Kaveh L. Afrasiabi v. President and Fellows of Harvard College.

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-1168

KAVEH L. AFRASIABI

vs.

PRESIDENT AND FELLOWS OF HARVARD COLLEGE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Kaveh L. Afrasiabi, appeals from a Superior

Court judge's allowance of a special motion to dismiss pursuant

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

President and Fellows of Harvard College (Harvard University or

defendant). We conclude that (1) the defendant has made a

threshold showing that the plaintiff's claims are based on its

petitioning activity alone and have no other substantial basis,

and (2) the plaintiff has not met his burden to show by a

preponderance of the evidence that the defendant's petitioning

activity lacked any reasonable factual support or arguable legal

basis. In those circumstances, the judge properly allowed the

special motion to dismiss.
Background. The plaintiff filed this complaint against the

defendant alleging that the defendant had defamed his character,

violated his civil rights, and intentionally and unintentionally

inflicted emotional distress. The complaint alleged the factual

basis underpinning those causes of action as follows:

"17. In early March, 2022, through the US Attorneys in New
York . . . [plaintiff] learned that Harvard University has
complained of 'harassment' by [plaintiff] to the FBI.
[The] US attorney['s] letter, dated March 3, 2022, stated:
'On February 23, 2022, a representative of [Harvard
University] contacted the Federal Bureau of Investigation
("FBI") to report that [plaintiff] sent harassing e-mails
to several [Harvard University] faculty members.'

"18. [The plaintiff] has never engaged in any unlawful act
of harassment and Harvard University has conveniently
misconstrued his unwanted complaints as harassment."1

The defendant filed a special motion to dismiss, along with

an affidavit of counsel attaching a copy of a March 3, 2022

letter to the plaintiff from two Assistant United States

Attorneys (March 3 letter). The defendant's counsel averred

that the March 3 letter was publicly available on the docket of

a criminal case then pending against the plaintiff in the United

States District Court for the Eastern District of New York. The

March 3 letter contained the same language quoted at paragraph

1 The March 3 letter referred to Harvard University as
"University-1." The parties do not dispute that the university
involved is Harvard University, and so we refer to it by name.

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17 of the plaintiff's complaint, and further informed the

plaintiff:

"[Harvard University] voluntarily provided some of those
e-mails to the FBI. Attached to some of the e-mails that
you sent to [Harvard University] faculty were documents
that had been disclosed to you in the government's
discovery production . . . 'subject to the terms of the
Court's August 12, 2021 Protective Order.' . . . The
materials attached to the e-mail that you sent to [Harvard
University] faculty were clearly stamped 'SUBJECT TO
PROTECTIVE ORDER' with the Bates numbers assigned to those
documents in the government's . . . production.

"Your disclosure of those materials without prior
authorization from the government or the Court was a
violation of the Protective Order."

The defendant asserted that it engaged in protected petitioning

activity under G. L. c. 231, § 59H, when it reported to the FBI

that the plaintiff had disseminated discovery materials that

were subject to a protective order.

The plaintiff opposed the special motion to dismiss,

including with his memorandum nine appendices of documents,

among which were copies of e-mails and communications from him

to faculty of the defendant, and arguing that their contents did

not constitute harassment. The plaintiff also moved to "cure"

the complaint by amending it to add the word "allegedly" to

paragraph 18 quoted above, so that it would read, "[The

plaintiff] has never engaged in any unlawful act of harassment

and Harvard University has conveniently misconstrued his

allegedly unwanted complaints as harassment" (emphasis added).

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In addition, the plaintiff moved for discovery from the

defendant of his e-mails that the defendant had "produced to the

FBI and branded as 'harassing.'"

A Superior Court judge allowed the defendant's special

motion to dismiss, ruling that the defendant's reporting to the

FBI that the plaintiff had sent the e-mails and their

attachments was protected petitioning activity. On the same

date, the judge denied plaintiff's motion for discovery. The

plaintiff then moved to reconsider the dismissal, arguing among

other things that the judge had failed to rule on his motion to

"cure" or amend the complaint. The judge denied the motion to

reconsider, and also denied the plaintiff's motion to amend the

complaint. The plaintiff appealed.

Discussion. Special motion to dismiss. We review de novo

the ruling on the defendant's special motion to dismiss,

"because both stages of our framework require resolution of

legal questions based entirely on a documentary record, for

which 'no special deference' is owed to a motion judge."

Bristol Asphalt Co. v. Rochester Bituminous Prods., Inc., 493

Mass. 539, 560 (2024) (Bristol Asphalt), quoting Board of

Registration in Med. v. Doe, 457 Mass. 738, 742 (2010).

At the first stage, we consider whether the defendant, as

proponent of the special motion to dismiss, has made "'a

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threshold showing through the pleadings and affidavits that the

claims against it are 'based on' the [party's] petitioning

activities alone and have no substantial basis other than or in

addition to the petitioning activities.'" Bristol Asphalt, 493

Mass. at 555, quoting Duracraft Corp. v. Holmes Prods. Corp.,

427 Mass. 156, 167-168 (1998). To make that determination, we

review the plaintiff's complaint "to identify which factual

allegations serve as the basis for a particular claim." Bristol

Asphalt, supra at 561.

We conclude that the defendant has met its burden at the

first stage. All of the plaintiff's claims are based on the

factual allegation that the defendant contacted the FBI and

reported that the plaintiff had sent its faculty e-mails,

attached to which were documents subject to a protective order.

Reporting to law enforcement a violation of a protective order

"is quintessential petitioning activity." Bristol Asphalt, 493

Mass. at 562. See also Benoit v. Frederickson, 454 Mass. 148,

153 (2009) (reporting alleged rape to police); Dever v. Ward, 92

Mass. App. Ct. 175, 179 (2017) (communication with law

enforcement is "quintessential petitioning activity").

In opposing the defendant's threshold showing that it

engaged in protected petitioning activity, the plaintiff makes

three arguments. First, he contends that the defendant was not

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engaged in petitioning activity when it made its report to the

FBI because it did not accuse the plaintiff of a crime. The

statutory definition of petitioning activity includes "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." G. L. c. 231,

§ 59H. The defendant's alerting the FBI that the plaintiff had

disseminated documents subject to a protective order was a

statement "in connection with an issue under consideration" in

the Federal case. Id. Cf. Marabello v. Boston Bark Corp., 463

Mass. 394, 400 (2012) (declining to reach question whether

defendant affirmatively sought redress based on statement

seeking to influence governmental body in response to government

investigation). Apparently as a result of the FBI's having been

alerted to that dissemination, the Federal prosecutors sent the

March 3 letter to the plaintiff.2 It did not matter that the

defendant did not also ask the FBI to criminally prosecute the

plaintiff for his conduct.

Second, the plaintiff contends that because the March 3

letter describes the plaintiff's e-mails as "harassing," a

2 As for the plaintiff's claim that some of the documents
marked "subject to protective order" were in fact "public
information," we take no position on the scope or enforceability
of the protective order, which is not in the record before us.

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description he contests, the defendant must have used that

adjective in making its report to the FBI and therefore the

report was defamatory, violated his civil rights, and caused him

emotional distress. We are not persuaded. Even assuming that

the defendant informed the FBI that it considered the

plaintiff's e-mails to be "harassing," that characterization did

not amount to "a substantial basis" in addition to the

defendant's exercise of petitioning activity by informing the

FBI that the plaintiff had disseminated documents in violation

of a protective order. Bristol Asphalt, 493 Mass. at 556.

Finally, the plaintiff argues that the judge improperly

declined to consider the defendant's motive in making its report

to the FBI. The argument is unavailing. "[N]either a special

motion proponent's identity, nor the motive behind its decision

to engage in petitioning activity (or to file a special motion

to dismiss), is relevant to the threshold inquiry." Bristol

Asphalt, 493 Mass. at 563.

We turn to the second stage, at which we consider whether

the plaintiff has shown that the defendant's "exercise of its

right to petition was devoid of any reasonable factual support

or any arguable basis in law." G. L. c. 231, § 59H, first par.

It is the plaintiff's burden to make that showing by a

preponderance of the evidence. See Bristol Asphalt, 493 Mass.

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at 563. For the plaintiff to prove that "petitioning is

'devoid' of any reasonable factual support or any arguable basis

in law is a difficult task." Id. at 557. In clarifying the

second stage, Bristol Asphalt abrogated Blanchard v. Steward

Carney Hosp., Inc., 477 Mass. 141, 160 (2017), which previously

held that at the second stage the opponent of the special motion

to dismiss must demonstrate only that "each . . . claim was not

primarily brought to chill the special movant's legitimate

petitioning activities" (emphasis added).

We conclude that the plaintiff did not meet his burden to

show that the defendant's petitioning activity, informing the

FBI that the plaintiff had sent the defendant e-mail attachments

bearing markings showing that they were subject to a protective

order, was devoid of any reasonable factual support or arguable

basis in law. See Bristol Asphalt, 493 Mass. at 557. The

reasonable factual support is shown by the plaintiff's complaint

alleging that since 1996 he has sent e-mails and letters to the

defendant about a "long-standing dispute" he has with the

university. And the arguable basis in law is shown by the March

3 letter and the words "SUBJECT TO PROTECTIVE ORDER" which were

printed on the documents that the plaintiff sent to the

defendant.

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Motion for discovery. The plaintiff argues that, unless he

is permitted discovery of the e-mails the defendant received

from him, the judge did not have a sufficient basis to determine

whether they were "harassing." We have already concluded that,

assuming that in its report to the FBI that that the plaintiff

had disseminated documents in violation of a protective order,

the defendant described the plaintiff's e-mails as "harassing,"

that characterization did not amount to "a substantial basis" in

addition to the defendant's exercise of petitioning activity.

Bristol Asphalt, 493 Mass. at 556.

Motion to "cure" complaint. The plaintiff argues that the

judge should have permitted him to amend paragraph 18 of the

complaint to state that the e-mails he sent to the defendant

were "allegedly" unwanted. In denying the motion, the judge

noted, "As [plaintiff] entirely denies wrongdoing, the insertion

of the word 'allegedly' does not change the sentence in question

in any meaningful way. Thus, the requested 'cure' is

meaningless and therefore futile." The judge did not abuse his

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discretion in denying the motion to amend the complaint to add

that adverb.3

Judgment affirmed.

Orders entered August 22,
2023, affirmed.

By the Court (Sacks,
Englander & Grant, JJ.4),

Clerk

Entered: November 15, 2024.

3 Included in a supplementary pleading filed after the
hearing on the defendant's special motion to dismiss was the
plaintiff's request that "the court should allow the Plaintiff
to amend the complaint by adding complaint of defendants'
violation" of G. L. c. 268, § 13B, the criminal statute
proscribing intimidation of a witness. In denying the motion to
reconsider, the judge noted that the plaintiff "lacks the
ability to bring criminal charges under G. L. c. 268, § 13B in
this setting." We discern no error or abuse of discretion in
that ruling.

4 The panelists are listed in order of seniority.

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