Plante v. Long

STATE OF MAINE SUPERIOR COURT

YORK, SS. Civil Action

Docket No. CV-13-148

BRUCE PLANTE and

DENNIS PLANTE,

Plaintiffs,

ORDER GRANTING

v. DEFENDANT'S MOTION FOR

SUMMARY JUDGMENT

RONALD P. LONG,

Defendant.

Before the court is Defendant's motion for summary judgment in this defamation

action. For the following reasons, the motion is granted.

I. Facts

Plaintiffs Dennis and Bruce Plante have been involved in town services or

government in Berwick for a number of years. Dennis Plante is chief of the Berwick

Fire Department. (Supp. S.M.F. <J:[ 1) Bruce Plante is the assistant chief, and served on

the Berwick Board of Selectmen until 2010. (Id. <J:[ 2.)

I <

Defendant Ronald Long is a resident of Berwick. (Id. <J:[ 5.) At times over the

years he has been critical of the Fire Department and its leaders. (Id. <J:[ 6.) In 2007, for

example, Defendant opposed a proposal for a publicly funded building that would

have housed the Fire Department. (Id. <J:[ 9.) In 2008, he and other Berwick residents

questioned alleged inconsistencies in the Fire Department's application for a federal

grant. (Id. <J:[ 7.) These and other instances contributed to conflict between the parties.

On one occasion, Bruce Plante filed a complaint against Defendant with the Berwick

Police Department. (Id. <J:[ 15.)

1

The particular statements and events at issue in this case arise in that context,

beginning with an incident on October 27, 2011. Defendant and his wife were jogging

on Worster Road in Berwick when Bruce Plante drove past them. (Id. <JI 11.) According

to Plante, Defendant smirked and waved to him; Plante perceived the actions as

intentionally mocking. (Pls.' Addt'l S.M.F. <JI 3.) Defendant disputes this interpretation.

(Supp.' g S.M.F. <JI 11.) In any event, after passing by Defendant, Bruce Plante pulled

his truck over to the side of the road approximately 150 feet away and got out of his

vehicle. (Id. <j[<JI 12-13; Pls.' Addt'l S.M.F. <JI 7.) According to Defendant, Plante then

shouted at Defendant: "Hey, do you want some of this? Are you fucking looking for

me?" (Supp.' g S.M.F. <JI<JI 12-13.) Defendant felt threatened, but continued jogging.

Bruce Plante has a different version of what was spoken. He maintains that he

was merely asking Defendant if he wanted to speak with him, and only raised his voice

because of the distance between them. (Opp. S.M.F. 9191 12-13; Pls.' Addt'l S.M.F. 9[ 9.)

According to Plante, when Defendant replied that he was only waving, he (Plante)

merely yelled, "Don't bother;" and then got back in his truck and drove away. (Pls.'

Addt'l S.M.F. <JI 8.)

The following day, October 28, Defendant sent an email to Chief Timothy Towne•

and Captain Jerry Locke of the Berwick Police Department. (Supp.' g S.M.F. <JI 14; Pls.'

Addt'l S.M.F. <JI 12.) In the emait Defendant alleged that he was being harassed by

Bruce Plante, and he reported what he heard Plante yell at him during the October 27

incident ("Hey, do you want some of this? Are you fucking looking for me?"). (Pls.'

Addt'l S.M.F. <JI 13.) In addition, Defendant's email stated, in part, as follows:

I have heard in the past of several people that he has tried to intimidate by

this very behavior. It is my understanding that he has done this and

similar things to Gary Day local business owner, former police officer, and

former selechnen. Peg Wheeler local business owner, former selechnen,

school board member, etc. as well as Thomas Lavigne local business

2

owner, former police officer, and former selectmen. I ask that you contact

each and every person that I have named to further your investigation.

But never in the 22 years I have been in Berwick has this ever happened.

This person is clearly mentally unstable and I fear for what he is capable

of doing. As this is a very isolated area I firmly believe that he was trying

to get me alone. This harassment has to stop. This along with position on

the fire dept makes me worry about my safety and that of my family. Not

only if he looses control again, but if for any reason my family or I need

emergency help. Mr. Plante is in a position to make me worry about the

safety of my family and myself.

(Id. cir 14.)

1

That same day, October 28, 2011, Defendant also sent an-em.ail to Mark Gagnon

with a copy to Dana Lajoie of the South Berwick Police Department. (Pls.' Addt'l S.M.F.

cir 15.) This email was substantially similar to the email sent to Chief Towne and

Captain Locke, and recounted in material part the October 27 incident, including the

statements that Bruce Plante allegedly had made ("Hey, do you want some of this?

Are you fucking looking for me?"), as well as Defendant's statements that he believed

Bruce Plante was "clearly mentally unstable," and had done "this and similar things to

several other people in town that he has tried to intimidate by this very behavior." (Id.

circir 15-16.)

I

On April 5, 2012, Defendant filed another complaint with the Berwick Police

Department. (Id. cir 19.) In the complaint, Defendant again alleged that he was being

harassed by Bruce Plante, and further stated: "I would also like it known that I feel very

uncomfortable with [Bruce] coming to my house should there be a need for the [Fire

Department] to come. I would like his employer notified that he is not allowed to

make contact with me. And I would like to make the Town of Berwick notified of this

1

In addition to serving as Assistant Chief of the Fire Department, Bruce Plante is privately

employed as a delivery driver for Mr. Gagn on's compan y, Gagnon Propane. (Id. <j[ 1.) He was

driving a Gagnon Propane truck at t11e time of the October 27 incident. (Id. <j[ 2.) '

3

concern and that I do not want [Bruce] on or around my property in any capacity." (Id.

9I 20.)

On April 24, 2012, Defendant sent an email to members of the Berwick Board of

Selectmen and others that read in part: "There is much more to that story as well as

other abuses by Bruce and Dennis ... following people, harassing people ...." (Id. 9I

21.)

On May 23, 2012, Defendant sent an email to Chief Towne (with a copy to Bart E.

Haley), which stated that Bruce and Dennis Plante "continually lie to further 'Their

1

Cause' at any cost" and that they, 'with the help of more than a few have driven this

town into the ground and lied, followed, intimidated, and harassed people to get 'Their

Cause' pushed through ... at any cost." (Id. 9I 22.)

On March 30, 2013, Defendant sent another email to members of the Board of

Selectmen, as well as other individuals. (Id. ] 34.) The email stated that a report

prepared by independent consultant Municipal Resources, Inc. (MRI) contained the

following statements in its evaluation of the Fire Department: "Several [firefighters] cite

Bruce as hostile, belligerent and bad for community relations" and "Area fire chief cites

Bruce 'impossible to work with."' (Id.; Supp.'g S.M.F. 9I 35.) Defendant admits that he

was referring to a draft version of the MRI report and never read the final version. (Pls.'

Addt'l S.M.F. 9I9I 35, 37; Def.'s Reply S.M.F. 9I9I 35, 37.)

Plaintiffs deny that they have harassed Defendant and others, as Defendant

alleges.

Defendant states that, on one occasion, he witnessed Dennis Plante following

him at a close distance in a vehicle with a Fire Department insignia as Defendant drove

to New Hampshire. (Supp.'g S.M.F. 9I 38.) Defendant also states that he has witnessed

Bruce Plante in his vehicle making gestures, banging the steering wheet and hollering

4

at Defendant. (Id. <JI<JI 10, 16.) Chief Towne and Captain Locke state that they have both

witnessed similar behavior by Bruce Plante, with Captain Locke alleging that he has

witnessed this behavior on "hundreds" of occasions. (Id. <JI<JI 27-28.)

In addition, Ms. Wheeler states that, after she opposed a proposed pay increase

for a Fire Department employee, Bruce Plante approached her in an intimidating way,

including hollering and pointing at her, and later called her on the phone to state that

she had better hope her house does not catch on fire. (Id. <JI<JI 19-20.) Ms. Wheeler also

testified that Bruce Plante has followed her, given her the finger," and leapt out at her

11

from the side of the road or from his vehicle. (Id. <JI<I[ 21-22.) Mr. Lavigne has testified

that Bruce Plante glares at him when he sees him in traffic, and that, on one occasion, he

jumped out in front of Mr. Lavigne's car and gave him the finger. (Id. <I[CJ[ 24-25.)

Bruce Plante denies that any of these events occurred. (Opp . S.M.F. 9ICJI 16, 19-22,

24-25, 27-28.)

Plaintiffs filed a complaint alleging eight counts of libel and one count of

punitive damages.2 The parties have since entered into a stipulation of dismissal as to

the libel claims in count I and count V1I.

2

The eight libel counts in the complaint pertain to the following alleged actions by Defendant:

An August 19, 2008 letter to the Department of Homeland Security (Count I); the October 28,

2011 emails to Chief Towne/Captain Locke (Count II), and Mark Gagnon/Chief Lajoie (Count

III); the April 5, 2012 written complaint to the Berwick Police Department (Count IV); the April

24, 2012 email to the Board of Selectmen (Count V); the May 23, 2012 email to Chief Towne and

Mr. Haley (Count VI); a June 7, 2012 email to Jeff Libby (Count VII); and the March 30, 2013

email to the Board of Selectmen (Count VIII). Count IX sets out a claim for punitive damages

based on the conduct alleged in support of the libel counts.

5

II. Conclusions

Defendant seeks summary judgment with respect to the remaining counts on

several grounds, but primarily on the ground that Plaintiffs, as public officials, have

failed to meet their threshold burden of proof that he acted with actual malice toward

them. Defendant also maintains many of the statements in issue were statements of

opinion, not fact, and therefore are not actionable. Finally, he argues that his

statements are protected by a conditional privilege.3 (Def.'s Mot. Summ. J. 11-20.)

A. Summary Judgment GeneraUy

Summary judgment is appropriate "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits ... show that there

is no genuine issue as to any material fact . . . and that any party is entitled to a

judgment as a matter of law." M.R. Civ. P. 56(c). "To avoid a judgment as a matter of

law for a defendant, a plaintiff must establish a prima facie case for each element of her

cause of action." Champagne v. Mid-Me. Med. Ctr., 1998 ME 87, <JI 9, 711 A.2d 842.

"Summary judgment is appropriate even when concepts such as motive or intent are at

issue7 • • • if the non-moving party rests merely upon conclusory allegations, improbable

inferences, arid unsupported speculation." Dyer v. Dep't of Transp., 2008 ME 106, <JI 14,

951 A.2d 821.

B. Summary Judgment Involving a Public Official Defamation Claim

Generally speaking, a plaintiff who brings a defamation action must prove that

the defendant made statements of fact that were false, defamatory, and not privileged.

Ballard v. Wagner, 2005 ME 86, <JI 10, 877 A.2d 1083; Schoff v. York Cnty., 2000 ME 205, <[ 9

3

Except for Count IV in Section C(2), below, because the motion is decided on the first ground,

the court does not address or rely upon the other latter two grounds advanced in support of the

·'

mot10n. '

6

n.3, 761 A.2d 869; see also Lester v. Powers, 596 A.2d at 65, 69 (Me. 1991). Plaintiffs who

serve as public officials, however, are held to a higher standard in defamation actions.

A public official "must, to succeed in this action, prove that the allegedly

defamatory statements were in fact false and that the statements were made with

'actual malice,A that is, that the statements were made with knowledge of their falsity

or with reckless disregard as to whether they were true or false." Beal v. Bangor Publ'g

Co., 1998 ME 176, 9I 6, 714 A.2d 805 (citing New York Times Co. v. Sullivan, 376 U.S. 254,

283 (1964)). This limitation on defamation actions by public officials is rooted in

principles of free speech protected by the First Amendment. New York Times Co., 376

U.S. at 283; Roche v. Egan, 433 A.2d 757, 762 (Me. 1981). It extends broadly to

comments made about public officials. See Pendleton v. City of Haverhill, 156 F.3d 57, 67

(1st Cir. 1998) (constitutionally required showing in defamation action tied to plaintiff's

status); Buendo1f v. Nat'l Pub. Radio, Inc., 822 F. Supp. 6, 12 (D.D.C. 1993) (constitutional

requirements "include almost any comment regarding a public official.") See also

Garrison v. La., 379 U.S. 64, 77 (1964) (statements that do not directly impugn official

conduct are nonetheless protected); Restatement (Second) Torts § 580A cmt~h. (private

communications are also protected).

5

Plaintiffs are public officials. Therefore, as a predicate for maintaining this

action they must make a threshold showing that Defendant made the statements in

4

Because the Law Court has moved away from using the term "actual malice" in defamation

cases to avoid confusion, see Lester, 596 A.2d at 65, it is only used herein as an occasional short­

hand reference for "knowledge or disregard of falsity." See Michaud v. Inhabitants of Livermore

Falls, 381 A.2d 1110, 1113 (Me. 1978).

5

Plaintiffs appear to concede that they are public officials. (Pls.' Opp'n to Mot. Summ. J. 1 n.l,

7-16.) Even if they do not so concede, it is clear that as the chief and assistant chief of a

municipal fire department they are public officials. See Ballard, 2005 ME 86 at 'l[ 15 (acting

president of 10911 union a public official); Michaud, 381 A.2d at 1112-13 (Dir,ector of State Bureau

of Maine' s Elderly a pu blic official); Roche, 433 A.2d at 762 (police officer a public official

7

issue with knowledge of their falsity or with reckless disregard as to whether they were

true or false. Beal, 1998 ME 176 at <J[ 6. And, they must make this showing by a

heightened evidentiary standard-clear and convincing evidence. New York Times Co.,

376 U.S. at 254, 279-80, 285-86; Beal, 1998 ME 176 at <J[ 10; Lester, 596 A.2d at 69.

"Knowledge or disregard of falsity is a purely subjective state of mind/' and

"there must be sufficient evidence to permit the conclusion that the defendant in fact

entertained serious doubts as to the truth of his publication." Lester, 596 A.2d at 71 (emphasis

added). Even evidence that demonstrates the alleged defamer's "factual premises

were objectiveiy false, or even that no reasonable person could have believed them to be

true, does not show that [he or she] knew or disregarded their falsity." Id. Plaintiffs

may rely on inference to prove Defendant subjectively entertained serious doubts as to

the truth of th~ statement. Bose Corp. v. Consumers Union, 692 F.2d 189, 196 (1st Cir.

1982); see also Levesque v. Doocy, 560 F.3d 82, 90 (1st Cir. 2009) ("Because direct evidence

of actual malice is rare, it may be proved through inference, and circumstantial

evidence."). However, personal animosity alone does not establish actual malice, but

may, along with other evidence, support such an inference; provided, however, that

additional evidence amounts to• more than mere "unsupported speculation" as to th~

critical question of whether Defendant, in fact, knew his statements were false, or made

the statements with reckless disregard of their truth or falsity. See Michaud, 381 A.2d at

1113; Lester, 596 A.2d at 72.

Thus, in opposing summary judgment a plaintiff must generate sufficient prima

facie evidence to establish a disputed material fact. Petit v. Key Bank of State, 688 A.2d

427, 430 (Me. 1996). Specifically in this instance, which involves a public official

because police are "vested with substantial responsibility for the safety and welfare of the

citizenry in areas impinging most directly and intimately on daily living").

t

8

defamation claim, in order to avoid summary judgment Plaintiffs must put forward

sufficient prima facie evidence to generate a genuine issue of material fact with respect

to whether Defendant subjectively knew the falsity of, or recklessly disregarded the

falsity of, the statements in question; and that showing must be by clear and convincing

evidence. Michaud, 381 A.2d at 1114; Lester, 596 A.2d at 71; see also Picher v. Roman

Catholic Bishop of Portland, 2013 ME 99, 1 3, 82 A.3d 101 (applying clear and convincing

evidence standard on appeal from a summary judgment).

C. The Remaining Defamation Counts

Based on review of the summary judgment record, the court concludes that

Plaintiffs have not produced sufficient prima facie record evidence to demonstrate

clearly and convincingly that Defendant subjectively knew his statements to be false, or

that he made the statements recklessly without regard as to whether or not they were

true.

1. October 28, 2011 Emails (Counts II and III). Plaintiffs allege that the

following statements made by Defendant in his October 28, 2011 emails are defamatory:

(a) The statement that Bruce screamed, "Hey, do you want some of this?" and "Are you

fucking looking for me?"; (b) the statement that Bruce has tried to intimidate other

people by "this very behavior"; (c) the statement that Bruce is "clearly mentally

unstable"; and (d) Defendant's accusation that Bruce has been harassing Defendant.

Plaintiffs offer the following in support of their contention that they have carried their

burden in showing clearly and convincingly that Defendant acted with actual malice

and that there are genuine issues of material facts as to his subjective state of mind.

First, with respect to the statements in (a) above, Bruce Plante admits that he

shouted at Defendant but denies that he shouted the precise words Defendant claims.

(Opp. S.M.F. <[112-13; Pls.' Adcit'l S.M.F. 111.) Plaintiffs contend, therefore, that this

9

discrepancy constitutes a disputed material fact that is sufficient to avoid summary

judgment. In other words, they argue that this discrepancy permits an inference that

Defendant must have known the words he attributed to Plante in the October 28 emails

were false, or that he recklessly disregarded their falsity, because he, Defendant, had

personal knowledge of the incident and was telling an untrue version of what Plante

said.

This does not satisfy Plaintiffs' burden. While the discrepancy may generate a

disputed factual issue as whether Defendant's statements are in fact true, it does not

establish, without more, that Defendant seriously doubted the truth of the statements

he was making. To the extent the court could make the inference Plaintiffs urge, it

hardly reaches the level of clear and convincing evidence that applies to this threshold

inquiry, even when considered in connection with the other arguments that follow. ln

other words, simply denying that Bruce Plante made the statements attributed to him

may create an issue of fact as to whether Defendant's statements are true or accurate,

but it does not establish by clear and convincing evidence that Defendant knew his

statements were false or seriously doubted their truth, which represent his

interpretation of the October 27 incident. See Michaud, 381 A.2d at 1115 (judgment for

defendants appropriate, despite "widely varying perceptions and interpretations" of

plaintiff's conduct, where there was no evidence to suggest that defendant's letter,

"although possibly biased and exaggerated, was not an honest communication relating

the author's own interpretation of the plaintiff's conduct"); see also Lester, 596 A.2d at 71

("Evidence that some of [defendant's] factual premises were objectively false, or even

that no reasonable person could have believed them to be true, does not show that she

knew or disregarded their falsity.").

10

Second, with respect to the statement in (b), Plaintiffs contend that at the time

Defendant composed and sent the October 28 emails, he "was not aware of any

instances where Bruce had allegedly engaged in 'this very behavior' towards others."

(Pls.' Addt'l S.M.F. 9[ 18.) If accurate and supported, Statement 18 might create a

dispute as to whether Defendant seriously doubted that Bruce had intimidated others

by "this very behavior." However, Statement 18 is not supported by its accompanying

record citation. (See Long Dep. 85:19-86:16, 171:5-172:1.) On the contrary, the cited

portion of Defendant's testimony reveals that, on October 27, 2011, Defendant was

aware of instances in which Bruce Plante had engaged in behavior of a similar nature,

including banging on his steering wheel, hollering, "flipping off" a man named Gary

Day, and jumping in front of Ms. Wheeler's car. (Id. at 171 :5-172:1.)

In addition, Plaintiffs contend that Defendant's references in the email to the

experiences of another individual (Tom Lavigne) with Bruce Plante are evidence of

Defendant's subjective knowledge of the falsity of his statements in the October 28

email because Tom Lavigne testified in his deposition that he "did not tell anyone about

the alleged incidents where Bruce Plante jumped in front of his car, the alleged 'road

rage' incidents, or the incident where Bruce allegedly tolcl. Mr. Lavigne that he better

hope his house doe_sn't catch on fire." (Pls .' Addt'l S.M.F. 9[ 32.) Even if true, Statement

32 does not create a dispute as to whether Defendant seriously doubted that Bruce

Plante had engaged in "this very behavior" toward others because the record includes

other alleged instances of similar behavior by him on which Defendant could have

based his statement. (Def.' s Reply S.M.F. 9[ 23}

6

Paragraph 23 of Defendant's Reply to Plaintiffs' Additional Statement of Material Facts recites

over a dozen incidents of which Defendant was aware that involved actions by Plaintiffs that

could be fairly characterized as harassing toward him'self and others. (See Def.'s Reply S.M.F.

11

Finally, in light of the foregoing, Plaintiffs have not offered clear and convincing

evidence that generates a genuine material disputed factual issue as to whether

Defendant seriously doubted the truth of his statements that Bruce Plante is "clearly

mentally unstable" and has been harassing Defendant.

2. Complaint to Berwick P.D. (Count IV). Defendant's statements that he feels

uncomfortable with Bruce Plante coming to his house and does not want Bruce to make

contact with him are statements of opinion, which are not actionable. See Lester, 596

A.2d at 69; True v. Ladner, 513 A.2d 257, 261-62 (Me. 1986); Caron v. Bangor Publ'g Co.,

470 A.2d 782, at 784 (Me. 1984).

Even if the statement is considered a statement of fact and not opinion, Plaintiffs

have not adduced sufficient clear and convincing prima facie evidence to generate a

genuine issue of material fact with respect to whether Defendant subjectively knew the

falsity or recklessly disregarded the falsity of both his statement about feeling

uncomfortable with Bruce Plante coming to his house or the statement that he is being

harassed by Bruce Plante. On the contrary, the record as a whole suggests otherwise.

Plaintiffs have not met their threshold burden with regard to the statements in Count

N.

3. April 241 2012 Email (Count V). This count involves Defendant's statement

that "There is much more to that story as well as other abuses by Bruce and Dennis ...

following people, harassing people ...." Plaintiffs point to several statements of fact

which appear to create a dispute as to Defendant's state of mind, but ultimately fail to

do so either because they are not supported by the accompanying record citation or

<JI 23, at pages 26-28.) Contrary to Plaintiffs' contention, the record does not clearly establish

that pefendant was not aware of some of these incidents at th~ time of the October 27, 2011

incident.

12

because they create a dispute as to the truth of Defendant's statements, but not as to

whether Defendant seriously doubted their truth.

First, Plaintiffs state that, "[Defendant] knows of no other 'abuses' other than

those stated in the April 24, 2012 complaint." (Pls.' Addt'l S.M.F. 9I 29.) However, the

accompanying record citation makes clear that Defendant intended "other abuses" to

mean the allegations stated in his April 24 email, i.e., following and harassing people.

(Long Dep. 78:4-81:25.) The fact that Defendant did not know of abuses in addition to

those in his April 24 email, even if true, does not suggest that Defendant seriously

doubted the truth of the abuses alleged in the email.

Second, Plaintiffs state that "Neither [Bruce] nor [Dennis] have 'harassed,'

'bullied,' 'intimidated,' or 'followed' people" and "Neither Bruce nor Dennis has

followed people in town." (Pls.' Addt'l S.M.F. 9I9I 23, 25.) Although Statements 23 and

25 create a factual dispute as to whether Defendant's statement is true, again they do

not clearly and convincingly generate a factual dispute as to whether Defendant

seriously doubted that Bruce and Dennis have followed and harassed people, based on

Defendant's own experience and the alleged incidents that had been relayed to him by

others, including Ms. Wheeler, Chief Towne, and Captain Locke. (Supp.' g S.M..F. <[<JI 18,

22, 38-39.) See also Footnote 6, supra.

Third, Plaintiffs state that, "[Defendant's] only basis for claiming Dennis has

'followed' people is that he drove too closely behind him." (Pls.' Addt'l S.M.F. 9I 26.)

The accompanying record citation shows that Defendant testified that his basis for

believing Dennis Plante was following Defendant himself during his drive to New

Hampshire was the fact that Dennis was driving too close to Defendant's vehicle. (Long

Dep. 80:19-81:18.) This testimony says nothing about whether Defendant knew of

alleged instances in which Bruce or Dennis Plante have followed others and therefore

13

cannot be used to create a dispute as to whether Defendant entertained serious doubts

about the truth of his statement.

Finally, Plaintiffs state that, "[Defendant] does not have any information

suggesting Dennis has harassed people." (Pls.' Addt'l S.M.F. ':![ 30.) Plaintiffs cite to a

portion of Defendant's deposition testimony in which he admits he does not have

personal knowledge of any harassment by Bruce or Dennis Plante toward others, but

asserts he is relying on alleged instances of harassment that have been relayed to him

by others. (Long Dep. 85:9-86:16.) This citation does not support their claim that

Defendant had no information regarding harassment by Dennis Plante. On the

contrary, it supports the opposite conclusion. More importantly, Plaintiffs have

provided no evidence that Defendant seriously doubted the information relayed to him

or subjectively believed it to be false. Plaintiffs have not met their burden with regard to

countV.

4. May 23, 2012 Email (Count VI). Defendant's statements in issue in Count VI

are that Bruce and Dennis Plante "continually lie to further 'Their Cause' at any cost"

and that they, "with the help of more than a few have driven this town into the ground

and lied, followed, intimidated', and harassed people to get Their Cause' pushed'

1

1

through ... at any cost." Plaintiffs state that 'Neither [Bruce] nor [Dennis] have lied

1

to get 'their cause' pushed through at any cost." (Pls.' Addt'l S.M.F. ':![ 24.) Again, as

was the case with Statements 11 23, and 25 upon which Plaintiffs relied with respect to

1

their challenges to the foregoing counts and which are referenced above, their denial in

Statement 24 that they have not lied to advance their interests may create a disputed

fact as to whether Defendant's statements are false and therefore potentially

defamatory; however, it does not, without more, constitute clear and convincing

I t

evidence that generates a factual dispute as to whether Defendant knew the falsity of

14

these statements or seriously doubted their truth. Plaintiffs have not made a clear and

convincing prima facie showing that Defendant subjectively made these, or the other

allegedly defamatory statements, "with the high degree of awareness of their probable

falsity" that is constitutionally required under the Supreme Court's decisions.

Michaud, 381 A.2d at 1116.

5. March 30, 2013 Email (Count VIII). Finally, Count VIII asserts that

Defendant's statements from the draft MRI report, specifically that "Several

[firefighters] cite Bruce as hostile, belligerent and bad for community relations" and

"Area fire chief cites Bruce 'impossible to work with"' are defamatory. Even if the

final MRI report did not include these statements or these statements turned out to be

false in whole or part, (Pls.' Addt'l S.M.F. 91 36), this, without more, does not satisfy the

threshold requirement of a clear and convincing prima facie showing that Defendant

subjectively knew these statements to be false or entertained serious doubts that the

statements were included in Lh.e report or that they were true. Plaintiffs therefore have

not met their burden with regard to count VIII.

Accordingly; Defendant's motion for summary judgment will be granted as to

Counts II, III, IV, V, VI and VIII.

D. The Punitive Damage Count

Count IX of the complaint sets out a claim for punitive damages based on the

alleged defamatory conduct in Counts I through VIII. Because summary judgment is

granted to Defendant on the predicate counts, the court likewise will enter summary

judgment for Defendant with respect to Count IX. See Jolovitz v. Alfa Romeo Distribs. of N.

Am., 2000 ME 174, 9111, 760 A.2d 625 (punitive damages not available where summary

judgment granted on underlying negligence claim because "a claim for punitive

15

damages will not lie unless the plaintiff receives compensatory or actual damages based

on the defendant's tortious conduct").

III. Order

In accordance with the foregoing, Defendant's motion for summary judgment is

GRANTED as to all remaining counts, namely Counts II, III, IV, V, VI, VIII, and IX.

The clerk may incorporate this order upon the docket by reference pursuant to

Rule 79(a) of the Maine Rules of Civil Procedure.

SO ORDERED.

DATE: November 7, 2016

16

EN I f R£ D DEC o g 20l4

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

YORK, SS. DOCKET NO. CV-13-148

P/tf-'jVR-- l~-1J~_,14­

BRUCE PLANTE and

DENNIS PLANTE,

Plaintiffs

v. ORDER

RONALD P. LONG,

Defendant

The defendant has filed a special motion to dismiss the complaint in its entirety

pursuant to 14 M.R.S. §556 and a motion to dismiss.

Those motions have been briefed and were argued with skill and careful

preparation. The motions will be denied for two reasons.

In 1995 Maine enacted an anti-Strategic Lawsuit Against Public Participation

statute at 14 M.R.S. §556. Its history and provisions have most recently been discussed

in Town of Madawaska v. Cayer, 2014 ME 121. The statute provides that, ''The special

motion to dismiss may be filed within 60 days of the service of the complaint or, in the

court's discretion, at any later time upon terms the court determines proper." Here the

defendant, who initially was without counsel, filed the motion some 161 days after

service of the complaint and more than 60 ·days after counsel entered the case. There

are no sufficient reasons to extend the 60-day period.

The second reason for denying the motion, beyond its being untimely, is that the

facts are not yet clear enough to decide whether this was an improper attempt by public

officials to muzzle criticism or a proper suit by unjustly maligned and defamed

individuals. See generally Nader v. Maine Denwcratic Party (Nader II), 2013 ME 51.

The parties did agree that Counts I and Count VII of the complaint should be

dismissed. A stipulation of dismissal was previously entered dismissing those two

counts.

The entry is:

Defendant Ronald P. Long's motion to dismiss and special motion to

dismiss are denied.

Dated: December 4, 2014

A. Fritzsche

Justice, Superior Court

2

CV-13-148

ATTORNEYS FOR PLAINTIFFS:

GENE LIBBY

TYLER SMITH

LIBBY O'BRIEN KINGSLEY & CHAMPION LLC

62 PORTLAND RD UNIT 17

KENNEBUNK ME 04043

ATTORNEYS FOR DEFENDANT:

JONATHAN BROGAN

JOHNATHAN G NATHANS

NORMAN HANSON & DETROY LLC

POBOX4600

PORTLAND ME 04112