Kaiser v. Kirchick

MEMORANDUM AND ORDER RE: DEFENDANT RONALD STEVEN RUDNICK'S SPECIAL MOTION TO DISMISS PURSUANT TO G.L. c. 231, § 59H AND PARTIAL MOTION TO DISMISS PURSUANT TO Fed.R.Civ.P. 12(c) (DOCKET ENTRY # 25); DEFENDANTS WILLIAM KIRCHICK AND CAROL RUDNICK KIRCHICK'S SPECIAL MOTION TO DISMISS PURSUANT TO G.L. c. 231, § 59H AND PARTIAL MOTION TO DISMISS PURSUANT TO Fed.R.Civ.P. 12(b)(6) (DOCKET ENTRY # 28)

MARIANNE B. BOWLER, UNITED STATES MAGISTRATE JUDGE.

Pending before this court are two motions: (1) a special motion to dismiss and partial motion to dismiss filed by defendant Ronald Steven Rudnick (“Rudnick”) (Docket Entry # 25); and (2) a special motion to dismiss and partial motion to dismiss filed by defendants William Dean Kirchick and Carol Rudnick Kirchick (together, “the Kirchicks”) (Docket Entry # 28). Plaintiffs Grant Kaiser (“Kaiser”) and John Furnish (“Furnish”) (together, “plaintiffs”) oppose the motions.

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(Docket Entry ## 40, 41). After conducting a hearing on September 10, 2021, this court took the motions under advisement. (Docket Entry # 52).

PROCEDURAL BACKGROUND

Plaintiffs initiated this action on April 9, 2021, bringing five counts against Rudnick and the Kirchicks (together, “defendants”): violation of Massachusetts General Laws (sections 11H, 11I, and 11J of chapter 12) and the Massachusetts Declaration of Rights (Articles I, X, and XII) (Count I); defamation (Count II); intentional infliction of emotional distress (“IIED”) (Count III); conspiracy (Count IV); and abuse of process (Count V). (Docket Entry # 1).

More specifically, the complaint alleges that defendants: subjected plaintiffs to a nearly three-year “pattern of threats, intimidation, harassment, coercion, and defamation” (Count I) (Docket Entry # 1, p. 25, ¶ 82); “knowingly and intentionally, and falsely, published to a substantial portion of the Chatham community that” plaintiffs “engaged in bad behavior sufficient to warrant the issuance of no trespass orders” (Count II) (Docket Entry # 1, p. 25, ¶ 85); “intended to” and “did cause plaintiffs emotional distress” and engaged in extreme and outrageous conduct (Count III) (Docket Entry # 1, p. 26, ¶ 87); “joined together to act in concert and by agreement over the course of several years for the unlawful purpose of threatening,

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intimidating, harassing and coercing [p]laintiffs . . . to remove trees from [p]laintiffs' own property” (Count IV) (Docket Entry # 1, p. 26, ¶ 90); and “have filed various actions without basis in fact or law . . . .” (Count V) (Docket Entry # 1, p. 27, ¶ 93).

Rudnick filed a special motion to dismiss counts II and V pursuant to Massachusetts General Laws, chapter 231, section 59H (the “anti-SLAPP statute”), and a partial motion to dismiss counts II and V pursuant to Fed.R.Civ.P. 12(c) (“Rule 12(c)”). (Docket Entry # 25). The Kirchicks filed a special motion to dismiss counts II and V pursuant to the anti-SLAPP statute and a partial motion to dismiss counts II and III pursuant to Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”). (Docket Entry # 28).

FACTUAL BACKGROUND^[1]

Plaintiffs have seasonally resided at 39 Seaview Terrace in Chatham, Massachusetts since July 2008. (Docket Entry # 1, pp. 4, 6, ¶¶ 8, 18). The Kirchicks have seasonally occupied the adjacent home at 41 Seaview Terrace since 1999, when 41 Seaview Terrace Real Estate Trust bought the property. (Docket Entry # 1, pp. 4-6, ¶¶ 12, 15, 19). The two homes are directly across

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from each other. (Docket Entry # 1, p. 6, ¶ 20). Rudnick, Mrs. Kirchick's brother, operates Lighthouse Realty and “is a licensed real estate broker and a licensed contractor who owns and/or manages properties in Chatham and throughout Cape Cod.” (Docket Entry # 1, p. 5, ¶ 14).

Between 2008 and 2009, the Kirchicks constructed a new home on their property. (Docket Entry # 1, p. 6, ¶ 19). Plaintiffs also made modifications to their property, including planting trees along the 39 and 41 Seaview Terrace fence line. (Docket Entry # 1, p. 6, ¶ 21). On May 4, 2011, plaintiffs emailed the Kirchicks their landscaping plans, which included moving a pear tree and removing a tree and bushes. (Docket Entry # 1-1, p. 2). In his reply two days later, the Kirchicks communicated that they “were fine” with plaintiffs' proposal. (Docket Entry # 1-1, p. 2).

During the summer of 2017, however, the Kirchicks grew concerned about the location of two mature pear trees on plaintiffs' property. (Docket Entry # 1, p. 7, ¶¶ 23-24) (Docket Entry # 1-2, p. 2). In an email to Rudnick on July 27, 2017, Mrs. Kirchick expressed her concern that the height of the two trees on plaintiffs' property blocked “the ocean view from the upstairs back bedroom.” (Docket Entry # 1-2, p. 2). During a meeting with Kaiser on August 12, 2017, the Kirchicks

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requested that plaintiffs remove the two pear trees and showed Kaiser the obstructed view. (Docket Entry # 1, p. 6, ¶ 21).

After this meeting, plaintiffs contacted “landscape architects, landscape maintenance companies, and arborists about what options might be available” for relocating the two pear trees. (Docket Entry # 1, p. 7, ¶ 26). Throughout August 2017, Rudnick instructed his Lighthouse Realty workers to park their vehicles “at the entrance of the private way leading to [p]laintiffs' home, which is the sole means of accessing [p]laintiffs' home.” (Docket Entry # 1, p. 8, ¶ 30). Mrs. Kirchick emailed Rudnick to thank him for doing so. (Docket Entry # 1, p. 9, ¶ 31) (Docket Entry # 1-3, p. 2). Further communication between defendants included discussions as to whether to contact the Cape Cod Chronicle to write a story about plaintiffs or to “burn” plaintiffs' trees. (Docket Entry # 1, p. 9, ¶¶ 33-34) (Docket Entry # 1-5, p. 2).

In an email dated August 22, 2017, Kaiser informed Mr. Kirchick that plaintiffs were “consulting with [their] landscaping company to determine whether the tree can be transplanted successfully somewhere else on [their] property.” (Docket Entry # 1-5, p. 2). Defendants, however, wanted both pear trees removed. (Docket Entry # 1-5, p. 2). On September 10, 2017, Kaiser emailed the Kirchicks to schedule a time to meet and discuss their request. (Docket Entry # 1-9, p. 3).

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On September 13, 2017, Kaiser emailed Mr. Kirchick and noted that “[w]hile the Lighthouse Realty truck has been parked at the entrance to [plaintiffs'] property for more than 3 weeks, there have been no workers around.” (Docket Entry # 1-8, p. 2). Mrs. Kirchick suggested to Mr. Kirchick that he reply: “‘Does the truck bother you even though it doesn't affect your enjoyment of your property? Now you know what those damn trees are doing to us.'” (Docket Entry # 1-8, p. 2). The following day, Mrs. Kirchick suggested to Rudnick that plaintiffs had not “received the message” and it was maybe “time to move the truck back and start planting in the flatbed.” (Docket Entry # 1-4, p. 2). Defendants discussed additional courses of action, such as removing cobblestones from the private way and painting it purple. (Docket Entry # 1, pp. 11-12, ¶¶ 41-42) (Docket Entry # 1-11, p. 2) (Docket Entry # 1-12, p. 2).

In a letter to plaintiffs dated March 23, 2018, an attorney representing the Kirchicks communicated the results of a survey of the Kirchicks' property and the shared driveway. (Docket Entry # 1-13, p. 2). The Kirchicks' attorney stated that plaintiffs' mailbox and fence were on the Kirchicks' property and that the Kirchicks owned the portion of the shared driveway in front of plaintiffs' house. (Docket Entry # 1-13, p. 2). He noted that the Kirchicks would “accept the placement of the fence and mailbox” in exchange for plaintiffs' removal of the

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two trees and their granting the Kirchicks a “view easement over the area where those trees are located.” (Docket Entry # 1-13, p. 2). The Kirchicks would also “give up their right to park or otherwise use the portion of the private way which [plaintiffs] have planted and treat as [their] private drive.” (Docket Entry # 1-13, p. 2). The letter asked that plaintiffs respond by April 30, 2018. (Docket Entry # 1-13, p. 2). On April 11, however, and before a response from plaintiffs, the attorney notified them that Rudnick would be re-surfacing the Kirchicks' portion of the driveway and asked where they “would like the mailbox and fence placed.” (Docket Entry # 1-14, p. 2).

Beginning on April 12, 2018, Kaiser received several phone calls from Rudnick threatening to “make plaintiffs' lives ‘miserable' and ‘drive' [them] ‘out of town'” if they did not capitulate to the Kirchicks' demands and cut down the trees. (Docket Entry # 1, p. 13, ¶ 48). Rudnick offered to “‘call off the dogs'” if plaintiffs complied and threatened to “‘send the suits in'” if they did not. (Docket Entry # 1, p. 14, ¶¶ 50- 51). In a call with Rudnick the following day, Kaiser offered to cut down one of the two trees but Rudnick rejected the offer and responded that he would “‘start tearing stuff out, like bushes and mailboxes.'” (Docket Entry # 1, pp. 14-15, ¶ 52). The same day, Mrs. Kirchick emailed Rudnick that “[plaintiffs] should move” and suggested that defendants proceed with removing

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the fence. (Docket Entry # 1-16, p. 2). On May 24, 2018, Rudnick and his employees assisted the Kirchicks in “severely butcher[ing] and damag[ing] the side of a mature privet lining the private way leading to [p]laintiffs' home.” (Docket Entry # 1, p. 16, ¶ 57). “On June 1, 2018, the Kirchicks' attorney informed [p]laintiffs' attorney that [d]efendants . . . planned to destroy [p]laintiffs' property” and “remove vegetation on June 8, 2018.” (Docket Entry #...