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Caranchini v. Peck

United States District Court, D. Kansas

November 26, 2018

LOLA PECK, et al., Defendants.



         Pro se plaintiff Gwendolyn G. Caranchini filed the present action against Lola and Rick Peck, Johnson County Sheriff Calvin Hayden, and individuals from the Johnson County Court and District Attorney's Office. The matter is currently before the court on Rick and Lola Peck's Motion to Strike the Claims Against the Pecks Pursuant to K.S.A. 2016 Supp. 60-5320, Enforce the 30-Day Hearing Requirement and Stay of Discovery (Doc. 3). For the following reasons, the court grants the motion in part and denies it in part.

         I. Background

         Plaintiff filed a 147-page complaint on May 14, 2018. The court will highly summarize the facts relevant to the present motion. Plaintiff, a former attorney[1], and defendant Rick Peck were involved in an extra-marital affair. At some point Rick and his wife, defendant Lola Peck, filed for a Temporary Restraining Order (“TRO”) against plaintiff. At the time the TRO was filed, defendants were divorced but apparently still living together.

         On February 9, 2017, plaintiff appeared in front of a Johnson County District Court magistrate judge for a hearing on the TRO. At the conclusion of the hearing, deputies from the Johnson County Sheriff s Department arrived to arrest plaintiff on telephone harassment charges. These charges involved defendants. Plaintiff was taken to the Johnson County Jail, where she was held until she was released the following evening on bond. She was incarcerated for approximately 36 hours. The telephone harassment charges were eventually dismissed.

         Defendants are listed in Counts I, II, II, IV, and V of the complaint. In her complaint and response to the motion to strike, plaintiff summarizes the claims against defendants as follows:

. Count I - Libel/slander against Rick and Lola Peck for the false filing of the TRO and false testimony by Rick Peck during the TRO hearing,
. Count II - Libel/slander against Lola Peck for filing false paperwork on the telephone harassment charge and for making false statements to Assistant District Attorneys John Fritz and Michael McElhinney,
. Count III - Harassment/threat of bodily harm against Lola Peck,
. Count IV - Conspiracy to incarcerate against Lola Peck,
. Count V - Libel/slander against Lola Peck for claiming plaintiff was “in need of a mental examination” in documents filed in the telephone harassment case.

         Plaintiff seeks injunctive and monetary relief from defendants.

         II. Analysis

         Defendants moved to strike the claims against them pursuant to K.S.A. § 60-5320, the Public Speech Protection Act (“the Act”). Defendants argue that plaintiffs claims against them arise from the class of privileged communications defined by and protected by the Act.

         a. Kansas's Public Speech Protection Act, K.S.A. § 60-5320

         Enacted in 2016, the Act-also known as an “anti-SLAPP” statute-was passed to protect against “meritless lawsuits that chill free speech, ” known as SLAPPs, or “strategic lawsuits against public participation.” See Eric Weslander, The First Amendment Slapps Back: An Overview of the Free-Speech Protections of Kansas' New Anti-SLAPP Statute, J. Kan. B. Ass'n, January 2018, at 30, 31. The stated purpose of the statute is to “encourage and safeguard the constitutional rights of a person to petition, and speak freely and associate freely, in connection with a public issue or issues of public interest . . . while, at the same time, protecting the rights of a person to file meritorious lawsuits for demonstrable injury.” K.S.A. § 60-5320(b). Under the Act, a party may bring a motion to strike the claim if it is “based on, relates to or is in response to a party's exercise of the right of free speech, right to petition or right of association.” K.S.A. § 60-5320(d). The motion to strike may be brought early in the litigation-within 60 days of service of the complaint-and the court must hold a hearing on the motion not more than 30 days after service of the motion. Id. The statute also directs a court to stay all discovery until entry of the order on the motion to strike. K.S.A. § 60-5320(g).

         To invoke the protections of the Act, the party bringing the motion to strike must first make a prima facie case “showing the claim against which the motion is based concerns a party's exercise of free speech, right to petition or right of association.” K.S.A. § 60-5320(d). If the moving party meets this burden, the burden shifts to the responding party who must then “establish a likelihood of prevailing on the claim by presenting substantial competent evidence to support a prima facie case.” Id. The court must deny the motion to strike if the responding party meets this burden. Id. When deciding whether either party has met its burden, the court must consider the pleadings and any affidavits “stating the facts upon which the liability or defense is based.” Id.

         Defendants argue that plaintiff's claims against them are based on, relate to, or are in response to their exercise of the right of free speech, the right to petition, and the right of association. The Act defines the “exercise of the right of free speech” as “a communication made in connection with a public issue or issue of public interest.” K.S.A. § 60-5320(c)(1). A public issue or issue of public interest is an issue related to: (A) health or safety; (B) environmental, economic or community well-being; (C) the government; (D) a public official or public figure; or (E) a good, product, or service in the marketplace. K.S.A. § 60-5320(c)(7). The “exercise of the right to petition” means any communication pertaining to:

. A judicial proceeding; . An official proceeding, other than a judicial proceeding, to administer the law;
. An executive or other proceeding before a department of the state, federal government, or other political subdivision of the state;
. A legislative proceeding, including a proceeding of a legislative committee;
. A proceeding before an entity that requires by rule that public notice be given before proceedings ...

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