O’Gara v. St. Germain (Lawyers Weekly No. 11-057-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1711 Appeals Court KEVIN E. O’GARA vs. DORENE ST. GERMAIN. No. 15-P-1711. Plymouth. September 12, 2016. – May 11, 2017. Present: Agnes, Neyman, & Henry, JJ. “Anti-SLAPP” Statute. Practice, Civil, Motion to dismiss. Civil action commenced in the Superior Court Department on March 26, 2015. A special motion to dismiss was heard by Christopher J. Muse, J. Sarah J. Long for the defendant. Gregory N. Jonsson for the plaintiff. AGNES, J. This case requires us to apply the “anti-SLAPP” statute, G. L. c. 231, § 59H, to a civil lawsuit filed against the protected party under a domestic violence restraining order. The defendant, Dorene St. Germain, the protected party, reported to the police her concern that her former husband, the plaintiff, Kevin E. O’Gara, violated the no-contact provision of the order by mailing documents to her. The police investigated the complaint and arrested O’Gara. Even though the criminal charges against O’Gara were dismissed, we conclude that St. Germain’s conduct in reporting her concern to the police was petitioning activity under the anti-SLAPP statute and, in the circumstances of this case, the retaliatory civil suit filed against her was based entirely on her petitioning activity and therefore should have been dismissed. St. Germain obtained a permanent restraining order that barred O’Gara from contacting her, except to notify her of “court proceedings . . . by mail, or by sheriff, or other authorized officer when required by statute or rule.”[1] St. Germain obtained the initial protective order in 1997, several years after her divorce from O’Gara. Thereafter, O’Gara sought unsuccessfully on several occasions to have the protective order modified or vacated. On April 1, 2014, St. Germain reported to the police that O’Gara contacted her by mail in violation of the permanent order. The New Bedford police department assigned Officer Randal Barker to investigate the matter. Later that day, as a result of his investigation, O’Gara was arrested and charged with a criminal violation of the abuse prevention order. That charge was later dismissed on the ground that there was insufficient evidence to prove that O’Gara violated the order.[2] O’Gara, in turn, filed this civil lawsuit against St. Germain alleging that she caused Officer Barker to arrest him without probable cause.[3] St. Germain responded by filing a special motion to […]