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SJC-12618

LYNNE BLANCHARD & others1 vs. STEWARD CARNEY HOSPITAL, INC.,

& others.2

Suffolk. January 8, 2019. - September 23, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, 

& Kafker, JJ.

"Anti-SLAPP" Statute. Practice, Civil, Motion to dismiss, 

Discovery, Deposition, Review of interlocutory action. 

Constitutional Law, Right to petition government.

Civil action commenced in the Superior Court Department on 

May 24, 2013.

Following review by this court, 477 Mass. 141 (2017), a 

special motion to dismiss was heard by Joseph F. Leighton, Jr., 

J.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Jeffrey A. Dretler for the defendants.

 

1 Gail Donahoe, Gail Douglas-Candido, Kathleen Dwyer, Linda 

Herr, Cheryl Hendrick, Kathleen Lang, Victoria Webster, and 

Nydia Woods.

2 Steward Hospital Holdings, LLC; Steward Health Care 

System, LLC; and William Walczak.
2

Dahlia C. Rudavsky (Ellen J. Messing also present) for the 

plaintiffs.

James A.W. Shaw, Jasper Groner, & Donald J. Siegel, for 

Massachusetts AFL-CIO, amicus curiae, submitted a brief.

LENK, J. This is the second time the defendants have 

appealed from the denial of their special motion to dismiss the 

plaintiffs' defamation claim, pursuant to the "anti-SLAPP"

statute, G. L. c. 231, § 59H.3 See Blanchard v. Steward Carney 

Hospital, Inc., 477 Mass. 141 (2017) (Blanchard I). In 

Blanchard I, we augmented the anti-SLAPP framework devised in 

Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 160 n.7, 

161 (1998) (Duracraft), vacated the denial of the hospital 

defendants' motion, and remanded the case for further 

proceedings. Blanchard I, supra at 155-161. On remand, the 

plaintiff nurses again defeated the special motion to dismiss, 

this time by establishing -- under the augmented framework --

that the challenged defamation claim is not a "strategic lawsuit 

against public participation," known as a "SLAPP" suit. See id.

at 157.

On appeal, the hospital defendants maintain that the motion 

judge erred in applying the augmented Duracraft framework. They 

 

3 We refer to Steward Carney Hospital, Inc., Steward 

Hospital Holdings, LLC, Steward Health Care System, LLC, and 

William Walczak collectively as the "hospital defendants," the 

"hospital," or the "defendants." We refer to the plaintiffs 

collectively as "the plaintiff nurses," the "nurses," or the 

"plaintiffs."
3

argue that the judge failed to determine with "fair assurance" 

that the entirety of the plaintiffs' defamation claim was

"colorable" and that it "was not primarily brought to chill the 

defendants' legitimate petitioning activity." 477 Harrison 

Ave., LLC v. JACE Boston, LLC, 477 Mass. 162, 164, 168 (2017). 

See Blanchard I, 477 Mass. at 160. The hospital defendants also

contend that the judge erred in denying their request for 

discovery in the form of depositions of the nine plaintiff 

nurses. For their part, the plaintiff nurses contend that the 

appeal is premature. We transferred the case to this court on 

our own motion to apply the newly augmented framework. We 

affirm.4

1. Background. Because this is the second time the

parties have been before us, we do not repeat the background of 

the case. See Blanchard I, 477 Mass. at 144-146. In summary, 

however, in the spring of 2011, all of the registered nurses and 

mental health counsellors who worked in the adolescent 

psychiatric unit (unit) of Steward Carney Hospital, Inc., were 

fired following reports of abuse at the unit. Id. at 142. 

William Walczak, then president of the hospital, issued 

statements "both to the hospital's employees and to the Boston 

Globe Newspaper Co. (Boston Globe), arguably to the effect that 

 

4 We acknowledge the amicus brief submitted by Massachusetts 

AFL-CIO.
4

the nurses had been fired based in part on their culpability for 

the incidents that took place at the unit." Id.

The plaintiffs, nine of the nurses, filed an action against 

the defendants for, among other things, defamation. Id. 

Pursuant to G. L. c. 231, § 59H, the anti-SLAPP statute, the 

hospital defendants filed a special motion to dismiss the 

defamation claim. Id. at 142-143. A Superior Court judge 

denied the motion, and the hospital defendants appealed. The 

Appeals Court reversed in part, see Blanchard v. Steward Carney 

Hosp., Inc., 89 Mass. App. Ct. 97, 98 (2016), and we granted 

further appellate review. We concluded that Walczak's 

statements to hospital employees were not protected petitioning 

activity, i.e., they had no "plausible nexus to the hospital's 

efforts to sway [the government's] licensing decision."5 

Blanchard I, 477 Mass. at 152. We therefore affirmed the denial

 

5 The anti-SLAPP statute, G. L. c. 231, § 59H, defines "a 

party's exercise of its right of petition" to mean:

"[1] any written or oral statement made before or submitted 

to a legislative, executive, or judicial body, or any other 

governmental proceeding; [2] 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; [3] any statement 

reasonably likely to encourage consideration or review of 

an issue by a legislative, executive, or judicial body or 

any other governmental proceedings; [4] any statement 

reasonably likely to enlist public participation in an 

effort to effect such consideration; or [5] any other 

statement falling within constitutional protection of the 

right to petition government."
5

of the anti-SLAPP motion concerning that aspect of the 

defamation claim.

With respect to the portion of the nurses' defamation claim 

that concerned Walczak's statements to Boston Globe, however, we 

concluded that the statements were protected petitioning 

activities. Id. at 150-151. In that regard, we reasoned that 

it could be "reasonably inferred" that the statements "were 

intended to demonstrate to [the government] the hospital's 

public commitment to address the underlying problems at the 

unit." Id. at 150. Although we vacated the order denying the 

hospital's anti-SLAPP motion, we augmented the Duracraft

framework to permit a nonmoving party, here the nurses, to 

defeat an anti-SLAPP motion by establishing that the claim 

nonetheless "does not give rise to a 'SLAPP' suit." Id. at 160. 

We remanded the case for further proceedings under the augmented 

framework, where "the burden will shift to the plaintiff nurses 

to make a showing adequate to defeat the motion." Id. at 143.

On remand, the judge denied the hospital defendants' 

request to conduct discovery in the form of depositions of the 

nine plaintiff nurses. Then, applying the augmented Duracraft

framework to the hospital's anti-SLAPP motion, he considered the 

pleadings and affidavits in the over-all context of the nurse's 

defamation claim and the record before him. Following the path 

outlined in Blanchard I, he determined that the plaintiff 
6

nurses' defamation claim was colorable. The judge then

concluded that the claim was not a SLAPP suit, because it was 

not brought primarily to chill the hospital defendants' exercise 

of the right to petition.

The hospital defendants again appealed from the denial of 

their anti-SLAPP motion, as is their right. See Fabre v. 

Walton, 436 Mass. 517, 521-522 (2002), S.C., 441 Mass. 9 (2004). 

Under the augmented Duracraft framework, they argue that the 

judge failed to apply the "fair assurance" standard articulated 

in Blanchard I to evaluate the nature of the plaintiff nurses'

defamation claim. They also contend that the judge erred in 

determining that the plaintiffs' defamation claim is colorable 

and that it was "not primarily brought to chill [the hospital 

defendants'] legitimate petitioning activities." Blanchard I, 

477 Mass. at 160. Finally, the hospital defendants maintain 

that the judge erred in denying their request for discovery in 

the form of depositions in support of their special motion to 

dismiss. For the reasons described below, we reject each of 

those claims.

2. The augmented Duracraft framework. When an anti-SLAPP 

motion is filed, the burden-shifting framework devised in 

Duracraft, and augmented in Blanchard I, applies. See Blanchard 

I, 477 Mass. at 147-148, 159-160. In applying the framework, 

"the court shall consider the pleadings and supporting and 
7

opposing affidavits stating the facts upon which the liability 

or defense is based." G. L. c. 231, § 59H. See Blanchard I, 

supra at 160. We review the judge's ruling for an abuse of 

discretion or error of law. See Blanchard I, supra; Baker v. 

Parsons, 434 Mass. 543, 550 (2001).

a. Threshold stage. At the threshold stage, the moving 

party -- the party alleging it has been the target of a SLAPP 

suit (here, the hospital defendants) -- bears the burden of 

establishing by a preponderance of the evidence that the 

putative SLAPP suit (i.e., the nurses' defamation claim) was 

"solely based on [the moving party's] own petitioning 

activities." Blanchard I, 477 Mass. at 159. See Cardno 

ChemRisk, LLC v. Foytlin, 476 Mass. 479, 484 (2017). There is 

no dispute, in this case, that the hospital defendants 

successfully met their burden at the threshold stage. See 

Blanchard I, supra at 151.

b. Second stage. If the threshold is crossed, the burden 

shifts to the nonmoving party (here, the plaintiff nurses) to 

demonstrate that the anti-SLAPP statute does not require 

dismissal of the claim. See Blanchard I, 477 Mass. at 159-160. 

As augmented in Blanchard I, there are two alternative paths

that the nonmoving party may use to satisfy this second stage

burden. See id. at 160. Evidence that is insufficient for
8

purposes of the first path may, of course, be considered in 

connection with the second path.

i. First path. The parameters of the first path echo the 

language of the anti-SLAPP statute. See Duracraft, 427 Mass. at 

165. As outlined in Duracraft, the nonmoving party (here, the 

plaintiff nurses) must establish by a preponderance of the 

evidence, see Baker, 434 Mass. at 544, that "(1) the moving 

party's [(the hospital's)] exercise of its right to petition was 

devoid of any reasonable factual support or any arguable basis 

in law and (2) the moving party's [(the hospital's)] acts caused 

actual injury to the responding party [(the nurses)]." G. L. 

c. 231, § 59H. Proving that the moving party's petitioning 

activity was, in essence, a sham presents a "high bar." 

Blanchard I, 477 Mass. at 156 n.20. The nurses, in this case, 

do not attempt to make that showing. Id.

ii. Second path. Under the newly augmented Duracraft

framework, a nonmoving party (here, the nurses) that cannot 

demonstrate that the moving party (here, the hospital 

defendants) engaged in sham petitioning nonetheless may defeat a 

special motion to dismiss its claim by following an alternative 

second path. See Blanchard I, 477 Mass. at 160. This second 

path requires the nonmoving party (here, the nurses) to 

demonstrate, "such that the motion judge may conclude with fair 

assurance," id., two elements: (a) that its suit was 
9

"colorable"; and (b) that the suit was not "'brought primarily 

to chill' the special movant's [(the hospital's)] legitimate 

exercise of its right to petition," i.e., that it was not 

retaliatory. Id. at 159-161, quoting Duracraft, 427 Mass. at 

161. See Sandholm v. Kuecker, 2012 IL 111443, ¶ 57 (cited in 

Blanchard I).6 Following this path, we first address the fair 

assurance standard announced in Blanchard I. Applying that 

standard, we then conclude that the motion judge neither erred 

nor abused his discretion in determining that the plaintiff 

nurses established both elements required for the second path, 

and that the defamation claim therefore was not a SLAPP suit.

A. Fair assurance standard. The judge's task with regard 

to the second path is to assess the "totality of the 

circumstances pertinent to the nonmoving party's asserted 

primary purpose in bringing its claim," and to determine whether 

the nonmoving party's claim constitutes a SLAPP suit. Blanchard 

I, 477 Mass. at 159, 160 ("a claim that is not a 'SLAPP' suit 

 

6 Under the Illinois anti-SLAPP act, 735 Ill. Comp. Stat.

110/1, it is the moving party's burden to demonstrate that the 

nonmoving party's suit is both "meritless" and "retaliatory." 

See Chadha v. North Park Elementary Sch. Ass'n, 2018 ILL App 

(1st) 171958, ¶¶ 91-93, and cases cited. Unlike the Illinois 

anti-SLAPP act, the Massachusetts anti-SLAPP act allocates the 

burden to the nonmoving party, here the plaintiff nurses. Among 

other things, the facts relevant to the determination are within 

the nonmoving party's sphere of knowledge, a consideration that 

facilitates expedited resolution of the special motion to 

dismiss at an early stage of the proceedings.
10

will not be dismissed"). We ask the judge to be "fair[ly] 

assur[ed]" in his or her conclusion. Id. at 160. This requires 

the judge to be confident, i.e., sure, that the challenged claim 

is not a "SLAPP" suit. See Commonwealth v. Lodge, 431 Mass. 

461, 468 (2000) (applying fair assurance standard, and 

concluding "confident" verdict would have been same); 

Commonwealth v. Knowles, 92 Mass. App. Ct. 617, 624 (2018) 

(where "confident" outcome would have been same, court can say 

with "fair assurance" that error was not prejudicial); 

Commonwealth v. Young, 22 Mass. App. Ct. 237, 241-242 (1986) 

("fair assurance" standard met where court "sure" result would 

have been same).

For purposes of this second path, an anti-SLAPP motion to 

dismiss will be denied if the motion judge concludes, with fair 

assurance, that the challenged claim is both colorable and not 

brought primarily to chill the moving party's legitimate

exercise of its right to petition.7 See Blanchard I, 477 Mass. 

at 159-161. It is the nonmoving party (here, the plaintiff 

nurses) that bears the burden of proof.

 

7 Although the motion judge must be fairly assured in his or 

her conclusion, talismanic words are not required. Here, the 

judge's citation to Blanchard I, discussion of the newly 

augmented Duracraft framework, and application of the facts to 

that framework make it readily apparent that he applied the 

correct standard.
11

We recognize that this fair assurance standard typically 

has been applied in the context of criminal proceedings to 

evaluate whether a preserved error is nonprejudicial.8 See, 

e.g., Commonwealth v. Helfant, 398 Mass. 214, 223-224 (1986) 

("fair assurance" achieved where court concludes any prejudice 

arising from error "did not possibly weaken [defendant's] case 

in any significant way"). We employ it in the anti-SLAPP 

context both because the same degree of assuredness is required 

and because an analogous contextual assessment is involved.

In both contexts, the court is asked to "ponder[] all that 

happened without stripping [the challenged claim] from the 

whole." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). 

In an anti-SLAPP context, the motion judge considers "[t]he 

course and manner of proceedings, the pleadings filed, and 

affidavits 'stating the facts upon which the liability or 

defense is based.'" Blanchard I, 477 Mass. at 160, quoting 

G. L. c. 231, § 59H. If the judge determines that the nonmoving 

party's claim "was not primarily brought to chill the special 

movant's [(the hospital's)] legitimate petitioning activities," 

but instead was brought to seek redress for harm caused by the 

 

8 The fair assurance standard has, however, also been 

applied in other contexts. See Abbott v. John Hancock Mut. Life 

Ins. Co., 18 Mass. App. Ct. 508, 522 (1984) (concluding with 

"fair assurance" that findings adopted by judge reflect 

independent judgment).
12

moving party's (the hospital's) conduct, then the anti-SLAPP

motion to dismiss the nonmoving party's (the nurses') claim 

properly is denied. Blanchard I, supra.

In making that determination, the judge may consider 

whether the case presents as a "classic" or "typical" SLAPP 

suit, i.e., whether it is a "lawsuit[] directed at individual 

citizens of modest means for speaking publicly against 

development projects." Baker, 434 Mass. at 548-549 & n.12, 

quoting Duracraft, 427 Mass. at 161. See Blanchard I, 477 Mass.

at 156 & n.21; Cardno ChemRisk, LLC, 476 Mass. at 480-482. 

Although we recognize that the anti-SLAPP statute is not limited 

in application to "typical" cases, see Baker, supra at 548-549, 

the presence or absence of the classic indicia may be 

considered.

Other factors that may be helpful in distinguishing an 

ordinary lawsuit from a SLAPP suit include, by way of example, 

whether the lawsuit was commenced close in time to the 

petitioning activity;9 whether the anti-SLAPP motion was filed

promptly;10 the centrality of the challenged claim in the context

 

9 A relatively close proximity in time between the 

petitioning activity and the nonmoving party's claim (or threat 

to bring the claim) may suggest that the claim was retaliatory

and intended to chill further participation in petitioning.

10 The anti-SLAPP statute is intended to secure early, 

inexpensive dismissal of SLAPP suits. When a special motion to 

dismiss is filed beyond "sixty days of the service of the 
13

of the litigation as a whole, and the relative strength of the 

nonmoving party's claim;11 evidence that the petitioning activity

was chilled;12 and whether the damages requested by the nonmoving 

party, such as attorney's fees associated with an abuse of 

process claim, themselves burden the moving party's exercise of 

the right to petition.13 Cf. Commonwealth v. Torres, 437 Mass. 

460, 465 (2002) (considering similar factors in nonprejudicial 

error analysis). See also Blanchard I, 477 Mass. at 156 & n.21.

We recognize that these factors are not exhaustive; that no 

single factor is dispositive; and that not every factor will 

 

complaint," as the anti-SLAPP statute contemplates, the judge 

may consider whether the delay in asserting the claim supports 

an inference that the moving party does not regard the claim as 

a SLAPP suit and that the nonmoving party likewise did not 

intend it as such. See G. L. c. 231, § 59H.

11 While the determination whether each individual claim is 

based solely on petitioning activity is the focus of Duracraft's 

threshold inquiry, at the second stage of the inquiry, the judge 

may consider the significance of that particular claim in the 

context of the litigation as a whole in assessing whether it was 

brought primarily to chill petitioning activity.

12 Evidence that the moving party's petitioning activity was 

or was not affected by the nonmoving party's lawsuit may be 

considered.

13 Where a nonmoving party asserts a claim predicated on the 

moving party's petitioning activity, and the claim is one for 

which an award of attorney's fees and costs may be available, 

the judge may consider whether the specter of such an award 

suggests an intent to forestall petitioning activity. Cf. Van 

Liew v. Stansfield, 474 Mass. 31, 40 (2016) (defense costs for 

improper petitioning activity constitute "actual injury" for 

purposes of G. L. c. 231, § 59H).
14

apply in every case. We leave it to the motion judge to 

consider and weigh these and other factors as appropriate, in 

light of the evidence and the record as a whole. It rests 

within the exercise of the judge's sound discretion to 

determine, based on that assessment, whether he or she is fairly 

assured that the challenged claim is not a SLAPP suit. If the 

claim is not a SLAPP suit, then, under the augmented Duracraft

framework, the claim "will not be dismissed." Blanchard I, 477 

Mass. at 159.

Applying this standard to the second path of the second 

stage Duracraft framework, we discern no abuse of discretion in 

the judge's assuredness that the plaintiff nurses' defamation 

claim was not a SLAPP suit. As described infra, the judge did 

not err in determining either that the nurses' defamation claim 

was colorable or that it was not brought for retaliatory 

purposes.

B. Colorable claim. "SLAPPs are by definition meritless 

suits." Duracraft, 427 Mass. at 164, quoting Barker, Common Law 

and Statutory Solutions to the Problems of SLAPPs, 26 Loy. L.A. 

L. Rev. 395, 399 (1993). Therefore, "[a] necessary but not 

sufficient factor in this analysis will be whether the nonmoving 

party's claim at issue is 'colorable or . . . worthy of being 

presented to and considered by the court." Blanchard I, 477 

Mass. at 160-161, quoting L.B. v. Chief Justice of the Probate & 
15

Family Court Dep't, 474 Mass. 231, 241 (2016). In essence, this 

requires consideration whether the claim "'offers some 

reasonable possibility' of a decision in the party's favor." 

Blanchard I, supra at 161, quoting Commonwealth v. Levin, 7 

Mass. App. Ct. 501, 504 (1979).

This "colorable" concept of merit has been applied in a 

variety of contexts, see L.B., 474 Mass. at 241 & n.17 (citing 

cases), including the type of early assessment required here. 

See General Motors Corp., petitioner, 344 Mass. 481, 482 (1962) 

("A meritorious case means one that is worthy of presentation to 

a court, not one which is sure of success"). It is a "lighter, 

less technical burden" of presenting a claim where threshold 

considerations are implicated, see L.B., supra at 241, 242, at a 

stage in the litigation when discovery typically has not yet 

occurred. It properly balances the parties' respective rights 

with the Legislature's purpose in expediting dismissal of 

"meritless" SLAPP suits. See Duracraft, 427 Mass. at 161.

In this case, we discern no abuse of discretion in the 

judge's determination that the plaintiff nurses' defamation 

claim was "colorable."14 Following investigation of a report of 

 

14 The plaintiff nurses are not required to demonstrate, as 

the hospital defendants contend, that their defamation claim has

a "reasonable likelihood of success" in comparison to the 

hospital defendants' defenses. The anti-SLAPP remedy is not 

intended as a dress rehearsal for summary judgment or trial.
16

an employee's alleged sexual assault on a patient, the hospital 

president's statements published in the Boston Globe implicated 

the entire "staff of [the hospital's] adolescent psychiatry 

unit" in "serious concerns about patient safety and quality of 

care," and described the unit as "not functioning properly." 

The plaintiffs were nine of only thirteen nurses who worked on 

the unit. The judge fairly characterized the statements as 

"implicat[ing] the plaintiffs in patient abuse and describ[ing]

their work as unacceptable and as contributing to an unsafe 

medical environment." If the statements falsely implicated the 

plaintiff nurses, as they claim, the statements are of a type 

that reasonably discredit the plaintiffs. See Draghetti v. 

Chmielewski, 416 Mass. 808, 811 (1994).

The colorability of the nurses' claim additionally is 

supported by the fact that, by the time the complaint was filed, 

one group of the plaintiffs had prevailed in another forum -- a 

labor arbitration where their union had filed grievances 

challenging their employment terminations. The arbitrator found 

that the hospital did not establish that the individual nurses 

committed dischargeable misconduct, and that the hospital

violated the collective bargaining agreement by discharging 

them. The arbitrator ordered that any allegations or findings 

of wrongdoing be expunged from the nurses' personnel files. He 

also ordered that the nurses be reinstated with back pay and 
17

benefits.15 Cf. Fabre, 436 Mass. at 524 (issuance of G. L. 

c. 209A order conclusive evidence, for purposes of second stage, 

first path, that the moving party's petitioning not "devoid of 

any reasonable factual support or arguable basis in law"). 

Although the hospital defendants had challenged the award in 

Federal court, at the time they brought the defamation claim, 

the plaintiff nurses had achieved a measure of success, which 

lends weight to its colorability.

C. Nonretaliatory claim. In addition to showing that its 

claim is colorable for purposes of the second path, the 

nonmoving party (here, the plaintiff nurses) also must 

demonstrate that the claim is not "retaliatory," see Fabre, 436 

Mass. at 520, i.e., that it is not a strategic suit "primarily 

brought to chill the special movant's [(the hospital's)]

legitimate petitioning activities." Blanchard I, 477 Mass. at 

160. See Matter of the Discipline of an Attorney, 442 Mass. 

660, 673-674 (2004). This requires the nonmoving party to 

establish that the "primary motivating goal in bringing its 

claim, viewed in its entirety, was 'not to interfere with and 

burden [the hospital] defendants' . . . petition rights, but to 

seek damages for the personal harm to [the plaintiff nurses]

 

15 Before the labor arbitration for the remaining plaintiffs 

commenced, all nine of the plaintiff nurses entered into a 

settlement agreement with the hospital.
18

from [the hospital] defendants' alleged . . . [legally 

transgressive] acts." Blanchard I, supra, quoting Sandholm, 

2012 IL 111443, ¶ 57.

Although the standard is expressed in subjective terms, a 

party's intent ordinarily may be inferred from objective facts 

and circumstances. See Parreira v. Commonwealth, 462 Mass. 667, 

670-671 (2012) (intent inferred "from objective facts and 

circumstances"); McLaughlin v. Selectmen of Amherst, 422 Mass. 

359, 364 (1996) (parties' intent ascertained from relevant 

instrument and objective circumstances). To determine the 

"primary motivating goal" of the nurses in this case, the motion 

judge was required to evaluate their "asserted primary purpose 

in bringing [their] claim," Blanchard I, 477 Mass. at 160, in 

light of the objective facts presented and any reasonable 

inferences that may be drawn from them, see id. at 149. This 

includes consideration of the "course and manner of 

proceedings," the pleadings filed, and the affidavits providing 

"objective indicia of a party's intent." Id. at 149, 160. Cf. 

Matter of the Discipline of an Attorney, 442 Mass. at 674 

(objective not to intimidate exercise of rights of petitioning 

but, rather, to impose professional discipline for violation of 

rules of professional conduct). If the judge, considering each 

claim as a whole, and holistically in light of the litigation, 

is fairly assured that "each challenged claim does not give rise 
19

to a 'SLAPP' suit," then the special motion to dismiss the 

plaintiff nurses' defamation claim properly is denied. See 

Blanchard I, supra at 160 & n.25.

The nine plaintiff nurses maintained that their defamation 

claim is a "legitimate suit based on real injuries and damages 

(lost earnings, persistent unemployment or underemployment, 

humiliation and other emotional distress, loss of reputation), 

and not a SLAPP suit designed to chill defendants' petitioning." 

The five-count complaint named (in relevant part) the then

president of the hospital where they had worked, the hospital 

itself, and related corporate entities. Only a portion of one 

of those counts -- alleging defamation based on the hospital 

president's statements to the Boston Globe -- implicated the 

hospital defendants' petitioning activity. At the time the 

complaint was "brought," despite the labor arbitration award, 

the nurses had not been reinstated to their employment, and had 

not been compensated for lost earnings or emotional or 

reputational injuries.

After considering the defamation claim, in light of the 

pleadings, affidavits, and the record as a whole, the motion 

judge concluded that the portion of the plaintiff nurses' 

defamation claim that rested on the statements published in the 

Boston Globe "was not primarily brought to chill the [hospital 

defendants'] legitimate petitioning activity." Blanchard I, 477 
20

Mass. at 160. The judge was warranted in his assurance that the 

nurse's defamation claim was not a SLAPP suit.

In reaching his decision, the judge considered the extent 

of the plaintiff nurses' cooperation with the investigation into 

the reports of abuse at the hospital unit; evidence of the 

plaintiff nurses' "restraint" in commenting publicly during the 

investigation of the hospital unit; and that the defamation 

claim rested both on statements made by the hospital defendants 

that were not petitioning activity, as well as on statements 

that were. The judge also considered the conflicting evidence 

about whether economic considerations rather than seeking 

redress for reputational damage, emotional distress, and other 

harm may have motivated the plaintiff nurses to bring their 

claim. In the end, there was sufficient objective evidence to 

permit the judge to conclude with fair assurance that the

nurses' primary goal in bringing the defamation action was not

to chill the hospital defendants' right to petition, or to 

interfere with the defendants' right to do so. The plaintiff 

nurses met their burden of establishing that their defamation 

claim was not a SLAPP suit.

Although we affirm the denial of the hospital defendants'

special motion to dismiss, we pause briefly to address two other 

points. We conclude that the motion judge did not err in 

denying the hospital defendants' request for discovery in the 
21

form of depositions of the nine plaintiff nurses. We also 

conclude that the doctrine of present execution continues to 

apply to the denial of an anti-SLAPP motion under the augmented 

Duracraft framework.

3. Discovery request. The purpose of the anti-SLAPP 

statute is to provide "a procedural remedy for early dismissal" 

of meritless SLAPP suits, Duracraft, 427 Mass. at 161, with a 

"specific goal of resolving 'SLAPP' litigation quickly with 

minimum cost," Office One, Inc. v. Lopez, 437 Mass. 113, 126

(2002). That purpose would be ill-served if, as the hospital 

defendants contend, discovery were required to ascertain each

plaintiff nurse's subjective motivation in filing the targeted 

claim. We reject that argument and conclude that the motion 

judge did not abuse his discretion in denying the request for 

depositions of each of the plaintiff nurses.

The anti-SLAPP statute "contemplates that a special motion 

to dismiss will be made within sixty days of the service of the 

complaint, and that once made, all discovery will be stayed 

until the motion is decided." Donovan v. Gardner, 50 Mass. App. 

Ct. 595, 601 (2000). See Cardno ChemRisk, LLC, 476 Mass. at 

483-484 (special motion to dismiss may be filed prior to 

completing discovery). Not only can such a motion "be brought 

prior to engaging in discovery," Blanchard I, 477 Mass. at 147, 
22

but the statute expressly provides that any associated discovery 

is permitted only by leave of court, see G. L. c. 231, § 59H.

Unnecessary discovery, like strategic delays in filing 

anti-SLAPP motions, unfairly burdens the nonmoving party, 

because the "attorney's fees and costs are mandatory for 

successful special motions, and the amount of the award need not 

be limited to legal work incurred in bringing the special motion 

itself." Office One, Inc., 437 Mass. at 126. See also Donovan, 

50 Mass. App. Ct. at 602. See also Blanchard I, 477 Mass. at 

159 ("expedited special motion to dismiss . . . tak[es] place 

early in the litigation and with limited discovery available 

only by leave of court").

Because discovery at this stage generally is inconsistent 

with the expedited procedural protections established by the 

anti-SLAPP statute, judges should be parsimonious in permitting 

it. We recognize that "there may be exceptional cases where 

discovery may be required before the moving party is in a 

position to learn the facts that indicate that a special motion 

to dismiss is warranted," Burley v. Comets Community Youth Ctr., 

Inc., 75 Mass. App. Ct. 818, 822 (2009), or to test the veracity 

of factual allegations. See Benoit v. Frederickson, 454 Mass. 

148, 155 (2009) (Cordy, J., concurring). But this is not such a 

case.
23

The hospital defendants allege that discovery is necessary 

to ascertain the plaintiff nurses' subjective motives in bring 

the defamation claim. As we have said, however, the judge's 

task is to evaluate whether the reasons they asserted were 

supported by reasonable inferences that could be drawn from the 

objective facts presented in the pleadings and affidavits, in 

light of the record as a whole. The anti-SLAPP statute is meant 

to shield a litigant from a meritless SLAPP attack, not to 

provide an arsenal of weapons, of which discovery might be one,

to attack ordinary lawsuits. In this case, the litigation has 

been ongoing for approximately six years and, during that 

period, the parties have engaged in substantial paper discovery. 

In the circumstances here, there was no abuse of discretion in 

the motion judge's decision to deny the hospital defendants' 

request for discovery in the form of depositions of the nine 

plaintiff nurses.

4. Doctrine of present execution. Finally, we address 

briefly the plaintiff nurses' contention that the doctrine of 

present execution should not apply to an anti-SLAPP motion 

denied under the augmented portion of the Duracraft framework. 

We disagree. Under the doctrine of present execution, an 

interlocutory order may be immediately appealed from "if the 

order will interfere with rights in a way that cannot be 

remedied on appeal from the final judgment." Fabre, 436 Mass. 
24

at 521. The anti-SLAPP statute "provides broad protections for 

individuals who exercise their right to petition from harassing 

litigation and the costs and burdens of defending against 

retaliatory lawsuits." Id. at 520.

Similar to the "protections afforded public officials by 

the doctrine of governmental immunity," the anti-SLAPP statute 

is intended to "immunize parties from claims 'based on' their 

petitioning activities." Id., quoting Duracraft, 427 Mass. at 

167. The protections accorded by the statute "are in large 

measure lost if the petitioner is forced to litigate a case to 

its conclusion before obtaining a definitive judgment through 

the appellate process." Fabre, supra at 521. See Benoit, 454 

Mass. at 151-152.

We acknowledge the plaintiff nurses' claim that the 

arguments raised by the hospital defendants are not "collateral" 

to the appeal in the manner often associated with other 

applications of the doctrine of present execution. See Elles v. 

Zoning Bd. of Appeals of Quincy, 450 Mass. 671, 674 (2008). The 

doctrine of present execution, however, applies to anti-SLAPP 

cases in order to preserve a moving party's "immunity" from 

being required to litigate a SLAPP suit. See Benoit, 454 Mass. 

at 151-152. The determination whether the nonmoving party's

claim is "colorable" at the second stage, second path, like the 

determination whether a moving party's petitioning claim is 
25

"devoid of merit" at the second stage, first path, is not a 

judgment on the merits of the claim. See id. at 158 n.3 (Cordy, 

J., concurring). It is an assessment relevant only to the 

determination whether the anti-SLAPP statute does or does not 

apply. Regardless of the arguments raised on appeal, 

interlocutory appeals from the denial of anti-SLAPP motions are 

governed by the doctrine of present execution.16

5. Conclusion. An ordinary lawsuit is not a SLAPP suit. 

See Matter of the Discipline of an Attorney, 442 Mass. at 673 

(statute not intended to "be misused to allow motions for 

expedited dismissal of nonfrivolous claims"). In this case, the 

motion judge did not err in concluding that the plaintiff 

nurses' colorable defamation claim was not a SLAPP suit because 

it was not brought with the primary motivating goal of chilling 

the hospital defendants' right to petition. Accordingly, we 

affirm the denial of the hospital defendants' special motion to 

dismiss. We also affirm the denial of the hospital defendants'

request for discovery. The matter is remanded to the Superior 

Court for further proceedings.

 

16 In keeping with the Legislature's intent that anti-SLAPP 

motions be resolved expeditiously, and with minimum cost, see 

Office One, Inc., 437 Mass. at 126, parties may seek leave of 

the appellate court to expedite an interlocutory appeal. We 

caution, however, that an appeal that is "frivolous, immaterial 

or intended for delay" is subject to sanction. See G. L. 

c. 211, § 10; G. L. c. 211A, § 15; Mass. R. A. P. 25, as 

appearing in 481 Mass. 1654 (2019).
26

So ordered.