ROBERT M.A. NADEAU & Another v. NANCY MADORE PRATT.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1267

ROBERT M.A. NADEAU & another1

vs.

NANCY MADORE PRATT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Engaged in a Maine civil action, the plaintiffs, Robert

M.A. Nadeau and the Committee to Re-Elect Judge Robert Nadeau

(Nadeau), filed a complaint in the Massachusetts Superior Court

against the defendant, Nancy Madore Pratt (Pratt), seeking to

compel a deposition. Pratt filed a counterclaim and amended

counterclaim (counterclaims) alleging abuse of process, and

Nadeau filed two motions to dismiss. Two different judges

denied Nadeau's motions to dismiss the counterclaims. Following

two jury trials on the abuse of process counterclaims, a second

jury awarded Pratt damages exceeding $170,000, and Nadeau

appealed. Because Nadeau's motions to dismiss pursuant to Mass.

1 Committee to Re-Elect Judge Robert Nadeau.
R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), should have been

allowed, we vacate the judgment.

Background. We distill a lengthy procedural background to

the essential points. Robert Nadeau served as an elected judge

in Maine. Following an election defeat on November 8, 2016,

Nadeau filed a civil complaint in Maine against Travis Lovejoy

(Maine litigation). In connection with the Maine litigation,

Nadeau desired to take the deposition of Pratt, who resided in

Massachusetts. After an agreement on the deposition could not

be reached, Nadeau filed a complaint against Pratt on April 10,

2017, in the Superior Court pursuant to G. L. c. 223A, § 11.

Under that statute, a Massachusetts judge "may order. . .

testimony . . . for use . . . outside [the] commonwealth." Id.

On May 4, 2017, Pratt filed a counterclaim that alleged

Nadeau has been a party in over twenty lawsuits in the last

decade, has sued Pratt on two prior occasions, and "continues to

use his law license and all the trusts that come with it, to

terrorize people." She claimed that the only purpose in prior

litigation has been harassment. Pratt asked that Nadeau be

required to submit all questions in writing and obtain judicial

approval before Pratt is required to respond. She also sought

sanctions for the time spent in responding to Nadeau's request

for a deposition.

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On August 30, 2017, Nadeau filed a motion to dismiss the

counterclaims. Citing Mass. R. Civ. P. 12 (b) (6), he argued

that the first counterclaim "essentially sounds in the nature of

an abuse of process claim and fails to state a claim upon which

relief can be granted." He further argued that Pratt "is unable

to sustain an abuse of process claim at this time, if ever."

Nadeau supplemented the record with a letter rogatory signed by

a Maine Superior Court judge who authorized the deposition of

Pratt and requested assistance of Massachusetts judges: "The

justices and judges of the Courts of the states in which those

deponents reside are hereby requested to facilitate the taking

and completion of those depositions to the extent their

assistance may be required." Nadeau also moved to dismiss

Pratt's counterclaims pursuant to the anti-SLAPP statute, G. L.

c. 231, § 59H (strategic litigation against public

participation).

On November 17, 2017, the first Massachusetts judge

dismissed Nadeau's complaint seeking to compel the deposition

and denied Nadeau's motions to dismiss the counterclaim. Nadeau

did not appeal the denial of the anti-SLAPP special motion to

dismiss.

Nadeau filed a motion for reconsideration and a request to

report a question to the Supreme Judicial Court. He argued that

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the dismissal of his complaint and the denial of his motions to

dismiss are inconsistent with Mass. R. Civ. P. 26 (b) (1), 365

Mass. 772 (1974). He asserted, "The scope of discovery is

broad, by rule, with the clear purpose of enabling parties in

litigation to obtain information in the full and fair

preparation of parties' cases." He emphasized that depositions

"are a general right of parties in litigation, and a respected

means of promoting the acquisition of relevant information in

aid of due process, namely, a full and fair trial." The first

judge denied this motion in an endorsement order.

In the meantime, Pratt filed an amended counterclaim and

alleged a long history of Nadeau initiating baseless litigation

against Pratt and others for the purpose of harassment. Pratt

further alleged that the request for the deposition was

"improper" and constituted an "illegal attempt to compel a

'witness' to incriminate herself." Pratt also referenced a book

in which she detailed Nadeau's litigation tactics that resulted

"in a punitive effect for his opponents whether he wins or

loses." Pratt asserted that Nadeau is "well known for his

excessive pleadings, misrepresentations and abuses of the

discovery process." Pratt sought the denial of the request for

a deposition, a finding that Nadeau acted in bad faith, and a

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sanction against Nadeau for sixty-four hours of work Pratt

expended in her pro se opposition.

In response to the amended counterclaim, Nadeau filed a

second motion to dismiss under Mass. Civ. P. R. 12 (b) (6), for

failure to state a claim. He disputed Pratt's allegations but

argued that even if the allegations were true and he harbored an

"ulterior motivation" to conduct a deposition, "his effort to

seek this Court's authorization to depose her relative to the

Maine litigation" cannot "support an abuse of process cause of

action." The first judge took no action on the second motion to

dismiss. One and one-half years later, on June 21, 2019, on the

eve of trial, a second judge denied Nadeau's second motion to

dismiss. Following a retrial on the issue of damages, a second

jury returned a verdict in favor of Pratt, and a judgment

entered exceeding $170,000. Nadeau filed a timely notice of

appeal.

Discussion. In reviewing whether a complaint states a

claim under Mass. R. Civ. P. 12 (b) (6), "we accept as true the

allegations in the complaint, draw every reasonable inference in

favor of the plaintiff, and determine whether the factual

allegations plausibly suggest an entitlement to relief under the

law." Barbuto v. Advantage Sales & Mktg., LLC, 477 Mass. 456,

457–458 (2017). A claim for abuse of process is properly

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dismissed where "there could be no liability as a matter of

law." Cuddy v. Kueker, 7 Mass. App. Ct. 896, 897 (1979). "We

review the denial of a motion to dismiss de novo." Pettiford v.

Branded Mgt. Group, LLC, 104 Mass. App. Ct. 287, 290 (2024).

"[T]raditionally, discovery activities have not provided

grounds for abuse of process actions in Massachusetts. Cases

recognizing abuse of process claims have been limited to three

types of process: writs of attachment, the process used to

institute a civil action, and the process related to bringing

criminal charges" (citations omitted). Alphas Co. v. Kilduff,

72 Mass. App. Ct. 104, 115 (2008). An "abuse of process claim,

aimed at curtailing discovery activities, would be inconsistent

with the spirit of Mass. R. Civ. P. 26 (b) (1), 365 Mass. 772

(1974), which affords broad latitude in the discovery of

relevant information and is not limited to the issues raised in

the pleadings or to the merits of the case." Id. at 116. See

Sullivan v. Chief Justice for Admin. & Mgt. of Trial Court, 448

Mass. 15, 33 n.11 (2006) ("discovery, by its nature, is quite

broad"); Carr v. Howard, 426 Mass. 514, 528 (1998) (scope of

discovery "is broad"); Tannenbaum v. Grady, 413 Mass. 717, 718

(1992) ("spirit of full discovery promoted by the Massachusetts

Rules of Civil Procedure").

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Accepting the allegations in the counterclaims as true, we

conclude that Pratt lacked any "entitlement to relief under the

law" on an abuse of process cause of action in the context of a

discovery dispute. Barbuto, 477 Mass. at 458. Nadeau filed his

complaint against Pratt in Massachusetts for the purpose of

obtaining "[j]udicial assistance," Matter of a R. I. Select

Comm'n Subpoena, 415 Mass. 890, 895 (1993), in securing

deposition "testimony . . . for use . . . outside this

commonwealth," G. L. c. 223A, § 11, in the pending Maine

litigation. The animating purpose of the statute is comity that

promotes respect for foreign jurisdictions, encourages

reciprocal assistance, and facilitates the administration of

justice. By invoking the statute and seeking judicial

assistance in obtaining the deposition testimony of Pratt,

Nadeau attempted to employ one of many discovery tools made

available to all civil litigants. See Mass. R. Civ. P. 30, as

appearing in 489 Mass. 1401 (2022). While protective orders

relating to such discovery may always be sought, Mass.

R. Civ. P. 26 (c), as amended, 474 Mass. 1401 (2016), Pratt did

not have an independent cause of action for abuse of process.

See Alphas, 72 Mass. App. Ct. at 115-116. Pratt's counterclaims

for abuse of process necessarily lacked an "entitlement to

relief under the law." Barbuto, supra at 458. An abuse of

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process claim is properly dismissed where, as here, "there could

be no liability as a matter of law." Cuddy, 7 Mass. App. Ct. at

897. Therefore, Nadeau's motions to dismiss under Mass. R. Civ.

P. 12 (b) (6) should have been allowed.

Conclusion. The judgment in favor of Pratt on her

counterclaims is vacated, and the orders denying Nadeau's

motions to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6) are

reversed. The case is remanded to the Superior Court for entry

of a judgment dismissing Pratt's counterclaims with prejudice.

The appeal from the order dismissing Nadeau's complaint to

compel deposition testimony is dismissed, not on the merits but

because it is moot given the termination of the underlying Maine

litigation. Nadeau's request for an award of costs is denied.

So ordered.

By the Court (Blake, Walsh &
Hodgens, JJ.2),

Clerk

Entered: October 22, 2024.

2 The panelists are listed in order of seniority.

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