Opinion
14-P-651
03-16-2015
COVANTA SEMASS, LLC & others v. EARTHSOURCE, INC.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, EarthSource, Inc. (EarthSource), filed this interlocutory appeal from an order of the Superior Court denying its special motion to dismiss, pursuant to G. L. c. 231, § 59H, the "anti-SLAPP" statute, a complaint filed by the plaintiffs, Covanta Semass, LLC, and several related entities (collectively, Covanta). We affirm.
SLAPP is an acronym for "strategic litigation against public participation." Cadle Co. v. Schlichtmann, 448 Mass. 242, 242 n.2 (2007).
1. Background. The following facts are taken from the complaint and documents filed in connection with the anti-SLAPP motion, as well as relevant docket entries and papers filed in related actions involving these parties. Covanta operates four facilities that recycle waste into energy, located throughout the Commonwealth. EarthSource operates a grease treatment facility in Brockton. The two companies are competitors in the waste industry, although they utilize different technologies.
The Appeals Court may take judicial notice of the docket and papers filed in other courts. See Jarosz v. Palmer, 436 Mass. 526, 530 (2002); Liacos, Brodin & Avery, Massachusetts Evidence § 2.8.1 (8th ed. 2007); Mass. G. Evid. § 201 (2014). Contrary to EarthSource's suggestion on appeal, an evidentiary hearing is not required on a motion filed pursuant to G. L. c. 231, § 59H.
As is relevant here, in 2007, Covanta applied to the Department of Environmental Protection (DEP) for permits necessary to operate a new project at one of its facilities that would allow it to recycle grease trap waste. In 2008, Covanta applied to the DEP for additional permits that would enable it to combust paper manufacturing sludge by-product at another facility. EarthSource responded by filing, in short succession, five separate lawsuits challenging the permitting of these two projects. The lawsuits were each filed in conjunction with a "ten citizens" group, with EarthSource named as one of the citizens and the lead plaintiff. See G. L. c. 214, § 7A (enabling ten citizens to file suit to prevent damage to environment); G. L. c. 30A, § 10A (enabling ten citizens to intervene in adjudicatory proceedings where damage to environment is at issue). Covanta successfully defended each of the lawsuits in the Superior Court, with none of the EarthSource actions proceeding beyond the pleadings stage. Of the four judgments appealed, all were uniformly affirmed in this court. See Earthsource, Inc. v. Commissioner of Dept. of Envtl. Protection, 81 Mass. App. Ct. 1131 (2012); Earthsource, Inc. v. Commissioner of Dept. of Envtl. Protection, 83 Mass. App. Ct. 1133 (2013); EarthSource, Inc. v. Commissioner, Mass. Dept. of Envtl. Protection, 86 Mass. App. Ct. 1116 (2014). A fifth case resulted in a stipulation of dismissal. EarthSource also filed multiple requests for adjudicatory hearings with the DEP, all of which were resolved in Covanta's favor.
On June 19, 2012, Covanta filed a complaint against EarthSource, alleging abuse of process and violations of G. L. c. 93A. In addition to citing the above litigation, the complaint further alleges: (1) that one member of the citizen's group testified that he "sign[ed] some documents saying that Covanta was circumventing the . . . permitting process," but was completely unaware that lawsuits were filed against Covanta in which he was a named plaintiff; and (2) that a DEP official expressed concern about his agency's resources being wasted on a business dispute. In response, EarthSource filed its special motion to dismiss, claiming that Covanta's complaint is grounded entirely on EarthSource's protected "petitioning activities" under G. L. c. 231, § 59H. A judge of the Superior Court denied EarthSource's motion, finding that Covanta had met its burden of showing that at least some of EarthSource's litigation was "devoid of any reasonable factual or legal basis and grounded in an ulterior purpose." This appeal followed.
The motion judge also denied EarthSource's motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). That denial is not at issue in this appeal.
2. Discussion. The purpose of the Massachusetts anti-SLAPP statute is the early liquidation of meritless lawsuits brought solely to intimidate an opponent's exercise of rights of petitioning and speech. See Vittands v. Sudduth, 49 Mass. App. Ct. 401, 413 (2000). "The typical mischief that the legislation attempted to remedy was lawsuits directed at individual citizens of modest means for speaking [or acting] publicly against development projects." Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 161 (1998).
To succeed on a special motion to dismiss under G. L. c. 231, § 59H, the party seeking dismissal must make a threshold showing, based on the pleadings and affidavits, that the claims against it arise solely from protected petitioning activity and "have no substantial basis other than[,] or in addition to[,] the petitioning activities." Wenger v. Aceto, 451 Mass. 1, 5 (2008), quoting from Duracraft Corp. v. Holmes Prods. Corp., supra at 167-168. If that burden is satisfied, "the opposing party must then show by a preponderance of evidence that the special movant's petitioning activities 'lacked any reasonable factual support or any arguable basis in law.'" Fustolo v. Hollander, 455 Mass. 861, 865 (2010), quoting from Baker v. Parsons, 434 Mass. 543, 553-554 (2001). We review the denial of a § 59H anti-SLAPP special motion to dismiss for abuse of discretion or other error of law. See Baker v. Parsons, supra at 550. "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment' in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting from Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).
We agree with the motion judge that Covanta's complaint was based on EarthSource's petitioning activities alone and, therefore, had no other substantial basis. See Demoulas Super Mkts., Inc. v. Ryan, 70 Mass. App. Ct. 259, 263 (2007) (shifting burden from movant where complaint alleged abuse of process and malicious prosecution). Our inquiry thus turns to whether Covanta has met its burden of showing that EarthSource's petitioning activity was devoid of any reasonable factual support or any arguable basis in law, or, in other words, was "sham petitioning." Duracraft Corp. v. Holmes Prods. Corp., supra at 166.
On appeal, EarthSource essentially urges us to review the merits of each of the myriad of underlying cases for any hint of factual support or legal merit. However, that position was expressly rejected by the court in Baker, as our role is not to relitigate the prior matters. See Baker v. Parsons, supra at 553-554. Rather, we are charged to review whether the motion judge abused his discretion or committed some other error of law in denying the special motion. In support of his decision, the motion judge cited: (1) EarthSource's "nearly identical" successive suits and administrative challenges to Covanta's permitting process; (2) the ignorance of one of EarthSource's "ten citizens" to his role in these legal proceedings; and (3) the DEP official's statement expressing concern that EarthSource's activities were motivated by competitive business reasons. The record amply supports the motion judge's rationale.
"We must interpret and apply the anti-SLAPP statute and our case law in such a way as to continue to permit, where appropriate and consistent with the intent of § 59H, claims of abuse of process as delineated by the Massachusetts common law." Keystone Freight Corp. v. Bartlett Consol., Inc., 77 Mass. App. Ct. 304, 313 (2010), citing Adams v. Whitman, 62 Mass. App. Ct. 850, 854-857 & n.9 (2005). Here, it is apparent that EarthSource engaged in a prolific campaign of litigation, at the expense of an undisputed business competitor, which was deemed uniformly unsuccessful at the earliest stages of each of those proceedings. Given Covanta's relationship with EarthSource and the results of EarthSource's underlying voluminous, unsuccessful litigation, it is entirely consistent with the purpose of § 59H to allow Covanta's complaint to survive the special motion. See Duracraft Corp. v. Holmes Prods. Corp., supra at 163 ("We also see no evidence that the statute was intended to reach suits . . . between two corporate competitors involved in other ongoing litigation, where the special motion may have been deployed not to limit 'strategic litigation,' but as an additional litigation tactic"). See also Vittands v. Sudduth, 49 Mass. App. Ct. at 414-415 (special motion to dismiss properly denied where movant had filed unsuccessful environmental permitting challenge against residential neighbor). Contrast Hanover v. New England Regional Council of Carpenters, 467 Mass. 587, 595-597 (2014).
The three elements of that cause of action are that "'process' was used[,] for an ulterior or illegitimate purpose[,] resulting in damage." Gutierrez v. Massachusetts Bay Transp. Authy., 437 Mass. 396, 407 (2002), quoting from Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 775-776 (1986).
Therefore, the orders dated February 13, 2014, and March 4, 2014, denying the defendant's special motion to dismiss pursuant to G. L. c. 231, § 59H, are affirmed.
The defendant's request for attorney's fees and costs is denied.
Orders denying special motion to dismiss pursuant to G. L. c. 231, § 59H, affirmed.
By the Court (Katzmann, Sullivan & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 16, 2015.