03/02/2020 II.  Legal Standard AYYADURAI v. FLOOR64, INC | 270 F.Supp.3d 343... | 20170907d75| Leagle.com On a motion to dismiss, the Court "must assume the truth of all well-plead[ed] facts and give plainti the bene t of all reasonable inferences therefrom." Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The "[f]actual allegations must be enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555, 127 S.Ct. 1955 (citations omitted). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Dismissal is appropriate if the facts as alleged do not "possess enough heft to show that plainti is entitled to relief." Ruiz Rivera v. P zer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (quotations and original alterations omitted). III.  Analysis A.  Motions to Strike Pursuant to California Anti-SLAPP Statute Defendants rst contend that the complaint should be struck pursuant to the California anti-SLAPP ("strategic litigation against public participation") statute, Cal. Civ. Proc. Code § 425.16. Plainti contends that under the applicable choice-of-law principles, Massachusetts law applies, and therefore the California statute is irrelevant. 2 The parties agree that if Massachusetts law applies, the conduct alleged does not fall within the scope of the Massachusetts anti-SLAPP statute. The "initial task of a choice-of-law analysis is to determine whether there is an actual con ict between the substantive law of the interested jurisdictions." Levin v. Dalva Bros., Inc., 459 F.3d 68, 73 (1st Cir. 2006). Here, there is a clear con ict between the California and Massachusetts statutes. Under the Massachusetts statute, parties may move to dismiss any claims against them that are based on that "party's exercise of its right of petition under the Constitution of the United States or of the commonwealth." Mass. Gen. Laws ch. 231, § 59H. See North Am. Expositions Co. v. Corcoran, 452 Mass. 852, 862, 898 N.E.2d 831 (2009) (de ning "petitioning" to include "statements made to in uence, inform, or at the very least, reach governmental [270 F.Supp.3d 353] bodies — either directly or indirectly" (internal quotation marks omitted)). The California statute, by contrast, is considerably broader, and allows parties to move to strike whenever they are sued for an "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" or "an issue of public interest." Cal. Civ. Proc. Code § 425.16(e) (emphasis added). Next, the Court must apply Massachusetts choice-of-law principles to determine which state's law should apply. 3 "Massachusetts state courts apply `a functional choice of law approach that responds to the interests of the parties, the States involved, and the interstate system as a whole.'" Reicher v. Berkshire Life Ins. Co. of Am., 360 F.3d 1, 5 (1st Cir. 2004) (quoting Bushkin Assocs., Inc. v. Raytheon Co., 393 Mass. 622, 631, 473 N.E.2d 662 (1985)). That approach is guided by the Restatement (Second) of Con ict of Laws (1971), and considers factors such as those set forth in § 6 of the Restatement. See Bushkin Assocs., 393 Mass. at 632, 634, 473 N.E.2d 662 ("Factors under § 6 that are said to be relevant to the choice of the applicable rule of law include: `(a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justi ed expectations, (e) the basic policies underlying the particular eld of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.'" (quoting Restatement (Second) of Con ict of Laws § 6(2) (1971))). In addition to those factors, Massachusetts courts "feel free ... to borrow from any of the various lists to help focus our attention on the considerations particularly relevant to the case before us." Id. at 634, 473 N.E.2d 662. Section 150 of the Restatement applies to claims involving multistate defamation. It provides that "[t]he rights and liabilities that arise from defamatory matter in any... aggregate communication are determined by the local law of the state which, with respect to the particular issue, has the most signi cant relationship to the occurrence and the parties under the principles stated in § 6." Restatement (Second) Con ict of Laws § 150(1). It further states that "[w]hen a natural person claims that he has been defamed by an aggregate communication, the state of most signi cant relationship will usually be the state where the person was domiciled at the time, if the matter complained of was published in that state." Id. § 150(2). Thus, there is e ectively a presumption that the law of the state of the plainti 's domicile will apply unless some other state "has a greater interest in the determination of the particular issue," as determined in accordance with the factors set forth in § 6 and "the purpose sought to be achieved by [the interested states'] relevant local law rules and of the particular issue involved." Id. § 150 cmt. b (citing id. § 145 cmts. c-d). Applying § 150 here, there is a presumption that the law of Massachusetts will apply. 4 First, defendants published allegedly [270 F.Supp.3d 354] defamatory statements in a form of aggregate communication, a website. Second, plainti was domiciled in Massachusetts at the time. Finally, the website, which is accessible by anyone anywhere with an Internet connection, was published in Massachusetts. The Court must next determine whether another state has a greater interest in the particular issue presented, according to the factors set forth in § 6. In this context, the most signi cant of those factors appears to be the relevant policies of the states. See Diamond Ranch Acad., Inc. v. Filer, 117 F.Supp.3d 1313, 1321 (D. Utah 2015). Here, each state has a strong, and con icting, interest. As to California, it has clearly "expressed a strong interest in enforcing its anti-SLAPP law to `encourage continued participation in matters of public signi cance' and to protect against `a disturbing increase in lawsuits brought primarily to chill the valid exercise' of constitutionally protected speech." Sarver, 813 F.3d at 899 (quoting Cal. Civ. Proc. Code § 425.16(a)). That interest would presumably be disserved by applying Massachusetts law and permitting this case to proceed. Massachusetts, on the other hand, has an interest in protecting its citizens from tortious conduct. By enacting an anti-SLAPP statute that applies only to claims involving a person's exercise of his or her right of petition, and not to claims involving a person's exercise of free-speech rights more generally, Massachusetts has attempted to balance the encouragement of protected speech with the desire to protect those who are harmed by defamatory statements. See Cardno ChemRisk, LLC v. Foytlin, 476 Mass. 479, 487, 68 N.E.3d 1180 (2017) ("[T]he anti-SLAPP statute... protects those looking to `advance[e] causes in which they believe, as well as those seeking to protect their own private rights" (citation omitted)). That interest would be disserved by applying California law and striking the complaint. Under the circumstances presented here, there is no reason to favor California's policy over that of Massachusetts. None of the other factors under § 6 are su cient to overcome the presumption favoring application of Massachusetts law. The parties each have justi ed expectations that their respective home-state laws would apply; plainti is a Massachusetts resident with no apparent ties to California; and the alleged tortious conduct occurred in California. In addition, ensuring the "certainty, predictability and uniformity of result" and "ease in the determination and application of the applicable law" favors adhering to the presumption set forth in § 150(2). Restatement (Second) Con ict of Laws § 150 cmt. b (citing id. § 6). In summary defendants have not overcome the presumption that Massachusetts law should apply Accordingly the motions https://www.leagle.com/decision/infdco20170907d75 3/15