Anti-SLAPP motion sinks in defamation lawsuit brought by scuba school owners

A man who was hit with a defamation lawsuit after he accused a business and business owner of forging paperwork submitted for his diving certification cannot shield himself with the state’s anti-SLAPP statute after the Court of Appeals of Indiana determined his right to free speech had not been sunk.

Paul Burris III was sued after he notified the Professional Association of Diving Instructors that some of the paperwork submitted in support of his diving instructor certification had been forged. He discovered that a document clearing him for diving had been signed by a physician he had not seen and he accused Michael Ellis, one of the owners of the Bottoms Up Scuba Indy where Burris studied for his certification, of forging the doctor’s signature.

As a result, Ellis and his wife, Renata, and Bottoms Up were expelled from PADI’s membership. They then filed a complaint against Burris, asserting claims of defamation, tortious interference with a business relationship and with a contract.

Burris responded with a motion to dismiss pursuant to the anti-SLAPP statues, Indiana Code § 34-7-7-5.  He argued that since his allegedly defamatory or tortious statements were made in “furtherance of his right of free speech in connection with a public issue, the statements were protected speech and the plaintiffs claims against [him] [we]re barred by Indiana’s Anti-SLAPP statute.”

Ellis and the other plaintiffs countered Burris was not protected by the Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute because he falsely told PADI that Ellis had forged the documents submitted for certification. Also, when Burris argued he had a free speech right to contact PADI and tell the organization about the forgery of his application, the plaintiffs asserted this was not the type of case the anti-SLAPP statutes was intended stop because their defamation lawsuit was not aimed a chilling Burris’ First Amendment rights.

The Montgomery Superior Court sided with the plaintiffs, finding Gresk v. Demetris, 96 N.E. 3d 564 (Ind. 2018) was controlling. Specifically, the trial court held Burris had not made the statement in furtherance of his right to free speech and his statement to PADI was not a matter of public concern because the issue was privately reported to an organization and was not brought to the attention of the general public.

In Paul C. Burris III v. Bottoms Up Scuba-Indy, LLC, Michael Ellis and Renata Ellis, 21A-CT-570, the Court of Appeals affirmed on an interlocutory appeal brought by Burris.

The unanimous appellate panel found Burris failed to show his statements met the requirement under subsection (1) of the anti-SLAPP statute. That provision holds the trial court must determine whether an action was in furtherance of the person’s right of petition or free speech and if so, whether the action was in connection with a public issue.

“Burris’ report to PADI about his own paperwork and his allegation that Ellis may have forged the doctor’s signature on Burris’ paperwork were not in furtherance of Burris’ right of free speech and not in connection with a public issue. Burris statements to PADI, made in a phone call and by email, were not made pursuant to his free speech rights as they did not involve the ‘unfettered interchange of ideas for the bringing about of political and social changes desired by the people,’” Pyle wrote for the court, citing Gresk.  “Furthermore, ‘based on the narrow content, form, and context’ of Burris’ report to PADI, which involved a personal grievance about Burris’ own paperwork made in a private manner to an organization and not to the general public, his statements were ‘not a matter of public concern.”