Plaintiff sued defendants after they circulated a flyer advocating he give his wife a religious divorce. The flyer contained plaintiff's photo and called for a protest outside his parents' home. His complaint sought a judgment for removal of his image, termination of the dissemination of the flyer, and uninfringed seclusion. The complaint also alleged plaintiff suffered emotional distress and sought monetary damages.
Plaintiff served all defendants but one. When the parties could not agree on service of the remaining defendant and a briefing schedule, defendants' counsel moved to extend time to answer the complaint, and plaintiff cross-moved for entry of default judgment. Defendants also filed an order to show cause under the Uniform Public Expression Protection Act (UPEPA), N.J.S.A. 2A:53A-49, to dismiss the complaint and for counsel fees, arguing plaintiff's complaint targeted their First Amendment activity.
The trial court granted defendants' motion to extend time to answer and denied plaintiff's cross-motion for default judgment. Plaintiff then voluntarily dismissed his complaint the same day, after receiving the court's ruling on the motions. Pursuant to Rule 4:50-1(f), defendants moved for relief from the judgment of dismissal to have the court reopen the matter to consider their application for counsel fees, costs, and expenses under the UPEPA. The court denied defendants' motion because they had not filed an answer to the complaint and remarked plaintiff's complaint was not frivolous.
On appeal, the court reversed and remanded for consideration of defendants' application for fees, costs, and expenses on the merits. The court held the UPEPA does not require a defendant in a strategic lawsuit against public participation (SLAPP) to file an answer before moving for dismissal and fees. Drawing on case law from another jurisdiction involving an anti-SLAPP statute like the UPEPA, and the plain language of the UPEPA itself, the court concluded an order to show cause for fees is not extinguished when a plaintiff dismisses their complaint or a trial court dismisses a plaintiff's complaint for lack of prosecution.
Anti-SLAPP statutes such as the UPEPA are designed to prevent a plaintiff from bringing litigation to siphon a defendant's money, time, and resources. Like other anti-SLAPP statutes, the UPEPA's order to show cause mechanism is intended to provide a defendant recompense where a plaintiff strategically dismisses their lawsuit to avoid paying a fee award. The UPEPA does not require a defendant to initiate a separate lawsuit for fees and costs.
The record is unclear whether the trial court had denied defendants' Rule 4:50-1(f) motion because it found plaintiff's lawsuit was not frivolous. To provide guidance to the court on remand, and in future cases, the court held the frivolous pleading standard applies under the UPEPA only where the court concludes the party responding to an order to show cause for fees prevailed, and "finds that the order to show cause was frivolous or filed solely with intent to delay the proceeding." N.J.S.A. 2A:53A-58(2).