MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	99	
Docket:	   Cum-15-365	
Argued:	   April	5,	2016	
Decided:	  May	18,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	 SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.	
Dissent:	  JABAR,	J.	
	
	
                                 DANA	DESJARDINS	
                                         	
                                        v.	
                                         	
                                MICHAEL	REYNOLDS	
	
	
GORMAN,	J.	

      [¶1]	 	 Dana	 Desjardins	 appeals	 from	 a	 judgment	 of	 the	 Superior	 Court	

(Cumberland	 County,	 Warren,	 J.)	 dismissing	 his	 complaint	 against	 Michael	

Reynolds	 for	 defamation	 and	 false	 light	 invasion	 of	 privacy.	 	 Desjardins	

contends	that	the	court	erred	by	concluding	that	his	complaint	was	barred	by	

application	 of	 Maine’s	 anti-SLAPP	 (“Strategic	 Lawsuit	 Against	 Public	

Participation”)	statute,	14	M.R.S.	§	556	(2016).		We	affirm	the	judgment.	

                                   I.		BACKGROUND	

      [¶2]	 	 In	 August	 of	 2013,	 Desjardins,	 a	 town	 official	 for	 the	 Town	 of	

Raymond,	 instituted	 a	 lawsuit	 in	 the	 Superior	 Court	 against	 Michael	
2	

Reynolds,1	 a	 Town	 selectman,	 alleging	 that	 Reynolds	 had	 made	 various	 false	

statements	 to	 the	 Cumberland	 County	 Sheriff’s	 Office	 about	 Desjardins’s	

alcohol	 use	 for	 the	 purpose	 of	 humiliating	 and	 harassing	 Desjardins.		

Desjardins	 also	 alleged	 that	 as	 a	 result	 of	 those	 reports,	 Desjardins	 was	

stopped	 on	 his	 way	 to	 a	 Town	 meeting	 on	 January	 8,	 2013,	 by	 a	 sheriff’s	

deputy	who	was	investigating	him	for	possibly	operating	under	the	influence.		

See	 29-A	 M.R.S.	 §	2411	 (2016).	 	 Desjardins	 asserted	 causes	 of	 action	 for	

defamation,	negligent	infliction	of	emotional	distress,	intentional	infliction	of	

emotional	distress,	and	false	light	invasion	of	privacy,	and	sought	damages	for	

his	 “humiliation,”	 “emotional	 distress,”	 and	 “loss	 of	 reputation,”	 as	 well	 as	

punitive	 damages	 and	 injunctive	 relief.	 	 Desjardins	 also	 asserted	 two	 claims	

based	 on	 federal	 statutes—for	 Reynolds’s	 violation	 of	 42	 U.S.C.S.	 §	1983	

(LEXIS	 through	 Pub.	 L.	 No.	 115-30),	 and	 seeking	 attorney	 fees	 pursuant	 to	

42	U.S.C.S.	§	1988	(LEXIS	through	Pub.	L.	No.	115-30).		

           [¶3]	 	 Reynolds	 removed	 the	 matter	 to	 the	 United	 States	 District	 Court	

for	 the	 District	 of	 Maine.	 	 See	 28	 U.S.C.S.	 §	 1441	 (LEXIS	 through	 Pub.	 L.	 No.	

115-30).	 	 The	 District	 Court	 (Torresen,	 J.)	 dismissed	 the	 federal	 claims,	 and	
																																								 								
     1		Desjardins	also	named	Donald	Willard,	the	Town	Manager,	as	a	defendant	on	all	counts.		The	

claims	against	Willard	were	dismissed	by	the	United	States	District	Court	for	the	District	of	Maine,	
see	Desjardins	v.	Willard,	No.	2:13-cv-00338-NT,	2014	U.S.	Dist.	LEXIS	84782,	at	*62	(D.	Me.	June	20,	
2014),	 aff’d	 in	 part	 and	 vacated	 in	 part,	 777	 F.3d	 43	 (1st	 Cir.	 2015),	 and	 are	 not	 at	 issue	 in	 this	
appeal.					
                                                                                      3	

Desjardins	agreed	to	the	dismissal	of	his	claims	for	negligent	and	intentional	

infliction	 of	 emotional	 distress.	 	 Desjardins	 v.	 Willard,	 No.	2:13-cv-00338-NT,	

2014	U.S.	Dist.	LEXIS	84782,	at	*2-3,	61-62	(D.	Me.	June	20,	2014).		The	court	

also	granted	Reynolds’s	special	motion	to	dismiss	the	State	claims	pursuant	to	

section	556.		Id.	at	*52-57,	62.	

      [¶4]		On	Desjardins’s	appeal,	the	United	States	Court	of	Appeals	for	the	

First	Circuit	affirmed	the	dismissal	of	Desjardins’s	federal	claims,	but	vacated	

the	dismissal	of	his	state	law	claims	on	section	556	grounds,	concluding	that	

those	“issues	are	better	resolved	by	the	state	courts,	where	this	case	began.”		

Desjardins	v.	Willard,	777	F.3d	43,	46	(1st	Cir.	2015).		Thus,	when	the	matter	

was	 returned	 to	 the	 Superior	 Court’s	 jurisdiction	 in	 February	 of	 2015,	 only	

Desjardins’s	 claims	 for	 defamation	 and	 false	 light	 invasion	 of	 privacy	

remained.			

      [¶5]		Before	the	Superior	Court,	Reynolds	reasserted	his	special	motion	

to	dismiss	on	anti-SLAPP	grounds,	with	accompanying	affidavits	and	various	

exhibits.		Desjardins	opposed	the	motion,	submitting	affidavits	and	exhibits	of	

his	 own.	 	 By	 judgment	 dated	 June	 29,	 2015,	 the	 Superior	 Court	 (Warren,	 J.)	

granted	Reynolds’s	special	motion	to	dismiss	both	remaining	causes	of	action	

on	anti-SLAPP	grounds.		Desjardins	appeals.	
4	

                                   II.		DISCUSSION	

      [¶6]	 	 In	 this	 matter,	 we	 are	 called	 upon	 to	 consider	 the	 reaches	 of	

Maine’s	anti-SLAPP	statute,	14	M.R.S.	§	556,	which	provides	as	follows:	

      §	556.	Special	motion	to	dismiss		

             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	of	justice	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.		

            The	Attorney	General	on	the	Attorney	General’s	behalf	or	on	
      behalf	 of	 any	 government	 agency	 or	 subdivision	 to	 which	 the	
      moving	 party’s	 acts	 were	 directed	 may	 intervene	 to	 defend	 or	
      otherwise	support	the	moving	party	on	the	special	motion.		

              All	 discovery	 proceedings	 are	 stayed	 upon	 the	 filing	 of	 the	
      special	motion	under	this	section,	except	that	the	court,	on	motion	
      and	 after	 a	 hearing	 and	 for	 good	 cause	 shown,	 may	 order	 that	
      specified	 discovery	 be	 conducted.	 The	 stay	 of	 discovery	 remains	
      in	 effect	 until	 notice	 of	 entry	 of	 the	 order	 ruling	 on	 the	 special	
      motion.		
                                                                                        5	

             The	special	motion	to	dismiss	may	be	filed	within	60	days	of	
      the	 service	 of	 the	 complaint	 or,	 in	 the	 court’s	 discretion,	 at	 any	
      later	time	upon	terms	the	court	determines	proper.		

             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	 section	 does	 not	 affect	 or	 preclude	 the	
      right	of	the	moving	party	to	any	remedy	otherwise	authorized	by	
      law.		

             As	 used	 in	 this	 section,	 “a	 party’s	 exercise	 of	 its	 right	 of	
      petition”	 means	 any	 written	 or	 oral	 statement	 made	 before	 or	
      submitted	to	a	legislative,	executive	or	judicial	body,	or	any	other	
      governmental	proceeding;	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;	 any	 statement	 reasonably	 likely	 to	 encourage	
      consideration	 or	 review	 of	 an	 issue	 by	 a	 legislative,	 executive	 or	
      judicial	 body,	 or	 any	 other	 governmental	 proceeding;	 any	
      statement	 reasonably	 likely	 to	 enlist	 public	 participation	 in	 an	
      effort	to	effect	such	consideration;	or	any	other	statement	falling	
      within	 constitutional	 protection	 of	 the	 right	 to	 petition	
      government.	

Thus,	Maine’s	anti-SLAPP	statute,	like	those	of	other	jurisdictions,	provides	a	

procedure	 for	 the	 expedited	 dismissal	 of	 lawsuits	 that	 are	 brought	 not	 to	

redress	a	legitimate	wrong	suffered	by	the	plaintiff,	but	instead	solely	for	the	

purpose	of	dissuading	a	defendant	from	exercising	his	First	Amendment	right	

to	 petition	 the	 government	 or	 punishing	 him	 for	 doing	 so.	 	 See	 Nader	 v.	 Me.	

Democratic	Party	(Nader	I),	2012	ME	57,	¶	14,	41	A.3d	551;	Morse	Bros.,	Inc.	v.	

Webster,	 2001	 ME	 70,	 ¶	10,	 772	 A.2d	 842	 (“The	 typical	 mischief	 that	 the	
6	

anti-SLAPP	legislation	intended	to	remedy	was	lawsuits	directed	at	individual	

citizens	of	modest	means	for	speaking	publicly	against	development	projects.”	

(alteration	omitted)	(quotation	marks	omitted)),	abrogated	on	other	grounds	

by	 Nader	 v.	 Me.	 Democratic	 Party	 (Nader	 II),	 2013	 ME	 51,	 ¶	 12	 n.9,	 66	 A.3d	

571.	 	 Such	 cases	 are	 filed	 “solely	 for	 delay	 and	 distraction,	 and	 to	 punish	

activists	by	imposing	litigation	costs	on	them.”		Morse	Bros.,	Inc.,	2001	ME	70,	

¶	10,	772	A.2d	842	(quotation	marks	omitted).		Moreover,	because	the	SLAPP	

plaintiff’s	goal	is	not	necessarily	to	win	in	the	litigation,	but,	through	the	cost	

of	 litigation,	 to	 punish	 or	 deter	 petitioning	 activity,	 “defendants’	 traditional	

safeguards	 against	 meritless	 actions,	 (suits	 for	 malicious	 prosecution	 and	

abuse	of	process,	requests	for	sanctions)	are	inadequate	to	counter	SLAPPs.”		

Id.	(quotation	marks	omitted).			

	      [¶7]		To	further	the	goals	of	the	statute,	section	556	allows	the	moving	

party	 to	 file	 a	 special	 motion	 to	 dismiss	 that	 may	 be	 given	 priority	 on	 the	

docket	 as	 the	 interests	 of	 justice	 require.	 	 14	 M.R.S.	 §	 556;	 Morse	 Bros.,	 Inc.,	

2001	ME	70,	¶	10,	772	A.2d	842.		In	another	case	issued	this	month,	Gaudette	

v.	 Davis,	 2017	ME	 86,	 ¶¶	 18-22,	 ---	 A.3d	 ---,	 we	 established	 some	 additional	

procedural	steps	for	the	trial	court	to	undertake	to	decide	special	motions	to	

dismiss	filed	on	anti-SLAPP	grounds.		Notwithstanding	those	new	procedural	
                                                                                                                   7	

elements	 for	 which	 Gaudette	 provides,	 the	 analysis	 of	 a	 special	 motion	 to	

dismiss	in	Gaudette	begins	with	the	same	requirements	as	those	set	out	in	our	

prior	anti-SLAPP	decisions.		Id.	¶¶	16-17.			

           [¶8]	 	 As	 we	 have	 consistently	 stated,	 section	 556	 imposes	 a	

burden-shifting	procedure	between	the	moving	and	nonmoving	parties.		E.g.,	

id.	¶¶	8-9;	Camden	Nat’l	Bank	v.	Weintraub,	2016	ME	101,	¶	8,	143	A.3d	788;	

Schelling	v.	Lindell,	2008	ME	59,	¶	7,	942	A.2d	1226;	Morse	Bros.,	Inc.,	2001	ME	

70,	¶¶	19-20,	772	A.2d	842.		First,	in	a	motion	with	accompanying	affidavits,	

the	 moving	 party	 (usually	 the	 defendant2)	 must	 demonstrate,	 as	 a	 matter	 of	

law,	 that	 the	 anti-SLAPP	 statute	 applies	 to	 the	 conduct	 that	 is	 the	 subject	 of	

the	 plaintiff’s	 complaint	 by	 establishing	 that	 “the	 suit	 was	 based	 on	 some	

activity	that	would	qualify	as	an	exercise	of	the	defendant’s	First	Amendment	

right	to	petition	the	government.”		Schelling,	2008	ME	59,	¶	7,	942	A.2d	1226;	

see	Gaudette,	2017	ME	86,	¶	16,	---	A.3d	---.		If	the	defendant	fails	to	meet	his	

initial	 burden,	 the	 special	 motion	 to	 dismiss	 must	 be	 denied.	 	 Gaudette,	

2017	ME	 86,	 ¶	 16,	 ---	 A.3d	 ---;	 Nader	 I,	 2012	 ME	 57,	 ¶	 15,	 41	 A.3d	 551;	 see	

Schelling,	2008	ME	59,	¶	7,	942	A.2d	1226.			



																																								 								
    2	 	 Because	 it	 is	 so	 often	 the	 case,	 we	 will	 use	 “defendant”	 in	 place	 of	 “the	 moving	 party”	 and	

“plaintiff”	in	place	of	“the	nonmoving	party.”	
8	

      [¶9]		If	the	defendant	satisfies	this	initial	burden,	the	burden	then	shifts	

to	 the	 nonmoving	 party	 (usually	 the	 plaintiff)	 to	 offer	 prima	 facie	 evidence	

that	 the	 defendant’s	 exercise	 of	 his	 right	 to	 petition	 (1)	 was	 “devoid	 of	 any	

reasonable	 factual	 support	 or	 any	 arguable	 basis	 in	 law”	 and	 (2)	 caused	

“actual	injury”	to	the	plaintiff.		14	M.R.S.	§	556;	see	Gaudette,	2017	ME	86,	¶	17,	

---	A.3d	---;	Nader	I,	2012	ME	57,	¶	33,	41	A.3d	551.		If	the	plaintiff	fails	to	meet	

this	prima	facie	burden	for	all	of	the	petitioning	activities	at	issue—“either	by	

the	absence	of	the	minimum	amount	of	evidence	on	either	element	or	based	

on	 some	 other	 legal	 insufficiency”—the	 special	 motion	 must	 be	 granted	 and	

the	 case	 dismissed.	 	 Gaudette,	 2017	 ME	 86,	 ¶	 17,	 ---	 A.3d	 ---;	 see	 Nader	I,	

2012	ME		57,	¶	37,	41	A.3d	551.	

      [¶10]	 	 If	 the	 plaintiff	 meets	 his	 prima	 facie	 burden	 of	 establishing	 that	

any	 one	 or	 more	 of	 the	 petitioning	 activities	 at	 issue	 lacks	 factual	 or	 legal	

support	 and	 caused	 the	 plaintiff	 actual	 injury,	 the	 parties	 may	 avail	

themselves	 of	 an	 additional	 procedural	 mechanism	 according	 to	 the	 new	

procedure	 set	 out	 in	 Gaudette.	 	 2017	 ME	 86,	 ¶¶	 18-21,	 ---	 A.3d	 ---.	 	 That	

mechanism	 provides	 for	 limited	 discovery	 and	 an	 evidentiary	 hearing	 at	

which	 the	 plaintiff	 must	 prove	 that	 those	 petitioning	 activities	 for	 which	 the	
                                                                                                     9	

prima	facie	burden	was	met	are	devoid	of	factual	or	legal	support	and	caused	

actual	injury,	this	time	by	a	preponderance	of	the	evidence.		Id.					

       [¶11]	 	 Here,	 there	 can	 be	 no	 legitimate	 argument	 but	 that	 Reynolds’s	

statements	 to	 the	 sheriff’s	 office	 regarding	 Desjardins’s	 alleged	 history	 of	

arriving	 at	 Town	 meetings—and	 having	 driven	 his	 vehicle	 to	 those	

meetings—while	under	the	influence	of	alcohol	qualify	as	petitioning	activity.3		

See	Schelling,	2008	ME	59,	¶	11,	942	A.2d	1226.		In	addition,	Reynolds	has	not	

challenged	the	Superior	Court’s	conclusion	that	Desjardins	met	his	prima	facie	

burden	of	establishing	that	at	least	one	of	Reynolds’s	statements	to	the	sheriff	

was	devoid	of	any	factual	or	legal	support.		See	id.	¶	7.		Therefore,	we	limit	our	

review	to	the	issue	of	whether	Desjardins	established,	on	a	prima	facie	basis,	

that	Reynolds’s	petitioning	actions	caused	Desjardins	“actual	injury.”		See	id.			

       [¶12]	 	 The	 meaning	 of	 “actual	 injury”	 pursuant	 to	 section	 556	 is	 a	

question	 of	 law	 we	 review	 de	 novo.	 	 Id.	 ¶	17.	 	 To	 interpret	 section	 556	 in	 a	

manner	that	gives	effect	to	the	Legislature’s	intent,	we	look	first	to	 the	plain	

language	of	the	provision.		MaineToday	Media,	Inc.	v.	State,	2013	ME	100,	¶	6,	

82	A.3d	104.		If	that	language	is	unambiguous,	we	interpret	it	according	to	its	

unambiguous	 meaning.	 	 Id.	 	 If	 the	 language	 of	 the	 statute	 is	 ambiguous,	 i.e.,	
																																								 								
   3		To	the	extent	that	Desjardins	also	points	to	Reynolds’s	statements	to	nongovernmental	third	

parties,	Desjardins	did	not	allege	any	such	statements	as	the	basis	of	any	of	his	claims	in	this	matter	
and	any	such	facts	are	therefore	not	before	us	in	this	appeal.			
10	

reasonably	 susceptible	 to	 multiple	 interpretations,	 we	 look	 beyond	 the	 plain	

language	 of	 the	 provision	 to	 consider	 other	 indicia	 of	 legislative	 intent,	

including	the	legislative	history	underlying	its	enactment.		Id.	

      [¶13]		Unlike	other	terms	in	the	statute,	“actual	injury”	is	not	defined	in	

section	556.		Indeed,	although	we	often	look	to	other	statutory	provisions	for	

clues	 as	 to	 the	 meaning	 of	 particular	 phrase,	 section	 556	 marks	 the	 single	

occurrence	of	the	phrase	“actual	injury”	in	the	current	Maine	Revised	Statutes.	

      [¶14]		We	have,	however,	had	multiple	occasions	to	address	its	meaning	

in	 our	 prior	 decisions.	 	 In	 those	 decisions,	 we	 have	 emphasized	 that	 “actual	

injury”	 requires	 a	 “reasonably	 certain	 monetary	 valuation	 of	 the	 injury”	

suffered	 by	 the	 plaintiff.	 	 Schelling,	 2008	 ME	 59,	 ¶	 17,	 942	 A.2d	 1226;	 see	

Nader	I,	2012	ME	57,	¶	38,	41	A.3d	551	(explaining	that	“[a]ctual	injury	could	

include	.	.	.	 quantifiable	 losses	 of	 money	 or	 other	 resources	 or	 identifiable	

special	 damages”);	 Maietta	 Constr.,	 Inc.	 v.	 Wainwright,	 2004	 ME	 53,	 ¶	10,	

847	A.2d	1169	(requiring	“evidence	from	which	damage	in	a	definite	amount	

may	 be	 determined	 with	 reasonable	 certainty”	 (quotation	 marks	 omitted)).		

The	requirement	of	reasonable	certainty	also	precludes	the	establishment	of	

“actual	 injury”	 when	 the	 plaintiff	 asserts	 only	 presumed	 damages	 (“damages	

per	 se”),	 as	 is	 associated	 with	 common	 law	 causes	 of	 action	 for	 libel	 or	
                                                                                       11	

slander.		Schelling,	2008	ME	59,	¶¶	18-19,	942	A.2d	1226;	see	Maietta	Constr.,	

Inc.,	2004	ME	53,	¶	10,	847	A.2d	1169.			

      [¶15]	 	 In	 his	 opposition	 to	 Reynolds’s	 motion	 to	 dismiss,	 Desjardins	

states	 that	 he	 suffered	 two	 forms	 of	 harm	 as	 a	 result	 of	 Reynolds’s	 actions.		

First,	Desjardins	attested	that	he	was	stopped	by	the	sheriff’s	deputy	on	one	

occasion	 “without	 cause	 and	 [was]	 not	 allowed	 to	 go	 about	 his	 normal	

activities	 for	 a	 time,”	 was	 “humiliated	 and	 embarrassed	 at	 that	 time,”	 and	

“suffered	great	emotional	distress	.	.	.	when	he	learned	that	he	had	been	red	

flagged	[by	the	sheriff’s	office]	for	something	that	was	totally	contrived.”		The	

second	form	of	harm	Desjardins	suggests	he	suffered	in	his	opposition	to	the	

special	 motion	 to	 dismiss	 is	 an	 expenditure	 of	 $500	 he	 alleges	 he	 paid	 an	

attorney	after	he	was	stopped,	whom	he	hired	to	investigate	the	source	of	the	

reports	to	the	sheriff’s	office.			

      [¶16]		As	a	matter	of	law,	these	asserted	harms	do	not	rise	to	the	level	of	

“actual	 injury”	 required	 by	 section	 556.	 	 In	 the	 lengthy	 recitation	 of	 the	

underlying	facts	comprising	his	complaint,	Desjardins	briefly	mentioned	that	

he	retained	counsel	to	investigate	the	reports.		His	complaint	never	purported	

to	 seek	 damages	 for	 that	 cost,	 however,	 or	 to	 otherwise	 suggest	 that	 his	

retention	of	counsel	constituted	any	aspect	of	the	damages	he	was	seeking	in	
12	

the	 litigation;	 rather,	 as	 to	 his	 defamation	 and	 false	 light	 invasion	 of	 privacy	

causes	 of	 action	 remaining	 before	 the	 court,	 Desjardins	 alleged	 only	 that	

Reynolds’s	 statements	 constituted	 defamation	 per	 se;	 that	 he	 suffered	

“humiliation,	 loss	 of	 reputation	 and	 severe	 emotional	 distress”	 and	 “serious	

emotional	 distress”;	 and	 that	 he	 was	 entitled	 to	 punitive	 damages	 for	

Reynolds’s	actual	or	implied	malice.			

       [¶17]		Our	notice	pleading	requirements	are	forgiving;	the	plaintiff	need	

only	 give	 “fair	 notice	 of	 the	 cause	 of	 action	 by	 providing	 a	 short	 and	 plain	

statement	of	the	claim	showing	that	the	pleader	is	entitled	to	relief.”		Burns	v.	

Architectural	Doors	&	Windows,	2011	ME	61,	¶¶	16,	21,	19	A.3d	823	(citation	

omitted)	 (quotation	 marks	 omitted);	 see	 M.R.	 Civ.	 P.	 8(a)(1).	 	 The	 special	

motion	 to	 dismiss	 procedure	 in	 anti-SLAPP	 matters	 is,	 in	 contrast,	 a	 more	

precise	mechanism.		See	Burns,	2011	ME	61,	¶	21,	19	A.3d	823	(noting	that	the	

notice	pleading	requirements	do	not,	in	any	event,	allow	a	party	to	“shift	his	

cause	of	action	at	any	point	in	the	proceedings”).		The	purpose	of	section	556	

is	 to	 provide	 for	 expedited	 consideration	 of	 the	 nature	 of	 a	 plaintiff’s	

allegations—and	 a	 minimum	 amount	 of	 evidence	 supporting	 the	 veracity	 of	

those	 allegations—as	 early	 in	 the	 litigation	 as	 possible,	 before	 discovery	 or	

any	other	motion	practice.		See	14	M.R.S.	§	556	(requiring	that	“[a]ll	discovery	
                                                                                         13	

proceedings	 are	 stayed	 upon	 the	 filing	 of	 the	 special	 motion	 under	 this	

section”);	Bradbury	v.	City	of	Eastport,	2013	ME	72,	¶	18,	72	A.3d	512.		In	this	

way,	 a	 defendant	 burdened	 by	 a	 SLAPP	 case	 can	 seek	 early	 disposal	 of	 the	

litigation,	 before	 the	 substantial	 legal	 fees	 that	 are	 the	 true	 impetus	 behind	

SLAPP	litigation	can	accrue.			

           [¶18]		Although	this	process	may	appear	abrupt,	it	provides	protection	

for	 a	 citizen’s	 fundamental	 right	 to	 petition	 the	 government,	 a	 right	 that	 the	

Legislature	 has	 given	 priority	 by	 enacting	 the	 anti-SLAPP	 statute.	 	 See	

Bradbury,	 2013	 ME	 72,	 ¶¶	9-10,	 72	A.3d	 512;	 Morse	 Bros.,	 Inc.,	 2001	 ME	 70,	

¶	10,	772	A.2d	842.		The	Legislature	has	chosen	to	protect	petitioning	activity	

by	broadly	defining	a	“party’s	exercise	of	its	right	of	petition”	and	by	creating	

a	 procedure	 for	 the	 prompt	 dismissal	 of	 lawsuits	 that	 challenge	 any	 actions	

that	fall	within	that	broad	definition	of	petitioning	activity.		14	M.R.S.	§	556.	

           [¶19]		In	this	context,	both	parties	must	be	limited	in	their	anti-SLAPP	

filings	to	the	universe	of	facts	as	actually	alleged	in	the	plaintiff’s	complaint.4		

By	 alleging	 a	 new	 form	 of	 harm	 for	 the	 first	 time	 solely	 in	 response	 to	 the	

special	motion	to	dismiss,	Desjardins	has	attempted	to	thwart	the	purpose	of	

the	anti-SLAPP	statute	by	expanding	the	scope	of	the	litigation	that	Reynolds	


																																								 								
    4		At	no	time	did	Desjardins	seek	to	amend	his	complaint.		See	M.R.	Civ.	P.	15.			
14	

must	 defend	 against.	 	 Because	 Desjardins’s	 pre-litigation	 investigation	

expenditure	 constitutes	 no	 part	 of	 his	 request	 for	 damages	 in	 his	 complaint,	

we	reject	that	cost	as	an	“actual	injury”	within	the	meaning	of	section	556	at	

the	special	motion	to	dismiss	stage.5		Cf.	Nader	II,	2013	ME	51,	¶	20,	66	A.3d	

571	(observing	that,	although	the	plaintiff	referenced	relevant	evidence	in	his	

complaint,	 his	 failure	 to	 provide	 that	 evidence	 in	 his	 opposition	 to	 a	 special	

motion	 to	 dismiss	 pursuant	 to	 section	 556	 precluded	 the	 court	 from	

determining	that	the	plaintiff	met	his	prima	facie	burden).		

           [¶20]		Nor	did	Desjardins	meet	his	burden	of	establishing	actual	injury	

through	 his	 various	 assertions	 of	 emotional	 damages,	 although	 these	 do	 at	

least	 correspond	 with	 the	 allegations	 in	 his	 complaint.	 	 In	 Schelling,	 we	 held	

that	 “purely	 emotional	 injuries”	 could	 only	 constitute	 “actual	 injury”	 to	 the	

extent	 that	 those	 emotional	 damages	 were	 otherwise	 compensable	 pursuant	

to	 existing	 statutory	 or	 common	 law.	 	 2008	ME	 59,	 ¶	20,	 942	 A.2d	 1226.		

Because	 the	 common	 law	 provides	 that	 “emotional	 distress	 alone	 is	 not	

compensable	 unless	 it	 is	 ‘so	 severe	 that	 no	 reasonable	 person	 could	 be	

expected	 to	 endure	 it,’”	 “actual	 injury”	 based	 on	 emotional	 distress	 pursuant	

																																								 								
   5	 	 Because	 we	 conclude	 that	 Desjardins’s	 failure	 to	 conform	 his	 special	 motion	 to	 dismiss	

opposition	 to	 the	 allegations	 pleaded	 in	 his	 complaint	 prevents	 him	 from	 meeting	 his	 burden,	 we	
need	 not	 consider	 whether	 such	 self-generated	 damages	 otherwise	 can	 satisfy	 the	 “actual	 injury”	
component	of	an	anti-SLAPP	opposition.		14	M.R.S.	§	556	(2016).		
                                                                                            15	

to	 section	 556	 cannot	 be	 established	 by	 anything	 less	 as	 a	 matter	 of	 law.		

Id.	¶	25	(quoting	Curtis	v.	Porter,	2001	ME	158,	¶	10,	784	A.2d	18).		Thus,	“loss	

of	 sleep,	 mental	 suffering,	 .	 .	 .	 embarrassment,	 .	 .	 .	 [d]istress,	 irritation,	 and	

emotional	 upset”	 are	 not	 “legally	 sufficient”	 to	 constitute	 “actual	 injury,”	 nor	

are	“minor	emotional	injuries,	such	as	hurt	feelings.”		Id.	¶¶	18,	25-26.			

       [¶21]	 	 Consistent	 with	 these	 decisions,	 Desjardins	 suffered	 no	 “actual	

injury”	by	the	inconvenience	of	being	the	subject	of	a	routine	traffic	stop,	nor	

do	his	filings	contain	any	evidence	that	the	emotional	distress	he	has	suffered	

is	 “so	 severe	 that	 no	 reasonable	 person	 could	 be	 expected	 to	 endure	 it.”		

Curtis,	2001	ME	158,	¶	10,	784	A.2d	18	(alteration	omitted)	(quotation	marks	

omitted);	 see,	 e.g.,	 Lougee	 Conservancy	 v.	 CitiMortgage,	 Inc.,	 2012	 ME	 103,	

¶¶	4-8,	 26,	 48	 A.3d	 774	 (concluding	 that	 the	 emotional	 harm	 suffered	 by	

property	 owners	 whose	 property	 was	 inadvertently	 secured	 in	 foreclosure	

did	not	amount	to	compensable	emotional	distress	damages);	Lyman	v.	Huber,	

2010	ME	139,	¶¶	23-26,	10	A.3d	707	(discussing	that	emotional	distress	that	

meets	 this	 standard	 is	 often	 characterized	 by	 “objective	 symptoms	

demonstrating	 shock,	 illness,	 or	 other	 bodily	 harm,”	 and	 concluding	 that	 the	

emotional	 harm	 suffered	 by	 a	 woman	 during	 a	 fifteen-year	 emotionally	

abusive	 marriage	 was	 not	 so	 severe	 that	 a	 reasonable	 person	 could	 not	 be	
16	

expected	to	endure	it).		In	the	absence	of	any	showing	of	such	“actual	injury,”	

Desjardins	 failed,	 as	 a	 matter	 of	 law,	 to	 meet	 his	 prima	 facie	 burden	 in	

opposing	 Reynolds’s	 special	 motion	 to	 dismiss	 pursuant	 to	 section	 556,	 and	

the	 Superior	 Court	 correctly	 dismissed	 the	 remaining	 claims.	 	 Moreover,	

because	we	conclude	that	Desjardins	did	not	meet	his	prima	facie	burden	as	a	

matter	 of	 law	 according	 to	 the	 standard	 first	 articulated	 in	 Nader	 I	 and	

reiterated	in	Gaudette,	we	need	not	remand	the	matter	for	the	Superior	Court	

to	apply	the	additional	procedures	articulated	in	Gaudette,	which	apply	only	if	

a	 plaintiff	 has	 met	 his	 prima	 facie	 burden.	 	 See	 Gaudette,	 2017	 ME	 86,	

¶	17,	---	A.3d	---;	Nader	I,	2012	ME	57,	¶¶	16,	29-38,	41	A.3d	551.	

      The	entry	is:	

                    Judgment	affirmed.		
                    	
                    	    	     	    	          	     	
                                  	
	
JABAR,	J.,	dissenting.	
	
	    [¶22]		I	respectfully	dissent	for	two	reasons.		First,	the	Court’s	decision	

overstates	 the	 protection	 afforded	 to	 petitioning	 activity.	 	 The	 decision	

prevents	 what	 would	 otherwise	 be	 a	 meritorious	 case	 of	 defamation	 from	

proceeding	 in	 our	 courts.	 	 The	 Court	 states	 that	 Maine’s	 anti-SLAPP	 statute,	

14	M.R.S.	 §	 556	 (2016),	 “create[s]	 a	 procedure	 for	 the	 prompt	 dismissal	 of	
                                                                                                         17	

lawsuits	 that	 challenge	 any	 actions	 that	 fall	 within	 that	 broad	 definition	 of	

petitioning	 activity.”	 	 Court’s	 Opinion	 ¶	 18	 (emphasis	 added).	 	 This	 is	 not	

accurate;	 the	 statute	 was	 intended	 to	 protect	 petitioning	 activity	 from	

nonmeritorious	 lawsuits—not	 from	 meritorious	 lawsuits.	 	 A	 person	 engaged	

in	petitioning	activity	is	not	immune	from	a	meritorious	defamation	action.	

	          [¶23]	 	 Second,	 we	 should	 broaden	 the	 definition	 of	 “actual	 injury”	 to	

include	 nonmonetary	 or	 non-out-of-pocket	 damages	 traditionally	 allowed	 in	

defamation	cases.			

                                                    I.		MERITORIOUS	CASES	

           [¶24]	 	 Our	 decisions	 have	 historically	 and	 consistently	 stated	 that	 the	

purpose	of	Maine’s	anti-SLAPP	statute	is	to	protect	against	meritless	lawsuits	

filed	with	the	purpose	of	discouraging	participation	in	activities	protected	by	

the	First	Amendment,	such	as	the	right	to	petition	the	government.		See	Morse	

Bros.,	Inc.	v.	Webster,	2001	ME	70,	¶	15,	772	A.2d	842	(stating	that	the	special	

motion	 to	 dismiss	 “is	 a	 statutory	 creature	 designed	 to	 protect	 certain	

defendants	 from	 meritless	 litigation”).	 	 The	 critical	 descriptive	 term—

“meritless”—or	 some	 synonym—e.g.,	 “baseless”—appears	 in	 nearly	 every	

decision	 in	 which	 we	 have	 addressed	 the	 statute.6	 	 The	 fact	 that	 anti-SLAPP	

																																								 								
    6		See	Bradbury	v.	City	of	Eastport,	2013	ME	72,	¶	9,	72	A.3d	512	(“The	purpose	of	the	anti-SLAPP	

statute	 and	 the	 special	 motion	 to	 dismiss	 is	 to	 provide	 a	 ‘procedural	 mechanism	 to	 dispose	 of	
18	

statutes	protect	only	against	meritless	or	frivolous	lawsuits	is	well	established	

in	 scholarly	 writing.7	 	 As	 the	 Court	 notes	 in	 its	 decision,	 “because	 the	 SLAPP	

plaintiff’s	goal	is	not	necessarily	to	win	in	the	litigation,	but,	through	the	cost	

of	 litigation,	 to	 punish	 or	 deter	 petitioning	 activity,	 ‘defendants’	 traditional	

safeguards	 against	 meritless	 actions,	 (suits	 for	 malicious	 prosecution	 and	

abuse	of	process,	requests	for	sanctions)	are	inadequate	to	counter	SLAPPs.’”		

Court’s	 Opinion	 ¶	 6	 (quoting	 Morse	 Bros.,	 Inc.,	 2001	 ME	 70,	 ¶	 10,	 772	 A.2d	

842).		As	we	noted	in	Maietta	Construction,	Inc.	v.	Wainwright,	“the	anti-SLAPP	



																																								 																																								 																																								 																														 	
baseless	lawsuits	that	are	brought	not	to	vindicate	the	plaintiff’s	rights	but	to	punish	the	defendant	
for	exercising	her	constitutional	right	to	petition	the	government	.	.	.	.”	(quotation	marks	omitted));	
Nader	 v.	 Me.	 Democratic	 Party	 (Nader	 I),	 2012	 ME	 57,	 ¶	 22,	 41	 A.3d	 551	 (“Despite	 the	 apparent	
purpose	 of	 the	 anti-SLAPP	 statute	 to	 dispose	 expeditiously	 of	 meritless	 lawsuits	 that	 may	 chill	
petitioning	 activity,	 the	 statutory	 language	 fails	 to	 track	 and	 implement	 such	 an	 objective.	 	 By	
protecting	one	party’s	exercise	of	its	right	of	petition,	unless	it	can	be	shown	to	be	sham	petitioning,	
the	 statute	 impinges	 on	 the	 adverse	 party’s	 exercise	 of	 its	 right	 to	 petition,	 even	 when	 it	 is	 not	
engaged	 in	 sham	 petitioning.”	 (quotation	 marks	 omitted));	 Schelling	 v.	 Lindell,	 2008	 ME	 59,	 ¶	 6,	
942	A.2d	 1226	 (“Title	 14	 M.R.S.	 §	 556,	 known	 as	 Maine’s	 anti-SLAPP	 statute	 .	 .	 .	 ,	 is	 designed	 to	
guard	against	meritless	lawsuits	brought	with	the	intention	of	chilling	or	deterring	the	free	exercise	
of	 the	 defendant’s	 First	 Amendment	 right	 to	 petition	 the	 government	 by	 threatening	 would-be	
activists	with	litigation	costs.”);	Morse	Bros.,	Inc.	v.	Webster,	2001	ME	70,	¶	10,	772	A.2d	842	(stating	
that	 the	 anti-SLAPP	 statute	 is	 designed	 to	 protect	 against	 meritless	 lawsuits	 filed	 to	 dissuade	 or	
punish	 a	 party’s	 exercise	 of	 its	 constitutional	 rights	 by	 imposing	 on	 it	 the	 delays	 and	 costs	
associated	with	litigation).	
    	
    7		See	Steven	J.	Andre,	Anti-SLAPP	Confabulation	and	the	Government	Speech	Doctrine,	44	Golden	

Gate	 U.	 L.	 Rev.	 117,	 119	 (2014)	 (“The	 hallmark	 of	 a	 SLAPP	 suit	 is	 its	 lack	 of	 merit.	 	 Defendants	
prevail	 on	 the	 merits	 in	 over	 77%	 of	 SLAPP	 suits.	 	 A	 SLAPP	 is	 brought	 with	 goals	 of	 obtaining	 an	
economic	 advantage	 over	 a	 citizen	 party	 by	 increasing	 the	 cost	 of	 litigation,	 to	 weaken	 that	
defendant’s	ability	to	engage	in	petitioning	activity	undesirable	to	the	plaintiff,	and	to	deter	future	
activity.”	 (footnotes	 omitted)	 (quotation	 marks	 omitted));	 John	 C.	 Barker,	 Common-Law	 and	
Statutory	Solutions	to	the	Problem	of	SLAPPS,	26	Loy.	L.A.	L.	Rev.	395,	399	(1993)	(“SLAPPs	are	by	
definition	meritless	suits.”);	Leah	McGowan	Kelly,	Election	SLAPPS:	Effective	at	Suppressing	Political	
Participation	and	Giving	Anti-SLAPP	Statutes	the	Slip,	66	Me.	L.	Rev.	191,	192	(2013).	
                                                                                      19	

statute	 is	 aimed	 at	 preventing	 litigation	 that	 has	 no	 chance	 of	 succeeding	 on	

the	merits.”		2004	ME	53,	¶	12,	847	A.2d	1169.			

	     [¶25]	 	 Maine’s	 anti-SLAPP	 statute,	 like	 anti-SLAPP	 statutes	 from	 other	

states,	has	a	single	objective:	to	force	lawsuits	that	are	brought	as	a	result	of	

petitioning	 activity	 to	 face	 judicial	 scrutiny	 before	 discovery	 and	 litigation	

costs	are	incurred	by	the	responding	party.		As	the	Court	notes	in	its	decision,	

      [t]he	 purpose	 of	 section	 556	 is	 to	 provide	 for	 expedited	
      consideration	 of	 the	 nature	 of	 a	 plaintiff’s	 allegations—and	 a	
      minimum	 amount	 of	 evidence	 supporting	 the	 veracity	 of	 those	
      allegations—as	early	in	the	litigation	as	possible,	before	discovery	
      or	any	other	motion	practice.		In	this	way,	a	defendant	burdened	
      by	 a	 SLAPP	 case	 can	 seek	 early	 disposal	 of	 the	 litigation,	 before	
      the	substantial	legal	fees	that	are	the	true	impetus	behind	SLAPP	
      litigation	can	accrue.	
      	
Court’s	Opinion	¶	17	(citations	omitted).			

	     [¶26]		The	Court’s	announcement	today	that	Maine’s	anti-SLAPP	statute	

bars	 a	 claim	 for	 defamation	 that	 the	 plaintiff	 would	 otherwise	 be	 entitled	 to	

pursue	creates	a	pervasive	immunity—in	derogation	of	common	law	rights—

for	all	activity	undertaken	within	the	broad	category	of	petitioning	activity.		It	

marks	 an	 extraordinary	 departure	 from	 well-established	 jurisprudence	

construing	the	operation	of	section	556.	

	     [¶27]	 	 If	 the	 Legislature	 had	 intended	 section	 556	 to	 establish	 such	 a	

wide-ranging	 immunity,	 the	 statute	 would	 simply	 provide	 that	 a	 defendant	
20	

need	 only	 demonstrate	 that	 the	 actions	 cited	 in	 the	 complaint	 consisted	 of	

valid	petitioning	activities	and	that	upon	such	demonstration	the	lawsuit	must	

be	 dismissed.	 	 Instead,	 section	 556	 requires	 a	 showing	 of	 valid	 petitioning	

activity	as	the	first	step	in	the	process.		The	second	step—a	showing	that	the	

defendant’s	 acts	 were	 “devoid	 of	 any	 reasonable	 factual	 support	 or	 any	

arguable	basis	in	law”	and	“caused	actual	injury”—is	directed	to	the	plaintiff’s	

complaint.8	 	 If	 the	 Legislature	 intended	 to	 create	 a	 presumptive,	 pervasive	

immunity	 based	 simply	 upon	 petitioning,	 as	 the	 Court	 posits,	 no	 subsequent	

steps	beyond	the	first	would	be	required.	

                                                    II.		ACTUAL	INJURY	

	          [¶28]	 	 In	 addition	 to	 overstating	 the	 protection	 afforded	 by	 Maine’s	

anti-SLAPP	statute	to	any	action,	the	Court’s	definition	of	“actual	injury”	is	too	

narrow.	 	 Although	 our	 jurisprudence	 has	 limited	 the	 definition	 of	 “actual	

injury”	 to	 out-of-pocket	 damages,	 see	 Camden	 Nat’l	 Bank	 v.	 Weintraub,	

2016	ME	101,	¶¶	12-14,	143	A.3d	788	(citing	Schelling	v.	Lindell,	2008	ME	59,	

¶	 17,	 942	 A.2d	 1226),	 it	 is	 time	 to	 revisit	 and	 overrule	 those	 cases,	 because	

this	narrow	definition	of	“actual	injury”	prevents	what	would	otherwise	be	a	
																																								 								
    8		I	agree	with	the	Court	that	“Reynolds	has	not	challenged	the	Superior	Court’s	conclusion	that	

Desjardins	met	his	prima	facie	burden	of	establishing	that	at	least	one	of	Desjardins’s	statements	to	
the	sheriff	was	devoid	of	any	factual	or	legal	support.”		Court’s	Opinion	¶	11.		My	disagreement	with	
the	 Court’s	 decision	 is	 limited	 to	 the	 scope	 of	 the	 anti-SLAPP	 statute	 and	 the	 meaning	 of	 “actual	
injury”	as	that	term	of	art	is	used	in	it.	
                                                                                    21	

meritorious	defamation	case	from	proceeding	in	our	courts.		The	common	law	

of	 defamation	 allows	 for	 the	 recovery	 of	 damages	 without	 evidence	 of	

out-of-pocket	 expenses.	 	 In	 Gertz	 v.	 Robert	 Welch,	 Inc.,	 the	 United	 States	

Supreme	Court	said:	

      We	 need	 not	 define	 ‘actual	 injury,’	 as	 trial	 courts	 have	 wide	
      experience	 in	 framing	 appropriate	 jury	 instructions	 in	 tort	
      actions.	 	 Suffice	 it	 to	 say	 that	 actual	 injury	 is	 not	 limited	 to	
      out-of-pocket	 loss.	 	 Indeed,	 the	 more	 customary	 types	 of	 actual	
      harm	 inflicted	 by	 defamatory	 falsehood	 include	 impairment	 of	
      reputation	 and	 standing	 in	 the	 community,	 personal	 humiliation,	
      and	mental	anguish	and	suffering.	
      	
418	 U.S.	 323,	 349-50	 (1974).	 	 We	 have	 enunciated	 similar	 rules	 regarding	

injuries	in	defamation	cases.		See	Curtis	v.	Porter,	2001	ME	158,	¶	19,	784	A.2d	

18	(“We	have	long	allowed	recovery	for	mental	anguish	and	loss	of	enjoyment	

of	 life	 in	 most	 tort	 actions.”	 (quotation	 marks	 omitted));	 Rippett	 v.	 Bemis,	

672	A.2d	 82,	 88	 (Me.	 1996)	 (stating	 that	 defamation	 damages	 “may	 include	

the	 elements	 of	 mental	 suffering,	 humiliation,	 embarrassment,	 effect	 on	

reputation	and	loss	of	social	standing	so	far	as	they	have	been	proved	and	may	

reasonably	 be	 presumed”);	 Saunders	 v.	 VanPelt,	 497	 A.2d	 1121,	 1126	

(Me.	1985).	

	     [¶29]		Requiring	a	litigant	to	prove	out-of-pocket	expenses	to	establish	

“actual	injury”	in	a	defamation	case	is	in	derogation	of	our	common	law.		The	
22	

enactment	 of	 a	 statute	 in	 derogation	 of	 common	 law	 is	 a	 profoundly	

significant	step	and	we	must	not	presume	that	the	Legislature	has	done	so	in	

the	 absence	 of	 a	 very	 clear	 statement	 of	 its	 intention	 to	 change	 existing	

common	 law.	 	 We	 reiterated	 our	 longstanding	 adherence	 to	 this	 rule	 in	

Batchelder	v.	Realty	Resources	Hospitality,	LLC.,	where	we	explained	that	

     we	 have	 long	 embraced	 the	 well-established	 rule	 of	 statutory	
     construction	 that	 the	 common	 law	 is	 not	 to	 be	 changed	 by	
     doubtful	 implication,	 be	 overturned	 except	 by	 clear	 and	
     unambiguous	language,	and	that	a	statute	in	derogation	of	it	will	
     not	effect	a	change	thereof	beyond	that	clearly	indicated	either	by	
     express	terms	or	necessary	implication.	
     	
2007	ME	17,	¶	23,	914	A.2d	1116	(quotation	marks	omitted).	

	     [¶30]		Among	the	authorities	cited	for	our	statement	in	Batchelder	was	

Maietta	 Construction,	 Inc.,	 which	 confirmed	 the	 proposition	 that	 “[g]enerally,	

Legislatures	 are	 deemed	 to	 draft	 legislation	 against	 the	 backdrop	 of	 the	

common	 law,	 and	 do	 not	 displace	 it	 without	 directly	 addressing	 the	 issue.”		

2004	ME	53,	¶	10,	847	A.2d	1169	(emphasis	added).		We	also	cited	Ziegler	v.	

American	 Maize-Products	 Co.,	 where	 we	 noted	 that	 a	 “legislative	

pronouncement	embodied	in	[a	statute]	alters	common	law	only	to	the	extent	

that	 the	 Legislature	 has	 made	 that	 purpose	 clear.”	 	 658	 A.2d	 219,	 223	
                                                                                                                23	

(Me.	1995).		By	contrast,	neither	the	legislative	history9	nor	the	plain	language	

of	section	556	evidence	an	intention	to	deprive	Maine	citizens	of	meritorious	

common	 law	 causes	 of	 action	 simply	 because	 the	 wrongdoer	 committed	 the	

wrong	in	the	context	of	petitioning	government.		We	have	never	so	held	in	any	

of	our	cases	construing	section	556.		For	these	reasons,	we	should	broaden	the	

definition	 of	 “actual	 injury”	 to	 its	 traditional	 definition	 as	 existing	 in	 our	

jurisprudence.	 	 Absent	 the	 Legislature’s	 clear	 intent	 to	 change	 the	 common	

law	 regarding	 damages	 in	 defamation	 cases,	 interpreting	 “actual	 injury”	

consistently	 with	 our	 previous	 anti-SLAPP	 cases	 denies	 Maine’s	 litigants	

access	 to	 the	 courts	 for	 what	 would	 otherwise	 be	 meritorious	 cases.	 	 By	

interpreting	 section	 556	 to	 require	 proof	 of	 a	 quantifiable	 sum	 of	

out-of-pocket	 damages,	 the	 Court	 has	 abrogated	 Maine’s	 common	 law	

definition	of	“injury”	in	defamation	cases.	

	          [¶31]		Therefore,	we	must	define	“actual	injury”	as	we	have	traditionally	

defined	 actual	 injury	 in	 defamation	 cases	 by	 not	 limiting	 the	 definition	 to	

out-of-pocket	 expenses.	 	 Because	 Desjardin	 established	 a	 prima	 facie	 case	 of	

emotional	 injury,	 which	 would	 be	 recoverable	 in	 a	 defamation	 claim	 as	 an	

																																								 								
   9	 	 We	 have	 in	 the	 past	 recognized	 that	 the	 limited	 legislative	 history	 of	 section	 556	 constrains	

our	 interpretation	 of	 the	 statute.	 	 See	 Town	 of	 Madawaska	 v.	 Cayer,	 2014	 ME	 121,	 ¶	 14,	 103	 A.3d	
547	(noting	that	unlike	other	states’	anti-SLAPP	statutes,	“there	is	limited	legislative	history	to	shed	
light	on	the	question	of	its	scope”).	
24	

“actual	 injury”	 without	 proof	 of	 out-of-pocket	 expenses,	 I	 would	 vacate	 the	

trial	court’s	grant	of	Reynolds’s	special	motion	to	dismiss	and	remand	the	case	

to	 Superior	 Court.	 	 Because	 I	 do	 not	 agree	 with	 the	 Court’s	 new	 evidentiary	

procedure,	 see	 Gaudette	 v.	 Davis,	 2017	 ME	 86,	 ¶¶	 26,	 34,	 42-45,	 ---	 A.3d	 ---	

(Jabar,	 J.,	 dissenting),	 judgment	 should	 be	 entered	 against	 Reynolds	 on	 his	

special	 motion	 to	 dismiss	 and	 the	 case	 should	 be	 remanded	 to	 the	 Superior	

Court	to	proceed	in	the	normal	course.	

	     	      	    	       	      	
	
John	 S.	 Campbell,	 Esq.	 (orally),	 Campbell	 &	 Associates,	 P.A.,	 Portland,	 for	
appellant	Dana	Desjardins	
	
Daniel	J.	Murphy,	Esq.	(orally),	Bernstein	Shur,	Portland,	for	appellee	Michael	
Reynolds	
	
	
Cumberland	County	Superior	Court	docket	number	CV-2013-369	
FOR	CLERK	REFERENCE	ONLY	
