MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2017 ME 189 Docket: Yor

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- 538 Argued: June	14,	2017 Decided: September 7 ,	2017 Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD, GORMAN,	JABAR , HJELM, and HUMPHREY, JJ. Majority : SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ. Dissent : JABAR,	J.

BRUCE	PLANTE	et	al.

v. RONALD P. LONG

GORMAN ,	J. [¶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	the ir defamation	action. The	court	concluded	that the	Plantes	failed to	make the	necessary prima	facie	showing	that	Long	acted	with	actual	mali ce. 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	 most2 favorable	 to	 the	plaintiffs	as	 the “ part [ ies ] against	whom summary judgment was	entered

. ” 1 S ee 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
T own’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

. T he plaintiffs have	both conceded	 that they	are public figure s . 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	 th at 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

r aising	 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,	an d	May 23, 2012 .	 	 The	 Plantes	 also	 challenge the	 court ’ s	 grant	 of	 summary	 judgm ent	 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	th e	suit	dismissed	in	its	en tirety 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	t o	do	with	him,” Bruce had

not intend ed to	“instigate	a	fight

. ” [¶5 ] The	next	day ,	Long	sent an email	to the	chief	and	a	c aptain 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,	c opying Berwick’s	police	c hief	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

. T here	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

c hief 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 Plante s filed	 a	 complaint against	 Long containing eight counts	of	libel	and one	count	of punitive damages. O ver	the course	 of nearly three	 years ,	 the	 parties engaged	 in	 a	 protracted	 discovery
process and	 motion	 practice

. Although the y failed	 to	 reach complete agreement	 through	 alternative	 dispute	 resolution, they	 did	 stipulate to	 the dismissal	 of C ounts 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 require s	us	to	determine,	viewing	the	facts	in	the	light most	favorable	to	th e	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	 M E	 56,	 ¶ 14,	 158	 A.3d	 5 (alteration s 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). [¶1 0 ] 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	 c an	 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, t he	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

awarene ss	 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	protects7 “important	public	interest[s],”	requires	a	plaintiff	to prove	her allegations	“to a	high	probability”). [¶1 1 ] In	response	to	Long’s	motion	for	su mmary	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

. I f believed by	a	trier	of	fact , th e 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	 Pl antes’	 assertions,	 however,	 the evidence	 of	 falsity,	 even combined	 with the	inference	 of	ill	 will,	 would	 not	 be	 sufficient	 to	 support	 a clear	a nd	convincing	determination	of	actual	malice. [¶1 2 ] T he element	 of	 objective	 falsity	 is distinct	 from that	 of actual malice

. A t	 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	evid ence coincides8 with indicia of	 the	 defendant’s	 ill	 will	 towards	 the	 plaintiff,	 e.g.,	 that the def endant 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

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. 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	 diminis h ing 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)

. [¶1 3 ] 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 it9 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	i nflict	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. [¶1 4 ] 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 inacc urate at the time he10
wrote it. Analysis of this kind may be adequate when the alleged libel purports to be an eyewitness or other direct account of ev ents that speak for themselves

. Here, however, adopt ion of the language chosen was on e of a number of po ssible 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 [¶1 5 ] Th is	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	Pub lishing Co. ,	517 N.E.2d	1365 (N.Y.	 1987) , a	 case	 in	 which	 the	 New	 York	 C ourt	 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	t o	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	 o f	 actual	 malice,	 the	 plaintiff	 must demonstrate	that	they	exist

. No	such	showing	was	made	here.
Id. at 1369 (emphasis	added). [¶1 6 ] 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 desc ribing	an	altercation	with	 Jess e	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	b e	drawn	from	the	falsity	of	the statement. Id. [¶1 7 ] Even	 a ssuming	 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	 carried12 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

. [¶1 8 ] 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	t he	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	 bet ween	 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	altercation13 had	 or	 had	 not occurred, an	 event	 that could	 not	 have	 b een	 misperceived,

see Ventura ,	8 F. Supp. 3d	at 1121

- 22. 7 [¶1 9 ] Even	 if	 we	 were	 to	 adopt such	 an “eyewitness ” inference,	 it would	 not	 be	 applicable	 here. Al though 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

— t he	 material	 fact	 in	 dispute was wh ether 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	 bear s on Br uce’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	 51 7 .	 	 In	 so	 holding,	 the	 Court	 explained	 that	 the	 “protection	 for	 rational	 interpretation”	 of ambiguous	 events	 enunciated	 in Pape and Bose does not	 exten d	 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. T he	 differences between	Long’s	and	Bruce’s	accounts	of	the	events	of	October 27,	2011,	are	not	material. S ee	supra ¶ 18

. G iven	 the	 parties’ underlying relationship,	 the	 ad dition	 o r omission	 of a	 single	instance of profanity and	the	words	“[D]o	you	want	some	of	this?” are	not signifi cant;	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 ” us e	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 M agazine	incorrectly	attributed to	the	plaintiff although she	had	access	to many hours	of	taped	interviews	against	which	to verify14 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	 tha t 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,	t he	Court anticipated just such	a	case	as	the	Plante s	present	to	us	today, acknowledg ing

— after	discussing	the	significance	of quotation	marks

— that the	 fact	 that “ the [allegedly	defamatory] work	 .	 .	 .	 recreates	conversations from	memory,	not from recordings,	might	in dicate	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	 malic e.” 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]al sity	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	infere nce	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	 th at	 the	 plaintiff	 disputes,	 as16 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	asser tion	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	 inno cently 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	 (emphasi s	 omitted).	 	 The	 court	 therefore	 determined	 that	 a	 jury17 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	whi ch	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	th at	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.
Lest er	 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	essential18 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	ha ve	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	acknowled ged	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”).
Fu rthermore,	 “[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	jury19 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	Lo ng	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	 h im.	 	 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,

t hen	 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	 recounte d	 Lon g’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	ig nored	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	 the21 emails,	Bruce	then	responded,	“Don’t	bother,”	got	back	into	the	truck,	and	left.
Addi tionally,	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’	 statem ent	 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	 Pla ntes	 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	m arks 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	tha t	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	 diff erence	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.23 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	a ttributed	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	co nsider	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.		C ount 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 inapprop riate	as	to	Dennis	because	“the	only	information	Long	had	of	Dennis24 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	fol lowed	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”	beh ind	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	a nd	 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	 foll owed	 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.25 [¶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 unambiguo us	 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	wou ld	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, see26 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 esse ntial	 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 trial worthy	 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.	 Mill er, 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,27 or	discount	the	nonmoving	party’s	evide nce	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’

vers ions	 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	transfor m	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.	 	 Becaus e	 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.28 Gene	R.	Libby,	Esq.,	and	Tyler	J.	Smith,	Esq. (orally) ,	Libby	O ’ Brien	Kingsley	& Champion,	LLC,	Kennebunk,	for	appellants	Bruce	Plante	and	Dennis	Plante Jonathan	 W.	 Brogan,	 Esq. (orally) ,	 and	 Joshua	 D.	 Hadiaris, Esq.,	 Norman, Hanson	&	DeTroy,	LLC,	Portland,	for	appellee	Ronald	P.	Long

York	County	Superior	Court	docket	number CV

- 2013

- 148 F OR C LERK R EFERENCE O NLY