MAINE	SUPREME	JUDICIAL	COURT	                                               Reporter	of	Decisions	
Decision:	    2018	ME	119	
Docket:	      Ken-18-22	
Submitted	
  On	Briefs:	 July	19,	2018	
Decided:	     August	16,	2018	
                                    	            	 	     	      	       	         	      	       	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                 SETH	T.	CAREY	
                                        	
                                       v.	
                                        	
                       BOARD	OF	OVERSEERS	OF	THE	BAR	et	al.	
	
	
PER	CURIAM	

          [¶1]	 	 Seth	 T.	 Carey	 appeals	 from	 a	 judgment	 of	 the	 Superior	 Court	

(Kennebec	County,	Anderson,	J.)	granting	motions	to	dismiss	and	motions	for	

summary	judgment.		The	court’s	order	resulted	in	judgment	for	all	defendants	

on	Carey’s	wide-ranging	complaint	against	judges	and	other	court	employees,	

the	 Board	 of	 Overseers	 of	 the	 Bar,	 the	 Maine	 Commission	 on	 Indigent	 Legal	

Services	(MCILS),	and	the	Lewiston	Sun	Journal.		Carey’s	complaint	was	based	

on	the	defendants’	actions	related	to	or	participation	in	an	attorney	disciplinary	

proceeding	before	the	Board	that	resulted	in	the	court	(Brennan,	J.)	accepting	

an	agreed	two-year	suspended	suspension	from	the	practice	of	law	with	many	

conditions	imposed	on	Carey’s	practice.	
2	

         [¶2]		Carey	appeals,	contending	that	the	court	improperly	ruled	that	most	

defendants	were	protected	by	statutory	or	common	law	immunities,	that	there	

were	no	disputes	of	fact	regarding	his	claims	against	the	defendants,	and	that	

the	defendants	are	entitled	to	judgment	as	a	matter	of	law.		We	affirm.	

                                       I.		CASE	HISTORY	

         [¶3]	 	 In	 2016,	 the	 Board	 of	 Overseers	 of	 the	 Bar	 brought	 three	

disciplinary	 informations,	 M.	 Bar	 R.	 13(g),	 against	 Seth	 T.	 Carey.	 	 Board	 of	

Overseers	 of	 the	 Bar	 v.	 Carey,	 BAR-16-15	 (Nov.	 21,	 2016)	 (Brennan,	 J.).		 After	

negotiations,	 Carey	 and	 the	 Board	 agreed	 to	 the	 entry	 of	 a	 negotiated	 order	

“identifying	Attorney	Carey’s	misconduct	and	the	resulting	sanctions	imposed	

by	 the	 court.”	 	 Id.	 at	 1.	 	 The	 agreed	 order	 identified	 Carey’s	 misconduct	 and	

supporting	evidence	organized	by	the	three	disciplinary	informations.		Id.	

         [¶4]	 	 The	 first	 disciplinary	 action	 was	 based	 on	 evidence	 presented	 by	

four	 Maine	 judges	 at	 a	 Grievance	 Commission	 proceeding	 where	 those	 “four	

jurists	recounted	their	experiences,	observations,	and	concerns	about	Attorney	

Carey’s	lack	of	core	competence.”1		Id.	at	2.		The	order	recognized	that	Carey	

had	been	“adamant	that	the	jurists[’]	accounts	were	inaccurate	and	that	they	



     1		Having	observed	such	concerning	performances,	the	judges	may	have	had	an	ethical	obligation	

to	report	Carey	to	the	Board	of	Overseers	of	the	Bar.		See	M.	Code	Jud.	Conduct	R.	2.15(B).	
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had	colluded	in	a	conspiracy	against	him.”		Id.		The	order	noted,	however,	that	

Carey	 agreed	 that	 the	 testimony	 of	 the	 judges	 at	 the	 hearing	 before	 the	

Grievance	Commission	comprised	“sufficient	evidence	for	this	Court	to	find	that	

he	had	demonstrated	a	lack	of	core	competence	in	the	handling	of	his	clients’	

respective	litigation	matters.”		Id.	at	3.	

        [¶5]		Based	on	that	information,	and	apparently	by	agreement,	the	court	

found	 that	 Carey	 had	 committed	 violations	 of	 Maine	 Rules	 of	 Professional	

Conduct	1.1	(incompetence),	1.3	(lack	of	reasonable	diligence	in	representing	

clients),	 3.3(a)(3)	 (offering	 material	 evidence	 that	 is	 false),	 3.3(b)	 (failure	 to	

disclose	 false	 evidence	 to	 a	 court),	 and	 8.4(d)	 (conduct	 prejudicial	 to	 the	

administration	of	justice).2		Id.		

        [¶6]	 	 The	 second	 disciplinary	 action	 was	 based	 on	 a	 complaint	 by	 a	

physician	who	had	served	as	an	independent	medical	examiner	in	a	proceeding	

in	 which	 Carey	 represented	 a	 claimant	 before	 the	 Maine	 Workers’	

Compensation	 Board.	 	 Id.	 	 The	 physician’s	 complaint	 expressed	 concern	

regarding	 Attorney	 Carey’s	 conduct	 both	 in	 preparation	 for	 and	 during	 a	



    2		The	court	also	found	violation	of	Maine	Rule	of	Professional	Conduct	8.4(a)	(violation	of	the	

Rules	of	Professional	Conduct).		Board	of	Overseers	of	the	Bar	v.	Carey,	BAR-16-15	(Nov.	21,	2016)	
(Brennan,	 J.).	 	 Because	 Rule	 8.4(a)	 makes	 violation	 of	 any	 other	 Rule	 of	 Professional	 Conduct	 a	
separate	violation	of	Rule	8.4(a),	the	violation	of	Rule	8.4(a)	cannot	be	considered	a	distinct	violation	
of	the	Rules	of	Professional	Conduct.			
4	

deposition.	 	 Id.	 at	 4.	 	 A	 hearing	 officer	 of	 the	 Workers’	 Compensation	 Board	

found	that	Carey	had	failed	to	provide	relevant	medical	reports	to	the	physician	

prior	to	his	deposition	and	had	asked	the	physician	many	questions,	during	the	

deposition,	 relating	 to	 medical	 evidence	 that	 had	 not	 been	 admitted	 into	

evidence	in	the	proceeding.		Id.	at	6.	

      [¶7]	 	 The	 agreed	 order	 found	 that	 “Attorney	 Carey’s	 failure	 to	 timely	

provide	 the	 necessary	 medical	 documents	 to	 [the	 physician]”	 constituted	

violations	of	Maine	Rules	of	Professional	Conduct	1.1	(incompetence)	and	1.3	

(lack	of	reasonable	diligence	in	representing	a	client).		Id.	

      [¶8]		The	third	disciplinary	action	was	initiated	by	a	complaint	filed	on	

behalf	 of	 a	 bank	 managing	 Carey’s	 client	 trust	 accounts	 (interest	 on	 lawyers	

trust	accounts	(IOLTA	accounts))	pursuant	to	Maine	Bar	Rule	6	and	Maine	Rule	

of	 Professional	 Conduct	 1.15.	 	 Id.	at	7.	 	 The	 complaint	 asserted	 that	 Carey	

improperly	used	his	client	trust	account	to	make	payments	for	both	personal	

and	professional	expenses	during	the	course	of	many	months.		Id.		Carey	had	

characterized	these	payments	from	his	client	trust	accounts	as	“mistakes.”		Id.		

The	 agreed	 order	 found	 that	 even	 if	 Carey’s	 explanation	 was	 accurate,	

“Attorney	Carey	admits	that	he	failed	to	abide	by	the	rules	governing	client	trust	

accounts.	 	 This	 failure	 is	 troubling	 because	 as	 an	 attorney	 licensed	 for	 more	
                                                                                       5	

than	ten	years,	Attorney	Carey	knew	or	should	have	known	that	he	could	not	

comingle	 funds	 or	 draw	 upon	 his	 IOLTA	 account	 for	 personal	 and	 other	

nonclient	expenses.”		Id.	at	7-8.	

      [¶9]	 	 Despite	 this	 finding,	 the	 agreed	 order	 did	 not	 explicitly	 find	 a	

violation	 of	 Maine	 Bar	 Rule	 6	 or	 Maine	 Rule	 of	 Professional	 Conduct	 1.15	

relating	to	this	 disciplinary	information.		Instead,	regarding	this	information,	

the	 court	 found	 a	 violation	 of	 only	 Maine	 Rule	 of	 Professional	 Conduct	 1.1	

(incompetence).		Id.	at	8.	

      [¶10]	 	 Proceeding	 to	 address	 sanctions,	 the	 court	 noted	 that	 “Attorney	

Carey	has	previously	been	sanctioned	for	misconduct,	some	of	which	is	similar	

to	the	instant	matters	and	some	of	which	is	unrelated	to	those	concerns.		See	

two	Orders	of	Suspension,	February	and	October	2009,	respectively.”		Id.	at	8.	

      [¶11]	 	 With	 that	 background	 and	 based	 on	 the	 parties’	 agreement	

submitted	in	the	proceeding	“as	supplemented	by	the	Court,”	the	court	ordered	

Carey	suspended	from	the	practice	of	law	for	two	years	but	suspended	all	of	

that	suspension—so	that	no	actual	suspension	from	practice	was	imposed.		Id.	

at	 9.	 	 The	 suspended	 suspension	 was	 subject	 to	 twenty-eight	 conditions	 that	

primarily	 required	 supervision	 and	 monitoring	 of	 Carey’s	 practice,	

improvements	 in	 his	 management	 of	 his	 practice,	 and	 continuing	 legal	
6	

education	 and	 other	 courses	 to	 improve	 his	 practice	 management	 and	

compliance	with	his	professional	ethical	obligations.		Id.	at	9-17.3	

         [¶12]	 	 Less	 than	 two	 months	 after	 the	 entry	 of	 the	 November	 2016	

agreed-upon	suspended	suspension	disciplinary	order,	in	January	2017,	Carey	

filed	in	the	Superior	Court	a	wide-ranging	complaint,	later	amended,	against	the	

four	 judges	 who	 had	 presented	 evidence	 in	 the	 Grievance	 Commission	

proceedings,	several	other	court	employees	who	had	worked	with	the	judges,	

the	 physician	 who	 had	 filed	 the	 complaint	 against	 Carey,	 the	 Lewiston	 Sun	

Journal,	MCILS	and	its	director,	the	Board	of	Overseers	of	the	Bar,	the	Board’s	

attorneys	 who	 had	 prosecuted	 the	 grievance	 complaint	 against	 Carey	 and	

negotiated	the	agreed	disposition	of	the	grievance	complaint,	the	Maine	District	

Court,	and	the	Office	of	the	Clerk	of	Courts.			

         [¶13]		Carey’s	amended	complaint	asserted	numerous	causes	of	 action	

and	allegations	against	the	defendants	including:	negligence,	abuse	of	process,	

invasion	 of	 privacy,	 false	 light,	 malicious	 prosecution,	 fraud	 upon	 the	 court,	

misrepresentation,	 conspiracy,	 tortious	 interference	 with	 prospective	 and	

actual	 economic	 advantage,	 tortious	 interference	 with	 contractual	 relations,	


     3		As	a	result	of	an	order	in	a	subsequent	Bar	disciplinary	proceeding,	Board	of	Overseers	of	the	Bar	

v.	Carey,	BAR-18-04	(Apr.	30,	2018)	(Warren,	J.),	Carey	is	currently	subject	to	an	indefinite	suspension	
from	the	practice	of	law.	
                                                                                         7	

violation	of	the	Maine	Unfair	Trade	Practices	Act	(MUTPA),	negligent	infliction	

of	 emotional	 distress,	 intentional	 infliction	 of	 emotional	 distress,	 violation	 of	

the	Racketeer	Influenced	and	Corrupt	Organizations	Act	(RICO),	and	M.R.	Civ.	

P.	80C	appeal	of	an	administrative	action.			

      [¶14]	 	 The	 court,	 the	 Board	 of	 Overseers	 of	 the	 Bar	 and	 their	 related	

individual	defendants,	and	the	MCILS	filed	motions	to	dismiss	in	February	of	

2017;	the	Lewiston	Sun	Journal	filed	a	motion	to	dismiss	in	May	of	2017;	and	

the	physician	filed	a	motion	to	dismiss	in	June	of	2017.			

      [¶15]		The	court	(Anderson,	J.)	granted	each	of	the	defendants’	motions	to	

dismiss	on	October	25,	2017.		Specifically,	the	court	concluded	that:	(1)	Carey’s	

tort	 claims	 against	 the	 judges	 and	 court	 employees	 were	 barred	 by	 judicial	

immunity,	pursuant	to	14	M.R.S.	§	8111(1)(B)	(2017);	(2)	Carey’s	tort	claims	

against	the	MCILS	director	were	barred	 by	discretionary	immunity,	pursuant	

to	14	M.R.S.	§	8111(1)(C);	(3)	Carey’s	tort	claims	against	the	Board’s	attorneys	

who	 had	 prosecuted	 the	 disciplinary	 action	 against	 him	 were	 barred	 by	

discretionary	 function	 immunity	 and	 prosecutorial	 immunity,	 pursuant	 to	

14	M.R.S.	 §	8111(1)(C)-(D);	 (4)	 Carey’s	 tort	 claims	 against	 another	 Board	

employee	were	legally	insufficient	because	the	claims	did	not	allege	anything	

specific	that	that	employee	had	done	to	harm	him;	(5)	Carey’s	MUTPA	and	RICO	
8	

claims	against	all	defendants	were	barred	by	sovereign	immunity;	(6)	Carey’s	

M.R.	Civ.	P.	80C	appeal	was	not	timely	filed,	and	even	if	it	had	been	timely	filed,	

Carey	 had	 failed	 to	 prosecute	 the	 appeal;	 (7)	 Carey’s	 claims	 against	 the	

physician	were	barred	pursuant	to	Maine’s	Anti-SLAPP	statute,	14	M.R.S.	§	556	

(2017);	and	(8)	Carey’s	claims	against	the	Lewiston	Sun	Journal	were	dismissed	

pursuant	 to	 M.R.	 Civ.	 P.	 12(b)(6),	 based	 on	 his	 failure	 to	 plead	 all	 necessary	

elements	of	his	claims.			

         [¶16]	 	 The	 motions	 to	 dismiss	 filed	 by	 the	 governmental	 entities	 (the	

Board,	the	Maine	District	Court,	the	Office	of	Clerk	of	Courts,	and	MCILS),	“with	

respect	 solely	 to	 the	 state	 law	 tort	 claims,”	 were	 converted	 to	 motions	 for	

summary	judgment	by	the	court.		The	governmental	entities	filed	their	motions	

for	summary	judgment	in	November	of	2017.		Carey	did	not	file	an	opposition	

to	 these	 motions.	 	 The	 Superior	 Court	 granted	 the	 motions	 for	 summary	

judgment	on	January	3,	2018.			

         [¶17]		Carey	filed	a	notice	of	appeal	on	January	22,	2018.4			



     4		On	appeal,	Carey	primarily	challenges	the	dismissal	of	his	tort	claims	as	being	barred	by	the	

immunities	provided	by	14	M.R.S.	§	8111(1)(B)-(D)	and	the	court’s	dismissal	of	his	claims	against	the	
Lewiston	Sun	Journal.		This	opinion	focuses	on	those	two	arguments.		Carey’s	arguments	presented	
in	his	brief	do	not	appear	to	challenge:	(1)	the	court’s	order	granting	summary	judgment	in	favor	of	
the	government	entities;	(2)	the	court’s	dismissal	of	Carey’s	claims	against	a	Board	employee;	(3)	the	
court’s	dismissal	of	Carey’s	MUTPA	and	RICO	claims	based	on	sovereign	immunity;	and	(4)	the	court’s	
dismissal	of	Carey’s	claims	against	the	physician	pursuant	to	Maine’s	Anti-SLAPP	statute,	14	M.R.S.	
                                                                                                    9	

                                     II.		LEGAL	ANALYSIS	

A.	    Board	and	Judicial/MCILS’s	Motions	to	Dismiss	

       [¶18]		Carey	does	not	appear	to	challenge	the	court’s	specific	finding	and	

conclusion	 that	 the	 absolute	 privilege	 afforded	 witnesses	 in	 judicial	

proceedings,	 as	 discussed	 in	 Dunbar	 v.	 Greenlaw,	 152	 Me.	 270,	 277,	

128	A.2d	218	(1956),	applies	to	bar	claims	against	the	defendants	arising	out	

of	their	statements	made	 during	Carey’s	Board	 proceedings.		See	Mehlhorn	v.	

Derby,	2006	ME	110,	¶	11,	905	A.2d	290	(“[I]ssues	adverted	to	in	a	perfunctory	

manner,	 unaccompanied	 by	 some	 effort	 at	 developed	 argumentation,	 are	

deemed	waived.”).	

       [¶19]		When	considering	an	appeal	of	a	motion	to	dismiss,	“[w]e	review	

the	 legal	 sufficiency	 of	 the	 complaint	 de	 novo	 and	 view	 the	 complaint	 in	 the	

light	most	favorable	to	the	plaintiff	to	determine	whether	it	sets	forth	elements	

of	 a	 cause	 of	 action	 or	 alleges	 facts	 that	 would	 entitle	 the	 plaintiff	 to	 relief	

pursuant	 to	 some	 legal	 theory.”	 	 Nadeau	 v.	 Frydrych,	 2014	 ME	 154,	 ¶	 5,	

108	A.3d	1254.		This	motion	“tests	the	legal	sufficiency	of	the	complaint”	and	




§	556	(2017).		See	Bayview	Loan	Servicing,	LLC	v.	Bartlett,	2014	ME	37,	¶	15	n.5,	87	A.3d	741	(stating	
that	a	party	waives	any	argument	that	it	fails	to	adequately	develop	in	briefing).		

   	
10	

“does	 not	 probe	 the	 merits	 of	 the	 underlying	 case.”	 	 Haskell	 v.	 Phinney,	

460	A.2d	1354,	1359	(Me.	1983).	

B.	   Maine	Tort	Claims	Act		
	
      [¶20]		We	first	consider	the	application	of	the	immunity	provisions	of	the	

Maine	Tort	Claims	Act	as	they	apply	to	the	claims	filed	against	all	defendants	

except	the	Lewiston	Sun	Journal.			

      [¶21]	 	 The	 Maine	 Tort	 Claims	 Act,	 14	 M.R.S.	 §§	 8101-8118,	 provides	

broadly	 that	 “[e]xcept	 as	 otherwise	 expressly	 provided	 by	 statute,	 all	

governmental	 entities	 shall	 be	 immune	 from	 suit	 on	 any	 and	 all	 tort	 claims	

seeking	recovery	of	damages.”		The	MTCA	also	extends	personal	immunity	to	

employees	of	governmental	entities	for	the	following	actions:	(1)	undertaking	

or	 failing	 to	 undertake	 any	 judicial	 or	 quasi-judicial	 act;	 (2)	 performing	 or	

failing	 to	 perform	 any	 discretionary	 function	 or	 duty;	 and	 (3)	 performing	 or	

failing	 to	 perform	 any	 prosecutorial	 function	 involving	 civil,	 criminal,	 or	

administrative	enforcement.		Id.	§	8111(1)(B)-(D).		“[L]iability	is	the	rule	and	

immunity	the	exception”	when	it	comes	to	employees	of	governmental	entities.		

Day’s	Auto	Body,	Inc.	v.	Town	of	Medway,	2016	ME	121,	¶	20,	145	A.3d	1030.	

      [¶22]		Title	14	M.R.S.	§	8111(1)(E)	further	provides	that	“such	immunity	

does	not	exist	in	any	case	in	which	an	employee’s	actions	are	found	to	have	been	
                                                                                       11	

in	bad	faith.”		We	have	stated	that	the	“bad	faith”	language	does	not	apply	to	

negate	 the	 absolute	 immunities	 of	 14	 M.R.S.	 §	 8111(1)(A)-(D).	 	 Grossman	 v.	

Richards,	1998	ME	9,	¶	9,	722	A.2d	371.			

      [¶23]		Here,	accepting	Carey’s	factual	allegations	as	true,	Carey	alleges	no	

set	 of	facts	 that	could	 support	 the	 requisite	 elements	 of	 any	 of	 the	 claims	 he	

asserts	 against	 the	 defendants,	 who	 are	 governmental	 employees	 or	 entities.		

Carey	generally	states	that	the	defendants	“engaged	in	repeated	 malfeasance	

and	 prolonged	 efforts	 to	 wrongfully	 destroy	 Carey’s	 professional	 career	 and	

reputation	 through	 false	 and	 embellished	 swearing,	 testimony	 and	

accusations,”	but	he	never	specifically	asserts	what	these	efforts	were.		Carey’s	

claims	 asserted	 against	 the	 defendants,	 even	 if	 factually	 true,	 are	 conclusory	

and	 legally	 deficient,	 as	 he	 does	 not	 provide	 enough	 facts	 to	 support	 each	

element	of	the	causes	of	action	he	alleges.		See	Seacoast	Hangar	Condo.	II	Assoc.	

v.	 Martel,	 2001	 ME	 112,	 ¶	 16,	 775	 A.2d	 1166	 (stating	 that	 in	 reviewing	 a	

dismissal	this	Court	is	not	bound	to	accept	the	complaint’s	legal	conclusions).			

      [¶24]		Further,	Carey	states	that	he	“defended	against	these	outlandish,	

dangerously	embellished	and	even	completely	fabricated	allegations”	that	were	

the	basis	of	his	attorney	discipline	action	that	resulted	in	the	November	2016	

order	 finding	 that	 Carey	 had	 violated	 provisions	 of	 the	 Maine	 Rules	 of	
12	

Professional	 Conduct,	 see	 Board	 of	 Overseers	 of	 the	 Bar	 v.	 Carey,	 BAR-16-15	

(Nov.	21,	 2016)	 (Brennan,	 J.).	 	 Carey	 waived	 his	 right	 to	 trial	 on	 those	

allegations	and	attempts	to	relitigate	the	issues	raised	during	his	bar	discipline	

hearing,	despite	the	fact	that	he	“agreed	to	the	entry	of	this	negotiated	Order	

identifying	[his]	misconduct	and	the	resulting	sanctions	imposed	by	the	Court.”		

Id.	at	1.			

        [¶25]	 	 Separate	 from	 the	 insufficiency	 of	 the	 complaint	 to	 state	 claims	

against	these	defendants,	and	contrary	to	Carey’s	contentions,	the	defendants’	

actions	were	protected	pursuant	to	14	M.R.S.	§	8111(1)(B)-(D).		The	Board	and	

Judicial/MCILS	 defendants	 are	 employees	 of	 government	 entities,	 and	 their	

actions	 related	 to	 the	 disciplinary	 hearing	 concerning	 Carey’s	 conduct	 as	 an	

attorney	 were	 discretionary	 functions,	 judicial	 functions,	 or	 prosecutorial	

functions	within	the	meaning	of	14	M.R.S.	§	8111(1)(B)-(D).		The	court	did	not	

err	in	granting	the	Board	and	Judicial/MCILS	defendants’	motions	to	dismiss.	

        [¶26]		In	addition	to	the	grounds	to	support	dismissal	of	the	action	noted	

by	 the	 trial	 court,	 Carey’s	 complaint	 against	 the	 judges	 and	 other	 judicial	

employees	arises	out	of	their	report	to	the	Board	of	action	by	Carey	that	they	

viewed	as	unethical.		Maine	Code	of	Judicial	Conduct	Rule	2.15(B)	requires	that		

        A	judge	having	knowledge	that	a	lawyer	has	committed	a	violation	
        of	the	Maine	Rules	of	Professional	Conduct	that	raises	a	substantial	
                                                                                     13	

      question	 regarding	 that	 lawyer’s	 honesty,	 trustworthiness,	 or	
      fitness	 as	 a	 lawyer	 in	 other	 respects	 shall	 inform	 the	 Board	 of	
      Overseers	of	the	Bar	.	.	.	.	
      	
	     [¶27]		We	have	held	that	“[a]ny	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.”	 	 Truman	 v.	 Browne,	 2001	 ME	 182,	 ¶	 15,	

788	A.2d	168	(citing	Baker	v.	Charles,	919	F.	Supp.	41,	44	(D.	Me.	1996);	Packard	

v.	 Central	 Maine	 Power	 Co.,	 477	 A.2d	 264,	 267-68	 (Me.	 1984);	 Restatement	

(Second)	of	Torts	§	598	(1976)).			

	     [¶28]		Carey	agreed	to	discipline	based	on	the	judges’	complaints	and	the	

physician’s	 complaint.	 	 Consequently,	 there	 can	 be	 no	 question	 that	 the	

qualified	privilege	to	report	Carey’s	misconduct	protected	the	judges’	and	the	

physician’s	reports	in	this	case.		

C.	   Lewiston	Sun	Journal’s	Motion	to	Dismiss	

      [¶29]		A	party	may	move	to	dismiss	a	complaint	for	failure	to	state	a	claim	

upon	which	relief	can	be	granted.		See	M.R.	Civ.	P.	12(b)(6).		When	considering	

an	 appeal	 of	 a	 motion	 to	 dismiss,	 we	 review	 “the	 legal	 sufficiency	 of	 the	

complaint	 de	 novo	 and	 view	 the	 complaint	 in	 the	 light	 most	 favorable	 to	 the	
14	

plaintiff	 to	 determine	 whether	 it	 sets	 forth	 elements	 of	 a	 cause	 of	 action	 or	

alleges	 facts	 that	 would	 entitle	 the	 plaintiff	 to	 relief	 pursuant	 to	 some	 legal	

theory.”		Nadeau,	2014	ME	154,	¶	5,	108	A.3d	1254.		

        [¶30]	 	 Carey	 asserts	 various	 causes	 of	 action	 against	 the	 Lewiston	 Sun	

Journal,5	 alleging	 in	 very	 general	 and	 conclusory	 terms,	 the	 actions	 of	 the	

Lewiston	 Sun	 Journal	 as	 the	 basis	 for	 his	 claims	 of	 negligence,	 invasion	 of	

privacy,	disclosure,	defamation,	and	false	light	publicity.			

        [¶31]	 	 Carey	 fails	 to	 provide,	 with	 specificity,	 the	 actual	 statements	 or	

actions	 of	 the	 Lewiston	 Sun	 Journal	 that	 support	 his	 claims.	 	 Referencing	

reports	 about	 Carey’s	 then	 pending	 public	 disciplinary	 proceedings,	 Carey	

alleges	that	the	“Sun	Journal	gladly	took	these	lies	and	did	what	they	do—wrote	

another	 libelous	 batch	 of	 stories”	 and	 that	 the	 “Sun	 Journal	 (a.k.a.	 ‘Scum	

Journal’)	 published	 these	 lies	 and	 embellishments	 and	 published	 them,	

irreparably	 damaging	 Plaintiff’s	 professional	 and	 private	 reputation.”	 	 These	

are	two	of	the	few	specific	references	to	the	Lewiston	Sun	Journal	in	Carey’s	



   5	 	 Carey	 asserted	 the	 following	 causes	 of	 action	 against	 the	 Lewiston	 Sun	 Journal:	 negligence,	

invasion	of	privacy,	disclosure,	defamation,	false	light,	malicious	prosecution,	fraud	upon	the	court,	
conspiracy,	 tortious	 interference	 with	 prospective	 and	 actual	 economic	 advantage,	 tortious	
interference	with	contractual	relations,	violation	of	MUTPA,	negligent	infliction	of	emotional	distress,	
intentional	infliction	of	emotional	distress,	violation	of	RICO,	M.R.	Civ.	P.	80C	appeal	of	administrative	
action,	and	declaratory	judgment;	and	he	sought	punitive	damages,	a	restraining	order,	and	attorney	
fees.			
                                                                                      15	

complaint,	 and	 Carey	 does	 not	 state	 what	 these	 “lies”	 and	 “embellishments”	

were.			

      [¶32]	 	 Newspaper	 reports	 of	 public	 court	 filings	 and	 proceedings,	

including	those	proceedings	that	result	in	imposition	of	professional	discipline,	

are	protected	conduct	under	the	First	Amendment.		Cox	Broadcasting	Corp.	v.	

Cohn,	420	U.S.	469,	495	(1975).		In	the	face	of	the	First	Amendment	protection,	

allegations	 to	 avoid	 that	 protection	 must	 be	 stated	 with	 particular	 precision.		

No	 such	 precise	 facts	 are	 asserted	 here.	 	 Even	 if	 Carey	 has	 presented	 an	

argument	 on	 appeal	 sufficient	 to	 preserve	 the	 issue	 for	 appellate	 review,	 we	

conclude	 that	 the	 court	 did	 not	 err	 in	 dismissing	 Carey’s	 claims	 against	 the	

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

      The	entry	is:	

                    Judgment	affirmed.	
	
	     	      	      	      	      	
16	

	
Seth	T.	Carey,	Esq.,	L/A	Law,	Auburn,	for	appellant	Seth	T.	Carey	
	
Janet	T.	Mills,	Attorney	General,	and	Susan	P.	Herman,	Dep.	Atty.	Gen.,	Office	of	
the	Attorney	General,	Augusta,	for	appellees	Office	of	the	Clerk	of	Courts	et	al.	
	
Janet	T.	Mills,	Attorney	General,	and	Thomas	A.	Knowlton,	Asst.	Atty.	Gen.,	Office	
of	the	Attorney	General,	Augusta,	for	appellees	Maine	Board	of	Overseers	of	the	
Bar	et	al.	
	
Bryan	M.	Dench,	Esq.,	Stephen	B.	Wade,	Esq.,	and	Amy	Dieterich,	Esq.,	Skelton	
Taintor	&	Abbott,	Auburn,	for	appellee	Lewiston	Sun	Journal	
	
Hillary	J.	Bouchard,	Esq.,	Thompson	Bowie	&	Hatch	LLC,	Portland,	for	appellee	
Matthew	J.	Donovan	
	
	
	
Kennebec	County	Superior	Court	docket	number	CV-2017-17	
FOR	CLERK	REFERENCE	ONLY	
