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Ernst v. Kauffman

United States District Court, D. Vermont

September 30, 2014

BARBARA ERNST and BARBARA SUPENO, Plaintiffs,
v.
BARBARA " CAROL" KAUFFMAN, JEFF KAUFFMAN, JOHN CARRIGAN, LINDA CARRIGAN, and the TOWN OF ADDISON, VERMONT, Defendants

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[Copyrighted Material Omitted]

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For Barbara Ernst, Barbara Supeno, Plaintiffs, Counter Defendants: David E. Bond, Esq., Law Office of David Bond, PLLC, Burlington, VT.

For Jeff Kauffman, Defendant, Counter Claimant: Michael J. Tierney, Esq., Wadleigh, Starr & Peters, Manchester, NH; William F. Ellis, McNeil, Leddy & Sheahan, P.C., Burlington, VT.

For John Carrigan, Linda Carrigan, Defendants: Eric J. Morgan, Esq., Harry R. Ryan III, Esq., Ryan Smith & Carbine, Ltd., Rutland, VT.

For Town of Addison, Defendant: William F. Ellis, McNeil, Leddy & Sheahan, P.C., Burlington, VT.

For Barbara Carol Kauffman, Defendant: Andrew C. Boxer, Esq., Ellis Boxer & Blake, Springfield, VT; Michael J. Tierney, Esq., Wadleigh, Starr & Peters, Manchester, NH; William F. Ellis, McNeil, Leddy & Sheahan, P.C., Burlington, VT.

For Barbara Carol Kauffman, Counter Claimant: Michael J. Tierney, Esq., Wadleigh, Starr & Peters, Manchester, NH.

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OPINION AND ORDER RE: DEFENDANTS' MOTIONS TO DISMISS COUNT III AND IV AND DEFENDANTS' SPECIAL MOTIONS TO STRIKE THE COMPLAINT

Geoffrey W. Crawford, United States District Judge.

(Docs. 44, 42, 38 & 48)

Pending before the court are four motions filed by the various defendants in this case. The first and second are motions filed by defendants Jeff Kauffman and Carol Kauffman (Doc. 38), and John Carrigan and Linda Carrigan (Doc. 48), respectively, to strike plaintiffs' complaint pursuant

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to Vermont's anti-SLAPP statute, 12 V.S.A. § 1041. The third is a motion to dismiss Count IV of plaintiffs' amended complaint on the grounds that it is barred by the statute of limitations, filed by defendants Jeff Kauffman and the Town of Addison. (Doc. 42). Finally, defendant Jeff Kauffman has moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Count III of plaintiffs' complaint as it relates to him. (Doc. 44.) A hearing on the motions to strike was held on September 18, 2014. The parties did not request a hearing on the motions to dismiss.

I. Background

The following facts are drawn from plaintiffs' amended complaint. (Doc. 34.) Plaintiffs Barbara Ernst and Barbara Supeno are an openly gay couple who have lived in their lakefront home in Addison, Vermont, since 2004. ( Id. ¶ 1.) Since moving to Addison, they have been involved with several zoning disputes with adjoining landowners over alleged setback, use and septic violations by those neighbors. ( Id. ¶ ¶ 11-26.) Plaintiffs allege that several of their neighbors, including defendants John and Linda Carrigan, have been openly hostile to them because they are a same-sex couple. These neighbors have allegedly shouted offensive language at them, threatened them with physical harm, trespassed on their property and attempted to intimidate them into moving away. ( Id. ¶ 7.)

These efforts to drive plaintiffs out of Addison allegedly were encouraged by several town officials, including defendant Jeff Kauffman. Mr. Kauffman has been the chairman of the Addison Selectboard since 2007 and was the town's zoning and planning administrator from 2008 to 2012. ( Id. ¶ ¶ 3, 8.) Plaintiffs assert that Mr. Kauffman and the Town of Addison discriminated against them in zoning decisions from 2004 onward, and that these decisions were motivated by anti-homosexual bias based on fundamentalist Christian beliefs held by Mr. Kauffman and others. ( Id. ¶ ¶ 10-26.)

On April 11, 2011, an anonymous nine-page letter was sent to numerous Town residents including all of the members of the Selectboard, school board, planning board, and development review board, as well as local newspapers. ( Id. ¶ 38.) The letter was entitled " The TRUTH About the BARBARAS." (Doc. 34-1 at 3.) The letter contained information drawn from court and police records involving plaintiffs that supposedly demonstrated that plaintiffs were " masters at falsifying information, using harassment as a crutch whenever confronted in their demonical schemes, lying openly, distorting facts, [and] using the court system for extortion." ( Id. at 4.) It went on to state that plaintiffs were " felons who are running scams," that plaintiff Supeno was a drag addict who lied about her mother's illness to avoid court dates, and that plaintiffs do not pay their creditors or their taxes. ( Id. at 4-5, 8.) It encouraged the reader to share the letter with neighbors, business people and elected officials. ( Id. at 4.)

Plaintiffs allege that defendant Carol Kauffman wrote the letter with information provided by her husband Jeff Kauffman and by Linda Carrigan. (Doc. 34 ¶ ¶ 39-40.) They assert that " [o]n April 11 to 14, 2011 John Carrigan was observed outside the local convenience store handing out copies of the defamatory letter to Town residents." ( Id. ¶ 41.) Further, Carol Kauffman read aloud from the letter at Selectboard meetings in June, July and August 2011, and John Carrigan presented a document containing information about some of the lawsuits discussed in the letter as well as other disputes involving plaintiffs to the Selectboard in November 2011.

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( Id. ¶ ¶ 42-43.) Plaintiffs allege that Carol Kauffman also sent a letter to their attorney purporting to be from them that implied that they would not pay him for services he had rendered. ( Id. ¶ ¶ 45-46.)

In March 2014, plaintiffs fded suit against the Kauffmans, the Carrigans, and the Town of Addison in Vermont Superior Court. Their complaint, as amended, includes state-law claims against the Kauffmans and the Carrigans for defamation, false-light invasion of privacy, and tortious interference with prospective business relationships, and claims against the Town and Jeff Kauffman for sexual orientation discrimination under 9 V.S.A. § 4503, retaliation in violation of plaintiffs' exercise of their right to free speech under the First Amendment to the U.S. Constitution, and violation of the Common Benefits Clause of the Vermont Constitution, Vt. Const, ch. I, art. 7. (Doc. 34 ¶ ¶ 50-90.) Based on the First Amendment claim, defendants Jeff Kauffman and the Town of Addison removed the action to this court.

II. Special Motions to Strike Filed Under 12 V.S.A. § 1041

Defendants John and Linda Carrigan and Jeff and Carol Kauffman have filed special motions to strike plaintiffs' claims against them pursuant to 12 V.S.A. § 1041, Vermont's anti-SLAPP statute. The purpose of such statutes " is to discourage litigants from filing baseless lawsuits known as Strategic Lawsuits Against Public Participation (SLAPP)." Haywood v. St. Michael's College, No. 2:12-CV-164, 2012 WL 6552361, at *12 (D. Vt. Dec. 14, 2012) (quotation omitted). " In such lawsuits, [t]he strategy is to file weak claims with the goal of silencing speakers because they fear the expense and travails of litigation." Id. (quotation omitted). Anti-SLAPP statutes are designed to encourage free speech and public participation by allowing swift dismissal of meritless complaints. Id.

Vermont's anti-SLAPP statute provides that " [a] defendant in an action arising from the defendant's exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances under the United States or Vermont Constitution may file a special motion to strike under this section." 12 V.S.A. § 1041(a). The statute creates a two-step burden-shifting process. First, the party bringing the motion to strike must show that the case arises from his or her exercise of the right to freedom of speech or to petition the government. Id. The statute protects the following categories of speech or conduct:

(1) [A]ny written or oral statement made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;
(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 official proceeding authorized by law;
(3) any written or oral statement concerning an issue of public interest made in a public forum or a place open to the public; or
(4) any other statement or conduct concerning a public issue or an issue of public interest which furthers the exercise of the constitutional right of freedom of speech or the constitutional right to petition the government for redress of grievances.

Id. § 1041(i). Under the plain language of the statute, a defendant does not need to show that a statement concerned the public interest if it falls within subsections (1) or (2). Du Charme v. Int'l Bhd. of Elec. Workers, Local 45, 110 Cal.App.4th 107, 1 Cal.Rptr.3d 501, 504 (Cal. Ct. App. 2003).

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If the defendant shows that the plaintiff's suit arises from one of the above categories, the burden shifts to the plaintiff to show that " the defendant's exercise of his or her right to freedom of speech and to petition was devoid of any reasonable factual support and any arguable basis in law" and that " the defendant's acts caused actual injury to the plaintiff." Id. § 1041(e)(1). In deciding whether the plaintiff's suit or cause of action[1] arises from protected activity, " the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based." Id. § 1041(e)(2). Should the plaintiff fail to meet its burden, the court must grant the motion to strike and award costs and attorney's fees to the defendant. Id. § 1041(f)(1).

As the Vermont Supreme Court has not interpreted § 1041, " this court may look to any sources on which the state's highest court might rely in order to determine what that court may decide." F.D.I.C. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 205 F.3d 66, 71 (2d Cir. 2000). In this case, those sources include the text of the statute itself and persuasive authority from California, which has an anti-SLAPP statute that protects a similarly broad range of activity by defendants.[2] Compare Cal. Civ. Proc. Code § 425.16, with 12 V.S.A. § 1041.

As a threshold matter, plaintiffs argue that the Carrigans' motion to strike (Doc. 48) was untimely because it was filed more than sixty days after plaintiffs filed their original complaint in state court. See 12 V.S.A. § 1041(b) (" A special motion to strike under this section shall be filed with the court and served on all parties not more than 60 days after the filing of the complaint." ). The statute does not define " the complaint." This court believes, however, that the Vermont Supreme Court would interpret " the complaint" to include amended complaints. " [T]he purpose of the anti-SLAPP suit law would be readily circumventable if a defendant's only opportunity to strike meritless SLAPP claims were in an attack on the original complaint," because anti-free-speech claims could be omitted from the original complaint and then added after the sixty-day period ran. Lam v. Ngo, 91 Cal.App.4th 832, 840, 111 Cal.Rptr.2d 582 (Cal. Ct. App. 2001). In light of the intended purpose of the statute, which is to swiftly dispose of meritless lawsuits targeted at those who exercise their rights of free ...


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