21-22, ¶ 74)

(Docket Entry # 41-1, p. 9, ¶ 34). He also unsuccessfully

attempted to obtain a no-trespass order from the Chatham Orpheum

Theater, a nonprofit of which plaintiffs are donors and “Major

6 While it is unclear from the complaint exactly when Mr.

Rudnick took photographs of plaintiffs’ property or parked

vehicles in their private way, the complaint alleges that these

instances occurred in “the ensuing months” after defendants

obtained no-trespass orders against Kaiser. See (Docket Entry

#1, pp. 22–24, ¶ 77).

Benefactors.” See (Docket Entry # 1, p. 22, ¶ 75) (Docket Entry

# 41-1, p. 9, ¶ 36).

Additional facts in Furnish’s affidavit (submitted with

plaintiffs’ sur-reply) further suggest that Rudnick’s

transmittal of the no-trespass orders was devoid of any

reasonable factual or legal basis.7 See (Docket Entry # 51-1).

On June 19, 2018, the day after plaintiffs’ chapter 258E order

against him was initially set to expire, Rudnick spoke with an

officer from the Chatham Police Department to “request[]

information regarding issuing a trespass notice for all of his

commercial property owned by him.” (Docket Entry # 51-1, p. 3).

Rudnick “advised” that his request for no-trespass orders

against Kaiser “was solely based on retaliation for a [chapter

258E order] that was issued against him.” (Docket Entry # 51-1,

p. 3). He also chose to stagger the delivery of the no-trespass

orders, despite being advised that “he [wa]s tying up lot [sic]

of police resources in spanning out and purposefully delaying

his trespass orders.” (Docket Entry # 51-1, p. 3).

7 In deciding Rudnick’s special motion to dismiss under the

anti-SLAPP statute, this court reviewed Furnish’s affidavit

because the standard of review for such a motion “incorporates

additional fact-finding beyond the facts alleged in the

pleadings,” such as those in the parties’ affidavits filed with

their anti-SLAPP motions and oppositions. See S. Middlesex

Opportunity Council, 2008 WL 4595369 at *10.

Given these facts, plaintiffs have satisfied their burden

of showing that Rudnick lacked “reasonable factual support or

any arguable basis in law” when obtaining and transmitting the

no-trespass orders. See Burley, 917 N.E.2d at 254. In

addition, plaintiffs have demonstrated that Rudnick’s activities

injured them, alleging that the no-trespass orders caused them

severe emotional distress, publicly humiliated them, and

“curtail[ed] the use and enjoyment of their property in

Chatham.” (Docket Entry # 1, p. 22, ¶ 76). According to

Furnish, plaintiffs bought their Chatham property because of its

proximity to the downtown businesses and restaurants. (Docket

Entry # 41-1, p. 8, ¶ 31). Because of the no-trespass orders,

however, plaintiffs can no longer gather socially with friends

at the various restaurants that issued such orders. (Docket

Entry # 41-1, p. 8, ¶ 33).

Because plaintiffs have met their burden under the second

step of the anti-SLAPP statute by demonstrating that Rudnick

lacked factual and legal support when obtaining the no-trespass

orders and injured plaintiffs in so doing, this court need not

also discuss whether their claims are colorable or brought

primarily to chill Rudnick’s exercise of his petitioning rights.

See 477 Harrison Ave., 134 N.E.3d at 101.

B. Partial Motion to Dismiss Pursuant to Rule 12(c)

This court will now consider Rudnick’s Rule 12(c) motion to

dismiss plaintiffs’ defamation and abuse of process claims.

(Docket Entry # 25).

1. Defamation (Count II)

Rudnick seeks dismissal of plaintiffs’ dismissal claim

pursuant to Rule 12(c) on the basis that the complaint “does not

identify or describe any allegedly defamatory statements

published by [] Rudnick to the Chatham police or local business

establishments, and thus falls short of stating a claim for

defamation.” (Docket Entry # 26, p. 11). His argument also

relies on the notice pleading requirements of Fed. R. Civ. P. 8

(“Rule 8”). See (Docket Entry # 26, pp. 11-13). Additionally,

Rudnick contends that, “to the extent [] Furnish alleges []

Rudnick defamed him by obtaining the [] no-trespass orders, such

a claim would fail, as [] Rudnick’s no-trespass activities

pertained only to [] Kaiser.” (Docket Entry # 26, p. 11).

Plaintiffs concede that they do not know Rudnick’s exact

statements but maintain that, “in federal court, [they] are ‘not

required to set forth the alleged defamatory statements

verbatim.” (Docket Entry # 41, p. 15). According to

plaintiffs, the mere likelihood “that whatever [Rudnick] said

was untrue, reputation-harming, and concerned both [p]laintiffs”

satisfies the Rule 8 notice pleading requirements and survives a

Rule 12(c) motion. (Docket Entry # 41, p. 14).

“Under Massachusetts law, ‘defamation is the publication,

either orally or in writing, of a statement concerning the

plaintiff which is false and causes damage to the plaintiff.’”

Ayyadurai v. Floor64, Inc., 270 F. Supp. 3d 343, 355 (D. Mass.

2017) (quoting Yohe v. Nugent, 321 F.3d 35, 39-40 (1st Cir.

2003)). To survive a motion to dismiss, a plaintiff alleging

defamation must show “(1) that ‘[t]he defendant made a

statement, concerning the plaintiff, to a third party’; (2) that

the statement was defamatory such that it ‘could damage the

plaintiff's reputation in the community’; (3) that ‘[t]he

defendant was at fault in making the statement’; and (4) that

‘[t]he statement either caused the plaintiff economic loss . . .

or is actionable without proof of economic loss.’” Shay v.

Walters, 702 F.3d 76, 81 (1st Cir. 2012) (quoting Ravnikar v.

Bogojavlensky, 782 N.E.2d 508, 510-11 (Mass. 2003)).

Because “[c]laims for defamation are subject to the notice

pleading requirements set forth in [Rule 8,] . . . plaintiffs

are not required to set forth the alleged defamatory statements

verbatim.” See N. Shore Pharmacy Servs., Inc. v. Breslin

Assocs. Consulting LLC, 491 F. Supp. 2d 111, 124 (D. Mass.

2007). Rule 8 simply requires that a complaint contain “a short

and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[H]owever,

there must be ‘sufficient detail in the complaint to give a

defendant fair notice of the claim and the grounds upon which it

rests.’” Colon-Fontanez v. Municipality of San Juan, 660 F.3d

17, 46 (1st Cir. 2011) (citation omitted). “[T]he complaint

should at least set forth minimal facts as to who did what to

whom, when, where, and why—although why, when why means the

actor's state of mind, can be averred generally.” Educadores

Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 68 (1st

Cir. 2004).

Thus, in this case, plaintiffs need only “set forth such

allegations in support of [their] defamation claim that were

sufficient to give [Rudnick] ‘fair notice’ of [their] claim and

the grounds upon which it rests.” See N. Shore Pharmacy Servs.,

491 F. Supp. 2d at 124. “Although the precise words used by []

Rudnick are currently unknown,” plaintiffs allege, “they would

have necessarily included false and defamatory statements of and

concerning [p]laintiffs sufficient to cause persons who do not

know [p]laintiffs to bar them from their premises.” (Docket

Entry # 1, pp. 25–26, ¶ 85) (Docket Entry # 26, p. 7). The

complaint is compliant with Rule 8’s notice pleading

requirements, according to plaintiffs, because it provides

details as to whom the statements were made, “approximately when

they were made,” “and their general character.” (Docket Entry #

41, p. 15). More specifically, the complaint alleges that

Rudnick made defamatory statements to local Chatham business

owners while obtaining no-trespass orders between July 31 and

August 2, 2018. (Docket Entry # 1, pp. 25–26, ¶ 85).

This court finds that the complaint falls short of the

notice pleading requirements. While the complaint has “at least

set forth minimal facts as to who . . .[,] to whom, when, where,

and why,” the “what” is notably absent from the complaint.

Hernandez, 367 F.3d at 68. That is, plaintiffs allege

defamation against Rudnick but fail to allege a single

defamatory statement made by him. See generally (Docket Entry #

1). While this court reviews the complaint’s facts and the

reasonable inferences therefrom in plaintiffs’ favor, it cannot

ignore “factual allegations in the complaint [that] are too

meager, vague, or conclusory to remove the possibility of relief

from the realm of mere conjecture . . . .” See SEC v. Tambone,

597 F.3d 436, 442 (1st Cir. 2010) (en banc). Although it may be

“highly likely that whatever [Rudnick] said was untrue,

reputation-harming, and concerned both [p]laintiffs,” such

allegations are merely speculation. See (Docket Entry # 41, p.

14). Given the absence of even a single defamatory statement in

the complaint, plaintiffs fail to “set forth such allegations in

support of [their] defamation claim that were sufficient to give

[Rudnick] ‘fair notice’ of [their] claim and the grounds upon

which it rests.” See N. Shore Pharmacy Servs., 491 F. Supp. 2d

at 124. Moreover, plaintiffs’ allegations that Rudnick’s

procurement of the no-trespass orders “practically implicate[d]”

Furnish and suggested that he had “engaged in bad behavior” is

too conclusory and vague to provide Rudnick with fair notice

under Rule 8. See (Docket Entry # 1, pp. 22, 25, ¶¶ 74, 85).

This court therefore allows Rudnick’s motion to dismiss

plaintiffs’ defamation claim against him under Rule 12(c),

subject to the following qualification. “In the absence of

exceptional circumstances, a district court is under no

obligation to offer a party leave to amend when such leave has

not been requested by motion.” Hochendoner v. Genzyme Corp.,

823 F.3d 724, 735–36 (1st Cir. 2016). However, given the

preference to decide cases on the merits, this court declines to

impose an outright denial of plaintiffs’ defamation claim. See

generally Rodi v. S. New England Sch. of Law, 389 F.3d 5, 20 (1st

Cir. 2004) (“‘[T]he purpose of pleading is to facilitate a

proper decision on the merits.’” (quoting Conley v. Gibson, 355

U.S. 41, 48 (1957))). If, upon further discovery, plaintiffs

are able to meet Rule 8’s pleading requirements, they may file a

motion for leave to file an amended complaint solely to cure the

deficiencies in the defamation claim. See Browne v. Compass

Grp. USA, Inc., No. CIV.A. 11-12038-JLT, 2012 WL 3260265, at *3

(D. Mass. July 12, 2012), report and recommendation adopted, No.

CIV.A. 11-12038-JLT, 2012 WL 3257880 (D. Mass. Aug. 7, 2012)

(dismissing allowing plaintiff 30 days to file motion for leave

to amend complaint and explaining that where “complaint is

dismissed for lack of specificity, a dismissal without prejudice

is more appropriate than a dismissal with prejudice”). This

court expresses no opinion on the merits of such a motion.

2. Abuse of Process (Count V)

Rudnick also seeks dismissal of plaintiffs’ abuse of

process claim under Rule 12(c). His argument for dismissal

under Rule 12(c), limited to two short paragraphs, is that

“[p]laintiffs fail to allege facts to establish a claim of abuse

of process because . . . Rudnick had reasonable factual support

for petitioning the government.” See (Docket Entry # 26, p.

14). He does not discuss the elements of abuse of process and

whether plaintiffs have sufficiently established such elements

to survive dismissal under Rule 12(c).8 See generally (Docket

Entry # 26, p. 14). Instead, he reiterates that “[p]laintiffs

have offered no evidence” as to Rudnick’s purported defamatory

statements “in obtaining the no-trespass orders.” (Docket Entry

8 In Rudnick’s argument for his special motion to dismiss, he

notes the elements to an abuse of process claim (i.e. process

was used for an ulterior purpose, resulting in damage). See

(Docket Entry # 26, p. 8). Nowhere does he evaluate, however,

each element to demonstrate how plaintiffs have apparently

failed to prove each under Rule 12(c). See generally (Docket

Entry # 26).

# 26, p. 14). Rudnick also argues that he was “lawfully

entitled pursuant to [Massachusetts General Laws, chapter 266,

section 120] to obtain no trespass orders for private properties

he owns and controls after Kaiser’s failed attempt to secure a

harassment order against him . . . .”9 (Docket Entry # 26, p.

2). Lastly, because Rudnick did not procure or transmit any no-

trespass orders against Furnish, he argues that the abuse of

process claim as to Furnish must be dismissed for lack of

factual support. (Docket Entry # 26, p. 2).

Plaintiffs argue that they have sufficiently plead abuse of

process by Rudnick because: (1) he used process by obtaining and

transmitting no-trespass orders to the police, as well as

assisting the Kirchicks with their applications to the ZBA and

action in Superior Court (Docket Entry # 41, p. 17); (2) his

harassment of plaintiffs is evidence that his use of process

served an ulterior purpose of “forc[ing] [p]laintiffs to

capitulate to [defendants’] demands” to cut down the pear trees

obstructing the Kirchicks’ view (Docket Entry # 41, p. 18); and

9 Mass. Gen. Laws ch. 266, § 120 provides: “Whoever, without

right enters . . . [the] buildings . . . of another . . . after

having been forbidden to do so by the person who has lawful

control of said premises, whether directly or by notice posted

thereon . . . shall be punished by a fine of not more than one

hundred dollars or imprisonment for not more than thirty days or

both . . . .”

(3) plaintiffs were harmed as a result (Docket Entry # 41, p.

19).

A common law claim for abuse of process consists of three

elements: “1) process [] was used 2) for an ulterior or

illegitimate purpose 3) resulting in damage.” Iantosca v.

Benistar Admin. Servs., Inc., 738 F.Supp.2d 212, 222 (D. Mass.

2010) (citing Millennium Equity Holdings, LLC v. Mahlowitz, 925

N.E.2d 513, 522 (Mass. 2010)). “‘[I]t is immaterial that the

process was properly issued, that it was obtained in the course

of proceedings which were brought with probable cause and for a

proper purpose or even that the proceedings terminated in favor

of the person instituting or initiating them.’” Humphrey v.

Comoletti, No. 1:15-CV-14170-ADB, 2017 WL 1224539, at *4 (D.

Mass. Mar. 31, 2017) (quoting Gutierrez v. Mass. Bay Transp.

Authy., 772 N.E.2d 552, 563 (Mass. 2002)).

To successfully allege abuse of process, a plaintiff must

demonstrate that the defendant had an ulterior purpose “‘to gain

some collateral advantage,’ which ‘has been compared to

extortion, in that the defendant has allegedly tried to extract

some advantage by wrongful means.’” Damon v. Hukowicz, 964 F.

Supp. 2d 120, 141 (D. Mass. 2013) (quoting Psy-Ed Corp. v.

Klein, 947 N.E.2d 520, 535 n. 36 (Mass. 2011)). The element of

an “ulterior purpose is not simply the intent to harm the other

party directly by [using process], but rather the intent to gain

some other end indirectly.” Psy-Ed Corp., 947 N.E.2d at 535.

“An ulterior purpose exists when the defendant uses process ‘to

accomplish some ulterior purpose for which it was not designed

or intended, or which was the legitimate purpose of the

particular process employed.’” Boyle v. Barnstable Police

Dep't, 818 F. Supp. 2d 284, 304 (D. Mass. 2011); Psy-Ed Corp.,

947 N.E.2d at 534. Additionally, the ulterior purpose must be

extraneous or collateral to the proceeding itself.10

“Whether a person has grounds to bring a claim may of

course be relevant in assessing whether he had an ulterior

purpose.” Millennium Equity Holdings, 925 N.E.2d at 523; see

also Lorusso v. Bloom, 71 N.E.2d 218, 218 (Mass. 1947)

(commencement of additional “action known to be groundless” to

collect twice on already paid debt constitutes abuse of

process). The ulterior purpose element, however, “‘is not

satisfied merely by a showing that a person commenced litigation

10 See, e.g., American Velodur Metal, Inc. v. Schinabeck, 481

N.E.2d 209, 215 (Mass. App. Ct. 1985) (sufficient facts to infer

ulterior purpose where husband filed complaint against wife to

coerce more favorable settlement in separate divorce action);

Carroll v. Gillespie, 436 N.E.2d 431, 439 (Mass. App. Ct. 1982)

(knowingly initiating groundless criminal complaints to collect

a civil debt demonstrated illegitimate purpose); Stromberg v.

Costello, 456 F. Supp. 848, 849–850 (D. Mass. 1978) (applying

for criminal complaint, maliciously and without probable cause,

to coerce plaintiff to withdraw civil action demonstrated

ulterior purpose); cf. Cohen v. Hurley, 480 N.E.2d at 661

(bringing groundless allegations to challenge proposed

subdivision of land is not illegitimate purpose when lawsuit was

aimed at defeating the subdivision proposals).

knowing it was groundless.’” Barnstable Police Dep't, 818

F.Supp.2d at 305 (quoting Psy-Ed Corp., 947 N.E.2d at 534);

accord Empire Today, LLC v. Nat’l Floors Direct, Inc., 788

F.Supp. 2d 7, 23 (D. Mass 2011) (“[F]iling a groundless claim or

having an improper motive of vexation, harassment, or annoyance

is relevant but does not alone suffice to demonstrate ulterior

purpose.”).

Here, for the purposes of Rudnick’s 12(c) motion to

dismiss, plaintiffs have satisfied the first element of an abuse

of process claim by sufficiently alleging Rudnick’s involvement

in obtaining no-trespass orders against Kaiser and assisting the

Kirchicks with their application to the Chatham Zoning Board of

Appeals (the “ZBA”). Specifically, plaintiffs allege that

Rudnick leveraged his influence in the Chatham community to

induce several local businesses to issue no-trespass orders

against Kaiser. (Docket Entry #1, pp. 21-22, ¶¶ 72, 75). They

also allege that he assisted the Kirchicks’ efforts in filing

for “a request for a special permit with [ZBA] in an attempt to

claim some authority to pave over . . . the . . . private way

providing access to [p]laintiffs’ home, remove [p]laintiff’s

mailbox and remove several mature trees that provide privacy for

[p]laintiffs’ home.” (Docket Entry #1, pp. 19-20, ¶ 68). He

“repeatedly told [p]laintiffs that he had connections to and

specific influence over . . . Chatham zoning officials and would

use it to prevent [p]laintiffs from obtaining approval of

anything they might seek to do.” (Docket Entry #1, pp. 19-10,

¶¶ 67, 68).

Plaintiffs have also sufficiently alleged that Rudnick used

process to obtain a “collateral advantage” and “for the ulterior

or illegitimate purpose of harassing [them] into either cutting

down their trees, selling their home, or leaving Chatham

altogether . . . .” See (Docket Entry # 1, p. 27, ¶ 93); see

also Barnstable Police Dep't, 818 F.Supp.2d at 305. The

complaint alleges that: in a phone call between Kaiser and

Rudnick on April 12, 2018, Rudnick threatened to “make

“[p]laintiffs’ lives ‘miserable’ and ‘drive’ [p]laintiffs ‘out

of town’” (Docket Entry # 1, p. 13, ¶ 48); on the same day, he

threatened to “‘send the suits in’” if plaintiffs did not

capitulate to the Kirchicks’ demands and cut down the pear trees

(Docket Entry # 1, p. 14, ¶ 51); and, after the dismissal of

the chapter 258E [o]rder against him, he told plaintiffs, “‘Now

the fun begins’” (Docket Entry # 1, pp. 18–19, ¶ 66) (Docket

Entry # 1-18, p. 2). Additionally, as previously noted and

contrary to Rudnick’s purported desire to “prevent future

incidental interactions” with Kaiser after the chapter 258E

order was issued against him,11 Rudnick actively put himself in

situations that increased his contact with plaintiffs.

Lastly, plaintiffs have sufficiently alleged damage

resulting from Rudnick’s use of process. The complaint alleges

that the no-trespass orders ruined plaintiffs’ reputations,

subjected them to public humiliation, and “curtail[ed] the use

and enjoyment of their property in Chatham.” (Docket Entry # 1,

p. 22, ¶ 76). Additionally, plaintiffs allege that the no-

trespass orders remain in effect and continue to cause them

severe emotional distress. (Docket Entry # 1, p. 22, ¶ 76).

These types of harm are cognizable under Massachusetts law. See

477 Harrison Ave., 74 N.E.3d at 1249 (embarrassment from

criminal complaint, inter alia, was enough to constitute actual

injury under the anti-SLAPP statute); Millennium Equity

Holdings, 925 N.E.2d at 528 (emotional, reputational, and fiscal

harms of malicious prosecution are “compensable category[ies] of

damages for an abuse of process claim so long as . . .

affirmatively proved”). This court therefore finds that

plaintiffs have alleged sufficient facts for their abuse of

process claim to survive Rudnick’s Rule 12(c) motion to dismiss.

11 (Docket Entry # 26, p. 4) (Docket Entry # 48, p. 7).

II. The Kirchicks

A. Special Motion to Dismiss Defamation (Count II) and Abuse

of Process (Count V) Claims Under the Anti-SLAPP Statute

The Kirchicks also seek dismissal of counts II (defamation)

and V (abuse of process) under the anti-SLAPP statute, arguing

that these claims are solely based on defendants’ petitioning

activities that were made “on a good-faith and reasonable

factual basis.” (Docket Entry # 29, pp. 1, 10). Plaintiffs

disagree and contend that, even so, the complaint would survive

the second stage of the anti-SLAPP statute’s burden-shifting

framework because: “(i) [d]efendants’ petitioning activity had

no basis in law or fact” and “(ii) [p]laintiffs’ claims were . .

. colorable and” neither “retaliatory” nor “brought primarily to

chill [d]efendants’ exercise of their petitioning rights.”

(Docket Entry # 40, p. 11). At the threshold stage, the

Kirchicks bear the burden of establishing by a preponderance of

the evidence that the claims brought by plaintiffs are based

solely on defendants’ petitioning activities. See Blanchard I,

75 N.E.3d at 38.

1. Defamation (Count II)

Plaintiffs’ opposition to the Kirchicks’ special motion to

dismiss essentially mirrors their opposition to Rudnick’s

special motion to dismiss, discussed above. See generally

Docket Entry ## 40, 41). As such, plaintiffs argue that: (1)

their defamation is based on defamatory statements that Rudnick,

acting on the Kirchicks’ behalf, made to local Chatham

businesses to obtain no-trespass orders against Kaiser; and (2)

such activity is not a protected form of petitioning under the

anti-SLAPP statute because the statements were made to private

individuals and not on his own behalf. See (Docket Entry # 41,

p. 10). For the reasons set forth above, this court agrees and

finds that the Kirchicks have not met their burden under the

anti-SLAPP statute with respect to the defamation claim.12

2. Abuse of Process (Count V)

According to the Kirchicks, plaintiffs’ abuse of process

claim is also solely based on defendants’ petitioning

activities: specifically, the Kirchicks’ applications for

special zoning permits, their filing of an action in the

Superior Court, and Rudnick’s conduct in obtaining and

transmitting the no-trespass orders. (Docket Entry # 29, pp.

11-12). Plaintiffs argue, in turn, that these actions “were

merely discrete steps in [d]efendants’ broader, protracted

campaign of harassment designed to force [p]laintiffs to

capitulate to the [d]efendants’ demands.” (Docket Entry # 40,

12 Because plaintiffs filed Furnish’s affidavit, which provided

additional facts as to the defamation claim against Rudnick,

only in support of their opposition to Rudnick’s special motion

to dismiss, this court did not consider such affidavit for the

purposes of the Kirchicks’ special motion to dismiss.

p. 12). Plaintiffs also assert that the Kirchicks have not met

their burden in establishing why their purported petitioning

activities “should be viewed independently of the context of

their other wrongful behavior.” (Docket Entry # 40, p. 12).

Unlike Rudnick’s actions in obtaining the no-trespass

orders, the Kirchicks’ applications for special zoning permits

and filing the Superior Court lawsuit constituted forms of

petitioning that they undertook on their own behalf. See Miller

v. SBA Towers V, LLC, 391 F. Supp. 3d 123 (D. Mass. 2019)

(concluding that petition for a variance and application for a

special permit was legitimate petitioning activity); Carr v.

Cesari & McKenna, LLP, No. SUCV20162087H, 2017 WL 2623126 (Mass.

Super. Mar. 27, 2017) (“[F]iling a lawsuit ‘is the paradigm of

petitioning activity’ within the definition of § 59H.”)

(citations omitted); Kobrin, 821 N.E.2d at 64 (explaining

special movant must show he “petitioned the government on his or

her own behalf”). However, the complaint alleges facts that

suggest plaintiffs’ claims against the Kirchicks had a

“substantial basis other than or in addition to” the Kirchicks’

petitioning activities. See Fustolo, 920 N.E.2d at 840. Even

if “one could infer that” the Kirchicks’ “petitioning activities

played a role in the plaintiffs' decision to file the

complaint,” the complaint also points to “an independent basis

for the complaint—that [] defendants were intentionally

interfering with [] plaintiffs' right to use and enjoy their

property” and attempting to coerce plaintiffs into cutting down

the two pear trees.13 See Ayasli, 780 N.E.2d at 933. The

Kirchicks have therefore failed to show that the claims against

them “have no substantial basis other than or in addition to”

their purported petitioning activities. See Fustolo, 920 N.E.2d

at 840.

However, even if the Kirchicks had met their burden under

the first stage of the anti-SLAPP statute’s burden-shifting

framework, dismissal of the abuse of process claim would still

13 For instance: Rudnick indicated to plaintiffs that he was

acting on Mrs. Kirchick’s behalf and at her request and then

threatened to “make [p]laintiffs’ lives ‘miserable’ and ‘drive’

[p]laintiffs ‘out of town’” if plaintiffs “did not cut down the

trees” (Docket Entry # 1, p. 13, ¶ 48); “at the request of Mrs.

Kirchick,” Rudnick instructed his employees to park their trucks

“at the entrance of the private way leading to [p]laintiffs’

home, which is the sole means of accessing [p]laintiffs’ home”

(Docket Entry # 1, p. 8, ¶ 30); on August 22, 2017, Mrs.

Kirchick suggested to Mr. Kirchick and Rudnick that, if

plaintiffs’ landscapers could not find a place to move the

trees, the Kirchicks would “pay for them and burn them” (Docket

Entry # 1-5, p. 2); on August 31, 2017, Mrs. Kirchick wrote in

an email to Mr. Kirchick and Rudnick: “[]By the way,

[plaintiffs’ landscapers] had trouble getting the[ir] truck in

the driveway…:)” (Docket Entry # 1-6, p. 2); on September 14,

2017, Mrs. Kirchick suggested to Rudnick that it was “[m]aybe

time to move the truck back and start planting in the flatbed”

(Docket Entry # 1-4, p. 2); on December 13, 2017, Mrs. Kirchick

emailed Rudnick, “I know we can’t impair their right of way, but

can we restrict them from their improvements? Can you paint it

purple because we like it purple?” (Docket Entry # 1-12, p. 2);

and, on August 18, 2019, without plaintiffs’ permission, Mr.

Kirchick repeatedly brought and removed traffic cones onto

plaintiffs’ property (Docket Entry #1, p. 24, ¶ 77).

be inappropriate if plaintiffs satisfy their burden under the

second stage. See 477 Harrison Ave., 134 N.E.3d at 101

(explaining that nonmoving party meets their burden by

establishing: (1) the moving party’s purported petitioning

lacked any reasonable factual support or basis in law and caused

the nonmoving party actual injury; or (2) the nonmoving party’s

claim was colorable and not brought with the primary intent of

chilling the moving party’s petitioning rights, i.e. it was not

retaliatory). Plaintiffs argue they can meet such burden

because: (1) defendants’ “petitioning” activities lacked

“credible legal or factual bases” and caused them actual harm

(Docket Entry # 40, p. 13); and (2) plaintiffs’ claims are

colorable and not retaliatory. (Docket Entry # 40, pp. 16-19).

While the Kirchicks state that their petitioning activities “are

factually and legally supported,” they notably do not actually

explain how so. See (Docket Entry # 29, p. 13).

Under the first path, plaintiffs maintain that the

Kirchicks’ applications for special zoning permits have no

credible basis. (Docket Entry # 40, p. 13). The Kirchicks

filed an application to convert their garage into an apartment

for Mrs. Kirchick’s mother and create a new driveway and parking

area, “just feet from [plaintiffs’] front door,” which “would

have required the destruction and removal of mature” vegetation

that plaintiffs had planted years prior with the Kirchicks’

consent. (Docket Entry # 42, p. 4, ¶¶ 15, 17). Plaintiffs note

that the permit “relied on a special exemption” requiring the

guest unit to be “occupied by a member of the immediate family

occupying the principal dwelling,” which plaintiffs suggest “has

a reasonable connotation of more than seasonal and occasional

residents.” (Docket Entry # 42, p. 5, ¶ 18). According to

plaintiffs, however, the Kirchicks “have never occupied the home

in Chatham on a full-time basis since . . . approximately 2008-

2009” and Mrs. Kirchick’s mother has visited “very rarely” and

for only “brief” periods. (Docket Entry # 42, p. 5, ¶¶ 19-20).

Plaintiffs also allege that the Kirchicks “repeatedly caused the

[zoning permit] hearing to be continued immediately before, or

even at, the scheduled hearing, knowing [p]laintiffs already

incurred the cost to travel to Massachusetts in order to

attend.” (Docket Entry # 40, p. 14); see (Docket Entry 42,

pp.6-7, ¶¶ 22-27). Additionally, after “the ZBA intended that

it intended to deny the application because it did not meet the

exemptions requirements[,] the Kirchicks [] withdrew the

application” and, “[t]he next month, [] refiled a nearly

identical application” that the ZBA ultimately denied. (Docket

Entry # 40, p. 14); see (Docket Entry 42, p. 7, ¶¶ 26-28).

Plaintiffs also argue that the Superior Court lawsuit, in

which the Kirchicks alleged abuse of process and trespass

against plaintiffs, lacks any legal or factual basis. (Docket

Entry # 29, p. 4) (Docket Entry # 40, p. 14). According to

plaintiffs, the Kirchicks’ abuse of process claim (which

targeted Kaiser’s petitioning for chapter 258E orders against

defendants) was baseless because Kaiser had a good faith basis

to obtain the orders (i.e., the police advised plaintiffs to

seek the orders and the court issued the orders). (Docket Entry

# 40, p. 15). Plaintiffs also argue that the Kirchicks’

trespass claim was baseless because plaintiffs installed

plantings in the disputed area only after receiving the

Kirchicks’ written consent, and consent vitiates a trespass

claim. (Docket Entry # 40, p. 15); see 14D Mass. Prac., Summary

of Basic Law § 16:25 Privileged entries: consent or license (5th

ed.). Lastly, plaintiffs contend that the Kirchicks failed to

“diligently prosecute the Superior Court action,” as evidenced

by their failure to comply with their discovery obligations

(which prompted the court to enter a default judgment against

them). (Docket Entry # 40, p. 15).

Plaintiffs also maintain that the Kirchicks’ actions caused

them actual harm in that that they have incurred hundreds of

thousands of dollars in legal fees and travel expenses to attend

the various hearings and depositions. (Docket Entry # 40, pp.

15-16) (Docket Entry # 41-1, ¶ 38). Additionally, they allege

that they have suffered embarrassment, reputational harm, and

emotional distress. (Docket Entry # 40, p. 16) (Docket Entry #

41-1, ¶¶ 29-37, 39). Plaintiffs have therefore alleged harm

from the Kirchicks’ conduct. See 477 Harrison Ave., 74 N.E.3d

at 1249; Millennium Equity Holdings, 925 N.E.2d at 528.

Despite the high bar that nonmovants face under the anti-

SLAPP statute, plaintiffs have demonstrated that the Kirchicks’

applications for special zoning permits and the Superior Court

lawsuit lacked a credible legal or factual basis and harmed

plaintiffs. They have thus satisfied the second stage of the

anti-SLAPP statute’s burden-shifting framework. See Blanchard

II, 130 N.E.3d at 1248-1249. This court therefore need not also

discuss whether their claims are colorable or brought primarily

to chill the Kirchicks' exercise of their petitioning rights

(the second, alternative path for plaintiffs to meet their

burden).14 See 477 Harrison Ave., 134 N.E.3d at 101.

B. Partial Motion to Dismiss Under Rule 12(b)(6)

This court will now address the Kirchicks’ Rule 12(b)(6)

motion to dismiss plaintiff’s defamation and IIED claims.

(Docket Entry # 28).

1. Defamation (Count II)

The Kirchicks seek dismissal of Count II (defamation) under

Rule 12(b)(6) on the basis that “the [c]omplaint does not allege

that the Kirchicks made any false statements concerning”

14 Additionally, defendants did not address the second path of

plaintiffs’ burden under the anti-SLAPP statute.

plaintiffs but rather only allege[s] that []Rudnick defamed

plaintiffs by allegedly making false statements to the ‘Chatham

community.’” (Docket Entry # 29, p. 16). The Kirchicks also

note that “the [c]omplaint is absent of any specific allegation

about the words or statements published to the “Chatham

community.’” (Docket Entry # 29, p. 16). Plaintiffs respond it

is sufficient that the complaint alleges that “[]Rudnick made

untrue, reputation-harming statements about plaintiffs to

convince business owners to sign no-trespass orders against

[]Kaiser” and that he did so “as part of a conspiracy with the

Kirchicks and on behalf of all three [d]efendants.” (Docket

Entry # 40, p. 17).

For the purpose of brevity, this court refers to its

previous summary and discussion of defamation law in

Massachusetts and Rule 8’s notice pleading requirements. For

the same reasons that plaintiffs’ defamation claim fails under

Rule 12(c) to survive dismissal, so does it fail under Rule

12(b)(6). Namely, the complaint does not allege any defamatory

statements made by any of the three defendants. “Although the

precise words used by [] Rudnick are currently unknown,”

plaintiffs ask that this court infer that “they would have

necessarily included false and defamatory statements of and

concerning [p]laintiffs sufficient to cause persons who do not

know [p]laintiffs to bar them from their premises.” (Docket

Entry # 1, pp. 25–26, ¶ 85). This is insufficient to satisfy

the requirements of Rule 12(b)(6) because the “standard . . .

‘asks for more than a sheer possibility that a defendant has

acted unlawfully.’” Saldivar, 818 F.3d at 18 (quoting Iqbal,

656 U.S. at 678. The complaint lacks “‘enough facts to state a

claim to relief that is plausible on its face . . . .’” See

Miller, 833 F.3d at 51 (quoting Twombly, 550 U.S. at 556, 570

(2007)). Additionally, given the absence of even a single

defamatory statement in the complaint, plaintiffs fail to “set

forth such allegations in support of [their] defamation claim

that were sufficient to give [the Kirchicks] ‘fair notice’ of

[plaintiffs’] claim and the grounds upon which it rests.” See

N. Shore Pharmacy Servs., 491 F. Supp. 2d at 124.

For the foregoing reasons, this court will allow the

Kirchicks’ motion to dismiss plaintiffs’ defamation claim under

Rule 12(b)(6). However, as with the defamation claim against

Rudnick under Rule 12(c), this court declines to impose an

outright denial of the defamation claim against the Kirchicks.

See generally Rodi, 389 F.3d at 20. As noted above, this court

will allow plaintiffs to file a motion for leave to file an

amended complaint solely to cure the deficiencies in the

defamation claim. This court reiterates that it expresses no

opinion on the merits of such a motion.

2. IIED (Count III)

Lastly, the Kirchicks seek dismissal of Count III (IIED)

pursuant to Rule 12(b)(6) on the basis that the complaint does

not allege “a specific act of conduct that rises to the level of

‘extreme and outrageous.’” (Docket Entry # 29, p. 18).

Plaintiffs disagree and argue that, even if the individual

actions of defendants were not extreme and outrageous, their

collective actions exceed the bounds of decency in a civilized

society. (Docket Entry # 40, p. 21).

To successfully allege an IIED claim, a plaintiff must show

that the defendant “‘(1) intended to inflict emotional distress

by (2) undertaking actions that were extreme and outrageous,

thereby (3) causing emotional distress which (4) was severe.’”

Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 240 (1st Cir.

2013) (quoting Flibotte v. Pa. Truck Lines, Inc., 131 F.3d 21,

27 (1st Cir. 1997)). “The ensuing distress must be so severe

‘that no reasonable man could be expected to endure it.’”

Burgos Martinez v. City of Worcester, 502 F. Supp. 3d 606, 621

(D. Mass. 2020) (quoting Davignon v. Clemmey, 322 F.3d 1, 8 n.2

(1st Cir. 2003)). “Extreme and outrageous conduct is behavior

that is ‘so outrageous in character, and so extreme in degree,

as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized

community.’” Young, 717 F.3d at 240 (quoting Foley v. Polaroid

Corp., 508 N.E.2d 72, 82 (Mass. 1987)). In this context,

“‘[o]utrageous’ does not encompass ‘workaday insults,

annoyances, or even threats and petty oppressions,’ but rather

‘a high order of reckless ruthlessness or deliberate

malevolence.’” Bennett v. City of Holyoke, 230 F. Supp. 2d 207,

229 (D. Mass. 2002), aff'd, 362 F.3d 1 (1st Cir. 2004) (quoting

Conway v. Smerling, 635 N.E.2d 268, 273 (Mass. App. Ct. 1994)).

Massachusetts law therefore imposes “an extremely high hurdle .

. . to maintain” an IIED claim. Sneade v. Rojas, Civil Action

No. 11-40061-TSH, 2014 WL 949635, at *8 (D. Mass. Mar. 10,

2014).

A plaintiff’s IIED claim may be based on a pattern of

misconduct, rather than a single incident. See N. Shore

Pharmacy Servs., 491 F.Supp. 2d at 132 (“Evidence that the

defendant engaged in a ‘pattern of conduct” or ‘[r]epeated

harassment’ ‘may compound the outrageousness of incidents which,

taken individually, might not be sufficiently extreme to warrant

liability for infliction of emotional distress.’” (quoting Boyle

v. Wenk, 392 N.E.2d 1053, 1055 (Mass. 1979))). Accordingly, a

court looks at the totality of the circumstances, rather than a

single incident, to determine whether a defendant engaged in

extreme and outrageous conduct. See N. Shore Pharmacy Servs.,

491 F.Supp. 2d at 132.

Here, viewing the facts in plaintiffs’ favor, defendants’

conduct was extreme and outrageous. The complaint alleges the

following “unlawful pattern of conduct” by defendants:

(i) threatening to make [p]laintiffs’ ‘lives miserable’

until [p]laintiffs capitulate to their unlawful demands, or

leave Chatham; (ii) threatening to destroy [p]laintiff’s

property; (iii) trespassing on [p]laintiffs’ property; (iv)

threatening to remove [p]laintiffs’ mailbox, in violation

of federal law . . .; (v) threatening to use their alleged

influence with local authorities against [p]laintiffs; (vi)

threatening to use their combined influence to deny

[p]laintiffs access to local accommodations; (vii)

encouraging others to take meritless actions against

[p]laintiffs’ (viii) impeding access to [p]laintiffs’

property by deliberately placing commercial trucks and

other vehicles at the entrance of the private way leading

to [p]laintiffs’ home, for days and weeks at a time; and

(ix) following and harassing service providers working on

[p]laintiffs’ yard.

(Docket Entry # 1, pp. 3-4). Plaintiffs also allege that the

Kirchicks, through their attorney, threatened to resurface the

private way used by plaintiffs to access their home (Docket

Entry #1, p. 13); that Rudnick threatened to ‘drive’

[p]laintiffs ‘out of town’” (Docket Entry # 1, p. 13) and tear

out plaintiffs’ bushes and mailbox (Docket Entry # 1, p. 15);

that Rudnick repeated his threats via phone call, text, and

email (Docket Entry # 1, pp. 14-16); and that Rudnick’s threats

were particularly “ominous” and “alarming” because of his “well-

known conviction for conspiring to violate the Controlled

Substances Act by coordinating the theft of thousands of pounds

of marijuana from the South Yarmouth Police Barracks.” (Docket

Entry # 1, p. 14).

This court finds that plaintiffs “ha[ve] presented enough

evidence to support a finding that [defendants]' actions were

far more egregious than mere bad manners, and [that] it is

appropriate for a jury ‘to make common sense judgments, from the

totality of the circumstances,’ about whether such actions were

‘extreme and outrageous.’” See N. Shore Pharmacy Servs., 491

F.Supp. 2d at 132 (citation omitted). The complaint

sufficiently alleges that defendants’ conduct did not constitute

ordinary “‘workaday insults’” or “‘annoyances’” but rather

demonstrated “‘deliberate malevolence.’” See Bennett, 230 F.

Supp. 2d at 229 (quoting Conway, 635 N.E.2d at 273). The facts

alleged indicate a “‘[r]epeated harassment’” of plaintiffs. See

N. Shore Pharmacy Servs., 491 F.Supp. 2d at 132 (citation

omitted). Dismissal of the IIED claim is therefore not

appropriate at this stage.

CONCLUSION

For the foregoing reasons: defendants’ special motions to

dismiss counts II and V pursuant to the anti-SLAPP statute

(Docket Entry ## 25, 28) are DENIED; Rudnick’s motion to dismiss

pursuant to Rule 12(c) (Docket Entry # 25) is DENIED as to Count

V; and the Kirchicks’ motion to dismiss pursuant to Rule

12(b)(6) (Docket Entry # 28) is DENIED as to Count III. As for

the remaining defamation claim (Count II), Rudnick’s partial

motion to dismiss pursuant to Rule 12(c) (Docket Entry # 25) and

the Kirchicks’ partial motion to dismiss pursuant to Rule

12(b)(6) (Docket Entry # 28) will be ALLOWED as to Count II on

or after February 10, 2022, unless plaintiffs file prior to that

date a motion for leave to amend the complaint (solely to cure

the deficiencies in the defamation claim) that attaches a

proposed amended complaint sufficiently alleging a defamation

claim against defendants.

/s/ Marianne B. Bowler______

MARIANNE B. BOWLER

United States Magistrate Judge