Date: 09-11-2017

Case Style:

Case Number: 2017 ME 189

Judge: Gorman

Court: Supreme Court of Maine

Plaintiff's Attorney: Gene Libby and Tyler Smith

Defendant's Attorney: Jonathan W. Brogan and Joshua Hadiaris

Description: [¶1] Bruce and Dennis Plante appeal from the entry of a summary
judgment in the Superior Court (York County, Douglas, J.) in favor of Ronald P.
Long on their defamation action. The court concluded that the Plantes failed
to make the necessary prima facie showing that Long acted with actual malice.
We affirm the judgment.
I. BACKGROUND
[¶2] The following facts are taken from the parties’ statements of
material fact and reflect the summary judgment record in the light most
2
favorable to the plaintiffs as the “part[ies] against whom summary judgment
was entered.”1 See Diviney v. Univ. of Me. Sys., 2017 ME 56, ¶ 14, 158 A.3d 5.
[¶3] Bruce is the Assistant Fire Chief for the Town of Berwick. He also
works as a delivery driver for Gagnon Propane and previously served on the
Town’s Board of Selectmen. Dennis is the Fire Chief for the Town of Berwick.
Long is a resident of Berwick and has a history of publicly criticizing the
Berwick Fire Department, including its leadership, and opposing proposed fire
department projects. The plaintiffs have both conceded that they are public
figures.2
[¶4] On October 27, 2011, Long was jogging with his wife on Worster
Road in Berwick. Bruce, who was driving a propane truck down that road,
“pulled wide around” Long, who waved. Bruce perceived Long’s wave and
facial expression as harassing and was “upset.” He pulled the truck to a stop
about 150 feet from Long and, while “hanging on the edge of the truck” and
raising his voice due to the distance between them, twice yelled to Long,
1 On appeal, Bruce challenges the court’s grant of summary judgment as to Counts 2 and 3 of the
complaint, which concern emails sent by Long on October 28, 2011. Dennis challenges the
judgment as to Counts 5 and 6, which concern emails sent by Long on April 24, 2012, and May 23,
2012. The Plantes also challenge the court’s grant of summary judgment in Long’s favor as to
Count 9 for punitive damages. We address only those facts relevant to the counts at issue on
appeal.
2 Long attempted to have the suit dismissed in its entirety pursuant to the anti-SLAPP statute,
14 M.R.S. § 556 (2016). We affirmed the trial court’s (Fritzsche, J.) determination that this attempt
was not timely. Plante v. Long, Mem-15-91 (Nov. 10, 2015).
3
“[H]ey, are you looking for me?” After Long replied that he was not looking
for Bruce and that he had “just [been] waving,” Bruce responded, “[D]on’t
bother.” Bruce got back in the truck and drove away. Although he had
intended to “let Mr. Long know he wanted nothing to do with him,” Bruce had
not intended to “instigate a fight.”
[¶5] The next day, Long sent an email to the chief and a captain of the
Berwick Police Department alleging that Bruce was harassing him and
recounting the events of the previous day. In the email, Long stated that
Bruce had yelled, “Hey do you want some of this? Are you fucking looking for
me?” and, “Hey I said do you want some of this? Are you looking for me?”
Long stated that he had heard that Bruce had “tried to intimidate [several
other people] by this very behavior,” and he asked the police to contact those
people to “further [their] investigation.” Long further stated that “[Bruce] is
clearly mentally unstable and I fear for what he is capable of doing. . . . [He] is
in a position to make me worry about the safety of my family and myself.” The
same day, copying Berwick’s police chief and another individual, Long sent a
second, very similar email to Bruce’s employer at Gagnon Propane.
4
[¶6] At some point,3 Dennis drove behind Long in a vehicle with fire
department insignia on it. There were initially two other vehicles between the
parties’ cars. Long turned down another road, pulled over, pulled back onto
the road after Dennis passed him, and followed Dennis.
[¶7] On April 24, 2012, Long sent an email to the Berwick Board of
Selectmen and others, stating in part that the Plantes had been following and
harassing people. On May 23, 2012, Long sent an email to the Berwick police
chief and copied another individual. The email stated in part that Bruce and
Dennis had “lied, followed, intimidated, and harassed people to get ‘Their
Cause’ pushed through.”
[¶8] In June of 2013, the Plantes filed a complaint against Long
containing eight counts of libel and one count of punitive damages. Over the
course of nearly three years, the parties engaged in a protracted discovery
process and motion practice. Although they failed to reach complete
agreement through alternative dispute resolution, they did stipulate to the
dismissal of Counts 1 and 7 of the complaint. In May of 2016, Long filed a
motion for summary judgment on the remaining seven counts, which the
3 The record provides no temporal information about this event.
5
court granted on November 7, 2016, after a nontestimonial hearing. The
Plantes timely appealed.
II. DISCUSSION
[¶9] This appeal requires us to determine, viewing the facts in the light
most favorable to the Plantes as the nonmoving parties, whether any genuine
issue of material fact exists and whether Long is entitled to judgment as a
matter of law. Diviney, 2017 ME 56, ¶ 14, 158 A.3d 5; see M.R. Civ. P. 56(c).
“When the defendant is the moving party, [he] must establish that there is no
genuine dispute of fact and that the undisputed facts would entitle [him] to
judgment as a matter of law. It then becomes the plaintiff’s burden to make
out a prima facie case and demonstrate that there are disputed facts.” Diviney,
2017 ME 56, ¶ 14, 158 A.3d 5 (alterations omitted) (citation omitted)
(quotation marks omitted). We will assume, for purposes of this opinion, that
the statements made by Long were false.4 The issue to be decided, therefore,
is whether the Plantes have made a prima facie showing of actual malice.5
4 Although there are many factual disputes about what each party actually said or did during the
incidents that Long complained about, a trier of fact who believed the Plantes’ versions of what
occurred could rationally find that Long’s statements describing the incidents were false.
5 Long also asserts that his statements consisted of opinion rather than fact and were therefore
not actionable. Because we conclude that the Plantes have failed to make the required prima facie
showing of actual malice, however, we do not reach that issue.
6
See Lester v. Powers, 596 A.2d 65, 69 (Me. 1991) (setting out the elements of
defamation).
[¶10] The Plantes are public figures and, as we have explained,
[d]iscussion of public officials and public figures on matters of
public concern, the U.S. Supreme Court has declared, deserves
special favor in a democratic society, and thus such discussion is
subject to a conditional privilege—the “First Amendment
privilege”—that can be overcome only by clear and convincing
evidence of [actual malice, i.e.,] knowledge or disregard of falsity.
Id. at 69 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)).
Thus, in order to survive summary judgment, the Plantes must present some
evidence that at least one of Long’s false statements was made with “‘actual
malice’—that is, with knowledge that it was false or with reckless disregard of
whether it was false or not.” Harte-Hanks Commc’ns, Inc. v. Connaughton,
491 U.S. 657, 659 (1989) (quoting Sullivan, 376 U.S. at 279-80). In other
words, they must produce evidence that could demonstrate that it is highly
probable that, at the time he sent the allegedly defamatory emails, Long in fact
knew that his statements were false or that he acted “with [a] high degree of
awareness of their probable falsity.” Michaud v. Town of Livermore Falls,
381 A.2d 1110, 1116 (Me. 1978) (quotation marks omitted); see Taylor v.
Comm’r of Mental Health & Mental Retardation, 481 A.2d 139, 154 (Me. 1984)
(explaining that the “clear and convincing” standard of proof, which protects
7
“important public interest[s],” requires a plaintiff to prove her allegations “to
a high probability”).
[¶11] In response to Long’s motion for summary judgment, the Plantes
offered evidence contradicting Long’s accounts of the events in question and
demonstrating a contentious history between the parties. See supra ¶¶ 4-7. If
believed by a trier of fact, the same evidence that showed Long’s statements to
be false and the relationship between Long and the Plantes to be contentious
could also give rise to an inference that Long bore the Plantes ill will.
Contrary to the Plantes’ assertions, however, the evidence of falsity, even
combined with the inference of ill will, would not be sufficient to support a
clear and convincing determination of actual malice.
[¶12] The element of objective falsity is distinct from that of actual
malice. At trial, a fact-finder must be presented with sufficient evidence to
allow her to conclude that the defendant ‘“in fact entertained serious doubts as
to the truth of his publication”’ regardless “of the assumed objective falsity of
the remarks.” Michaud, 381 A.2d at 1114-15 (quoting St. Amant v. Thompson,
390 U.S. 727, 731 (1968)). We have consistently refused to conclude that a
fact-finder may infer that a defendant was “consciously untruthful” from
evidence that her accusations were in fact false even if that evidence coincides
8
with indicia of the defendant’s ill will towards the plaintiff, e.g., that the
defendant destroyed or discarded her written records of the events in
question. Lester, 596 A.2d at 71-72 (concluding that the plaintiff’s proposed
inference of actual malice was “unsupported speculation” and inadequate to
survive a defendant’s motion for summary judgment); see Michaud, 381 A.2d
at 1115-16. Rather, we have been clear that “[e]vidence that some of [the
defendant’s] factual premises were objectively false, or even that no
reasonable person could have believed them to be true, does not show that
she knew or disregarded their falsity.” Lester, 596 A.2d at 71. Permitting a
fact-finder to draw such an inference would effectively merge the elements of
falsity and actual malice, thereby reducing the heightened burden assumed by
public figure plaintiffs in defamation actions and diminishing the “breathing
space” for protected speech that Sullivan and its progeny require.
Harte-Hanks, 491 U.S. at 686 (quotation marks omitted); see Lester, 596 A.2d
at 69 (citing Sullivan, 376 U.S. at 279-80).
[¶13] Nonetheless, the Plantes argue that we “reach[ed] too far” in
Lester and that we should merge the elements of falsity and malice in cases
involving “personal knowledge.” Their argument ultimately relies on
language the United States Supreme Court included in a decision in which it
9
reversed a libel judgment. See Time, Inc. v. Pape, 401 U.S. 279, 290 (1971)
(concluding that a magazine article summarizing a report by the United States
Commission on Civil Rights that discussed police brutality did not
demonstrate actual malice). In explaining its holding, the Court determined
that the Court of Appeals had erred in concluding that “‘malice’ in the sense of
an ‘intent to inflict harm through falsehood’ . . . might reasonably be inferred
from the very act of deliberate omission, and the issue of malice was
consequently one for the jury.” Id. at 285. The Court went on to state,
however, that it might be reasonable to infer actual malice from an act of
deliberate omission “when the alleged libel purports to be an eyewitness or
other direct account of events that speak for themselves.” Id.
[¶14] Twelve years later, the Court again discussed the “eyewitness”
inference mentioned in Pape and emphasized that its applicability was limited
to circumstances where the events at issue are so defined or obvious that
there is no room for ambiguity:
[T]he only evidence of actual malice on which the District Court
relied was the fact that the statement was an inaccurate
description of what [the eyewitness] had actually perceived. [The
eyewitness] of course had insisted “I know what I heard.” The
trial court took him at his word, and reasoned that since he did
know what he had heard, and he knew that the meaning of the
language employed did not accurately reflect what he heard, he
must have realized the statement was inaccurate at the time he
10
wrote it. Analysis of this kind may be adequate when the alleged
libel purports to be an eyewitness or other direct account of
events that speak for themselves. Here, however, adoption of the
language chosen was one of a number of possible rational
interpretations of an event that bristled with ambiguities and
descriptive challenges for the writer. The choice of such language,
though reflecting a misconception, does not place the speech
beyond the outer limits of the First Amendment’s broad
protective umbrella.
Bose Corp. v. Consumers Union of the U.S., Inc., 466 U.S. 485, 512-513 (1984)
(citations omitted) (quotation marks omitted).6
[¶15] This restriction on the applicability of the eyewitness inference—
that the inference may be made only when the events “speak for
themselves”—is also found in two cases the Plantes rely on in their assertion
that the falsity of Long’s statements should be sufficient to allow an inference
of malice. The first is Mahoney v. Adirondack Publishing Co., 517 N.E.2d 1365
(N.Y. 1987), a case in which the New York Court of Appeals considered the
eyewitness inference before ultimately deciding that it provided no support
for the plaintiff. The New York court held:
The inference depends for its validity on the premise that the
eyewitness could not have perceived and understood anything
but the truth. Thus, in reporting something else, the observer
6 In its decision, the First Circuit referred to the need for “objective facts” that “should provide
evidence of negligence, motive, and intent such that an accumulation of the evidence and
appropriate inferences supports the existence of actual malice.” Bose Corp. v. Consumers Union of
the U.S., Inc., 692 F.2d 189, 196 (1st Cir. 1982).
11
must have departed from the truth by design. The underlying
premise is valid, however, only if the events were unambiguous
and the setting was such that the observer could not have
misperceived those events. Such conditions, however, cannot
simply be assumed; as the proponent of the inference and the bearer
of the burden of proof of actual malice, the plaintiff must
demonstrate that they exist. No such showing was made here.
Id. at 1369 (emphasis added).
[¶16] The second is Ventura v. Kyle, 8 F. Supp. 3d 1115 (D. Minn. 2014),
a defamation action arising from a passage in Chris Kyle’s autobiography
describing an altercation with Jesse Ventura. In that case, Ventura asserted,
inter alia, that Kyle’s claim that he had punched Ventura was completely false
because there had never been any kind of physical altercation between them.
Id. at 1121-22. The United States District Court for the District of Minnesota
denied summary judgment to Kyle after concluding that, although it was
possible that he had misperceived Ventura’s words, Kyle’s statement of
“punching out” Ventura did not relate to an ambiguous event and, therefore,
an inference of actual malice could be drawn from the falsity of the statement.
Id.
[¶17] Even assuming that these cases demonstrate that some other
courts are moving towards a less rigorous review of the element of malice,
neither provides any support for the Plantes because they have not carried
12
their burden of showing that the events in question were unambiguous or that
Long could not have misperceived them or, alternatively, that an event
described by Long never occurred.
[¶18] According to his version of events, Bruce—who admits to being
“upset” at the time and believing that Long was “harassing” him—pulled his
truck over 150 feet from Long, “[hung] on the edge of the truck,” and yelled at
Long, “[A]re you looking for me?” and “[D]on’t bother.” Bruce’s account of the
incident is strikingly similar to Long’s and, given Bruce’s acknowledgement
that he was upset and yelling and the considerable distance between the
parties, what Bruce actually said could have been misperceived by Long.
Cf. Mahoney, 517 N.E.2d at 1369-70. Likewise, Dennis admits to having driven
a fire department vehicle behind Long for a period of time, an event that could
have been misperceived by Long given his apparent fear of Bruce, his belief
that Dennis never disciplined or controlled Bruce, and his history of criticizing
the fire department. These events bear a great resemblance to those in
Mahoney, see id.—events capable of misperception and thus not suitable to
support any inference of actual malice. They do not resemble the issue in
Ventura—where the parties’ dispute concerned whether a physical altercation
13
had or had not occurred, an event that could not have been misperceived,
see Ventura, 8 F. Supp. 3d at 1121-22.7
[¶19] Even if we were to adopt such an “eyewitness” inference, it
would not be applicable here. Although we agree that Long might fit the
definition of an eyewitness, the events he described do not “speak for
themselves,” so the Plantes gain no benefit from the application of any
possible eyewitness inference of actual malice.8 Because the Plantes have
7 The Plantes also draw our attention to Welsh v. City and County of San Francisco, No.
C-93-3722, 1995 WL 714350 (N.D. Cal. Nov. 27, 1995), in which the parties disputed whether the
defendant had in fact “physically grabbed and kissed the plaintiff against her will.” Id. at *5
(alterations omitted) (quotation marks omitted). Although the United States District Court for the
Northern District of California merged the elements of falsity and actual malice, we note that—just
as in Ventura—the material fact in dispute was whether an incident of physical contact had
occurred. See id. Whether such physical contact occurred is an unambiguous event, i.e., an event
that neither party could have misperceived.
8 A third opinion of the United States Supreme Court also bears on Bruce’s claims on appeal.
In Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991), the Court held that an author’s
“deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity
. . . unless the alteration results in a material change in the meaning conveyed by the statement.” Id.
at 517. In so holding, the Court explained that the “protection for rational interpretation” of
ambiguous events enunciated in Pape and Bose does not extend to “[the] orthodox use of a
quotation” by an author—“the quintessential direct account of events that speak for themselves.”
Id. at 519 (quotation marks omitted).
Although Long’s October 28, 2011, emails attributed the use of specific language to Bruce using
quotation marks, Masson does not save Bruce’s claims from summary judgment. The differences
between Long’s and Bruce’s accounts of the events of October 27, 2011, are not material. See supra
¶ 18. Given the parties’ underlying relationship, the addition or omission of a single instance of
profanity and the words “[D]o you want some of this?” are not significant; either version of events
leads the reader to conclude that a hostile interaction took place alongside the road that day.
See Masson, 501 U.S. at 517 (“Minor inaccuracies do not amount to falsity so long as the substance,
the gist, the sting, of the libelous charge be justified.” (quotation marks omitted)). Further, Long’s
use of quotation marks was not the “orthodox” or “quintessential” use contemplated by the Court in
Masson. Id. at 519. In stark contrast to Long’s hasty report of his interaction with Bruce, Masson
considered the use of quotations that an author for the New Yorker Magazine incorrectly attributed
to the plaintiff although she had access to many hours of taped interviews against which to verify
14
failed to produce any evidence of the sort required to establish actual
malice—evidence of the defendant’s negligence, motive, and intent—they
could not prevail at trial, and Long is entitled to a summary judgment.
The entry is:
Judgment affirmed.
JABAR, J., dissenting.
I. INTRODUCTION
[¶20] I respectfully dissent because the Court has improperly used
summary judgment to resolve factual disputes regarding motivation,
knowledge, or intent. The plaintiffs, Dennis and Bruce Plante, are entitled to
have a jury decide whether Long fabricated facts surrounding events that
occurred between the Plantes and Long.
her allegedly libelous statements and although the plaintiff had informed a fact-checker at the
magazine that the quotations were incorrect. Id. at 500-02, 513. Indeed, the Court anticipated just
such a case as the Plantes present to us today, acknowledging—after discussing the significance of
quotation marks—that the fact that “the [allegedly defamatory] work . . . recreates conversations
from memory, not from recordings, might indicate that the quotations should not be interpreted as
the actual statements of the speaker to whom they are attributed.” Id. at 512-13. Long’s use of
quotations, which were based solely on his memory of a somewhat unusual interaction, is therefore
not dispositive in this instance. See id. at 517 (“The use of quotations to attribute words not in fact
spoken bears in a most important way on [the actual malice] inquiry, but it is not dispositive in
every case.”).
15
II. DISCUSSION
[¶21] The Court correctly sets out the actual malice element of the
Plantes’ defamation claim against Long, that the Plantes must prove “that the
defamatory material was published with actual malice.” Ballard v. Wagner,
2005 ME 86, ¶ 10, 877 A.2d 1083. Proof of actual malice requires establishing
“that the statements were made with knowledge of their falsity or with
reckless disregard for their truth or falsity.” Id. ¶ 15.
[¶22] Although “[f]alsity and actual malice are distinct concepts,” and
therefore each must be proven to establish a claim for defamation of a public
official, “[i]t may be possible, as the United States Supreme Court has
suggested, that proof of falsity will support an inference of actual malice when
the alleged libel purports to be an eyewitness or other direct account of
events that speak for themselves.” Mahoney v. Adirondack Publ’g Co.,
517 N.E.2d 1365, 1369 (N.Y. 1987) (citation omitted) (quotation marks
omitted). This “inference depends for its validity on the premise that the
eyewitness could not have perceived and understood anything but the truth.”
Id. The crux of the inference therefore lies in the alleged defamatory
statements describing a version of the facts that the plaintiff disputes, as
16
opposed to the alleged defamer’s perception or interpretation of ambiguous
events. See id.
[¶23] In Ventura v. Kyle, a case discussed by the Court, Court’s Opinion
¶ 16, and relied upon by the Plantes to support their assertion that the falsity
of Long’s statements may be sufficient to prove actual malice, the United
States District Court for the District of Minnesota considered a defamation
case concerning an autobiography written by Chris Kyle containing a passage
in which he claimed to have punched former wrestler, actor, and Minnesota
Governor Jesse Ventura in the midst of a scuffle at a bar. 8 F. Supp. 3d 1115,
1116-17 (D. Minn. 2014). The court concluded that Ventura, through
affidavits of witnesses to the encounter, “presented sufficient evidence to
create a genuine issue of fact as to whether Kyle knowingly . . . published false
statements.” Id. at 1122. Although the court stated that “it is possible Kyle
could have misinterpreted Ventura’s comments to him and innocently
published a false account of them,” because a jury could find, based on the
evidence, that Kyle falsely wrote in his book that he had punched Ventura, the
jury “could reasonably conclude he fabricated the rest of his story.” Id. at
1121-22 (emphasis omitted). The court therefore determined that a jury
17
could infer from one false statement concerning an unambiguous event that
Kyle’s entire recitation of the encounter was false. Id.
[¶24] Ventura is unlike Michaud v. Town of Livermore Falls, in which we
held that where a “meeting led to high emotions and resulted in widely
varying perceptions and interpretations of the participants’ conduct,
depending upon each viewer’s degree and position of involvement,” there was
no proof of knowledge or reckless disregard for the falsity of a letter
criticizing a plaintiff who had been a participant at the meeting. 381 A.2d
1110, 1115 (Me. 1978). In Michaud, we concluded that, “although [the letter
was] possibly biased and exaggerated,” there was no evidence that it “was not
an honest communication relating the author’s own interpretation of the
plaintiff’s conduct.” Id. Here like the facts in Ventura and unlike the facts in
Michaud, the jury could infer that Long was not honest about the participants’
conduct.
[¶25] We have applied a similar reasoning when determining whether
an allegedly defamatory statement consisted of opinion alone, and was
therefore not actionable, or consisted of facts and was therefore actionable.
Lester v. Powers, 596 A.2d 65, 71-72 (Me. 1991); see Lightfoot v. Matthews,
587 A.2d 462, 463 (Me. 1991) (stating that a statement of fact is “an essential
18
element in an action for defamation”). In differentiating between fact and
opinion, we ask whether “it is clear from the surrounding circumstances that
the maker of the statement did not intend to state an objective fact but
intended rather to make a personal observation on the facts.” Caron v. Bangor
Publ’g Co., 470 A.2d 782, 784 (Me. 1984).
[¶26] We have held in many cases that issues of intent or animus can
rarely be decided as a matter of law. See, e.g., Beal v. Bangor Publ’g Co.,
1998 ME 176, ¶ 8, 714 A.2d 805. In Trott v. H.D. Goodall Hosp., a case
involving employment discrimination, we acknowledged that “direct evidence
of discriminatory animus will rarely be available.” 2013 ME 33, ¶ 19, 66 A.3d
7 (quotation marks omitted); see also Levesque v. Doocy, 560 F.3d 82, 90
(1st Cir. 2009) (stating that “direct evidence of actual malice is rare”).
Furthermore, “[a] factual determination of a motivation issue is heavily
dependent on inferences, circumstantial evidence, and credibility
determinations that do not easily allow resolution by summary judgment.”
Stanley v. Hancock Cty. Comm’rs, 2004 ME 157, ¶ 36, 864 A.2d 169 (Alexander,
J., dissenting).
[¶27] Therefore, we must here consider whether there is any dispute of
fact presented in the parties’ statements of material facts from which a jury
19
could infer that Long knew his versions of the event he described in his emails
were false. The jury should decide whether Long intended to state definitive
facts in his emails, or instead intended to state his perception or opinion of the
events giving rise to the emails. Although the Plantes contend that Long made
many defamatory statements, this case revolves around two events—an
incident between Long and Bruce, and an incident between Long and Dennis.
First, Long’s October 28, 2011, emails referenced an encounter on October 27,
2011, in which Long alleged that Bruce saw Long out jogging while Bruce was
driving a propane delivery truck, got out of the truck, and screamed
profanity-laced threats at Long. Second, Long’s April 24, 2012, emails
referenced an encounter where Long asserted that Dennis followed him. If
the events referenced by these emails are ambiguous or susceptible to
misperception, there can be no inference that Long acted with actual malice
because his emails, though possibly false, show only a misinterpretation of
events. See Ventura, 8 F. Supp. 3d at 1121; see also McMurry v. Howard Publ’ns,
Inc., 612 P.2d 14, 18 (Wyo. 1980) (“A subjective awareness of probable falsity
cannot be demonstrated under the standard of ‘convincing clarity’ by
evidence showing that the publisher and the plaintiff disagreed with respect
to their perceptions of events which they both observed.” (emphasis added)).
20
If, however, the events as recounted in Long’s emails are unambiguous and
nonetheless significantly differ from the Plantes’ asserted version of events,
then the Plantes are entitled on summary judgment to the benefit of the
inference that Long, as an eyewitness to unambiguous events, made false
statements in his emails with knowledge of the falsity of his statements.
Ventura, 8 F. Supp. 3d at 1121-22; see Mahoney, 517 N.E.2d at 1369.
A. Counts 2 and 3: Long’s Encounter with Bruce
[¶28] Counts 2 and 3 claimed as defamatory Long’s emails of
October 28, 2011—to the chief of police, a police captain, and Bruce’s
employer at Gagnon Propane—which recounted Long’s version of the
October 27 incident. Long’s emails both contained the subject line
“Harassment complaint” and indicated that he wanted to file a harassment
complaint—and possibly seek a restraining order—against Bruce. Long
asserted in the emails that as he and his wife were jogging, Bruce passed them
driving a truck, to which Long waved. The emails then state that Bruce
stopped his vehicle, hung out the side, and screamed, “Hey do you want some
of this? Are you fucking looking for me?” After Long ignored him, Bruce got
much louder and screamed, “Hey I said do you want some of this? Are you
looking for me?” to which Long replied, “No, just waving.” According to the
21
emails, Bruce then responded, “Don’t bother,” got back into the truck, and left.
Additionally, the emails state that Bruce “is clearly mentally unstable” and that
Long “fear[s] what he is capable of doing.” Long admitted to the content of the
emails in his response to the Plantes’ statement of material facts.
[¶29] The Plantes’ statement of material facts, however, describes an
event with significant differences from that indicated by Long’s emails.
According to the Plantes, Long smirked at Bruce as Bruce was driving by,
Bruce stopped the truck to ask if Long was looking for him, and Long replied
“no, I was just waving,” after which Bruce told him “don’t bother” and drove
away. The Plantes denied that Bruce used profanities during the encounter
and denied that he “screamed” at Long.
[¶30] There is no question that Long and the Plantes gave very
different versions of what occurred on October 27, 2011. If Long is believed,
Bruce intimidated and harassed him with provoking language, screaming,
“Are you fucking looking for me?” and “Hey do you want some of this?” Long
treated this as threatening language, stating in his email that he feared what
Bruce was “capable of doing.” If Bruce is believed, the exchange was less
provocative: Bruce inquired in a raised voice whether Long was looking for
him, but he did not scream profanities or yell “do you want some of this?”
22
Long’s use of quotation marks in his email makes it clear that there was no
misunderstanding of what he heard, and that he was directly attributing to
Bruce the threatening language and behavior. Long’s use of quotation marks
is evidence that Long was not simply stating his perception of what happened,
rather, it was a precise description of the event. His version of the encounter
is not an ambiguous interpretation; it is an unambiguous transcript of Bruce’s
words—one that the Plantes dispute. See Mahoney, 517 N.E.2d at 1369.
[¶31] Because “words and punctuation express meaning,” and
“quotations may be a devastating instrument for conveying false meaning,”
Masson v. New Yorker Magazine, 501 U.S. 496, 517 (1991), the difference in
words attributable to Bruce during this October 27 encounter is dispositive
here. If Bruce is believed, then the jury could infer that Long fabricated the
words and conduct he attributed to Bruce in the October 28 emails, and also
infer that he did so with knowledge of the falsity of his statements.
See Michaud, 381 A.2d at 1115. A jury would need to decide between two
competing versions of the truth—Long’s and the Plantes’—and determine
whether the encounter was benign or antagonizing. There is a genuine
dispute of material fact as to what Bruce in fact said to Long and whether Long
fabricated his version of events. See Estate of Lewis v. Concord Gen. Mut. Ins.
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Co., 2014 ME 34, ¶ 10, 87 A.3d 732 (“A genuine issue of material fact exists
when the [jury] must choose between competing versions of the truth.”
(quotation marks omitted)). If the jury believes Bruce, then just as the court
stated in Ventura, 8 F. Supp. 3d at 1121-22, it could infer that Long fabricated
the statements in his emails attributed to Bruce, and also infer that Long had
knowledge of the falsity of his emails. It is not for us to decide, as the Court
does, the import of the parties’ relationship and whether the interaction was
“hostile,” Court’s Opinion ¶ 19 n.8, we need consider only whether the dispute
over the facts is material. Here, the parties genuinely dispute what occurred
between them on October 27, and whether Long gave an honest version of
events in his emails. A jury should determine who is telling the truth.
B. Counts 5 and 6: Long’s Encounter with Dennis
[¶32] Count 5 alleges that Long’s statements in his April 24, 2012, email
to the Berwick Board of Selectmen—stating that both Bruce and Dennis were
following and harassing Berwick residents—is defamatory. Count 6 similarly
alleges as defamatory Long’s May 23, 2012, email to the chief of police stating
that Bruce and Dennis “lied, followed, intimidated, and harassed people” in
Berwick. The Plantes contend that summary judgment for Counts 5 and 6 was
inappropriate as to Dennis because “the only information Long had of Dennis
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following someone was a single occurrence where [Long] claims to have been
followed by Dennis.”
[¶33] Long admitted to the Plantes’ statement of material fact that he
has never been followed by Bruce, and in his deposition, Long recounted only
one occasion on which he was ever followed by Dennis. He stated that he was
driving in Berwick toward Rochester when he noticed Dennis following in a
white SUV “no more than four or five feet” behind him, and that he pulled over
to the side of the road to let Dennis pass.
[¶34] Dennis provided a very different version of the incident. Dennis
acknowledged that he was in a vehicle behind Long, but he stated that there
were two cars between them and that when he and Long turned right at an
intersection, the other two cars turned left, so that Dennis’s vehicle pulled up
behind Long’s. According to Dennis, Long pulled to the side of the road, at
which point Dennis passed him, and then Long then followed him, making
several identical turns, and following Dennis onto a dead end road into an
industrial park, including a U-turn out of the industrial park. Dennis stated
that Long stopped only when Dennis pulled to the side of the road to let him
pass.
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[¶35] As with the October 28 emails related to the October 27 jogging
incident, Long and the Plantes present two very different versions of the facts.
Taking the facts and all reasonable inferences in the light most favorable to
the Plantes, see Budge v. Town of Millinocket, 2012 ME 122, ¶ 12, 55 A.3d 484,
a jury could infer that Long knew of the falsity of his statement in the April 24,
2012, and May 23, 2012, emails that Dennis “followed” him.
[¶36] It is up to the jury to determine the credibility of the parties and
decide who has told the truth. See State v. Hodsdon, 2016 ME 46, ¶ 8, 135 A.3d
816. The question of whether there were other cars in between Dennis’s and
Long’s vehicles and whether Long then followed Dennis are questions of
unambiguous fact, rather than, as Long argues, subjective belief regarding
Dennis’s intentions. See Caron, 470 A.2d at 784. It is one thing to misperceive
being followed by another vehicle, even if several car lengths behind, but
there is no ambiguity to Dennis’s assertion that Long then pulled over and
followed Dennis, making several identical turns, and Long did not deny doing
so. If the jury were to believe Dennis’s version of events, rather than Long’s, it
could infer that Long fabricated his story, which would allow it to infer that
Long acted with actual malice. See Mahoney, 517 N.E.2d at 1369. The dispute
over which version of events is true is a genuine dispute of material fact, see
26
Estate of Lewis, 2014 ME 34, ¶ 10, 87 A.3d 732, and the court erroneously
granted Long’s motion for summary judgment as to Counts 5 and 6, insofar as
those counts relate to Dennis.
III. CONCLUSION
[¶37] The dissent in Stanley v. Hancock County Commissioners stated
that
recently, liberal use of summary judgment practice to resolve
factual disputes regarding motivation or intent—almost always in
favor of a defendant—has been sharply criticized as violative of
both the basic purpose of the summary judgment rule and the
essential right to a trial by jury guaranteed by our state and
federal constitutions and our civil rules. Arthur R. Miller, one of
the preeminent civil practice scholars of our time, observes that:
“Overly enthusiastic use of summary judgment means that
trialworthy cases will be terminated pretrial on motion papers,
possibly compromising the litigants’ constitutional rights to a day
in court and jury trial.”
2004 ME 157, ¶ 38, 864 A.2d 169 (Alexander, J., dissenting) (footnotes
omitted) (citing Arthur R. Miller, The Pretrial Rush to Judgment: Are the
“Litigation Explosion,” “Liability Crisis,” and Efficiency Cliches Eroding Our Day
In Court and Jury Trial Commitments? 78 N.Y.U. L. Rev. 982, 1071 (2003)).
Miller has also observed that
when viewing the material on a pretrial motion without the
safeguards and environment of a trial setting, courts may be
tempted to treat the evidence in a piecemeal rather than
cumulative fashion, draw inferences against the nonmoving party,
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or discount the nonmoving party’s evidence by weighing it against
contradictory evidence. Judges are human, and their personal
sense of whether a plaintiff’s claim seems “implausible” can
subconsciously infiltrate even the most careful analysis.
Encouraged by systemic concerns suggesting that summary
judgment is desirably efficient, judges may be motivated to seek
out weaknesses in the nonmovant’s evidence, effectively
reversing the historic approach.
Miller at 1071.
[¶38] Here, the Court has compared Long’s versions with the Plantes’
versions and determined that the two are similar enough that the Plantes
cannot prove that Long fabricated his version of the events. I disagree. Long’s
assertions in his emails that he felt intimidated by the Plantes’ behaviors do
not automatically transform his statements about the events to which he and
the Plantes were eyewitnesses into misperceptions or statements of opinion.
Long’s emails recount facts regarding the incidents, and several of those facts
are material and disputed by the Plantes. Because the Plantes are the
nonmoving party, they are entitled to all favorable inferences and, in this case,
to have their claims heard by a jury.
[¶39] For these reasons I would vacate the court’s summary judgement
and remand for trial.

Outcome: Judgment Affirmed

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