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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

HEARTS WITH HAITI, INC., et al.  Plaintiffs

v.

PAUL KENDRICK,

Defendant

PLAINTIFFS’ OBJECTION AND MEMORANDUM IN OPPOSITION TO DEFENDANT’S SPECIAL MOTION TO DISMISS

NOW COME Plaintiffs, Hearts with Haiti, Inc., Michael Geilenfeld, and St. Joseph Family of Haiti, by and through undersigned counsel, and hereby oppose Defendant Paul Kendrick’s special motion to dismiss under the Maine “anti-SLAPP” statute, 14 M.R.S. § 556.

The Maine statute does not apply to this case or to any of the sworn allegations of the Verified Complaint. Kendrick is not being sued for anything remotely qualifying as an exercise of his right to petition government for some grievance, let alone a grievance of Kendrick’s own. Even if the statute were to apply—which is an indulgence to Kendrick’s arguments on the motion to dismiss that is nearly impossible to undertake—the Plaintiffs have met all procedural burdens of the statute in order to allow this case to move forward to final jury verdict. Finally, to preserve all arguments, Plaintiffs must raise serious umbrage to the procedural aspects of application of this state statute in federal court, and invite this Court to re-examine some of those issues. Again, only to the extent necessary, this Court may determine that where, as here, a sworn complaint on its face clearly does not rest solely upon any conduct of the defendant that could be construed as “petitioning activity,” then the procedural aspects of the statute should not displace Rules 12(d) and 56 and related procedure of federal court, such as Local Rule 56(h),

especially in light of the Maine Law Court’s recent interpretation of how the statute applies procedurally in state court, in Nader v. Maine Democratic Party, 2012 ME 57, 41 A.3d 551. While this Court need not reach this final issue, the issue is another reflection of the spurious nature of Kendrick’s current motion, and how his motion exists as another example of a litigant’s uncontrolled abuse of this statute in Maine. See Nader, 2012 ME 57, ¶¶ 40-41, 45, 41 A.3d 551 (Silver, J. concurring) (discussing the statute’s threat to the “open courts” provision of the Maine Constitution and to the constitutional rights to equal protection under the law and to petition government for redress of grievances, and noting how the statute has “been used by different parties than those intended” and “has served an entirely different purpose than the one intended”).

We ask this Court to deny the Defendant’s motion to dismiss without further ado.

BACKGROUND: THE RECORD ON THE MOTION TO DISMISS

As set forth in Plaintiffs’ sworn allegations: “Plaintiffs, a nonprofit corporation [Hearts with Haiti, Inc.], a missionary and humanitarian [Michael Geilenfeld], and a nonprofit organization [St. Joseph’s Family of Haiti] provide critical support to hundreds of disabled and disadvantaged Haitian children.” Document No. 1 (Verified Complaint) at 1. Plaintiffs “have been endlessly defamed, bullied, and harassed by Defendant Paul Kendrick. From his desk in Freeport, Maine, via hundreds of internet publications and mass e-mails to third parties, Defendant has published false and heinous allegations of Plaintiffs’ involvement in child abuse and otherwise bullied, intimidated, and tortiously interfered with Plaintiffs’ benefactors, volunteers, and supporters. Plaintiffs have suffered significant financial harm and other injuries as a result of Defendant’s tortious conduct.” Id. (pages 1-2).

1 During the preparation of this memorandum in opposition to the motion to dismiss, on May 2, 2013 the Defendant filed a Motion to Stay Discovery under the statute. Document No. 23. Plaintiffs will separately file response in opposition to this motion to stay, focusing on many of the same concepts.

On this motion, the Court views the facts from the Plaintiffs’ perspective and takes the Plaintiffs’ Verified Complaint as true. Plaintiffs in this case filed a Verified Complaint, placing the allegations under oath by both Hearts with Haiti, Inc. (through its President of the Board of Directors, Shelley C. Wiley) and Michael Geilenfeld, individually. Both testify in the form of the sworn complaint allegations that this Court considers for determination of Plaintiffs’ prima facie case to defeat the motion to dismiss. Nader, 2012 ME 57, 41 A.3d 551.

Despite his self-characterizations, Kendrick is not a “longtime volunteer advocate for victims and survivors of child sexual abuse” (Document No. 13 at 1), and never has been. Kendrick’s self-professed “advocacy” is a ruse he has constructed in order to make up untruths about good people who do good, charitable work in this country and abroad, and then to unleash those untruths using sophisticated, well-funded verbally violent campaigns of defamation and tortious interference. He does this in order to hurt and to scare the good people he attacks, in order to ruin their lives, their reputations, to cripple them economically and dismantle their charitable undertakings. He is motivated by hatred, disdain, and greed. No aspect of these campaigns of defamation triggers “petitioning activity” under the Maine statute; nor can any aspect be reasonably stretched as a serious attempt on Kendrick’s part to seek government redress of a grievance from which he himself is suffering.

Kendrick is not “part of a broader public movement” of any kind (Document No. 13 at 1), let alone one to “hold accountable perpetrators of sexual violence against children and the institutions with which they are affiliated.” Document No. 13 (Special Motion to Dismiss) at 1. While he may act with conspirators, he identifies none in his motion papers, and identifies no publicly recognized “public movement” or organization of any kind. His assertions in this regard, and his broader self-professed “advocacy” for victims, are false assertions. He offers no factual underpinnings to his conclusory self-characterizations of his otherwise tortious activities. In summary, the record in this case is clear: Michael Geilenfeld, of course, is not a criminal or a child molester, and never has been; Hearts with Haiti is not an institution thatsupports such criminal conduct. Geilenfeld Declaration at ¶¶ 4-5. There is no connection—not factually, not legally—with the Fairfield University occurrences that Kendrick brings to the fore in paragraph 10 of his affidavit on this motion (Document No. 13-1). Geilenfeld Declaration at ¶ 6. Kendrick’s reference to those events is a latent suggestion that those events provide him his factual basis to accuse separate orphanages in Haiti of the same heinous conduct; a fortiori exposes how ridiculous his accusations are: by Kendrick’s logic, because one Catholic man, a criminal named Perlitz, committed heinous crimes in Haiti, all Catholics do. Kendrick has no reliable evidence of crimes committed by Plaintiffs in this case, and there is none. He offers none in his motion. He has maliciously lied about such criminal allegations, and has grossly broken the law of defamation and of tortious interference in doing so, by approaching the Plaintiffs’ charitable funders, among others, to create an interminable onslaught to these beneficial relations. Those are the facts, and they are taken as true in this motion. Document No. 1 (Verified Complaint) at ¶¶ 47-108; Geilenfeld Declaration at ¶¶ 1-16.

Indeed, these facts are also taken as true not just with respect to this motion, but with respect to the action itself: in defamation cases, the falsity of Kendrick’s statements is the prevailing presumption, and “truth” is an affirmative defense. Haworth v. Feigon, 623 A.2d 150, 158 n.6 (Me. 1993) (“falsity is presumed and the defendant bears the burden of proving truth as an affirmative defense”); Ramirez v. Rogers, 540 A.2d 475, 476 (Me. 1988). Hence, unless or until Kendrick attempts the affirmative defense of “truth” (which, were that to occur, might conceivably trigger some additional scrutiny under Rule 11(b)(3) of the Federal Rules of Civil Procedure), the state of the record is Kendrick has promulgated a vicious private campaign of presumptively false statements about the Plaintiffs. Nothing about this case raises so-called anti-SLAPP issues, and Kendrick’s motion must be denied.

ARGUMENT

Maine’s anti-SLAPP statute, 14 M.R.S. § 556, is “nearly identical” to the Massachusetts statute, and was adopted without committee debate or written testimony less than a year after enactment in Massachusetts. See Legislative History LD 781 (House Report, May 24, 1995); see also Pylypenko v. Bennett, 2011 WL 1338088, n. 5 (Me. Super. Cumb. Cty., Nov. 27, 2006) (Cole, J.). Accordingly, the Law Court has freely looked to Massachusetts precedent for guidance in its interpretation of Maine’s anti-SLAPP statute. See Nader, 2012 ME 57, ¶ 22, n.9, 41 A.3d 551 (recognizing Maine’s adoption of Massachusetts’ interpretation of its parallel statute).

The Massachusetts anti-SLAPP statute was the legislative response to a highly publicized lawsuit brought by a wealthy real estate developer against 15 residents who had signed a petition opposing the developer’s construction plans. Duracraft Corp. v. Holmes Prods. Corp., 691 N.E.2d 935, 940 (Mass. 1998). The lawsuit was meritless and ultimately dismissed within nine months but not before the developer had caused the residents to incur more than $30,000 in legal expenses. Id. In response, Massachusetts enacted its anti-SLAPP statute to prevent “generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so.” Id. at 940 (internal quotations omitted).

Maine’s statute followed suit,with nearly identical provisions. Nader,2012ME57,¶22, 41 A.3d 551. The Maine Law Court recognized, however, the “conflicting rights to petition inherent in the statute.” Id. at ¶ 22, 41 A.3d 551. By implicating competing constitutional rights, application of the statute becomes a constitutionally sensitive task, requiring that the courts avoid applying the statute in a way that results in a deprivation of a plaintiff’s fundamental constitutional right of access to the courts and right to petition the government by filing a complaint in court. Id. at ¶¶ 18-25, 41 A.3d 551. The concurring opinion in the Nader case emphasized that, by the time Nader had reached the Maine Law Court, case precedent involving litigants invoking the statute demonstrated that the statute’s employment in the Maine courts was far different than that envisioned by its implied legislative intent—in essence, that “[t]he ‘Goliath’ who abuses other forms of petitioning to harass ‘David’ has now adopted the special motion to dismiss as another obstacle to throw in David’s path when he legitimately seeks to petition the court for redress.” Id. at ¶ 45, 41 A.3d 551. Here, with Kendrick’s defense fully funded by an insurance company, and with a plaintiff non-profit organization and its representatives claiming that Kendrick has demonstrably interfered with their charitable fundraising by his tortious conduct, this key observation by the concurring opinion in Nader plays out once again.

With this backdrop, Maine’s Anti-SLAPP statute provides in relevant part:

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 court shall advance the special motion so that it may be heard and determined with as little delay as possible. 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. [. . .]

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.

14 M.R.S. § 556. The statute provides for a special motion to dismiss when a claim against the moving party is “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.” Id. The definition of petitioning activity makes clear that “the statute is designed to protect overtures to the government by parties petitioning in their status as citizens” and, thus, “one in which a party seeks some redress from the government.” Fustolo v. Hollander, 920 N.E.2d 837, 843-842 (Mass. 2010). Maine’s anti- SLAPP statute requires a two step inquiry. 14 M.R.S. § 556. At the first step, the defendant has the burden to establish that the complaint is based upon “petitioning activities alone and [has] no substantial basis other than or in addition to petitioning activities.” Nader, 2012 ME 57, ¶ 22 n.9, 41 A.3d 551 (citing Duracraft, 691 N.E.2d at 943). If the complaint has a basis other than or in addition to petitioning activities, the statute does not apply and the anti-SLAPP motion must be denied. Nader, 2012 ME 57, ¶ 22 n.9, 41 A.3d 551; Duracraft, 691 N.E.2d at 943-944. Second, if the defendant can establish that the complaint is based solely on petitioning activity, then the statute requires only that the plaintiff provide “‘some evidence that the defendant’s petitioning activity was devoid of factual or legal support and caused actual injury’” to overcome defendant’s special motion to dismiss, even when faced with conflicting evidence from the defendant. Lynch v. Christie, 2012 WL 5874841 *5 (D. Me. Nov. 20, 2012) (quoting Nader, 2012 ME 57, ¶¶ 34-35, 41 A.3d 551).

Kendrick fails to meet each prong of the first step of the analysis. Then, eventhough there is no need to reach the second step of the analysis, even were one to assume that Kendrick’s defamatory statements—none of which he ever made to any government official—are somehow characterized as “petitioning activity,” there is nonetheless no factual or legal basis to them. Thus, his motion fails on the second part of the analysis as well.

1. Kendrick’s Outrageous Campaign is Not Petitioning Activity; and, it is Not Petitioning Activity Seeking to Redress a Grievance of Kendrick’s Own.

Kendrick asserted that “all of the public statements that [he has] made were made for the purpose of generating public outcry and support that would ultimately impel government agencies, in Haiti and the United States, to investigate Mr. Geilenfeld and stop the abuse of children that was reported by multiple witnesses.” Document No. 13-1 (Kendrick Aff.) at ¶ 22. He further claimed that “all of his public statements [. . .] fit[ ] squarely within the statute’s protection for statements reasonably likely to enlist public participation . . .” and that the “sole question during the first step of the Anti-SLAPP analysis is whether his statements had a reasonable likelihood of encouraging public involvement in his campaign.” Document No. 13 (Special Motion to Dismiss) at 7.

Kendrick has misinterpreted the statute’s plain reading, intent, and purpose and further ignored legal precedent defining the parameters of “petitioning activity.” By way of brief illustration, according to Kendrick’s interpretation of the anti-SLAPP statute, tortiously yelling “fire” in a crowded theatre would “fit squarely within the statute’s protection” because the statement was made for “the purpose of generating public outcry” and was reasonably likely to impel government action, i.e., it would impel the fire and police departments to respond to the false alarm. The statute’s definition of “petitioning activity” is not logically so broad.

Accurately stated, the anti-SLAPP statute provides that petitioning activity includes “any statement reasonably likely to enlist public participation in an effort to effect [consideration of an issue by a legislative, executive or judicial body, or any other governmental proceeding].” 14 M.R.S. § 556. However, this provision cannot be read in isolation out of context and in contradiction to the intent and purpose of the statute which is to “protect overtures to the government by parties petitioning in their status citizens.” See Global NAPS, Inc. v. Verizon New England, Inc., 828 N.E.2d 529, n.6 (Mass. App. Ct. 2005). Accordingly, “[s]tatements made to enlist public participation to effect favorable consideration of an issue by a public body, does not protect tangential statements intended, at most, to influence public opinion in a general way unrelated to governmental involvement.” Global NAPS, Inc., 828 N.E.2d at 534; see also Cadle Co. v. Schlichtmann, 859 N.E.2d 858, 866-867 (Mass. 2007) (petitioning activity does not include defamatory statements published on websites and intended to attract business to a law firm); Burley v. Comets Cmty. Youth Ctr., Inc., 75 917 N.E.2d 250, 255-256 (Mass. App. Ct. 2009) (petitioning activity does not include public disclosures of communications made to law enforcement). More specifically, a defendant’s concerted efforts to “convince people not to do business with Plaintiffs and to diminish Plaintiffs’ reputation and good will” and facilitate or motivate speech by other people are not efforts to influence government action and, therefore, not petitioning activity. Clay Corp. v. Colter, 30 Mass.L.Rptr. 429 at *4 (Mass. Super. Ct., Nor. Cty., Dec. 11, 2012) (citing Fustolo, 920 N.E.2d at 843). Moreover, the anti-SLAPP statute only protects those “‘who petition the government on their own behalf,’” i.e., “personally seek[ ] redress of a grievance of their own,” and thus excludes petitioning activity on behalf of others. Fustolo, 920 N.E.2d, at 841-842 (quoting Kobrin v. Gastfriend, 821 N.E.2d 60, 64-65 (Mass. 2005)) (emphasis in original); see also Fisher v. Lint, 868 N.E.2d 161, 167 (Mass. App. Ct. 2007).

In Clay Corp., the plaintiff, an employer, sued two brothers of a former employee for defamation and tortious interference alleging that the brothers published numerous tortious statements on multiple websites claiming that their sister had been discriminated against and inappropriately fired by the plaintiff and urged potential customers not to do business with the plaintiff. Clay Corp., 30 Mass.L.Rptr. 429 at **1-2. The court held that the: [V]erified allegations in this case make clear that most or all of the challenged activity by the [defendants] was not undertaken to influence, inform, or even reach government officials or bodies. The [defendants’] target audience is customers or potential customers of [the plaintiff] [a]nd the [defendants] have not been trying to convince [plaintiff’s] customers to influence government action in anyway. Instead,theyhavebeentrying—apparentlywithsomesuccess—to convince people not to do business with [p]laintiffs and to diminish [p]laintiffs’ reputation and good will [. . .] and to punish [them]. Id., at *4. Therefore, the court held that the defendants were not engaged in petitioning activity and denied their special motion to dismiss. Id. at **2, 5 (internal quotations omitted). In addition, the court held that the defendants were not “personally seeking redress of a grievance of their own but instead [were] trying to support their sister’s grievance” and, therefore, their conduct was further outside the purview of the anti-SLAPP statute. Id.

Similarly, in Cadle Co., the plaintiff, a debt collection company, sued the defendant, an attorney, for creating a public website on which he accused Cadle Co. of defrauding its customers and solicited “other victims of Cadle’s unlawful business practices” to contact his law firm. Cadle Co., 859 N.E.2d at 861. The court rejected the defendant’s argument that his internet statements were “reasonably likely to enlist public participation” in an effort to effect government action and held that “petitioning activity” does not include spreading information over the internet to solicit potential business for a law firm. Id. at 864.

Moreover, in Fustolo, the plaintiff, a developer, sued a print journalist for defamation and tortious interference alleging that she falsely reported in several articles certain facts and statements by city officials and others and caused widespread opposition to his development plans which forced him to withdraw his application for variances before the city. Fustolo, 920 N.E.2d at 839. The court rejected the defendant’s attempt to “take refuge under the anti-SLAPP statute by portraying herself as a messenger of [the residents’ association] in her capacity as a reporter” and denied the defendant’s special motion to dismiss because the articles did not constitute exercise of the defendant’s own right to petition because she was not “petitioning” in the sense of personally seeking redress of a grievance of her own. Id. at 868.

Similar to the defendants in Clay Corp., as set forth in the Verified Complaint in this action, Kendrick has engaged in an extensive, malicious campaign intended to damage Plaintiffs’ reputation and goodwill and destroy their financial viability and fundraising network; he does so by specifically targeting, threatening, and intimidating their benefactors, supporters, and volunteers, with false and heinous allegations of Plaintiffs’ involvement in child sex abuse. Document No. 1 (Verified Complaint) at ¶¶ 45-75. His campaign is relentless, relentless in scope and in duration. Id. Yet, as in Clay Corp., there is no allegation that Kendrick directly or indirectly solicited any governmental entity or otherwise made any statement to influence government action. Document No. 1 (Verified Complaint) at ¶¶ 45-108. Nothing about Kendrick’s misconduct set forth in the Verified Complaint raises a scintilla of reasonable inference that he was engaged in any petition to the government.

In addition to publishing heinous allegations of child sex abuse in targeted e-mails to benefactors, Kendrick published heinous allegations of child sex abuse on multiple websites, as alleged in the Verified Complaint, and urged “victims,” not to contact law enforcement, but to contact a plaintiffs’ lawyer he was associated with in Boston—one Mitchell Garabedian, Esq. See Geilenfeld Declaration at ¶ 15 (Exhibit 7). As recognized in Cable Co., petitioning activity does not include publishing heinous allegations of child abuse to solicit business for a law firm.

Then, as in Fustolo, Kendrick’s outrageous conduct is not an exercise of his right to petition for his own grievance. Rather, he has described himself as a “volunteer child protection advocate” and his actions as republishing to Plaintiffs’ benefactors (via hundreds of e-mails) paraphrasedstatementsmadebyanallegedadultvictimofchildabuse. DocumentNo.13-1 (Kendrick Aff.) at ¶¶ 8, 21. Notwithstanding the demonstrable falsity of this assertion, as with the defendant in Fustolo, Kendrick cannot hide behind the anti-SLAPP statute by portraying himself as an “advocate” and messenger of adult alleged child abuse victims when he has no personal grievance of his own.

In sum, Kendrick’s outrageous campaign of bullying, threatening, and intimidating Plaintiffs’ benefactors and supporters with heinous false allegations of child sex abuse is in no way related to “petitioning activity” much less petitioning the government for his own grievance. His empty assertion that he made these false and heinous allegations to generate public outcry with the hope that it would eventually “impel government agencies” to act does not change that conclusion. Kendrick has not met his burden at the first step of the anti-SLAPP inquiry toestablish that the allegations in the Verified Complaint are based upon “petitioning activities alone and have no substantial basis other than or in addition to petitioning activities” and, therefore, his special motion to dismiss should be denied.

2. Even Assuming, Arguendo, Kendrick Has Identified Any Petitioning Activity, the Verified Complaint Is Clearly Not Based on such Petitioning Activity “Alone.”

Even assuming, arguendo, that Kendrick has identified any petitioning activity in support of his misconduct, he still fails to meet the first step of the anti-SLAPP analysis, because it is not

enough for him to show that Plaintiffs’ claims against him are based partially on petitioning activities: he must also show that the claims are “based on the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.” Nader, 2012 ME 57, ¶ 22 n.9, 41 A.3d 551. This, he fails to show.

Recognizing the potential constitutional infirmity in the statute, which pits the moving party’s asserted “right to petition government” against the non-moving party’s similar “right to petition government” and access to the courts by filing a complaint, the Maine Law Court follows the Massachusetts position that in interpreting the phrase “based on” in the statute, the moving party must show that “the plaintiff’s claims against him are ‘based on’ the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities.” Id. (citing Duracraft Corp., 691 N.E.2d at 943) (emphasis added). Underscoring the critical importance of this aspect of interpretation of the statute, Nader explained: “[w]e have implicitly, if not explicitly, adopted this interpretation of our anti-SLAPP statute as well, [. . .] but we consider whether applying this interpretation alone, without more, is sufficient to preserve the constitutionality of Maine’s anti-SLAPP statute as applied in this case when constitutional rights are implicated.” Id. (citations omitted). Hence, this aspect of the standard is a key component to preserving the constitutionality of Maine’s anti-SLAPP statute.

The claims in this case, as set forth in the Verified Complaint, do not reference any statements that can possibly be construed as direct petitioning activity—i.e., statements made to a governmental official or reasonably calculated to reach or influence a governmental official. The complaint specifically references only several of the hundreds upon hundreds of e-mails sent to private benefactors or other non-government individuals, all of which will be submitted into evidence in this case in support of Kendrick’s campaign of defamation and tortious interference.

More communications will no doubt be added to the accumulated volume as discovery proceeds.2 At this juncture, it is enough to say that no interpretation of this case could possibly lead to the conclusion that it is “based on” any petitioning activity “alone,” or that it has “no substantial basis” other than petitioning activity. It is entirely based on Defendant’s activity that does not petition government. The substantial basis of this lawsuit—hundreds upon hundreds of emails and website communications, as well as a public radio broadcast—have nothing to do withadefendantpetitioningthegovernmentforredressofagrievance. Thus,failuretomeetthis other critical component of the first step in the anti-SLAPP analysis also requires denial of the special motion to dismiss.

3. Assuming Arguendo, Kendrick’s Outrageous Campaign Could be Characterized As “Petitioning Activity,” It Is Nonetheless Devoid of Factual or Legal Support and Caused Actual Injury.

For the purposes of analysis of the second step of the anti-SLAPP inquiry, arguendo is assumed, and Plaintiffs have met their burden to provide prima facie evidence that Kendrick’s outrageous campaign was “devoid of factual or legal support and caused actual injury.” Nader, 2012 ME 57, ¶¶ 34-35, 41 A.3d 551.

The Law Court has recently elaborated on the proper inquiry on this aspect of a defendant’s special motion to dismiss. Id. Recognizing that “to avoid an unconstitutional” application of the statute in violation of the plaintiffs’ right to access the courts, the statute “must be construed, consistent with usual motion-to-dismiss practice, to permit courts to infer that the allegations in a plaintiff’s complaint and factual statements in any affidavits responding to a special motion to dismiss are true.” Id. at ¶ 33. Thus, to protect the plaintiff’s own constitutional rights, the Law Court held that upon a defendant meeting his burden to establish 2 Indeed, we expect the evidence to show that in large degree, the existence of this pending lawsuit did little to stop or to dissuade Kendrick’s tortious activities, which remain ongoing. that the complaint is based solely on petitioning activity, a plaintiff’s action should be allowed to proceed, even when faced with conflicting evidence from the defendant, unless the plaintiff fails to meet its “low” burden of proof to provide prima facie evidence—that is, “some evidence”— that “any, rather than all” of the defendant’s petitioning activities were “devoid of factual or legal support and caused actual injury.” Id. at ¶¶ 35-36 (emphasis added).

Applying this new lower standard to a defamation claim, this Court held for example in Lynch v. Christie, that the plaintiff had met his burden to avoid a special motion to dismiss by providing “some evidence” that the defendant’s publications to the police and others that the plaintiff chiropractor had sexually assaulted her during a medical visit were “devoid of factual or legal support and caused actual injury” in the form of $290 in counseling fees incurred by the plaintiff. 2012 WL 5874841 *5 (D. Me. Nov. 20, 2012).

Taking the allegations in the sworn-to Verified Complaint as true, even when faced with “conflicting evidence” from Kendrick, Plaintiffs have established prima facie evidence that Kendrick’s outrageous campaign lacked any basis in fact or law. Plaintiffs’ sworn statements within the Verified Complaint make clear that each and every statement by Kendrick was false and lacked any factual or legal support whatsoever. See generally, Document No. 1 (Verified Complaint) at ¶¶ 1-108; see specifically, Document No. 1 (Verified Complaint) at ¶¶ 89-108.3

The Plaintiffs provide desperately needed care to hundreds of disabled and disadvantaged Haitian children through their operation of three children’s homes, and a day school in Port au Prince, Jacmel, and Fermathe, Haiti. Document No. 1 (Verified Complaint) at ¶¶ 7-46. Neither 3 The Verified Complaint sets forth Kendrick’s false statements, inter alia, of there being “14 or 15 victims” (Verified Complaint ¶ 70), that “children” were being lured to the orphanage by offers of food and shelter in order to be raped (Verified Complaint ¶ 71), that the “boys” of the Resurrection Dance Theater have been raped (Verified Complaint ¶ 59); that Plaintiff Hearts with Haiti aids and abets the sexual abuse “of children in Haiti” (Verified Complaint ¶ 67); Kendrick makes false accusations of financial impropriety as well (Verified Complaint ¶ 72). These statements are devoid of any factual basis. Id., at ¶¶ 69, 74-75; Geilenfeld Declaration at ¶¶ 4-7.

St. Joseph Family of Haiti, Michael Geilenfeld, nor Hearts with Haiti have ever been associated with or connected in any way to Douglas Perlitz or Project Pierre Toussaint in Cap-Haitian, Haiti—the “U.S. citizen” convicted in 2010 of child sex crimes and his “boarding school located in northern Haiti.” Geilenfeld Declaration at ¶ 6; cf. Document No. 13-1 (Kendrick Aff.) at ¶¶ 9- 11. Nevertheless, Kendrick maliciously casts Plaintiffs in this false light, as if Plaintiffs were the same as Douglas Perlitz and Project Pierre Toussaint.

Kendrick’s affidavit is a disingenuous attempt to justify or somehow rationalize his outrageous conduct, having admitted in his Answer (Document No. 8) that he in fact made most if not all of the alleged statements in the Verified Complaint. Contrary to Kendrick’s sworn statement that he began “speaking publicly about these issues” after he “[conducted his own investigation,] personally interviewed many of the victims of abuse, and [ ] received no viable assistance from Hearts with Haiti officials in addressing these allegations,” in fact, as shown by his own statements, Kendrick’s malicious campaign to destroy the Plaintiffs’ financial viability by creating and disseminating heinous allegations of child abuse to Plaintiffs’ benefactors began in January 2011 immediately after he claimed to have received “information concerning Mr. Geilenfeld and his orphanage” from an unnamed “woman” through an unnamed “journalist.” Document No. 13-1 (Kendrick Aff.) at ¶¶ 12, 15-16; cf. Document No. 1 (Verified Complaint) at ¶ 47. In reality, Kendrick’s first communication concerning Michael Geilenfeld targeted a Catholic benefactor of the Plaintiffs in Milwaukee, Wisconsin on January 31st, 2011. Geilenfeld Declaration at ¶ 12 (Exhibit 4); cf. Document No. 13-1 (Kendrick Aff.) at ¶ 16. Kendrick’s next communication concerning Geilenfeld targeted St. Joseph Family of Haiti’s biggest fundraiser and supporter, Hearts with Haiti. Geilenfeld Declaration at ¶ 13 (Exhibit 5). Kendrick proceeded to maliciously spread his heinous allegations to Plaintiffs’ largest benefactors in the

United States, Canada, and abroad starting with St. Cecelia’s Parish in Boston, Massachusetts. Geilenfeld Declaration at ¶ 14 (Exhibit 6). After spreading these heinous allegations with absolutely no factual basis, Kendrick contacted Geilenfeld with marked aggression via e-mail to which Geilenfeld politely responded directly to Kendrick and told him unequivocally that he had never engaged in a sexual act with any child. Geilenfeld Declaration at ¶ 4 (Exhibit 1). Nevertheless, with demonstrably malicious disregard for the truth, as Kendrick’s tortious campaign progressed, he created more explicit and heinous allegations to target any organization, individual, or group of individuals he perceived as supporting the Plaintiffs, financially or otherwise, including a 10-year-old boy who had created an iPhone application (“RoX,” a game similar to rock paper scissors) and expressed his intention to donate proceeds of the app to Hearts with Haiti and St. Joseph Family of Haiti. Geilenfeld Declaration at ¶ 16 (Exhibit 8). In addition, as a misguided attempt to add credibility to his false and heinous allegations, Kendrick solicited “sex abuse victims of Michael Geilenfeld” to contact a plaintiffs’ lawyer he was associated with in Boston, Massachusetts “for a free consultation.” Geilenfeld Declaration at ¶ 15 (Exhibit 7).

Kendrick’s tortious campaign of outrageous conduct has caused actual pecuniary damages in diminished revenue (see e.g., Geilenfeld Declaration at ¶ 11 (Exhibit 3)), withheld or reduced donations, and withheld or reduced grant moneys (see e.g., Geilenfeld Declaration at ¶ 10 (Exhibit 2)), in the amount of $1,582,810.56, plus interest, and not including mitigation expenses, decreased future earning potential, and reputational harm. Geilenfeld Declaration at ¶¶ 8, 10-11.

In sum, assuming arguendo that Kendrick’s outrageous campaign could be characterized as petitioning activity, Plaintiffs have established that Kendrick’s outrageous campaign lacked

any factual or legal basis and caused actual injury and, therefore, Kendrick’s motion to dismissshould be denied.

4. Defendant’s Motion Should be Denied, in the alternative, For Failure to Comply with Federal Pre-filing Requirements of Local Rule 56(h).

Finally, we raise a brief observation about the application of procedural aspects of the special motion to dismiss under 14 M.R.S. § 556, to the extent necessary in addressing the substance of the opposition to this motion. Plaintiffs should not have to submit their whole case to the Court at the motion to dismiss stage, before discovery is closed, in order to defeat application of the statute. More to the point, by filing a motion to dismiss that relies upon affidavits or other matters of record, the Defendant is inviting this Court to decide a motion to dismiss by looking to affidavits and other materials beyond the pleadings, which procedurally should require that the motion to dismiss “be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). Defendant, in filing this motion, does not comply with established federalprocedureforaddressingthesubstanceofhismotion. SeealsoLocalRule56(h).

The significance of the Nader holding and the new standards announced by the Law Court to avoid constitutional infirmity in applying the statute at a motion to dismiss stage, do have some implication in Plaintiffs’ response to the present motion. In initial disclosures, which have already been served under Rule 26 of the Federal Rules of Civil Procedure and in compliance with this Court’s scheduling order, Plaintiffs supplied voluminous documents—some of which are submitted here as examples of the evidence—which support both the extraordinarily numerous defamatory statements in issue, ranging over a long period of time, as well as the accumulated economic damages to the Plaintiffs resulting from Kendrick’s tortious conduct. In order to defeat the special motion to dismiss, the Plaintiffs should not have to submit all of their evidence to the Court at the motion to dismiss stage. The Nader standard permits plaintiffs to rely upon sworn allegations; and even by the plain language of the anti-SLAPP statute, plaintiffs are permitted to rely also upon their “pleading” as in the usual motion to dismiss setting under Rule 12(b) of the Federal Rules of Civil Procedure. 14 M.R.S. § 556 (“[i]n 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”) (emphasis added); Nader, 2012 ME 57, ¶ 36, 41 A.3d 551 (the nonmoving party’s showing is made “by pleading or affidavits”).

While we acknowledge the First Circuit’s pre-Nader holding in Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010), applying the anti-SLAPP statute in federal court sitting in diversity jurisdiction, and while noting that the holding is not without some criticism, see 3M Co. v. Boulter, 842 F. Supp. 2d 85, 107 (D. D.C. 2012), it remains that application of the statute in federal court “is not without difficulty.” Lynch v. Christie, 815 F. Supp. 2d 341, 346 n.5 (D. Me. 2011), remanded, 486 Fed. Appx. 884 (1st Cir. 2012). That is because the statute contains procedural components, and to the extent the statute “requires the court to undertake a fact- finding role, even where there is a genuine issue of material fact, the statute directly collides with the prohibition of Rules 12(d) and 56 [of the Federal Rules of Civil Procedure].” 3M Co., 842 F. Supp. 2d at 108. The recent decision of this Court decided after Nader—the case after remand of Lynch v. Christie—decided an anti-SLAPP motion by summary judgment procedures under Rule 56 and after the close of discovery. Lynch v. Christie, 2012 WL 5874841 *1 (D. Me. Nov. 20, 2012). Presumably that case also went through the significant and effective pre-filing procedures of Local Rule 56(h). Id. For purposes of this opposition, however, the point to be emphasized is that this statutory motion to dismiss should not procedurally trigger the parties’ presentations of their cases to the Court, evidence and all,before discovery is undertaken or at the beginning of the case. Whilewe are prepared to submit to this Court the current state of the evidence—400-plus pages of underlying documents relating to Kendrick’s campaign of defamation against the Plaintiffs, and the voluminous documents in support of Plaintiffs’ actual economic injury—it should not be necessary to do so under the new Nader standard for addressing a motion to dismiss brought under the so-called anti-SLAPP statute. Under Nader, the prima facie case is established by the pleading and sworn allegations of the Verified Complaint, and this inquiry should be enough with all factual disputes resolved in favor of Plaintiffs. Kendrick’s own self-serving and conclusory affidavit, submitted before discovery, which provides no supporting details or supporting documents to his bald assertions, cannot become the procedural basis for deciding his motion. We assume that consistent with the standards under Nader, this Court will deny Kendrick’s motion, without any need for making further factual inquiry, fact-finding, and without the need for a fuller evidentiary record. To the extent that is not the case, we would respectfully request that, in the alternative, Defendant’s motion be otherwise denied for failure to comply with Local Rule 56(h), since procedurally this Court should not move to further fact- finding under Kendrick’s motion without converting to Rule 56 summary judgment procedures.

CONCLUSION

For all of the foregoing reasons, Plaintiffs respectfully request that this Court deny with prejudice the Defendant’s motion to dismiss.

Dated this 6th day of May, 2013 /s/ Russell B. Pierce, Jr. Russell B. Pierce, Jr., Esq. Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on May 6, 2013, I electronically filed the foregoing Plaintiffs’ Objection and Memorandum in Opposition to Defendant’s Special Motion to Dismiss with the Clerk of Court using the CM/ECF system which will send notification of such filing(s) to all registered counsel of records as follows:

David C. King, Esq. and F. David Walker, Esq. Rudman & Winchell 84 Harlow Street P.O. Box 1401 Bangor, ME 04401 dking@rudmanwinchell.com dwalker@rudmanwinchell.com

NORMAN, HANSON & DeTROY, LLC 415 Congress Street P.O. Box 4600 Portland, Maine 04112-4600 (207) 774-7000 rpierce@nhdlaw.com

/s/ Russell B. Pierce, Jr. Russell B. Pierce, Jr., Esq. Attorney for Plaintiffs

HEARTS WITH HAITI, INC., et al.

Plaintiffs

v.

PAUL KENDRICK,

Defendant

CIVIL ACTION: 2:13-CV-00039-JAW

 

PLAINTIFF MICHAEL K. GEILENFELD’S DECLARATION PURSUANT TO 28 U.S.C. § 1746 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

I, Michael K. Geilenfeld, depose and say as follows: 1. My name is Michael K. Geilenfeld.

2. I am a Plaintiff in the above-captioned matter.

3. I have devoted my life to enriching the lives of children in Haiti, the United States, and abroad, and am the founder and executive director of St. Joseph Family of Haiti, an organization that operates a network of nonprofit institutions that provide residence, room and board, formal education, and religious education to hundreds of disabled and disadvantaged Haitian children.

4. I have never engaged in a sexual act with anyone under the age of eighteen, and I directly communicated that fact to Defendant Paul Kendrick February 3rd, 2011. Attached hereto as Exhibit 1, is a true and accurate copy of e-mail correspondence dated February 3rd, 2011 between and amongst me, Kendrick, and others.

5. I have never engaged in any unlawful sexual act.

6. Neither I nor St. Joseph Family of Haiti has or had any association with Douglas Perlitz, Project Pierre Toussaint, or Fairfield University. I have never met Douglas Perlitz or visited Project Pierre Toussaint nor has Douglas Perlitz ever visited any institution operated by St. Joseph Family of Haiti.

7. Nevertheless, since January 2011 and continuing to present, Kendrick has attempted to destroy me and St. Joseph Family of Haiti by targeting St. Joseph Family of Haiti’s benefactors, volunteers, and fundraisers with false and heinous allegations of child sex abuse, child neglect, malnourishment, and other mistreatment, financial impropriety, and other deplorable conduct.

8. To date, Kendrick’s concerted efforts to destroy me, St. Joseph Family of Haiti, and Hearts with Haiti has caused an estimated $1,582,810.56 loss in revenue, withheld or reduced donations, withheld or reduced grant moneys, cancelled Resurrection Dance Tour of Haiti performances, and cancelled reservations at the St. Joseph Family of Haiti guest house.

9. Information supporting valuation of pecuniary losses was produced by my attorneys in the above-captioned matter to Kendrick’s counsel April 12th, 2013.

10. For example, attached hereto as Exhibit 2, is a true and accurate copy of e-mail correspondence between and amongst Paul D’Oliveira, Hearts with Haiti board member and Rotarian, and several Rotary International members in which a $38,000 grant to purchase a Toyota SUV to transport disabled children at Wings of Hope to and from physical therapy was cancelled because of Kendrick’s false allegations of child sex abuse.

11. Attached hereto as Exhibit 3, is a true and accurate copy of e-mail correspondence dated April 27th, 2013 in which a July, 2013 reservation at the St. Joseph Family of Haiti guest house valued at $8,750.00 (residence for twenty-five persons for seven days at $50 per day per person) was cancelled by Edenton Street United Methodist Church because of Kendrick’s false allegations of child sex abuse and financial impropriety.

12. Attached hereto as Exhibit 4, is a true and accurate copy of e-mail correspondence dated January 31st, 2011 from Kendrick to St. Theresa’s Parish in Milwaukee, Wisconsin, a benefactor of St. Joseph Family of Haiti. This is the earliest known communication from Kendrick concerning me or St. Joseph Family of Haiti.

13. Attached hereto as Exhibit 5, is a true and accurate copy of e-mail correspondence dated January 31st, 2011 from Kendrick to Hearts with Haiti board member Dr. Rolvix Patterson.

14. Attached hereto as Exhibit 6, is a true and accurate copy of e-mail correspondence dated February 1st, 2011 from Kendrick to St. Cecelia’s Parish in Boston, Massachusetts, a significant benefactor of St. Joseph Family of Haiti.

15. Attached hereto as Exhibit 7, is a true and accurate copy of e-mail correspondence from Kendrick to numerous “blind-copied” third parties in which he solicited “sex abuse victims of Michael Geilenfeld” for a “free consultation” with a plaintiffs’ lawyer in Boston, Massachusetts.

16. Attached hereto as Exhibit 8, is a true and accurate copy of e-mail correspondence from Kendrick to McGinley Media, Ltd. and several third parties targeting a 10-year-old boy, Aiden Sommers, who helped create a software application for the benefit of Hearts with Haiti and St. Joseph Family of Haiti.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed on May 5, 2013

/s/ Michael Geilenfeld Michael K. Geilenfeld Executive Director, St. Joseph Family of Haiti

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