                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0011

                                     Jay T. Nygard,
                                       Appellant,

                                            vs.

                                  Patrick Walsh, et al.,
                                      Respondents

                                Filed December 22, 2014
                                       Affirmed
                                    Peterson, Judge

                             Hennepin County District Court
                                File No. 27-CV-13-7049

Jay T. Nygard, Orono, Minnesota (pro se appellant)

Robert H. Tennant, Stringer & Rohleder, Ltd., St. Paul, Minnesota (for respondents)

      Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and

Schellhas, Judge.

                        UNPUBLISHED OPINION

PETERSON, Judge

      Appellant challenges the district court’s dismissal of his tort claims against

respondents, arguing that the district court erroneously ruled that the statute prohibiting

strategic lawsuits against public participation, Minn. Stat. §§ 554.01-.05 (2012) (anti-

SLAPP statute), immunized respondents from his claims. We affirm.
                                          FACTS

       Pro se appellant Jay Nygard has a history of confrontational interactions with his

neighbors. On August 1, 2011, respondents Patrick and Nancy Walsh sent a letter to the

City of Orono and the Orono Police Department that includes negative references to past

interactions with appellant. The letter refers to specific instances of appellant’s conduct,

including “yelling obscenities at us, damaging our property, filing false police reports or

challenging our presence in our own yard,” and describes appellant as “belligerent,

combative,” having an “anger issue,” and exhibiting harassing behavior. The letter twice

mentions that respondents fear for their safety.

       In response to respondents’ letter, appellant sued them for defamation, defamation

per se, and negligence. Respondents moved to dismiss, relying on the anti-SLAPP

statute, which protects lawful speech from public liability when the speech constitutes

“public participation” and when the opponent of the statute’s application cannot meet the

burden to provide clear and convincing evidence that the speech constitutes a tort. Minn.

Stat. §§ 554.02, subd. 3; .04, subd. 2.

       The district court granted respondents’ motion. The district court analyzed the

two prongs required for application of the anti-SLAPP statute: (1) whether respondents

“met the minimal burden of making a threshold showing that their speech constituted

public participation,” and concluded that they met this threshold; and (2) whether

appellant met his burden to produce clear and convincing evidence that the speech

constituted a tort, and concluded that he did not. Regarding the second prong, the district

court concluded that “most of the statements contained in [respondents’] letter are not


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properly subject to determinations of truth or falsity and cannot serve as the basis for a

claim of defamation,” and that “even applying the generous Rule 12 standard of taking all

statements in [appellant’s] complaint . . . as true and drawing all inferences in his favor,

[appellant] has not satisfied his heavy burden of showing clearly and convincingly that

[respondents’] letter constitutes defamation.” Appellant then brought this appeal.1

       This court granted appellant’s motion to stay the appeal pending final disposition

of Leiendecker v. Asian Women United of Minnesota, et al., 848 N.W.2d 224, as modified

by 855 N.W.2d 233 (Minn. 2014). Following final disposition of Leiendecker, this court

dissolved the stay and set the matter for a nonoral conference.

                                         DECISION

       Appellate courts review matters of statutory interpretation de novo and must apply

the plain language of a statute as written. Axelberg v. Comm’r of Pub. Safety, 848

N.W.2d 206, 207 (Minn. 2014).

       In Leiendecker, the supreme court explained the “unique burden-shifting

framework” that applies to the parties in anti-SLAPP cases. 848 N.W.2d at 229. The

anti-SLAPP statute provides that a party who is sued may move for dismissal of a claim

1
  During the pendency of this appeal, this court released Nygard v. Walsh, No. A13-1103,
2014 WL 349761 (Minn. App. Feb. 3, 2014), review denied (Minn. Sept. 24, 2014), in
which this court applied the anti-SLAPP statute to dismiss appellant’s identical tort
claims against another of his neighbors who had spoken at an Orono City Council
meeting and “cited alleged difficulties the neighborhood was having with [appellant] . . .
and asked for a more responsive police force.” Id. at *1. This court ruled that the anti-
SLAPP statute applied to the neighbor’s speech because “the record show[ed] that [the
neighbor’s] statements were genuinely aimed at procuring favorable government
action—obtaining a more vigorous response from police and city officials concerning a
disruptive neighbor,” Id. at *3, and that appellant failed to produce sufficient evidence to
meet the clear-and-convincing-evidence standard to support his tort claims. Id. at *4-7.

                                             3
in reliance on the statute’s immunity provisions by making “a threshold showing that the

underlying ‘claim materially relates to an act of the moving party that involves public

participation.’” Id. (quoting Minn. Stat. § 554.02, subd. 1; other quotation omitted). In

response, the nonmovant, or responding party, bears the burden of proof, and the district

court must grant the motion to dismiss unless it “‘finds that the responding party has

produced clear and convincing evidence that the acts of the moving party are not

immunized from liability under section 554.03.’” Id. at 230 (emphasis omitted) (quoting

Minn. Stat. § 554.02, subd. 2(3)). Notably, “the [district] court is required to dismiss the

claim, even in the face of genuine issues of material fact, if the responding party has

failed to carry its burden of persuasion that the moving party is not immune by clear and

convincing evidence.” Id. at 231 (emphasis in original). The responding party can meet

this requirement by “establishing that the moving party’s conduct or speech was not

aimed in whole or in part at procuring favorable government action, that the conduct or

speech constituted a tort, or that the conduct or speech violated another’s constitutional

rights.” Id. at 229 (citing Minn. Stat. § 554.03).2 On a motion to dismiss in reliance on

the anti-SLAPP statute, “the responding party carries three distinct burdens[:] . . . the

burden of proof, the burden of production, and the burden of persuasion.” Id. at 231

(citing Minn. Stat. § 544.02, subd. 2(2)).

       We agree with the district court that appellant has not offered sufficient evidence

to satisfy the clear-and-convincing standard of proof required to defeat application of the


2
  Appellant does not argue that respondent’s speech or conduct violated his constitutional
rights.

                                             4
anti-SLAPP statute to his claims. The letter that respondents sent can only be read as an

attempt to procure favorable government action. The letter is addressed to the City of

Orono and the Orono Police Department, and the clear import of the letter is to call on

those entities to take action against appellant. The first and last lines of the letter state

that respondents have safety concerns regarding appellant’s conduct and behavior. The

City of Orono and the Orono Police Department are the proper parties to receive such

complaints about neighbors from Orono residents.

       As the responding party to the motion to dismiss on anti-SLAPP grounds,

appellant has not met his burden to establish by clear and convincing evidence that the

letter was tortious. Each of the torts alleged by appellant includes elements that appellant

has failed to establish by clear and convincing evidence: a cause of action for defamation

requires a false statement, and a cause of action for negligence requires a duty owed to

another. See Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn. 2011) (“Generally a

defendant’s duty to a plaintiff is a threshold question because in the absence of a legal

duty, the negligence claim fails.”); Hunter v. Hartman, 545 N.W.2d 699, 705, 709 (Minn.

App. 1996) (describing a defamation claim as actionable only if the defamatory

statements were not “supportable interpretations of the situation being described” and

noting that in certain factual contexts non-defamatory statements are expected to include

“highly subjective opinions” rather than “assertions of verifiable, objective facts”). We

therefore affirm the district court’s dismissal of appellant’s action.

       Affirmed.




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