polak v. ramirez-diaz

STATE OF VERMONT
SUPERIOR COURT >
CIVIL DIVISION
Franklin Unit ~

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Dockgt N0. 21-CV-594

KRISTINA J. POLAK
and
STEPHEN M. POLAK
Plaintiffs,
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FELIPE RAMIREZ-DIAZ t e

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YESICA SANCHEZ DE RAMIREZ
Defendants.

DECISION ON PLAINTIFFS’ MOTION TO RECONSIDER (MOTION 9)
AND TO AMEND THE COMPLAINT (MOTION 10)

In an August 17, 2021 decision, the court granted, in part, Defendants’ special
motion to strike the complaint as a strategic lawsuit against public participation (SLAPP)
pursuant to 12 V.S.A. § 1041, Vermont’s anti-SLAPP statute.1 Plaintiffs had brought suit
against Defendants asserting defamation and related torts due to alleged statements that
Defendants made to police, in court proceedings, and to members of the community. .

Plaintiffs have filed a motion to reconsider, which they labeled a motion to alter or amend?

“The standard for granting [a motion to reconsider] is strict, and reconsideration will
generally be denied unless the moving party can point t0 controlling decisions or data that
the court oyerlooked—matters, in other words, that might reasonably be expected to alter
the conclusion reached by the court.” Latouche U. North Country Union High School Dist.,
131 F. Supp. 568, 569 (D.Vt. 2001) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257
(2d Cir. 1995)).
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Plaintiffs argue substantially that the speech and petitioning at issue here (1) was
not in connection with a public issue, (2) Plaintiffs’ claims are not based solely on
petitioning activity, and (3) Defendants’ petitioning was devoid of any reasonable basis in
law or fact. The court declines to analyze this case anew because the arguments Plaintiffs

1
One claim survived the § 1041 motion. It is not currently at issue.

2 A motion to alter or amend typically refers to a post-judgment‘Rule 59(e) motion. There has been
.no entry of final judgment in this case on which to predicate such a motion. While the case remains
in an interlocutory phase, however, the court has intrinsic authority to revisit its earlier decisions,
typically invoked by a motion for reconsideration. See Cho U. State, 168 P.3d 17, 27 (Haw. 2007).
raise on reconsideration are not materiallydifferent than those they raised in opposition to
the original motion to strike. The court already has ruled on these matters. Plaintiffs
present nothing that the court has overlooked.3 Reconsideration is denied.

Plaintiffs also seek to amend the complaint t0 include additional allegations of
statements made by Defendants to members of the community rather than tothe police or
in court, ostensibly to overcome the court’s determination that most such alleged
statements were merely incidental to those made to the police and in court, which were the
primary motivation for this strategic litigation by Plaintiffs. Though the court usually
grants leave to amend liberally, Plaintiffs’ motion is denied for two reasons. First, the
amended pleading would fare no differently than the prior one did. Amendment therefore
is futile. See Perkins U. Windsor Hosp. Corp., 142 Vt. 305, 313 (1982). Moreover, however,
granting an anti- SLAPP motion, but then permitting the plaintiff to attempt to plead
around the statute, subjecting Defendants to yet more litigation, surely undermines
the
spirit, if not the letter, of § 1041.

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Order
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For the foregoing reasons, Plaintiffs’ motion to reconsider and motion to amend the
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complaint both are denied.
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Electr ically signed on 10 / 26 / 2021 1:18 PM, pursuant to V.R.E.F. 9(d) ,

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Vermont Supeziof Com
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A.‘Mcllo OCT 27 2021.
lskobert
uperior Judge .

WEE: Franklin Civil

3The court hastens to add that, to the extent that Plaintiffs’ arguments may reflect any
consideration of the constitutionality of § 1041, Plaintiffs never raised any constitutional issues in
opposition to the motion to strike, and it is too late now to do so.

2