Allen v. Fuller et al

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
)
ELIZABETH ALLEN, )
)
Plaintiff, )
)
) Civil Action No. 23-CV-10549-AK
v. )
)
MICHAEL FULLER and )
XVSOUTH, LLC, )
)
Defendants. )
)
MEMORANDUM AND ORDER ON PLAINTIFF’S
RENEWED MOTION FOR RECONSIDERATION OF THE MOTION TO DISMISS
THE COUNTERCLAIM PURSUANT TO THE ANTI-SLAPP STATUTE
ANGEL KELLEY, D.J.
On December 19, 2025, the jury returned a partial verdict in favor of Plaintiff/Counter-
Defendant Elizabeth Allen on her claim of promissory estoppel and breach of contract as to her
furniture, while finding against her on her other claims, including assault & battery. [Dkt. 153].
The jury found against the Defendants/Counter-Plaintiffs as to their counterclaims. [Id.]. On
December 10, 2025, the week before trial, Plaintiff filed a Motion for Reconsideration of the
Motion to Dismiss the Counterclaim Pursuant to the Anti-SLAPP Statute. [Dkt. 124]. The Court
denied that Motion, finding the Plaintiff’s filing was unreasonably late, but stated the Plaintiff
could renew her Motion post-trial. [Dkt. 126]. On February 4, 2026, Plaintiff did in fact file a
Renewed Motion for Reconsideration of the Motion to Dismiss the Counterclaim Pursuant to the
Anti-SLAPP Statute [Dkt. 169], which the Defendants oppose. [Dkt. 171]. Plaintiff filed a reply
on February 25, 2026 [Dkt. 175] and provided further Notice of Supplemental Authorities on
March 4, 2026. [Dkt. 176]. For the reasons stated below, the Court sees little reason to disturb
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its prior ruling(s) and Plaintiff’s Renewed Motion for Reconsideration of the Motion to Dismiss
the Counterclaim Pursuant to the Anti-SLAPP Statute is DENIED. Despite Plaintiff’s request,
the Court has sufficient information to resolve this Motion without oral argument.
I. LEGAL STANDARD
Granting a motion for reconsideration is “an extraordinary remedy which should be used
sparingly.” Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006) (citation omitted). The
Court may grant a motion for reconsideration only “if the moving party presents newly
discovered evidence, if there has been an intervening change in the law, or if the movant can
demonstrate that the original decision was based on a manifest error of law or was clearly
unjust.” United States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009). However, the Court must first
address a threshold issue—which is dispositive here—the timeliness of the motion. “With
interlocutory orders, whether a motion for reconsideration has been timely filed or not rests
solely on whether or not the motion was filed unreasonably late.” Villanueva-Mendez v. Nieves
Vazquez, 360 F. Supp. 2d 320, 323 (D.P.R. 2005), aff’d, 440 F.3d 11 (1st Cir. 2006); Standard
Quimica De Venezuela v. Cent. Hispano Int'l, Inc., 189 F.R.D. 202, 205 (D.P.R. 1999).
II. BACKGROUND
Although laid out in the prior Order [Dkt. 126 at 2-3], the Court will repeat the relevant
background here.
The Original Complaint in this matter was filed on March 13, 2023. [Dkt. 1]. On April
21, 2023, Defendants filed an Answer and the Counterclaims at issue here. [Dkt. 12]. On May
24, 2023, Plaintiff filed a Motion to Dismiss the Counterclaim Pursuant to the Anti-SLAPP
Statute. [Dkt. 16]. The intended early timing of such a Motion underscores its purpose: “In order
that such ‘disfavored’ litigation could ‘be resolved quickly with minimum cost to citizens who
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have participated in matters of public concern,’ the act amended G.L. c. 231, inserting § 59H, to
provide a procedural remedy for early dismissal of the disfavored SLAPP suits.” Duracraft Corp.
v. Holmes Prods. Corp., 427 Mass. 156, 161-62 (1998); see also Bristol Asphalt, Co. v.
Rochester Bituminous Prods., Inc., 493 Mass. 539, 548 (2024) (“The statute creates a procedural
vehicle—known as the special motion to dismiss—intended to secure the early dismissal of a
meritless SLAPP claim, along with attorney’s fees, before significant discovery has occurred.”).
After full briefing, the Court denied the Motion on July 24, 2023. [Dkt. 23].
Approximately seven months after the Court’s denial of the special motion to dismiss, on
February 29, 2024, the Supreme Judicial Court of Massachusetts (the “SJC”) modified the
framework by which motions pursuant to the Anti-SLAPP statute are decided. See generally
Bristol Asphalt, 493 Mass. 539. Nearly a month later, on March 19, 2024, Plaintiff filed an
Amended Complaint. [Dkt. 32]. Defendants filed their Answer on April 2, 2024, while also
reasserting their counterclaims. [Dkt. 33]. Plaintiff then filed an Answer to the Counterclaim on
April 12, 2024 [Dkt. 35], more than a month after the publishing of Bristol Asphalt, but did not
file a renewed Motion to Dismiss pursuant to the Anti-SLAPP statute. The case continued
through discovery and dispositive motion practice, with the Court setting trial for December 15,
2025, on July 9, 2025 [Dkt. 79], and resolving the Defendants’ Motion for Partial Summary
Judgment on August 20, 2025. [Dkt. 80]. No mention was made of the intervening change in
law in either the Joint Pretrial Memorandum [Dkt. 81], filed on October 29, 2025, or in
Plaintiff’s Trial Brief [Dkt. 104], filed on November 26, 2025.
Plaintiff then filed her original Motion for Reconsideration based on an intervening
change in law on December 10, 2025 [Dkt. 124], just five days before trial and one year, nine
months, and 12 days following the publishing of the change in law upon which the Motion
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relied. As stated in the Court’s ruling on that Motion, “this Court must answer the question: Is
this Motion unreasonably late?” [Dkt. 126 at 3]. At the time, the Court stated: “The answer is
resoundingly, yes. The fundamental purpose of a special motion to dismiss is to allow the early
dismissal of chilling counterclaims, dealing with their dismissal on an expedited basis to preserve
the parties’ and the Court’s resources. Nonetheless, nearly two years after an intervening change
in the law, and five days before a trial which has been set for five months, the Plaintiff filed this
Motion for Reconsideration. This dilatory motion practice by a party represented by four
competent and talented attorneys is unreasonable.” [Id.].
To reiterate, in the more than two years since the intervening change in law, the parties
have made numerous filings, undertaken several oral arguments, and resolved dispositive pre-
trial motions, yet failed to renew the Special Motion to Dismiss under the Anti-SLAPP statute
based on the intervening change in law. On its own, this would be sufficient to justify a
determination of unreasonable delay.
Notwithstanding the above, more troublesome for the Court is the timeline of filings in
this case. Here, the SJC decided Bristol Asphalt on February 29, 2024. After filing an Amended
Complaint, Defendants filed their Answer and asserted counterclaims on April 2, 2024, more
than a month after the “intervening” change in law. Yet, despite the established change in law,
on April 12, 2025, Plaintiff answered the counterclaims, failing to file any type of motion to
dismiss. There is little justification for failing to file the instant Motion then. Of note, Plaintiff
fails to offer any justification for failing to file this Motion at that time, despite Defendants’
argument in their Opposition and this Court’s prior order, in which it already indicated its belief
that there was unreasonable delay. Instead, Plaintiff simply relies on the statute, which states
that, generally, a special motion to dismiss “may be filed within sixty days of the service of the
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complaint or, in the court’s discretion, at any later time upon terms it deems proper.” Mass. Gen.
Laws ch. 231, § 59H (2022). Failing to file the instant Motion within 60 days of the Amended
Complaint, at a time when Plaintiff had access to all of the necessary information, including the
intervening change in law, does not establish terms the Court deems proper for filing now.
While not on a motion for reconsideration, another court in this District found that failing to file
an Anti-SLAPP Motion to Dismiss within 60 days was not excused by the SJC’s holding in
Bristol Asphalt Co. There, the filing party attempted to explain its delay of over a year by
saying, “[a]t the time of filing his motion to dismiss . . . the controlling legal framework for
interpreting Massachusetts’ anti-SLAPP statute had not yet been clarified by the Massachusetts
Supreme Judicial Court’s [ ] decision in Bristol Asphalt Co. v. Rochester Bituminous Products,
Inc., 493 Mass. 539 (2024).” Greenspan v. MasMarques, No. 23-CV-10134-DJC, 2025 WL
2234498, at *2 n.5 (D. Mass. July 14, 2025) (alterations in original) (internal quotation marks
omitted). In response, the Court stated, “[t]o the extent [the defendant] intends to rely on Bristol
Asphalt Co. to excuse his delay, that argument is unpersuasive as the decision was published in
February 2024, more than a year before this motion was filed.” Id. Here, where the Plaintiff had
the opportunity to timely file the Motion with the benefit of Bristol Asphalt Co., yet still waited
more than two years, there is no justification for the unreasonable delay.
Moreover, the prejudice to Defendants is clear. Even calculating from April, 2024, when
the Amended Complaint was filed, Plaintiff is requesting years of attorney’s fees based on
countless hours of litigation and resources expended by the parties and the Court. To require the
payment of such fees now, when this Motion could and should have been filed nearly two years
ago, cannot be allowed.
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In light of the above, the Court finds the filing of the instant Motion unreasonably late
and as a result, must be denied.
III. CONCLUSION
For the foregoing reasons, Plaintiff’s Renewed Motion for Reconsideration of the Motion
to Dismiss the Counterclaim Pursuant to the Anti-SLAPP Statute [Dkt. 169] is DENIED.
SO ORDERED.
Dated: March 23, 2026 /s/ Angel Kelley
Hon. Angel Kelley
United States District Judge
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