# Klein v. Demers-Klein

> Superior Court of Maine · June 13, 2019

URL: https://www.frixlaw.com/law-library/cases/10811893

## Case

- **Court:** Superior Court of Maine
- **Decided:** June 13, 2019
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Andrew M. Horton
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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STATE OF MAINE SUPERIOR COURT

Cumberland, ss. Civil Action

MARK KLEIN,

Plaintiff

V. Docket No. CUMSC-CV-18-0377

JESSICA DEMERS-KLEIN
now known as Jessica Demers, and
AMANDA MYERS,

Defendants

ORDER ON DEFENDANTS' MOTIONS
FOR ADDITIONAL ATTORNEY FEES

Defendant Amanda Myers's Application for Attorney Fees After Appeal and

Defendant Jessica Demers's Motion for Award ofAttorney Fees are before the court,1

alm;g with Plaintiff Mark Klein's memoranda in opposition to the motions and the

Defendants' reply memoranda. The court elects to decide the motions without oral

argument. See M.R. Civ. P. 7(b)(7).

The Defendants' motions are brought under the anti-SLAPP statute. 14 M.R.S.

§ 556, which permits but does not require the court to award attorney fees to the

prevailing party. See id. ("If the court grants a special motion to dismiss, the court

may award the moving party costs and reasonable attorney's fees, including those

incurred for the special motion and any related discovery matters.") The Defendants

1 As the assigned single justice while the case was pending in Superior Court, I have been asked to decide the
pending motions.
(

clearly prevailed, the Superior Court having granted their special motions to dismiss

and the Law Court having summarily affirmed the dismissal. See Klein v. Myers, Me.

Supr. Jud. Ct., Docket No. CUM-19-258 (mem. dee. March 3, 2020).

The Defendants' motions seek awards of their attorney fees and costs incurred

in opposing Plaintiffs motion for reconsideration of the Superior Court's April 17,

2019 dismissal order, and in opposing the Plaintiffs appeal of that Order and the

Superior Court's August 13, 2019 Order awarding attorney fees and costs to the

Defendants. The amounts requested by Defendants in their pending motions for

additional awards are amply supported and documented in fee affidavits and records,

and are reasonable and appropriate under the applicable factors. See Poussard v.

Commercial Credit Plan, Inc., 479 A.2d 881, 885 (Me. 1984).

Plaintiff Klein does not challenge any specific component of the fees and costs

claimed. Instead, his opposition presents several blanket objections, none of which is

substantiated. . In its August 13, 2019 Order making an initial award of fees, the

court spelled out in detail the reasons why the fee award was justified. All of those

reasons apply as well to the Defendants' motions for additional fees. For all of those

reasons, Plaintiff Klein's decision to bring the underlying case was ill-advised and his

decision to appeal the dismissal of the case even more so

It is hereby ORDERED AS FOLLOWS:

1. Defendant Amanda Myers's Application for Attorney Fees After Appeal is

hereby granted. Defendant Amanda Myers is hereby awarded $21,365.57 in attorney

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fees and costs against Plaintiff Mark Klein. Plaintiff shall make payment in full within

30 days of when the judgment becomes final.

2. Defendant Jessica Demers's Motion for Award of Attorney Fees is hereby

granted. Defendant Jessica Demers is hereby awarded $23,954 in attorney fees and

costs against Plaintiff Mark Klein. Plaintiff shall make payment in full within 30 days

of when the judgment becomes final.

3. The foregoing awards are m addition to the amounts awarded to the

Defendants in the court's August 13, 2019 Order.

Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this

Order by reference in the docket.

Dated July 28, 2020

A. M. Horton, Justice

Entered on the Docket: () 7/ 3 ~/z e,

Plaintiff-Thomas Hallett, Esq.
Defendant Demers Klein-Elizabeth Germani, Esq.
Defendant Myers-Theodore Irwin, Esq.

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•
(

STATE OF MAINE SUPERIOR COURT

Cumberland, ss. Civil Action

MARK KLEIN, )
)
Plaintiff )
)
V. ) Docket No. CUMSC-CV-18-0377
)
JESSICA DEMERS-KLEIN )
now known as Jessica Demers, and )
AMANDA MYERS, ) REc~~J (~fJ~¥~i3 (~LE~~t<s·;
'
Defendants

ORDER ON DEFENDANTS' PENDING MOTIONS

Plaintiff Mark Klein has brought tort claims in this case against his former

spouses, Defendants Amanda Myers and Jessica Demers, who was formerly known as

Jessica Demers-Klein. Each of the Defendants has filed a special motion to dismiss

pursuant to Maine's anti-SLAPP statute, 14 M.R.S. § 556 1 and also a motion to dismiss

pursuant to M.R. Civ. P. 12(b)(6).

The Media Law Resource Center describes anti-SLAPP statutes, their origins and purposes
as follows:

Anti-SLAPP laws are designed to provide for early dismissal ofmeritless lawsuits
filed against people for the exercise of First Amendment rights. The acronym
"SLAPP" stands for "Strategic Lawsuit Against Public Participation - a phrase
coined by two law school professors in the late 1980s. They identified a trend of
retaliatory lawsuits brought to intimidate and silence opponents and critics who
had spoken out in the public sphere, typically on land use and development issues.
Anti-SLAPP statutes were proposed to provide a quick, effective and inexpensive
mechanism to combat such suits.

http://www.medialaw.org/topics-page For the Plaintiff:
Daniel Feldman, Esq.
For Jessica Demers:
Elizabeth Germani, Esq.
For Amanda Myers:
Theodore Irwin, Esq.
(

Factual Background

The following recitation of facts is drawn from Plaintiff Klein's Complaint and

the affidavits and affidavit exhibits that each of the three parties has filed in connection

with the Defendants' special motions to dismiss, and also from material that may be

considered in connection with a Rule 12(b)(6) motion to dismiss.

The anti-SLAPP statute authorizes the court to consider affidavits (and

presumably exhibits incorporated into and annexed to affidavits) in addressing a

special motion to dismiss, see 14 M.R.S. § 556. Under Rule 12(b)(6), the court may

consider "official public documents, documents that are central to the plaintiffs claim,

and documents referred to in the complaint without converting a motion to dismiss

into a motion for a summary judgment when the authenticity of such documents is not

challenged." See Moody v. State Liquor and Lottery Commission, 2004 ME 20, 110, 843

A.2d 43, 48.

Mark Klein and Amanda Myers were married in January of 2003 and divorced

on September 26, 2011. (Def Myers Ex. 5 at 2) 2; (Pl.'s Compl., 10). Klein and Myers

have two daughters together, A.K. and E.K. (Pl.'s Compl. 14). Their divorce

settlement provided that they had shared parental rights over A.K and E.K. (Def

Myers Ex. 5 at 4).

2 This and similar references are to the parties' affidavits and / or exhibits thereto.

2
Klein and Demers were married on January 2, 2015. (Pl.'s Compl. ,1s). They

have one daughter together, S.K, born in September 2015. (Pl.'s Compl. ,5). Klein

and Demers lived together in Falmouth, Maine. (Demers Aff. , , 1, 9).

In 2016, the marital relationship deteriorated and Demers took her daughter

S.K. to Pennsylvania on August 10, 2016, without notifying Klein. (Pl.'s Compl.

,,17-19).; (Demers Aff. ,1s). Klein filed for divorce from Demers on August 18,

2016. (Pl.'s Compl. ,24). Klein left the marital home on August 22, 2016. (Pl.'s

Compl. ,s7). Klein and Demers have lived separately since that date. (Pl.'s Compl.

, 3 7). (The two have since finalized their divorce, and Demers has returned to her

prev10us surname. (Demers Aff. , .34).

On August 31, 2016, as she was driving back to Maine, Demers received

messages from Klein that the marital home had been broken into. (Demers Aff. , 19).

Demers spoke to police regarding the break-in. (Demers Aff. , 19). She returned to

Pennsylvania believing that Klein had staged the break-in. (Demers Aff. , 19). On

September 25, 2016, Demers installed a security system in the home. (Demers Aff.

,22).

Prior to the break-in, on August 26, 2016, Demers had contacted Myers to

check on Myers's daughters' wellbeing. (Demers Aff. , 17), (Myers Aff. ,7). The

two Defendants met in person on September 19, 2016, with their attorneys present to

discuss Klein's behavior of concern towards his daughters. (Demers Aff. ,20).

After this meeting, Myers filed a protection from abuse ("PFA") complaint

against Klein on behalf ofherselfand her children on September 22, 2016. (Myers Aff.

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, 9 ). Myers was granted a temporary PFA order by the West Bath District Court on

September 22, 2016. (Pl.'s Compl. ,48).

Wanting to know the results of Myers's PFA action, Demers moved for a

continuance of a parental rights hearing in the divorce case between her and Klein.

(Demers Aff ,23); (Pl.'s Compl. ,75). After the court granted Myers a temporary

PFA order, the police searched Klein's residence for firearms on September 22, 2016

but found none. (Pl.'s Compl. ,,64-66); (Myers Aff ,10).

On September 30, 2016, the West Bath District Court convened a hearing on

Myers's PFA complaint. (Demers Ex. 6). Demers was subpoena'ed to testify at the

hearing. (Demers Aff Myers and Demers testified

Also on September 30, 2016, Myers brought A.K. and E.K. to a pediatrician, Dr.

Andrea Loeffler, to discuss Klein's behavior toward them, specifically what Myers

described to the doctor as Klein's practice ofapplying balm to the girls' anuses. (Myers

Aff ' 11 ); (Pl.' s Comp1. '50).

On October 3, 2016, Demers learned that her house had been broken into

agam. (Demers Aff , 25). Believing that Klein had perpetrated the break-in, Demers

contacted Family Crisis Services ("FCS"), (Demers Aff , 25). Demers informed FCS

about what had happened and that she believed Klein was the one who had broken into

her home, in response to her testimony at the PFA hearing. (Demers Aff , , 25-26).

The mandatory reporting law required FCS, upon receiving this information,

to contact the Department of Health and Human Services ("DHHS") Office of Child

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and Family Services ("OCFS") to report possible child abuse. (Demers Aff. ~27); (Pl.'s

Compl. ,~51-52). See 22 M.R.S. § 4011 (list of mandatory reporters).

When the OCFS contacted Demers on October 6, 2016, she answered questions

about the break-in of her house, her daughter S.K., and the concerning behavior

exhibited by E.K. (Demers Aff. ~28). OCFS also called Myers on October 6, 2016.

(Myers Aff. ~ 12). OCFS referred this investigation to the Cumberland County

District Attorney's Office for further investigation and the Brunswick Police began an

investigation into Klein. (Pl.'s Compl, ~~61, 64).

On October 24, 2016, A.K and E.K. were interviewed by OFCS and the

Brunswick Police Department. (Myers Aff. ~ 13). Additionally, Myers was asked

questions about Klein and his possible abuse of A.Kand E.K. (Myers Aff. ~14). On

November 21, 2016, OCFS substantiated a finding that Klein had created a sexualized

environment for A.Kand E.K. (Demers Aff. ~31); (Pl.'s Compl. ~84). On February

23, 2017, OCFS reversed its substantiation. (De£ Myers Ex. 5 at 8).

During Myers's PFA hearing against Klein both Defendants testified about

Klein's relationship and interactions with A.K. and E.K. (Demers Aff. ,29); (Pl.'s

Compl. ,,78-83). Also, an OCFS investigator testified that during the interview

that OCFS conducted with Klein, Klein admitted that he had been applying "bag balm"

to his older daughters' anuses from when they were in diapers to the present. Myers

Aff. Ex. 2 at 271 (testimony of Ashley Emery at PFA hearing). The investigator also

said Klein admitted to sleeping in the same bed with his older daughters and

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acknowledged that he had showered with them although the investigator said Klein

claimed to have been wearing a wetsuit at the time. Id. at 272-277.

On October 21, 2016, Klein filed a motion to modify the divorce judgment

seeking primary physical residence of E.K and A.K., allocated parental rights and

responsibilities, and child support. (Def Myers Ex. 5 at 9). On December 10, 2016,

Myers filed a motion to Modify Divorce Judgment seeking sole parental rights and

responsibilities, primary residence of E.K. and A.K., sole discretion over visitation, and

child support. (Def Myers Ex. 5 at 9). On December 12, 2016, Myers dismissed her

PFA action. (Pl.'s Compl. ,89).

On September 11, 2017, the family court issued an order amending Klein's and

Myers's divorce judgment. (Myers Aff. , 18). This order granted Myers allocated

parental rights and responsibilities and primary residence of A.K. and E.K. (Def

Myers Ex. 5 at 27). The order granted Klein one four-hour after school visit and one

four-hour weekend visit each week, with increased contact if therapeutically

supported. (Def Myers Ex. 5 at 27).

Additionally, the court ordered counseling for Klein to assist in his reunification

with A.K. and prohibited both parent from discussing litigation matters with their

children and from using their children to get information about the other parent. (Def

Myers's Ex. 5 at 28). The order required Klein to pay Myers back child support and

$340.13 per week. (Def. Myers Ex. 5 at 28-29). Neither party was awarded attorney's

fees, based on their behavior and litigation strategies during the course of the

proceeding. (Def. Myers Ex. 5 at S 1).

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(

Demers and Klein finalized their divorce on October 16, 2018. (Demers Aff.

,34). The Divorce Judgment awarded Demers and Klein shared parental rights and

responsibilities for S.K. (Demers Ex. 4 at 7). Primary residence for S.K. was with

Demers, and Klein received a four-phase contact schedule and split holidays and

vacation. (Demers Ex. 4 at 8-9). Klein is required to pay Demers $162 child support

per week. (Demers Ex. 4 at 12). No attorney's fees were awarded. (Demers's Ex. 4

at 16).

Procedural History

Plaintiff Klein filed his complaint August 21, 2018, alleging 11 counts against

Defendant Jessica Demers and Defendant Amanda Myers: (1) abuse of process; (2)

wrongful use of civil process; (3) fraud; (4) defamation; (6) defamation per se; (6)

invasion of privacy; (7) intentional infliction of emotional distress; (8) violation of

civil/constitutional rights; (9) negligence; (10) negligent infliction of emotional

distress; and ( 11) civil conspiracy.

The court granted Demers's motion to enlarge time to file an answer on

September 26, 2019 and she filed an answer on October 16, 2018. Myers filed an

answer on October 23, 2018. The court granted Demers's unopposed motion to seal

on November 11, 2018 and granted Myers's unopposed motion to seal on December

12, 2018.

Demers filed a motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) and a special

motion to dismiss pursuant to 14 M.R.S. § 656 on November 6, 2018. Klein filed an

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opposition to Demers's motions on November 27, 2018. Demers filed a reply to Klein's

opposition on December 4, 2018.

Myers filed a motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) and a special

motion to dismiss pursuant to 14 M.R.S. § 556 on December 3, 2018. Klein filed an

opposition to Myers's motions on December 26, 2018. Myers filed a reply to Klein's

opposition on January 2, 2019.

Discussion

I. Applicability of Maine's anti-SLAPP statute to this case

Both Defendants' special motions to dismiss argue that Klein's complaint

should be dismissed in its entirety because the alleged causes of action all arise from

what Maine's anti-SLAPP statute defines as protected "petitioning activity." 14 M.R.S.

§ 556 (2017).

The statute provides in pertinent part

When a moving party asserts that the civil claims, counterclaims or cross
claims against the moving party are based on the moving party's exercise
of the moving party's right of petition under the Constitution of the
United States or the Constitution of Maine, the moving party may bring
a special motion to dismiss. The special motion may be advanced on the
docket and receive priority over other cases when the court determines
that the interests ofjustice so require. The court shall grant the special
motion, unless the party against whom the special motion is made shows
that the moving party's exercise ofits right of petition was devoid of any
reasonable factual support or any arguable basis in law and that the
moving party's acts caused actual injury to the responding party. In
making its determination, the court shall consider the pleading and
supporting and opposing affidavits stating the facts upon which the
liability or defense is based.

14 M.R.S. § 556 .

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a. The Three-Step Special Motion to Dismiss Standard

What procedure and analysis trial courts in Maine are to apply in addressing a

section 556 special motion to dismiss has evolved over time, as the Maine Law Court

has noted. See Gaudette v. Davis, 2017 ME 86, ~~5-12, 160 A.sd 1190. In its most

recent decision under Maine's anti-SLAPP statute, 14 M.R.S. § 556, the Maine Law

Court said:

The application of the anti-SLAPP statute results in an inherent tension
between the coexisting constitutional right to freedom of speech and the
right to access the courts to seek redress for claimed injuries.
Accordingly, in addressing a special motion to dismiss, the reviewing
court must be careful to recognize these competing rights and work to
achieve an appropriate balance. In an effort to achieve this balance, we
require that the reviewing court use a three-step burden-shifting
procedure.

Hearts with Haitz: Inc. v. Kendrick, 2019 ME 26, ~ 10, _ A.sd_,_
(internal citations omitted).

The procedure is as follows:

At the first step, the special movant must establish, as a matter oflaw, that "the

claims against [her] are based on [her] exercise of the right to petition pursuant to

the federal or state constitutions." Gaudette v. Davis, 2017 ME 86, ~~16-17, 160 A.sd

1190 (quoting Morse Bros. v. Webster, 2001 ME 70, ~19, 772 A.2d 842). If the special

movant fails to make the showing, the anti-SLAPP statute does not apply and the

special motion to dismiss is denied. Hearts of Haitz: Inc. v. Kendrick, 2019 ME 26 at

~ 11, _A.sd at _ . If the special movant does make that showing, the inquiry

moves to step 2, at which the burden shifts to the plaintiff. Gaudette v. Davis, 2017 ME

86 at~ 17.

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The plaintiff's burden at the second step is to make a prima facie showing that

the defendant's "petitioning activity" was "devoid of any reasonable factual support or

any arguable basis in law" and that the" petitioning activity" caused the plaintiff injury.

Id. (quoting Nader v. Me. Democratic Party (Nader I), 2012 ME 57, ,,16, 29-38, 41

A.sd 661 ). If the plaintiff fails to carry that burden, the special motion to dismiss is

granted. Id.

If the plaintiff does carry that burden, the inquiry proceeds to the third step, at

which the court, on motion of any party, "permits the parties to undertake a brief

period oflimited discovery, the terms ofwhich are determined by the court after a case

management hearing, and [] at the conclusion of that limited discovery period, the

court conducts an evidentiary hearing." Id. at , 18.

With this framework at hand, the analysis proceeds to the first step-whether

Myers and Demers have each established as a matter oflaw that the conduct on which

Klein's claims are based qualifies as "petitioning activity" for purposes of the anti-

SLAPP statute.

b. Step One: Whether Defendants Have Shown that the Claims Against Them
Are Based on Petitioning Activity

Defendants contend that Klein has sued them for engagmg m protected

"petitioning activity." (Def Myers's Special Mot. Dismiss 8, 12); (Def Demers's

Special Mot. Dismiss 7).

Klein argues that the anti-SLAPP statute does not even apply in this case

because: (1) his intent in bringing this law suit is not to chill the Defendants'

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"petitioning activities" but rather to seek damages for Defendants' actions, (Pl.'s Opp'n

to Def Myers's Special Mot. Dismiss 2); (2) Defendants had ulterior motives when

engaging in their "petitioning activities," (Pl.'s Opp'n to Def. Myers's Special Mot.

Dismiss 6); (3) Defendants' "petitioning activities" were based on lies, (Pl.'s Opp'n to

Def Myers's Special Mot. Dismiss 7-8); and (4) his complaint is based on Defendants'

pre-petitioning actions and not their "petitioning activities," (Pl.'s Opp'n to Def

Myers's Special Mot. Dismiss 2).

Klein's contention that his own alleged intent and the Defendants' alleged

ulterior motives are relevant to the step one analysis is unpersuasive. Klein's intent

in bringing this action is irrelevant to the question of whether the anti-SLAPP statute

applies, because the statute establishes that a lawsuit premised entirely upon a

defendant's petitioning activity should not be permitted to chill the defendant's

exercise of First Amendment rights, unless the defendant's activity has no arguable

factual support or basis in law and has harmed the plaintiff.

As to the relevance of the Defendants' motives, the Massachusetts Supreme

Judicial Court has construed the similar Massachusetts anti-SLAPP statute to mean

that "[a] special movant's motivation for engaging in petitioning activity does not

factor into whether it has met its threshold [step one] burden." 477 Harrison Ave.,

LLC v. JACE Boston, LLC, 477 Mass. 162, 168, 74 N.E.3d 1237 (2017), citing Office

One, Inc. v. Lopez, 437 Mass. 113, 122, 769 N.E.2d 749 (2002). It is the step two

analysis that has more to do with a special movant's motivation, in exploring the

factual and legal basis for the special movant's petitioning activities.

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Klein argues that because he is suing the Defendants for lying about him, the

anti-SLAPP statute does not apply. That argument, too, is relevant to the step two

inquiry, at which he has the burden to show that the Defendants lacked a factual or

legal basis for their activity, but it is not relevant to the step one inquiry.

Klein's one threshold argument that is relevant to the step one inquiry is that

his claims against Myers and Demers are based on their "pre-petitioning activity"

rather than petitioning activity.

Maine's anti-SLAPP statute defines "a party's exercise of its right of petition"

to encompass written or oral statements in six different categories:

[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'';

[s] "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."

14 M.R.S. § 556.

Klein's complaint contains eleven counts. The court's review of a special motion

to dismiss does not necessarily lead to an "all or nothing'' outcome-the special motion

may be granted as to some of the plaintiffs claims and denied as to others. See Gaudette

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v. Davis, 2017 ME 86, ,r 17, 160 A.sci 1190; Camden Nat'l Bank v. Weintraub, 2016 ME

101, ,rg, 143 A.sci 788.

Count 1 (Abuse of Process) - Klein alleges that Defendants "used the legal and

law enforcement system in a manner improper in the regular conduct of such

proceeding." (Pl.'s Compl. ,r 106). By its very nature, this count must be based on

statements to judicial and law enforcement agencies, and thus it concerns "petitioning

activity" as defined in section 556.

Count 2 (Wrongful use of Civil Process) - Klein alleges that Myers "sought a

protection from abuse" order (Compl. ,r 112), and Demers sought "a continuance of an

interim hearing," (Compl. ,r 106). This count as well is plainly based on "petitioning

activity" as defined in section 556. See Morse Bros. v. Webster, 2001 ME 70, ,r,r29-31,

772 A.2d 842.

Counts 3 (Fraud), 4, (Defamation), and 5 (Defamation per se)-Klein asserts that

both Myers and Demers are liable to him for fraud and defamation based on various

statements, as follows.

Paragraphs 119(A)-(E) of Klein's complaint enumerate the following allegedly

fraudulent and defamatory statements by Demers:

A. Statements made by Demers to Myers on August 22, 2016 that Demers has
seen Klein applying bag balm to the anuses of his two older daughters and that
Demers interprets Klein's actions as not being for medical purposes but for
sexual abuse.

B. Statements by Demers to Family Crisis Services on October 5, 2016 that
Klein has sexually abused his daughters with Myers by applying bag balm to
their anuses and that Demers has seen him do so.

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C. Statements by Demers on October 6, 2016 to an Office of Child and Family
Services investigator that Klein displayed inappropriate and sexualized
behavior towards his children; that Klein was responsible for two break-ins at
Demers's home and that Klein had committed domestic violence against
Demers.

D. Statements by Demers on October 24, 2016 to the Maine District Court
that she was concerned about the wellbeing of her daughter with Klein based
on the allegations contained in Myers's PFA complaint against Klein. Klein
asserts Demers knew that Myers's PFA complaint was largely based on
Demers's own disclosures to Myers.

E. Statements by pemers September 30, 2016 and on November 14, 2016, in
the course of her testimony at the PFA hearing in Myers's PFA case against
Klein.
(Compl. , 119).

Klein's complaint at paragraph 120(A) through (D) alleges the following

against Myers:

(A) In her affidavit dated September 22, 2016 to support the temporary PFA

Order [Myers] averred falsely that:

Klein routinely and without cause applied bag balm to the anus of both her
children;
Klein showers with her children;
Klein has sexually abused his children;
Klein is a threat to sexually abuse his children; Klein had threatened to kill
[Myers]

(B) On or about October 6, 2016 [Myers] made false and
misleading statements to an OCFS investigator:

Klein inflicted domestic violence against her;
She was aware of, and corroborated the sexualized behavior of
Klein as presented by [Demers];
Such corroboration by [Myers] was false and misleading;
Klein has a repeated history of prostitution;
Klein perpetrates emotional abuse against his children.

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(C) In a meeting on October 24, 2016 [Myers J falsely told a
representative of the Brunswick police department:

There is no valid reason for Klein to apply any ointment to his
daughters;
Klein raped his neighbor.

(D) On or about September SO, 2016 and again on November 14,
2016, [Myers] made false and misleading statements to the PFA court:

Her children with Klein did not have skin conditions in their anus
region;
Her children with Klein did not have any problems with their
bowels;
She knew of no incident other than in their infancy, where the
children have been treated for discomfort regarding their ani;
Her children never had eczema near their ani.

(Pl.'s Compl. ~ 120).

Myers's and Demers's alleged statements made in court and made to the OCFS

investigator plainly fall within the definition of "petitioning activity." See 14 M.R.S. §

556 ( definition includes "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").

Demers's alleged disclosure to Myers and Demers's and Myers's disclosures to

an FCS employee are less clearly so. However, the statutory definition of "petitioning

activity" is not limited to statements made directly to governmental entities or

agencies. The definition includes "any statement reasonably likely to encourage

consideration or review of an issue by a legislative, executive or judicial body, or any

other governmental proceeding" means that any statement that is reasonably likely to

trigger governmental review can fall within the scope of petitioning activity.

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To qualify . as a statement "reasonably likely to encourage consideration or

review" by a government body or agency, the statement need not be submitted or

made directly to the governmental body, because statements "made before or

submitted to" a governmental body are separately included in the statutory definition

of "petitioning activity." To qualify as a statement "reasonably likely to encourage

consideration or review," a statement need only be likely to trigger some form of

governmental action or review.

Demers's statements to Myers were a primary basis for Myers's subsequent

PFA complaint. Demers was subpoena' ed to testify at the PFA hearing and, according

to the transcript of portions of her testimony, she repeated in court the statements she

had previously made to Myers, FCS and the OCFS. For purposes of the definition of

"petitioning activity," it could be "reasonably expected" that Demers's disclosure to

Myers about Klein's sleeping arrangements with his daughters and his application of

bag balm would trigger the action that Myers promptly took-invoking the judicial

PFA remedy and seeking to modify the divorce judgment.

Moreover, Family Crisis Services provides support and advocacy for victims of

abuse and domestic violence and has been affiliated with the Maine Coalition to End

Domestic Violence. See Craig v. Caron, 2014 ME 115, , 14, 102 A.sd 117 5. Maine

law requires individuals in certain positions and occupations, including family and

domestic violence advocates, to report suspected child abuse or neglect. See 22 M.R.S.

§ 4011-A (enumerating mandated reporters of child abuse or neglect). As such,

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statements to FCS about abuse or domestic violence are reasonably likely to be

conveyed to either law enforcement or DHHS or both.

In fact, Klein's complaint bolsters this point in alleging that Demers and Myers

"knew or should have known" that their disclosures to OCFS and/or FCS would be

forwarded to the District Attorney's office for investigation. (Pl. Compl. ~~62-6.3).

Klein additionally alleges that Myers made statements to the children's

pediatrician that he sexually abused his children. (Pl.'s Compl. ~ 50). Physicians are

mandated reporters of suspected child abuse or neglect under Maine law. See 22

M.R.S. § 4011-A. Thus, although Myers denies saying Klein committed sexual abuse,

her statements to the pediatrician about his behavior toward their daughters were

"reasonably likely to encourage consideration or review of an issue by a legislative,

executive or judicial body," within the meaning of the section 556 definition of

"petitioning activity."

Whether anti-SLAPP protection applies is admittedly closest as to Demers's

initial disclosure to Myers. Klein contends that the disclosure constitutes "pre-

petitioning activity" not protected by the anti-SLAPP statute. However,

"communications that are intimately intertwined with, and preparatory to, the filing

of judicial proceedings qualify as petitioning activity for the purpose of the anti­

SLAPP statute." Graham-Suit v. Clainos, 7.38 F.sd 11.31, 1142-4.3 (9th Cir. 201.3),

quoting Cabral v. Martins, 177 Cal. App. 4th 471, 99 Cal. Rptr. 3d .394, 404 (Ct. App.

2009). "In the anti-SLAPP context, the critical point is whether the plaintiffs cause

17
of action itself was based on an act in furtherance of the defendant's right of petition

or free speech." City of Cotati v. Cashman, 29 Cal. 4th 69, 78, 52 P.3d 695 (2002).

Klein also contended at oral argument that Demers could not invoke the anti­

SLAPP statute because she was not exercising her own right of free speech, and cited

the decision of the undersigned judge in Warren v. Pretz: Flaherty, Beliveau & Pachios,

LLC, 2012 Me. Bus. & Consumer LEXIS 29 at *13-15. In that case, however, the

court decided that a business's response to a state agency investigation could not

qualify as petitioning activity because the business was responding to, not initiating,

a governmental inquiry. See id. at *14 ("[The special movant] did not bring the

alleged security violations to the attention of the Office of Securities; had it done so, this

ana"lysis might have had a different outcome. [The special movant] was simply responding

to inquiries in the context of a government investigation of third parties.") (emphasis

added).

Here, Demers did bring the concern to the attention of Myers and then to FCS

and OCFS. She was exercising the right of any person to report inappropriate acts

involving a child to the child's parent and then to appropriate authorities. Her

disclosure to Myers was a prelude to her disclosures to FCS, OCFS and ultimately to

the District Court in the PFA hearing. The fact that persons who in good faith report

suspected child abuse are statutorily immune from civil or criminal liability provides

18
support for the conclusion that Demers's statements to Myers, FCS and OCFS fall

within the definition of protected "petitioning activity." See 22 M.R.S. § 4014(1). 3

For these reasons, the court concludes that Demers's statements to Myers, and

both Defendants' disclosures to FCS and the OCFS and their testimony in District

Court alleged in Counts 4 and 5 of Klein's complaint are all "petitioning activity."

Count 6 (Invasion of Privacy) - Klein alleges that Defendants caused an

invasion ofhis personal privacy. (Pl.'s Compl. ~ ~ 136-39). Klein generally states that
'
Defendants invaded his privacy through "their actions." However, Klein does not

specify how Defendants invaded his privacy, other than through the same statements

and actions that are the basis for his defamation claims. (See Pl.'s Compl. ~61 ("As a

result of the report to OCFS by Family Crisis Services and the false statement made

by [Defendants], Klein was referred to the Cumberland County District Attorney's

office for investigation); ~ 66 ("Police confronted Klein . .. causing an invasion of his

quietude.")). Thus, the court construes Klein's invasion of privacy claim to be based

on what the court has already determined was "petitioning activity."

Count 7 (Intentional Infliction of Emotional Distress) and Count 10 (Negligent

Infliction of Emotional Distress)- Klein alleges that "Defendants' actions" caused him

extreme emotional distress. (Pl.'s Compl. ~~ 141-44, 167-62). Again, Klein does not

identify any actions by Defendants beyond what the court has already decided fall

s In fact, the immunity statute incorporates a definition of "good faith" that is similar to the anti­
SLAPP statute's "devoid ofany reasonable factual support or any arguable basis in law" standard.
See 14 M.R.S. § 4014(1) ("Good faith does not include instances when a false report is made and the
person lmows the report is false

19
within the definition of "petitioning activity." (See Pl.'s Compl. ~ 69 ("The

investigation by OFCS caused Klein great embarrassment and harm to his

reputation"); ~90 ("The legal actions taken against Klein have caused him great

embarrassment and harm to his reputation"); ~ 91 ("The legal actions taken against

Klein have caused him considerable psychological trauma and duress for which he has

required active medical treatment and therapeutic assistance.")). Accordingly, the

court deems Klein's emotional distress claim to be based on the Defendants'

"petitioning activity."

Count 8 (Violation of Civil Rights/ Constitutional Rights) - Klein alleges that

Defendants used the court system to deprive him of his constitutional rights. (Pl.'s

Compl. ~ ~ 146-60). This claim plainly is based on Defendants' "petitioning activity."

Count 9 (Negligence) - Klein's negligence claim once again generally refers to

"Defendants' actions" as the basis of his negligence claim brought on behalf of his

daughters, but does not allege any actions beyond those already addressed above.

(Pl.' s Compl. ~ ~ 161-66). Thus, the negligence claim, too, is premised upon

Defendants' "petitioning activity." (See Pl.'s Compl. ~ 49 ("Temporary Restraining

Order prevented Klein from communicating, visiting with or parenting his two

daughters."); ~77 ("Due to the misleading allegations made by Jessica regarding the

PFA Complaint to the Family Court, Klein was again limited in his rights to interact

with his daughter.")).

20
Count 11 (Civil Conspiracy) - Klein's civil conspiracy claims are based on

Defendants' actions during judicial proceedings and an executive branch investigation

and thus constitute "petitioning activity." (Pl.'s Compl. , , 163-66).

For the reasons given, the court deems all of Klein's claims set forth in his

complaint to be based on Defendants' "petitioning activities" within the definition of

"petitioning activity" contained in section 556. Accordingly, the Defendants' special

motions to dismiss have met the Defendants' step 1 burden to show that the claims

against them are within the anti-SLAPP statute.

c. Step Two: Devoid of any Reasonable Factual Support or any Arguable Basis
in Law

The burden shifts to Klein to show that the Defendants' "petitioning activity"

was "devoid of any reasonable factual support or any arguable basis in law" and that

the petitioning activity caused him injury. Nader I, 2012 ME 57, , 16, 41 A.sd 55 I.

This test does not determine whether the alleged false or fraudulent statements were

more likely true or more likely untrue, but looks only at whether they had any

reasonable basis in fact. See Gaudette, 2017 ME 86 , 21, 160 A.sd 1190.

The Defendants' factual allegations as to Klein's conduct fall into the following

general areas:

• The allegation that he was in the habit of doing "bum checks" on his daughters

and applying "bag balm" to their anuses.

• The allegation that he slept in the same bed as one or both ofhis older daughters

21
• The allegation that he had committed domestic violence against Myers and

sexual assault against a neighbor.

• The allegation that he had showered with his older daughters.

Klein alleges that Defendants' references are based on lies and "half-truths."

(Pl.'s Opp'n to Def Myers's Special Mot. Dismiss 7-11). Klein provides transcripts

from the 2016 PFA hearing and contradictory emails exchanged from 2011 to 2014

between Klein and Myers. (Pl.'s Ex. A, B, C). Establishing that a party's petitioning

was based on "totally false" claims may constitute a prima facie showing that their

"petitioning activity" was devoid of any reasonable factual support. See Gaudette, 2017

ME 86, ~24, 160 A.sd 1190.

However, Klein's affidavit and memorandum submitted in opposition to the

special motions to dismiss focus, for purposes of step 2, almost entirely upon the "bag

balm'' allegation. (See Pl.'s Opp'n to Def Myers's Special Mot. Dismiss at 8-11;

Affidavit of Mark Klein ~~18, 35-49). For example, Klein's affidavit does not deny

the domestic violence allegation or that he has slept in the same bed with his

daughters.

Moreover, even as to the "bag balm" allegations, Klein's affidavit does not deny

that he has applied "bag balm'' to his older daughters as Demers and Myers have

asserted.

22
Thus, Klein does not seem to challenge the accuracy of Demers's and Myers's

description of his behavior toward his older daughters. What he clearly does challenge

is the interpretation he says they have placed on his behavior.

Although the Defendants deny that they ever accused Klein of child abuse or

went beyond reporting his observed behavior, tt seems clear that Myers and Demers

believed that Klein had engaged in inappropriate behavior at least toward his oldest

daughter and came forward to FCS, OCFS and the court based on that belief

However, the focus is not on the validity of Myers's and Demers's opinion of Klein's

behavior. Instead, the question is whether their opinion was devoid of any factual

support. Based on the record, Klein has not established that what Demers and Myers

reported to FCS, OCFS and the court was devoid of any factual support.

As noted above, the only aspect of their report Klein attempts to controvert is

the Defendants' rep~rt that he was applying "bag balm" to his older daughter's anal

areas. The record contains factual support for that report. Specifically, the record

includes portions of the transcript of sworn court testimony by an investigator for

OCFS that Klein acknowledged during an interview with her that he had been

applying "bag balm" to the girls' anuses "since they were in diapers until now ...," due

to irritation and redness due to constipation Myers Aff, Ex. 2 at 268-70, 274. The

witness also testified that the OCFS had determined that Klein had been applying "bag

balm" to the older girls' anuses. Id. at 274.

Klein's memoranda in opposition to both special motions do not dispute that

Klein acknowledged to the OCFS investigator that he had continued to apply "bag

23
balm" to his older daughters' anuses, as Demers and Myers asserted. 4 Instead, his

opposition to Myers's special motion spends considerable energy justifying his use of

"bag balm" and attacking Myers for supposedly claiming she did not know Klein was

applying "bag balm." His affidavit includes email exchanges between him and Myers

indicating plainly that Myers did know about Klein's use of "bag balm" at least as of

2013. Klein Aff Ex. C.

The focus at this step 2 stage must remain on whether Klein has made a prim.a

facie showing that Myers's allegations about the "bag balm" lacked reasonable factual

support. Whether Myers knew that Klein had used it on the girls, and whether Myers

had ever used it herself in the same manner, are not relevant. 5 The OCFS'

investigator's sworn testimony that Klein had acknowledged his continued application

of "bag balm" provides factual support for Demers's and Myers's allegations.

For purposes of step 2 of the analysis ofMyers's and Demers's special motions

to dismiss, the court concludes that Klein has not made a prim.a facie showing that the

Defendants' disclosures regarding his application of "bag balm" to his older daughters

were devoid of any reasonable factual support. Those being the only "petitioning

4 At oral argument, however, Klein suggested that the OCFS investigator had misunderstood
his answers to her questions. Be that as it may, her testimony plainly substantiates the validity
of the Defendants' allegation.

5 Myers responds to Klein's accusation by pointing out that she does not dispute knowing about
Klein's use of "bag balm" when her daughters were younger; she says it was the revelation that
Klein was still applying "bag balm" and still doing "bum checks" when the girls were old enough
to tend to themselves, along with his practice of staying in the same bed with them, that caused
her to suspect Klein's motives. See Myers A.ff. ~7; De£ Myers's Reply Mem. In Support of
Special Mot. Dismiss at 1.3 . Her testimony at the PFA hearing was to the same effect.

24
activities" that Klein's opposition attempts to controvert, the court further concludes

that Klein has not met his burden for purposes of step 2 of the Gaudette v. Davis

analysis.

Therefore, there is no occasion or basis for the analysis to proceed further along

the three-step procedure.

Conclusion

Defendants Amanda Myers and Jessica Demers have established that Plaintiff

Mark Klein's claims against them are based on the Defendants' petitioning activity

within the meaning of the Maine anti-SLAPP statute. See 14 M.R.S. § 556. In

response, Plaintiff Mark Klein has failed to meet his burden to establish that the

Defendants' petitioning activity was devoid of any reasonable factual support or basis

in law.

This result makes it unnecessary to address the Defendants' Rule 12(b)(6)

Motions.

The Maine anti-SLAPP statute authorizes the court to award costs and

reasonable attorney fees to the moving party on a special motion to dismiss. See 14

M.R.S. § 556 ("If the court grants a special motion to dismiss, the court may award

the moving party costs and reasonable attorney's fees, including those incurred for the

special motion and any related discovery matters"). This Order authorizes Defendants

Myers and Demers to file a motion for an award of attorney fees and costs, including

fee affidavits. Briefing on any such motion shall proceed according to the applicable

civil rule.

25
l
1

Accordingly, it is ORDERED AS FOLLOWS:

1. The Special Motions to Dismiss filed by Defendants Amanda Myers and

Jessica Demers are hereby granted.

2. The Defendants' Motions to Dismiss pursuant to M.R. Civ. P. 12(b)(6) are

hereby dismissed as moot.

S. In light of the grant of Defendants' special motions to dismiss, the court

will consider awarding Defendants their costs and reasonable attorney fees against

Plaintiff pursuant to 14 M.R.S. § 556. Defendants may file motions for an award of

costs and attorney fees within 21 days of the docketing of this Order, and further

briefing on any such motions shall be according to M.R. Civ. P. 7(c) and (e).

Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this

Order by reference in the docket.

Dated April 17, 2019

A. M. Horton, Justice

Entered on the Docket: Y'.11-1'. f l"

26
(

STATE OF MAINE SUPERIOR COURT

Cumberland, ss. Civil Action

MARK KLEIN,

Plaintiff

v. Docket No. CUMSC-CV-18-0377

JESSICA DEMERS-KLEIN
now known as Jessica Demers, and
AMANDA MYERS,

Defendants

ORDER ON DEFENDANTS' MOTIONS FOR ATTORNEY FEES

Defendant Amanda Myers's Motion for Attorney Fees and Defendant Jessica

Demers's Motion for Award of Attorney Fees and Costs are before the court, along

with Plaintiff Mark Klein's memorandum in opposition to both motions and the

Defendants' reply memoranda. The court elects to decide the motions without oral

argument. See M.R. Civ. P. 7(b)(7).

The Defendants' motions are brought under the anti-SLAPP statute. 14 M.R.S.

§ 556, which permits but does not require the court to award attorney fees to the

moving party after granting a special motion to dismiss. See id. ("If the court grants

a special motion to dismiss, the court may award the moving party costs and

reasonable attorney's fees, including those incurred for the special motion and any

related discovery matters.")

The Defendants' Motions seek an award of their attorney fees and costs.
(

Plaintiff Mark Klein's opposition to any award of attorney fees is based on two

arguments: "(I) this case falls outside of the purpose for which the Anti-SLAPP statute

was created; and (2) the statute and the Law Court decisions interpreting the statute

are extremely confusing and inconsistent." Plaintiffs Opposition to Defendants'

Motions for Attorney Fees at 1.

Neither argument is persuasive.

Contrary to Plaintiffs first argument, this case fits the template that the anti­

SLAPP statute was intended to address-meritless lawsuits brought in order to

punish or deter rather than in order to prevail.

All of the Defendants' statements that are the subject of Plaintiffs claims were

subject to at least a qualified privilege and most were subject to an absolute privilege.

The Law Court has recognized that an absolute privilege attaches to

defamatory communications preliminary to or during a judicial proceeding, provided

the communications have "some relation" to the proceeding and the maker of the

communications participates in the proceeding. See Raymond v. Lyden, 1999 ME 59,

~ 6 & n.7, 728 A.2d 124, quoting RESTATEMENT (SECOND) OF TORTS§ 587.

"The privilege is absolute and 'protects a party to a private litigation ... from

liability ... irrespective of his purpose in publishing the defamatory matter, ofhis belief

in its truth or even his knowledge ofits falsity."" Id., quoting RESTATEMENT (SECOND)

OF TORTS§ 587, cmt a.

Defendants' statements to the police, the pediatrician, family crisis advocates

and the Department of Health and Human Services (DHHS) caseworkers were also

2
protected, at least by a qualified privilege if they were not absolutely privileged. See

Truman v. Browne, 2001 ME 182, t;f 15, 788 A.2d 168 ("Any person has a qualified

privilege to make statements to law enforcement or regulatory agencies regarding the

conduct of others, where the person making the statement believes in good faith that

the statement is true and indicates that a statutory standard administered by the

agency may have been violated.")

Plaintiff Klein was unlikely to overcome even a qualified privilege, given that

he admitted to a DHHS caseworker the truth of the central allegation that the

Defendants brought forward.

Plaintiff, having been advised and represented by legal counsel, must have

known that his case had little, if any, chance of success, but he decided to proceed

anyway. That decision lends credence to the Defendants' claim that Plaintiff was

motivated by punitive or deterrent considerations in bringing this action, rather than

by any real expectation that the case could succeed on its merits. That point serves

to distinguish this case from the Law Court decision upon which Plaintiff Klein's

opposition mainly relies, Maietta v. Wainwright, 2004 ME 53, 847 A.2d 1169.

Plaintiff's' second argument-that the anti-SLAPP statute and the Law Court's

decisions under it are too confusing to justify an attorney fee award-has equally little

merit. The statute is broad but not vague. The Law Court's jurisprudence has

evolved in terms of the mechanics of how a special motion to dismiss is addressed, but

is not confusing. It has always stood for the proposition that a party who brings a

3
lawsuit that is dismissed pursuant to a section 556 special motion to dismiss may be

assessed for the movant's attorney fees.

Accordingly, the Defendants' motions will be granted. Plaintiff Klein has not

made a substantial challenge to the amounts requested, nor has he suggested that the

effort attributable to the Defendants' Rule 12(b)(6) motions be separated from the

effort attributable to the section 556 special motions to dismiss. The amounts

requested by Defendants are amply supported and documented in fee affidavits and

records, and are reasonable and appropriate under the applicable factors. See Poussard

v. Commercial Credit Plan, Inc., 479 A.2d 881,885 (Me. 1984).

It is hereby ORDERED AS FOLLOWS:

1. Defendant Amanda Myers's Motion for Attorney Fees is hereby granted.

Defendant Amanda Myers is hereby awarded $28,240 in attorney fees and $450 in

costs against Plaintiff Mark Klein. Plaintiff shall make payment in full within 30 days

of when the judgment becomes final.

2. Defendant Jessica Demers's Motion for Award ofAttorney Fees and Costs

is hereby granted. Defendant Jessica Demers is hereby awarded $18,856 in attorney

fees and $384.52 in costs against Plaintiff Mark Klein. Plaintiff shall make payment

in full within 30 days of when the judgment becomes final.

Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this

Order by reference in the docket.

Dated August IS, 2019

A. M. Horton, Justice

Entered on the Oocket:_5J1 :\PJ.
1
4
(

STATE OF MAINE SUPERIOR COURT

Cumberland, ss. Civil Action

MARK KLEIN, )
)
Plaintiff )
)
V. ) Docket No. CUMSC-CV-18-0377
)
JESSICA DEMERS-KLEIN )
now known as Jessica Demers, and )
AMANDA MYERS, )

Defendants

ORDER ON DEFENDANTS' PENDING MOTIONS

Plaintiff Mark Klein has brought tort claims in this case against his former

spouses, Defendants Amanda Myers and Jessica Demers, who was formerly known as

Jessica Demers-Klein. Each of the Defendants has filed a special motion to dismiss

pursuant to Maine's anti-SLAPP statute, 14 M.R.S. § 556 1 and also a motion to dismiss

pursuant to M.R. Civ. P. 12(b)(6).

The Media Law Resource Center describes anti-SLAPP statutes, their origins and purposes
as follows:

Anti-SLAPP laws are designed to provide for early dismissal ofmeritless lawsuits
filed against people for the exercise of First Amendment rights. The acronym
"SLAPP" stands for "Strategic Lawsuit Against Public Participation - a phrase
coined by two law school professors in the late 1980s. They identified a trend of
retaliatory lawsuits brought to intimidate and silence opponents and critics who
had spoken out in the public sphere, typically on land use and development issues.
Anti-SLAPP statutes were proposed to provide a quick, effective and inexpensive
mechanism to combat such suits.

http://www.medial aw .org/topics-page
(

Factual Background

The following recitation of facts is drawn from Plaintiff Klein's Complaint and

the affidavits and affidavit exhibits that each of the three parties has filed in connection

with the Defendants' special motions to dismiss, and also from material that may be

considered in connection with a Rule 12(b)(6) motion to dismiss.

The anti-SLAPP statute authorizes the court to consider affidavits (and

presumably exhibits incorporated into and annexed to affidavits) in addressing a

special motion to dismiss, see 14 M.R.S. § 556. Under Rule 12(b)(6), the court may

consider "official public documents, documents that are central to the plaintiffs claim,

and documents referred to in the complaint without converting a motion to dismiss

into a motion for a summary judgment when the authenticity of such documents is not

challenged." See Moody v. State Liquor and Lottery Commission, 2004 ME 20, ,r IO, 843

A.2d 43, 48.

Mark Klein and Amanda Myers were married in January of 2003 and divorced

on September 26, 2011. (Def Myers Ex. 5 at 2) 2 ; (Pl.'s Compl. ,r 10). Klein and Myers

have two daughters together, A.K. and E.K. (Pl.'s Compl. ,r4). Their divorce

settlement provided that they had shared parental rights over A.K and E.K. (Def

Myers Ex. 5 at 4).

2 This and similar references are to the parties' affidavits and/or exhibits thereto.

2
Klein and Demers were married on January 2, 2015. (Pl.'s Compl. 1J 13). They

have one daughter together, S.K, born in September 2015. (Pl.'s Compl. IJ5). Klein

and Demers lived together in Falmouth, Maine. (Demers Aff. IJIJ 1, 9).

In 2016, the marital relationship deteriorated and Demers took her daughter

S.K. to Pennsylvania on August 10, 2016, without notifying Klein. (Pl.'s Compl.

IJIJ 17-19).; (Demers Aff. IJ 13). Klein filed for divorce from Demers on August 18,

2016. (Pl.'s Compl. IJ21<). Klein left the marital home on August 22, 2016. (Pl.'s

Compl. IJ 37). Klein and Demers have lived separately since that date. (Pl.'s Compl.

IJ 3 7). (The two have since finalized their divorce, and Demers has returned to her

previous surname. (Demers Aff. IJ 34).

On August 31, 2016, as she was driving back to Maine, Demers received

messages from Klein that the marital home had been broken into. (Demers Aff. IJ 19).

Demers spoke to police regarding the break-in. (Demers Aff. IJ 19). She returned to

Pennsylvania believing that Klein had staged the break-in. (Demers Aff. IJ 19). On

September 25, 2016, Demers installed a security system in the home. (Demers Aff.

IJ 22).

Prior to the break-in, on August 26, 2016, Demers had contacted Myers to

check on Myers's daughters' wellbeing. (Demers Aff. lJ17), (Myers Aff. lJ7). The

two Defendants met in person on September 19, 2016, with their attorneys present to

discuss Klein's behavior of concern towards his daughters. (Demers Aff. IJ 20).

After this meeting, Myers filed a protection from abuse ("PFA") complaint

against Klein on behalfof herself and her children on September 22, 2016. (Myers Aff.

3
(

~9). Myers was granted a temporary PFA order by the West Bath District Court on

September 22, 2016. (Pl.'s Compl. ~48).

Wanting to know the results of Myers's PFA action, Demers moved for a

continuance of a parental rights hearing in the divorce case between her and Klein.

(Demers Aff. ~2.3); (Pl.'s Compl. ~75). After the court granted Myers a temporary

PFA order, the police searched Klein's residence for firearms on September 22, 2016

but found none. (Pl.'s Compl. ~~64-66); (Myers Aff. ~ 10).

On September SO, 2016, the West Bath District Court convened a hearing on

Myers's PFA complaint. (Demers Ex. 6). Demers was subpoena'ed to testify at the

hearing. (Demers Aff. Myers and Demers testified

Also on September SO, 2016, Myers brought A.K. and E.K. to a pediatrician, Dr.

Andrea Loeffier, to discuss Klein's behavior toward them, specifically what Myers

described to the doctor as Klein's practice of applying balm to the girls' anuses. (Myers

Aff. ~ 11 ); (Pl.' s Compl. ~ 50).

On October S, 2016, Demers learned that her house had been broken into

agam. (Demers Aff. ~ 25). Believing that Klein had perpetrated the break-in, Demers

contacted Family Crisis Services ("FCS"), (Demers Aff. ~25). Demers informed FCS

about what had happened and that she believed Klein was the one who had broken into

her home, in response to her testimony at the PFA hearing. (Demers Aff. ~~25-26).

The mandatory reporting law required FCS, upon receiving this information,

to contact the Department of Health and Human Services ("DHHS") Office of Child

4
and Family Services ("OCFS") to report possible child abuse. (Demers Aff. ~27); (Pl.'s

Compl. ~~ 51-52). See 22 M.R.S. § 4011 (list of mandatory reporters).

When the OCFS contacted Demers on October 6, 2016, she answered questions

about the break-in of her house, her daughter S.K., and the concerning behavior

exhibited by E.K. (Demers Aff. ~28). OCFS also called Myers on October 6, 2016.

(Myers Aff. ~ 12). OCFS referred this investigation to the Cumberland County

District Attorney's Office for further investigation and the Brunswick Police began an

investigation into Klein. (Pl.'s Compl, ~~61, 64).

On October 24, 2016, A.K and E.K. were interviewed by OFCS and the

Brunswick Police Department. (Myers Aff. ~ 13). Additionally, Myers was asked

questions about Klein and his possible abuse of A.Kand E.K. (Myers Aff. ~14). On

November 21, 2016, OCFS substantiated a finding that Klein had created a sexualized

environment for A.Kand E.K. (Demers Aff. ~31); (Pl.'s Compl. ~84). On February

23, 2017, OCFS reversed its substantiation. (Def. Myers Ex. 5 at 8).

During Myers's PFA hearing against Klein both Defendants testified about

Klein's relationship and interactions with A.K. and E.K. (Demers Aff. ~29); (Pl.'s

Compl. ~~78-83). Also, an OCFS investigator testified that during the interview

that OCFS conducted with Klein, Klein admitted that he had been applying "bag balm''

to his older daughters' anuses from when they were in diapers to the present. Myers

Aff. Ex. 2 at 271 (testimony of Ashley Emery at PFA hearing). The investigator also

said Klein admitted to sleeping in the same bed with his older daughters and

5
acknowledged that he had showered with them although the investigator said Klein

claimed to have been wearing a wetsuit at the time. Id. at 272-277.

On October 21, 2016, Klein filed a motion to modify the divorce judgment

seeking primary physical residence of E.K and A.K., allocated parental rights and

responsibilities, and child support. (Def. Myers Ex. 5 at 9). On December 10, 2016,

Myers filed a motion to Modify Divorce Judgment seeking sole parental rights and

responsibilities, primary residence ofE.K. and A.K., sole discretion over visitation, and

child support. (Def. Myers Ex. 5 at 9). On December 12, 2016, Myers dismissed her

PFA action. (Pl.'s Compl. ~89).

On September 11, 2017, the family court issued an order amending Klein's and

Myers's divorce judgment. (Myers Aff. ~ 18). This order granted Myers allocated

parental rights and responsibilities and primary residence of A.K. and E.K. (Def.

Myers Ex. 5 at 27). The order granted Klein one four-hour after school visit and one

four-hour weekend visit each week, with increased contact if therapeutically

supported. (Def. Myers Ex. 5 at 27).

Additionally, the court ordered counseling for Klein to assist in his reunification

with A.K. and prohibited both parent from discussing litigation matters with their

children and from using their children to get information about the other parent. (Def.

Myers's Ex. 5 at 28). The order required Klein to pay Myers back child support and

$340.13 per week. (Def. Myers Ex. 5 at 28-29). Neither party was awarded attorney's

fees, based on their behavior and litigation strategies during the course of the

proceeding. (Def Myers Ex. 5 at 31 ).

6
Demers and Klein finalized their divorce on October 16, 2018. (Demers Aff.

~ 34). The Divorce Judgment awarded Demers and Klein shared parental rights and

responsibilities for S.K. (Demers Ex. 4 at 7). Primary residence for S.K. was with

Demers, and Klein received a four-phase contact schedule and split holidays and

vacation. (Demers Ex. 4 at 8-9). Klein is required to pay Demers $152 child support

per week. (Demers Ex. 4 at 12). No attorney's fees were awarded. (Demers's Ex. 4

at 15).

Procedural History

Plaintiff Klein filed his complaint August 21, 2018, alleging 11 counts against

Defendant Jessica Demers and Defendant Amanda Myers: (1) abuse of process; (2)

wrongful use of civil process; (3) fraud; (4) defamation; (5) defamation per se; (6)

invasion of privacy; (7) intentional infliction of emotional distress; (8) violation of

civil/constitutional rights; (9) negligence; (10) negligent infliction of emotional

distress; and ( 11) civil conspiracy.

The court granted Demers's motion to enlarge time to file an answer on

September 26, 2019 and she filed an answer on October 16, 2018. Myers filed an

answer on October 23, 2018. The court granted Demers's unopposed motion to seal

on November 11, 2018 and granted Myers's unopposed motion to seal on December

12, 2018.

Demers filed a motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) and a special

motion to dismiss pursuant to 14 M.R.S. § 556 on November 6, 2018. Klein filed an

7
opposition to Demers's motions on November 27, 2018. Demers filed a reply to Klein's

opposition on December 4, 2018.

Myers filed a motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) and a special

motion to dismiss pursuant to 14 M.R.S. § 556 on December 3, 2018. Klein filed an

opposition to Myers's motions on December 26, 2018. Myers filed a reply to Klein's

opposition on January 2, 2019.

Discussion

I. Applicability of Maine's anti-SLAPP statute to this case

Both Defendants' special motions to dismiss argue that Klein's complaint

should be dismissed in its entirety because the alleged causes of action all arise from

what Maine's anti-SLAPP statute defines as protected "petitioning activity." 14 M.R.S.

§ 556 (2017).

The statute provides in pertinent part

When a moving party asserts that the civil claims, counterclaims or cross
claims against the moving party are based on the moving party's exercise
of the moving party's right of petition under the Constitution of the
United States or the Constitution of Maine, the moving party may bring
a special motion to dismiss. The special motion may be advanced on the
docket and receive priority over other cases when the court determines
that the interests ofjustice so require. The court shall grant the special
motion, unless the party against whom the special motion is made shows
that the moving party's exercise of its right of petition was devoid of any
reasonable factual support or any arguable basis in law and that the
moving party's acts caused actual injury to the responding party. In
making its determination, the court shall consider the pleading and
supporting and opposing affidavits stating the facts upon which the
liability or defense is based.

14 M.R.S. § 556.

8
a. The Three-Step Special Motion to Dismiss Standard

What procedure and analysis trial courts in Maine are to apply in addressing a

section 556 special motion to dismiss has evolved over time, as the Maine Law Court

has noted. See Gaudette v. Davis, 2017 ME 86, ~ ~ 5-12, 160 A.sd 1190. In its most

recent decision under Maine's anti-SLAPP statute, 14 M.R.S. § 556, the Maine Law

Court said:

The application of the anti-SLAPP statute results in an inherent tension
between the coexisting constitutional right to freedom of speech and the
right to access the courts to seek redress for claimed injuries.
Accordingly, in addressing a special motion to dismiss, the reviewing
court must be careful to recognize these competing rights and work to
achieve an appropriate balance. In an effort to achieve this balance, we
require that the reviewing court use a three-step burden-shifting
procedure.

Hearts with Haiti, Inc. v. Kendrick, 2019 ME 26, ~10, _ A.sd_,_
(internal citations omitted).

The procedure is as follows:

At the first step, the special movant must establish, as a matter oflaw, that "the

claims against [her] are based on [her] exercise of the right to petition pursuant to

the federal or state constitutions." Gaudette v. Davis, 2017 ME 86, ~~ 16-17, 160 A.sd

1190 (quoting Morse Bros. v. Webster, 2001 ME 70, ~19, 772 A.2d 842). If the special

movant fails to make the showing, the anti-SLAPP statute does not apply and the

special motion to dismiss is denied. Hearts ef Haiti, Inc. v. Kendrick, 2019 ME 26 at

~ 11, __A.sd at _ . If the special movant does make that showing, the inquiry

moves to step 2, at which the burden shifts to the plaintiff. Gaudette v. Davis, 2017 ME

86 at ~17.

9
The plaintiffs burden at the second step is to make a prima facie showing that

the defendant's "petitioning activity" was "devoid of any reasonable factual support or

any arguable basis in law" and that the" petitioning activity" caused the plaintiff injury.

Id. (quoting Nader v. Me. Democratic Party (Nader I), 2012 ME 57, ~~16, 29-38, 41

A.sd 55 l ). If the plaintiff fails to carry that burden, the special motion to dismiss is

granted. Id.

If the plaintiff does carry that burden, the inquiry proceeds to the third step, at

which the court, on motion of any party, "permits the parties to undertake a brief

period oflimited discovery, the terms of which are determined by the court after a case

management hearing, and [] at the conclusion of that limited discovery period, the

court conducts an evidentiary hearing." Id. at~ 18.

With this framework at hand, the analysis proceeds to the first step~whether

Myers and Demers have each established as a matter oflaw that the conduct on which

Klein's claims are based qualifies as "petitioning activity" for purposes of the anti-

SLAPP statute.

b. Step One: Whether Defendants Have Shown that the Claims Against Them
Are Based on Petitioning: Activity

Defendants contend that Klein has sued them for engagmg m protected

"petitioning activity." (Def. Myers's Special Mot. Dismiss 8, 12); (Def. Demers's

Special Mot. Dismiss 7).

Klein argues that the anti-SLAPP statute does not even apply in this case

because: ( 1) his intent in bringing this law suit is not to chill the Defendants'

10
"petitioning activities" but rather to seek damages for Defendants' actions, (Pl.'s Opp'n

to Def Myers's Special Mot. Dismiss 2); (2) Defendants had ulterior motives when

engaging in their "petitioning activities," (Pl.'s Opp'n to Def Myers's Special Mot.

Dismiss 6); (3) Defendants' "petitioning activities" were based on lies, (Pl.'s Opp'n to

Def Myers's Special Mot. Dismiss 7-8); and (4) his complaint is based on Defendants'

pre-petitioning actions and not their "petitioning activities," (Pl.'s Opp'n to Def

Myers's Special Mot. Dismiss 2).

Klein's contention that his own alleged intent and the Defendants' alleged

ulterior motives are relevant to the step one analysis is unpersuasive. Klein's intent

in bringing this action is irrelevant to the question of whether the anti-SLAPP statute

applies, because the statute establishes that a lawsuit premised entirely upon a

defendant's petitioning activity should not be permitted to chill the defendant's

exercise of First Amendment rights, unless the defendant's activity has no arguable

factual support or basis in law and has harmed the plaintiff.

As to the relevance of the Defendants' motives, the Massachusetts Supreme

Judicial Court has construed the similar Massachusetts anti-SLAPP statute to mean

that "[a] special movant's motivation for engaging in petitioning activity does not

factor into whether it has met its threshold [step one] burden." 477 Harrison Ave.,

LLC v. JACE Boston, LLC, 477 Mass. 162, 168, 74 N.E.3d 1237 (2017), citing Office

One, Inc. v. Lopez, 437 Mass. 113, 122, 769 N.E.2d 749 (2002). It is the step two

analysis that has more to do with a special movant's motivation, in exploring the

factual and legal basis for the special movant' s petitioning activities.

11
Klein argues that because he is suing the Defendants for lying about him, the

anti-SLAPP statute does not apply. That argument, too, is relevant to the step two

inquiry, at which he has the burden to show that the Defendants lacked a factual or

legal basis for their activity, but it is not relevant to the step one inquiry.

Klein's one threshold argument that is relevant to the step one inquiry is that

his claims against Myers and Demers are based on their "pre-petitioning activity"

rather than petitioning activity.

Maine's anti-SLAPP statute defines "a party's exercise of its right of petition"

to encompass written or oral statements in six different categories:

[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."

14 M.R.S. § 556.

Klein's complaint contains eleven counts. The court's review ofa special motion

to dismiss does not necessarily lead to an "all or nothing'' outcome-the special motion

may be granted as to some of the plaintiffs claims and denied as to others. See Gaudette

12
v. Davis, 201 7 ME 86, , 17, 160 A.sd 1190; Camden Nat' l Bank v. Weintraub, 2016 ME

101, ,9, 143 A.sd 788.

Count 1 (Abuse of Process)- Klein alleges that Defendants "used the legal and

law enforcement system in a manner improper in the regular conduct of such

proceeding." (Pl.'s Compl. , 106). By its very nature, this count must be based on

statements to judicial and law enforcement agencies, and thus it concerns "petitioning

activity'' as defined in section 556.

Count 2 (Wrongful use of Civil Process) - Klein alleges that Myers "sought a

protection from abuse" order (Compl. , 112), and Demers sought "a continuance of an

interim hearing," (Compl. , 106). This count as well is plainly based on "petitioning

activity" as defined in section 556. See Morse Bros. v. Webster, 2001 ME 70, , , 29-31,

772 A.2d 842.

Counts 3 (Fraud), 4, (Defamation), and 5 (Defamation per se)- Klein asserts that

both Myers and Demers are liable to him for fraud and defamation based on various

statements, as follows.

Paragraphs l 19(A)-(E) of Klein's complaint enumerate the following allegedly

fraudulent and defamatory statements by Demers:

A. Statements made by Demers to Myers on August 22, 2016 that Demers has
seen Klein applying bag balm to the anuses of his two older daughters and that
Demers interprets Klein's actions as not being for medical purposes but for
sexual abuse.

B. Statements by Demers to Family Crisis Services on October 5, 2016 that
Klein has sexually abused his daughters with Myers by applying bag balm to
their anuses and that Demers has seen him do so.

13
C. Statements by Demers on October 6, 2016 to an Office of Child and Family
Services investigator that Klein displayed inappropriate and sexualized
behavior towards his children; that Klein was responsible for two break-ins at
Demers's home and that Klein had committed domestic violence against
Demers.

D. Statements by Demers on October 24, 2016 to the Maine District Court
that she was concerned about the wellbeing of her daughter with Klein based
on the allegations contained in Myers's PFA complaint against Klein. Klein
asserts Demers knew that Myers's PFA complaint was largely based on
Demers's own disclosures to Myers.

E. Statements by Demers September 30, 2016 and on November 14, 2016, in
the course of her testimony at the PFA hearing in Myers's PFA case against
Klein.
(Compl. ~ 119).

Klein's complaint at paragraph 120(A) through (D) alleges the following

against Myers:

(A) In her affidavit dated September 22, 2016 to support the temporary PFA

Order [Myers] averred falsely that:

Klein routinely and without cause applied bag balm to the anus of both her
children;
Klein showers with her children;
Klein has sexually abused his children;
Klein is a threat to sexually abuse his children; Klein had threatened to kill
[Myers]

(B) On or about October 6, 2016 [Myers] made false and
misleading statements to an OCFS investigator:

Klein inflicted domestic violence against her;
She was aware of, and corroborated the sexualized behavior of
Klein as presented by [Demers];
Such corroboration by [Myers] was false and misleading;
Klein has a repeated history of prostitution;
Klein perpetrates emotional abuse against his children.

14
(C) In a meeting on October 24, 2016 [Myers] falsely told a
representative of the Brunswick police department:

There is no valid reason for Klein to apply any ointment to his
daughters;
Klein raped his neighbor.

(D) On or about September 30, 2016 and again on November 14,
2016, [Myers] made false and misleading statements to the PFA court:

Her children with Klein did not have skin conditions in their anus
reg10n;
Her children with Klein did not have any problems with their
bowels;
She knew of no incident other than in their infancy, where the
children have been treated for discomfort regarding their ani;
Her children never had eczema near their ani.

(Pl.'s Compl. ~120).

Myers's and Demers's alleged statements made in court and made to the OCFS

investigator plainly fall within the definition of"petitioning activity." See 14 M.R.S. §

556 (definition includes "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'').

Demers's alleged disclosure to Myers and Demers's and Myers's disclosures to

an FCS employee are less clearly so. However, the statutory definition of"petitioning

activity" is not limited to statements made directly to governmental entities or

agencies. The definition includes "any statement reasonably likely to encourage

consideration or review of an issue by a legislative, executive or judicial body, or any

other governmental proceeding" means that any statement that is reasonably likely to

trigger governmental review can fall within the scope of petitioning activity.

15
To qualify. as a statement "reasonably likely to encourage consideration or

review" by a government body or agency, the statement need not be submitted or

made directly to the governmental body, because statements "made before or

submitted to" a governmental body are separately included in the statutory definition

of "petitioning activity." To qualify as a statement "reasonably likely to encourage

consideration or review," a statement need only be likely to trigger some form of

governmental action or review.

Demers's statements to Myers were a primary basis for Myers's subsequent

PFA complaint. Demers was subpoena' ed to testify at the PFA hearing and, according

to the transcript ofportions of her testimony, she repeated in court the statements she

had previously made to Myers, FCS and the OCFS. For purposes of the definition of

"petitioning activity," it could be "reasonably expected" that Demers's disclosure to

Myers about Klein's sleeping arrangements with his daughters and his application of

bag balm would trigger the action that Myers promptly took-invoking the judicial

PFA remedy and seeking to modify the divorce judgment.

Moreover, Family Crisis Services provides support and advocacy for victims of

abuse and domestic violence and has been affiliated with the Maine Coalition to End

Domestic Violence. See Craig v. Caron, 2014 ME 115, ~14, 102 A.sd 1175. Maine

law requires individuals in certain positions and occupations, including family and

domestic violence advocates, to report suspected child abuse or neglect. See 22 M.R.S.

§ 1,011-A (enumerating mandated reporters of child abuse or neglect). As such,

16
statements to FCS about abuse or domestic violence are reasonably likely to be

conveyed to either law enforcement or DHHS or both.

In fact, Klein's complaint bolsters this point in alleging that Demers and Myers

"knew or should have known" that their disclosures to OCFS and/ or FCS would be

forwarded to the District Attorney's office for investigation. (Pl. Compl. ~ ~ 62-63).

Klein additionally alleges that Myers made statements to the children's

pediatrician that he sexually abused his children. (Pl.'s Compl. ~ 50). Physicians are

mandated reporters of suspected child abuse or neglect under Maine law. See 22

M.R.S. § 4011-A. Thus, although Myers denies saying Klein committed sexual abuse,

her statements to the pediatrician about his behavior toward their daughters were

"reasonably likely to encourage consideration or review of an issue by a legislative,

executive or judicial body," within the meaning of the section 556 definition of

"petitioning activity."

Whether anti-SLAPP protection applies is admittedly closest as to Demers's

initial disclosure to Myers. Klein contends that the disclosure constitutes "pre-

petitioning activity" not protected by the anti-SLAPP statute. However,

"communications that are intimately intertwined with, and preparatory to, the filing

of judicial proceedings qualify as petitioning activity for the purpose of the anti­

SLAPP statute." Graham-Suit v. Clainos, 738 F.3d 1131, 1142-43 (9th Cir. 2013),

quoting Cabral v. Martins, 177 Cal. App. 4th 471, 99 Cal. Rptr. 3d 394, 404 (Ct. App.

2009). "In the anti-SLAPP context, the critical point is whether the plaintiffs cause

17
of action itself was based on an act in furtherance of the defendant's right of petition

or free speech." City ef Cotati v. Cashman, 29 Cal. 4th 69, 78, 52 P.sd 695 (2002).

Klein also contended at oral argument that Demers could not invoke the anti­

SLAPP statute because she was not exercising her own right of free speech, and cited

the decision of the undersigned judge in Warren v. Preti, Flaherty, Beliveau & Pachios,

LLC, 2012 Me. Bus. & Consumer LEXIS 29 at *13-15. In that case, however, the

court decided that a business's response to a state agency investigation could not

qualify as petitioning activity because the business was responding to, not initiating,

a governmental inquiry. See id. at *14 ("[The special movant] did not bring the

alleged security violations to the attention of the Office of Securities; had it done so, this

analysis might have had a different outcome. [The special movant] was simply responding

to inquiries in the context of a government investigation of third parties.") (emphasis

added).

Here, Demers did bring the concern to the attention of Myers and then to FCS

and OCFS. She was exercising the right of any person to report inappropriate acts

involving a child to the child's parent and then to appropriate authorities. Her

disclosure to Myers was a prelude to her disclosures to FCS, OCFS and ultimately to

the District Court in the PFA hearing. The fact that persons who in good faith report

suspected child abuse are statutorily immune from civil or criminal liability provides

18
support for the conclusion that Demers's statements to Myers, FCS and OCFS fall

within the definition of protected "petitioning activity." See 22 M.R.S. § 4014(1). 3

For these reasons, the court concludes that Demers's statements to Myers, and

both Defendants' disclosures to FCS and the OCFS and their testimony in District

Court alleged in Counts 4 and 5 of Klein's complaint are all "petitioning activity."

Count 6 (Invasion of Privacy) - Klein alleges that Defendants caused an

invasion ofhis personal privacy. (Pl.'s Compl. ,r,r 135-39). Klein generally states that

Defendants invaded his privacy through "their actions." However, Klein does not

specify how Defendants invaded his privacy, other than through the same statements

and actions that are the basis for his defamation claims. (See Pl.'s Compl. ,r 61 ("As a

result of the report to OCFS by Family Crisis Services and the false statement made

by [Defendants], Klein was referred to the Cumberland County District Attorney's

office for investigation); ,r 65 ("Police confronted Klein ... causing an invasion of his

quietude.")). Thus, the court construes Klein's invasion of privacy claim to be based

on what the court has already determined was "petitioning activity."

Count 7 (Intentional Infliction ofEmotional Distress) and Count 10 (Negligent

Infliction of Emotional Distress)- Klein alleges that "Defendants' actions" caused him

extreme emotional distress. (Pl.'s Compl. ,r,r141-44, 157-62). Again, Klein does not

identify any actions by Defendants beyond what the court has already decided fall

3 In fact, the immunity statute incorporates a definition of"good faith" that is similar to the anti­

SLAPP statute's "devoid of any reasonable factual support or any arguable basis in law" standard.
See 14 M.R.S. § 4014(1) ("Good faith does not include instances when a false report is made and the
person knows the repmt is false

19
within the definition of "petitioning activity." (See Pl.'s Compl. ~ 69 ("The

investigation by OFCS caused Klein great embarrassment and harm to his

reputation"); ~90 ("The legal actions taken against Klein have caused him great

embarrassment and harm to his reputation"); ~91 ("The legal actions taken against

Klein have caused him considerable psychological trauma and duress for which he has

required active medical treatment and therapeutic assistance.")). Accordingly, the

court deems Klein's emotional distress claim to be based on the Defendants'

"petitioning activity."

Count 8 (Violation of Civil Rights/Constitutional Rights) - Klein alleges that

Defendants used the court system to deprive him of his constitutional rights. (Pl.'s

Compl. ~ ~ 146-50). This claim plainly is based on Defendants' "petitioning activity."

Count 9 (Negligence) - Klein's negligence claim once again generally refers to

"Defendants' actions" as the basis of his negligence claim brought on behalf of his

daughters, but does not allege any actions beyond those already addressed above.

(Pl.'s Compl. ~ ~ 151-55). Thus, the negligence claim, too, is premised upon

Defendants' "petitioning activity." (See Pl.'s Compl. ~ 49 ("Temporary Restraining

Order prevented Klein from communicating, visiting with or parenting his two

daughters."); ~77 ("Due to the misleading allegations made by Jessica regarding the

PFA Complaint to the Family Court, Klein was again limited in his rights to interact

with his daughter.")).

20
Count 11 (Civil Conspiracy) - Klein's civil conspiracy claims are based on

Defendants' actions during judicial proceedings and an executive branch investigation

and thus constitute "petitioning activity." (Pl.'s Compl. ~~163-66).

For the reasons given, the court deems all of Klein's claims set forth in his

complaint to be based on Defendants' "petitioning activities" within the definition of

"petitioning activity" contained in section 556. Accordingly, the Defendants' special

motions to dismiss have met the Defendants' step 1 burden to show that the claims

against them are within the anti-SLAPP statute.

c. Step Two: Devoid of any Reasonable Factual Support or any Arguable Basis
in Law

The burden shifts to Klein to show that the Defendants' "petitioning activity"

was "devoid of any reasonable factual support or any arguable basis in law" and that

the petitioning activity caused him injury. Nader I, 2012 ME 57, ~16, 41 A.3d 551.

This test does not determine whether the alleged false or fraudulent statements were

more likely true or more likely untrue, but looks only at whether they had any

reasonable basis in fact. See Gaudette, 2017 ME 86 ~21, 160 A.sd 1190.

The Defendants' factual allegations as to Klein's conduct fall into the following

general areas:

• The allegation that he was in the habit of doing "bum checks" on his daughters

and applying "bag balm" to their anuses.

• The allegation that he slept in the same bed as one or both of his older daughters

21
• The allegation that he had committed domestic violence against Myers and

sexual assault against a neighbor.

• The allegation that he had showered with his older daughters.

Klein alleges that Defendants' references are based on lies and "half-truths."

(Pl.'s Opp'n to Def Myers's Special Mot. Dismiss 7-11). Klein provides transcripts

from the 2016 PFA hearing and contradictory emails exchanged from 2011 to 2014

between Klein and Myers. (Pl.'s Ex. A, B, C). Establishing that a party's petitioning

was based on "totally false" claims may constitute a prima facie showing that their

"petitioning activity" was devoid of any reasonable factual support. See Gaudette, 2017

ME 86, ~ 24, 160 A.sd 1190.

However, Klein's affidavit and memorandum submitted in opposition to the

special motions to dismiss focus, for purposes of step 2, almost entirely upon the "bag

balm'' allegation. (See Pl.'s Opp'n to Def. Myers's Special Mot. Dismiss at 8-11;

Affidavit of Mark Klein ~~18, 35-49). For example, Klein's affidavit does not deny

the domestic violence allegation or that he has slept in the same bed with his

daughters.

Moreover, even as to the "bag balm" allegations, Klein's affidavit does not deny

that he has applied "bag balm'' to his older daughters as Demers and Myers have

asserted.

22
Thus, Klein does not seem to challenge the accuracy of Demers's and Myers's

description of his behavior toward his older daughters. What he clearly does challenge

is the interpretation he says they have placed on his behavior.

Although the Defendants deny that they ever accused Klein of child abuse or

went beyond reporting his observed behavior, tt seems clear that Myers and Demers

believed that Klein had engaged in inappropriate behavior at least toward his oldest

daughter and came forward to FCS, OCFS and the court based on that belie(

However, the focus is not on the validity of Myers's and Demers's opinion of Klein's

behavior. Instead, the question is whether their opinion was devoid of any factual

support. Based on the record, Klein has not established that what Demers and Myers

reported to FCS, OCFS and the court was devoid of any factual support.

As noted above, the only aspect of their report Klein attempts to controvert is

the Defendants' rep?rt that he was applying "bag balm" to his older daughter's anal

areas. The record contains factual support for that report. Specifically, the record

includes portions of the transcript of sworn court testimony by an investigator for

OCFS that Klein acknowledged during an interview with her that he had been

applying "bag balm'' to the girls' anuses "since they were in diapers until now ...," due

to irritation and redness due to constipation Myers Aff., Ex. 2 at 268-70, 274 The1•

witness also testified that the OCFS had determined that Klein had been applying "bag

balm" to the older girls' anuses. Id. at 274.

Klein's memoranda in opposition to both special motions do not dispute that

Klein acknowledged to the OCFS investigator that he had continued to apply "bag

23
balm" to his older daughters' anuses, as Demers and Myers asserted. 4 Instead, his

opposition to Myers's special motion spends considerable energy justifying his use of

"bag balm" and attacking Myers for supposedly claiming she did not know Klein was

applying "bag balm." His affidavit includes email exchanges between him and Myers

indicating plainly that Myers did know about Klein's use of "bag balm" at least as of

2013. Klein Aff. Ex. C.

The focus at this step 2 stage must remain on whether Klein has made a prim.a

facie showing that Myers's allegations about the "bag balm" lacked reasonable factual

support. Whether Myers knew that Klein had used it on the girls, and whether Myers

had ever used it herself in the same manner, are not relevant. 6 The OCFS'

investigator's sworn testimony that Klein had acknowledged his continued application

of "bag balm" provides factual support for Demers's and Myers's allegations.

For purposes of step 2 of the analysis ofMyers's and Demers's special motions

to dismiss, the court concludes that Klein has not made a prima facie showing that the

Defendants' disclosures regarding his application of"bag balm" to his older daughters

were devoid of any reasonable factual support. Those being the only "petitioning

4 At oral argument, however, Klein suggested that the OCFS investigator had misunderstood
his answers to her questions. Be that as it may, her testimony plainly substantiates the validity
of the Defendants' allegation.

6 Myers responds to Klein's accusation by pointing out that she does not dispute knowing about
Klein's use of"bag balm" when her daughters were younger; she says it was the revelation that
Klein was still applying "bag balm" and still doing "bum checks" when the girls were old enough
to tend to themselves, along with his practice of staying in the same bed with them, that caused
her to suspect Klein's motives. See Myers Aff. ,7; Def Myers's Reply Mem. In Support of
Special Mot. Dismiss at lS. Her testimony at the PFA hearing was to the same effect.

24
activities" that Klein's opposition attempts to controvert, the court further concludes

that Klein has not met his burden for purposes of step 2 of the Gaudette v. Davis

analysis.

Therefore, there is no occasion or basis for the analysis to proceed further along

the three-step procedure.

Conclusion

Defendants Amanda Myers and Jessica Demers have established that Plaintiff

Mark Klein's claims against them are based on the Defendants' petitioning activity

within the meaning of the Maine anti-SLAPP statute. See 14 M.R.S. § 556. In

response, Plaintiff Mark Klein has failed to meet his burden to establish that the

Defendants' petitioning activity was devoid of any reasonable factual support or basis

in law.

This result makes it unnecessary to address the Defendants' Rule 12(b)(6)

Motions.

The Maine anti-SLAPP statute authorizes the court to award costs and

reasonable attorney fees to the moving party on a special motion to dismiss. See 14

M.R.S. § 556 ("If the court grants a special motion to dismiss, the court may award

the moving party costs and reasonable attorney's fees, including those incurred for the

special motion and any related discovery matters"). This Order authorizes Defendants

Myers and Demers to file a motion for an award of attorney fees and costs, including

fee affidavits. Briefing on any such motion shall proceed according to the applicable

civil rule.

25
Accordingly, it is ORDERED AS FOLLOWS:

1. The Special Motions to Dismiss filed by Defendants Amanda Myers and

Jessica Demers are hereby granted.

2. The Defendants' Motions to Dismiss pursuant to M.R. Civ. P. 12(b)(6) are

hereby dismissed as moot.

3. In light of the grant of Defendants' special motions to dismiss, the court

will consider awarding Defendants their costs and reasonable attorney fees against

Plaintiff pursuant to 14 M.R.S. § 556. Defendants may file motions for an award of

costs and attorney fees within 21 days of the docketing of this Order, and further

briefing on any such motions shall be according to M.R. Civ. P. 7(c) and (e).

Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this

Order by reference in the docket.

Dated April 17, 2019

A. M. Horton, Justice

26
STATE OF MAINE SUPERIOR COURT

Cumberland, ss. Civil Action

MARK KLEIN, )
)
Plaintiff )
)
v. ) Docket No. CUMSC-CV-18-03 77
)
JESSICA DEMERS-KLEIN )
now known as Jessica Demers, and )
AMANDA MYERS, )

Defendants

ORDER ON PLAINTIFF'S MOTION TO RECONSIDER

Pursuant to M.R. Civ. P. 59, Plaintiff Mark Klein has filed a Motion To

Reconsider directed to the court's Order dated April 17, 2019, granting the

Defendants' Special Motions to Dismiss pursuant to Maine's anti-SLAPP statute, 14

M.R.S. § 556. Defendants Jessica Demers and Amanda Myers have filed oppositions

to the Motion to Reconsider, and Plaintiff Klein has filed reply memoranda to both

oppositions.

The court elects to decide the Motion to Reconsider without oral argument.

See M.R. Civ. P. 7(b)(7). For the reasons stated below, the Motion is denied.

The fundamental question oflaw presented by Klein's Motion to Reconsider is

this: In considering a special motion to dismiss in accord with the three-step

procedure established in Gaudette v. Davis, 2017 ME 86, 1f 1f 16-17, 160 A.sd 1190,

must the court schedule a step S evidentiary hearing even ifthe record before the court
at step 2 amply demonstrates that the petitioning activity at issue had reasonable

factual support and a solid basis in law?

The Defendants' special motions to dismiss were accompanied by affidavits and

exhibits intended to demonstrate that (1) Klein's claims against them were based on

petitioning activity for purposes of section 556, and (2) that their petitioning activity

involved statements and sworn testimony in court that had more than a reasonable

degree of factual support and a more than an arguable basis in law.

Klein's response included his affidavit and exhibits 1 in which he denied and

disputed both (1) that his claims arose out of Defendants' petitioning activity and (2)

that what the Defendants claimed to be their petitioning activity had any support at

all in fact or basis in law. As noted in the court's April 17, 2019 Order, Klein's filings

focused on the Defendants' allegations that he applied bag balm to his older daughters'

anal areas and did not controvert other areas referred to in his complaint. 2

In other words, the parties' filings addressed the issues to be decided at both

step 1 and step 2 according to Gaudette. The issue whether the Defendants were

engaged in petitioning activity for purposes of step 2 was joined in the parties' filings,

Klein's Motion to Reconsider also contends that the Defendants should not have included
exhibits with their affidavits, even though he did likewise. Nothing in the statute limits a parties'
ability to attach and incorporate exhibits in the party's affidavits in support of a special motion
to dismiss. Nothing in the statute limits the parties' affidavits to facts and information admissible
in evidence.

!l In an apparent attempt to rectify the omission, Klein's Motion to Reconsider includes a further
affidavit from Klein in which he denies the accuracy of accusations and allegations he says were
made by the Defendants. However, he has not established that Defendants even made some of
the statements. In any event, the court declines to consider the further affidavit.

2
and so was the issue whether their activity had reasonable factual support and a basis

in law for purposes of step 2.

This court's Order granting Demers's and Myers's special motions to dismiss

determined, based on the entire record before the court at the time, that the petitioning

activity that was the subject of Klein's claims against them had reasonable factual

support and a basis in law for purposes of section 656, and therefore that Klein had

not made a prima facie showing to the contrary.

Klein's Motion to Reconsider appears to contend that the court should not have

considered the entire record in deciding whether he, as the non-moving party, had met

his step 2 burden to make a prima facie showing that the Defendants' petitioning

activity lacked reasonable factual support and an arguable basis in law. Klein's Motion

to Reconsider contends that, regardless of what the Defendants had submitted into

the record to show factual and legal support for their petitioning activity, he had met

his step 2 burden merely by denying that what Demers and Klein had said and testified

to was untrue. His Motion also says that the court should have taken the allegations

of his complaint in and of themselves as being sufficient to meet his step 2 burden.

The court remains persuaded that under Gaudette, the court needs to consider

the entire record in deciding whether the non-moving party has made the required

step 2 prima facie showing. A similar question is presented in the context of summary

judgment--whether the non-moving party has made a prima facie showing sufficient

to defeat the motion-and the court certainly does not disregard the moving party's

3
.-'--,.
(
f

submittals and look only at the non-moving p,jirty's opposition in deciding that

question. · ­

Klein also contends that, in dismissing his claims without convening a step 3

hearing, this court made credibility determinations about the accuracy of the

Defendants' statements a;:-A iestimony and the testimony ofthe Department of Health
.• ,;;. ~ ' ~ ~: .

and Human Servic~~ caseworker to the effect that Klein had admitted applying bag
... ··'
..... -

t11Jm to ,his daughters' anal regions in the manner Defendants alleged he did.
The court did not do that. What the court did was look at the record, which

clearly indicates that the accuracy of the testimony given by the Defendants and by

the DHHS caseworker was evaluated by the judges who heard that testimony. This

court did not evaluate the credibility of that testimony, because the judges who heard

the testimony did so and issued orders based on their evaluation of the testimony.

In that sense, it was the very nature of the petitioning activity in this case that

guided the_ court's decision. The petitioning activity at :issue in this case did not

involve unsworn and untested out-of-court accusations, the credibility of which, if

denied, would need to be tested at a step three evidentiary hearing.

The petitioning activity at issue.consisted entirely of Myers's and Demers's

efforts to gain access to the courts and present their concerns about Klein's behavior.

Though the activity included prefatory statements to a pediatrician, child protective

workers, police officers and family crisis advocates, all of the activity for which Klein

has sued Myers and Demers arose out of their efforts to invoke the protection of

governmental agencies and the courts-classic petitioning activity.

4
Klein clearly seeks the step S evidentiary hearing so he can challenge the

accuracy of the Defendants' statements and in-court testimony in the family court and

the protection from abuse court. But Klein already had that opportunity. And he

used it, in cross-examining both Defendants and the caseworker and in presenting his

own evidence.

Thus, the step S evidentiary hearing Klein seeks would basically be a do-over

ofthe DHHS process and the proceedings in the family case and protection from abuse

case. But the factual support and legal basis for the Defendants' petitioning activity

has already been presented, tested, evaluated and factored into agency and judicial

decisions, and Klein is not entitled to a do-over. 3

IT IS HEREBY ORDERED: Plaintiffs Motion for Reconsideration is denied.

Plaintiff has 20 days from the date ofthis Order to file his responses to the Defendants'

pending applications for an award of attorney fees.

Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this

Order by reference in the docket.

Dated June lS, 2019

A. M. Horton, Justice

3 Another argument against Klein's contention that a step 3 evidentiary hearing should be held
so this court can determine whether the Defendants and the DHHS caseworker testified falsely
in the court hearings is that witnesses are absolutely immune from civil liability for their relevant
sworn testimony in court, regardless ofwhether the testimony is true or false, see Hurley v. Towne,
155 Me. 433, 436-39, 156 A.2d 377 ( 1959); Dunbarv. Greenlaw, 152 Me. 270, 128 A.2d 218 (1956).
The court's April 17, 2019 Order deemed the Defendants' Rule 12(b)(6) motions moot but they
plainly would have been granted at least in part if the court had not decided that Klein had not
met his burden of production at step 2 in response to the special motions to dismiss.

5

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10811893. Public record. Not legal advice.