THE STATE OF NEW HAMPSHIRE

ROCKINGHAM, SS SUPERIOR COURT

Docket No. 218-2019-CV-00158

Paul Maravelias
v.
Amy Anderson

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

I. INTRODUCTION

1. On 3/29/19, Amy Anderson (“Defendant”), by counsel, filed a pleading

purporting to be a “Motion to Dismiss” (hereinafter, “Def. MTD”). She also filed a

Memorandum of Law in support (hereinafter, “Def. MTD Mem.”).

2. Defendant’s alleged conduct is part of 2.5-year-long pattern of malicious

defamation and vexatious legal harassment which the Anderson and DePamphilis families have

colluded to bring against Maravelias. See Complaint, ¶35 and ¶39. Defendant’s Motion puts

Plaintiff in a false negative light with verbal posturing about the 2016 DePamphilis restraining

order petition. Such diversionary tactics do not change that the instant action addresses Ms.

Anderson’s defamatory conduct against Maravelias, not that of DePamphilis or anyone else.

II. STANDARD OF REVIEW

3. In ruling on a motion to dismiss, the Court determines “whether the allegations

contained in the pleadings are reasonably susceptible of a construction that would permit

recovery.” Pesaturo v. Kinne, 161 N.H. 550, 552 (2011). The Court “assume[s] the truth of the

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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
facts alleged by the plaintiff and construe[s] all reasonable inferences in the light most favorable

to the plaintiff.” Lamb v. Shaker Reg’l Sch. Dist., 168 N.H. 47, 49 (2015). The Court will only

grant a motion to dismiss “if the facts do not constitute a basis for legal relief”. Graves v.

Estabrook, 149 N.H. 202, 203 (2003).

4. Compared to federal courts, New Hampshire’s “reasonably susceptible

construction” pleading standard is more liberal in favor of plaintiffs. In federal practice, “[a]

complaint must contain sufficient factual matter ... to ‘state a claim for relief that is plausible on

its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). However, courts have held even under the more rigid

federal pleading standards that “[a] well-pleaded complaint may proceed even if it strikes a

savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote

and unlikely.’” Twombly. at 1965 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

Dismissal is proper only if “it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78

S.Ct. 99, 2 L.Ed.2d 80 (1957); accord Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir.

1999). The Court “need not, however, assume the truth of statements that are merely conclusions

of law.” Lamb, supra.

5. Applied to Plaintiff’s 2/4/19 Original Verified Complaint (hereinafter,

“Complaint”), these standards prohibit the Court from granting a motion to dismiss as a matter of

law. Because Defendant’s arguments turn substantially upon her contested factual assumptions

rather than purely legal argument, further discovery is needed, at a minimum, to adduce any

probative value to the said arguments, which are premature at-best.

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III. ARGUMENT

A. Defendant Failed to Serve Maravelias a Complete Copy of Her 3/29/19

“Memorandum of Law in Support of Defendant’s Motion to Dismiss”, Depriving
Him of Any Fair Opportunity to Respond

6. Defendant’s 3/29/19 Motion to Dismiss Memorandum of Law contains plural

references aliunde to four alleged “Exhibits” attached to said pleading. She quotes these

“Exhibits” and proffers detailed fact-based argument relying on their content. First, such

extrinsic “Exhibits” are totally inappropriate within a Motion to Dismiss as explained infra.

Second, Defendant has wholly omitted these Exhibits in the documents counsel electronically

serviced upon Plaintiff for said motion. See Maravelias’s Declaration and Affidavit in Support of

Plaintiff’s Opposition to Defendant’s Motion to Dismiss, filed contemporaneously herewith.

7. Since Defendant failed to send Plaintiff a complete copy of her pleading, Plaintiff

is devoid of notice as to these “Exhibits” in content, as reproduced by Defendant. He has no way

of reviewing their content nor determining their authenticity. For this reason alone, Defendant’s

entire motion must be denied for improper service in violation of N.H. Super. Ct. R. 3(a).

B. Defendant’s 3/29/19 Pleading Is Not a “Motion to Dismiss” Because It Requires the

Court to Resolve Disputed Issues of Fact

i) Defendant’s Defective 3/29/19 Pleading Injects A Gallimaufry of Premature

Extrinsic “Exhibits” to Circumvent This Court’s Rules and Elude Discovery1

8. Defendant’s 3/29/19 Memorandum of Law attempts to ambush Plaintiff and

pervert the proper course of litigation by introducing four extrinsic evidentiary “Exhibits”. It

1
It is well within Plaintiff’s right to file a separate Motion to Strike Defendant’s 3/29/19 Motion to
Dismiss pleadings, partly or in whole, due to the defects and rule non-conformance thereof discussed
herein. However, in the interest of judicial economy, and to avoid the appearance of cavil, Plaintiff
declines. Plaintiff hereby extends a good-faith invitation to Defendant to cure these defects.

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makes extensive argumentative use of their content in a “Motion to Dismiss”. In doing so,

Defendant hijacks the only proper basis of such a motion: the facts alleged on the face of the

Complaint.

a) Defendant Makes Patently False, Deceptive Characterizations of Her

Unlawful “Exhibit 1”

9. Defendant captions her first offending Exhibit 1 as the “[DePamphilis] Stalking

Order” and attempts to excuse this misconduct in a footnote claiming Plaintiff’s “Complaint

refers to these Orders”, ostensibly a reference to the incorporation by reference doctrine. See

Def. MTD Mem., Pg. 1. On Page 5, she identifies the content of her “Exhibit 1” by quoting it.

Upon information and belief, Plaintiff recognizes this Exhibit as a 2/8/19 Order from the

DePamphilis case in Derry Circuit Court on Maravelias’s Motion to Continue and Motion to

State Reasons for Granting Stalking Order Extension. It is not the “Stalking Order”, as

Defendant falsely claims. In fact, this Order was issued on 2/8/19, days after Maravelias filed his

2/4/19 Complaint, disproving Defendant’s false claim that the “Complaint refers to these Orders

[including her Exhibit 1]”.

10. Defendant’s “Exhibit 1” is an inappropriate extrinsic exhibit and was nonexistent

at the time of Plaintiff’s Complaint. She cannot inject her own original evidence into a Motion to

Dismiss. Plaintiff will soon amend the Complaint to include evidence from the 2/12/19

DePamphilis stalking order Hearing to show the circuit court did, in fact, grant said extension

based upon Defendant’s alleged defamatory conduct.2 Defendant cannot circumvent discovery in

this case by prematurely entering evidence and prejudicing Plaintiff’s ability to do the same.

2
Maravelias cautiously avoids attaching any such evidence to this pleading, lest he too commit
Defendant’s improper litigation tactics. See generally Chasan v. Village District of Eastman, 128 N.H.
807 (1986) (holding essentially that Plaintiff would nullify his opportunity on appeal to reverse an

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 b) Defendant’s Other Three Extrinsic “Exhibits” Are Likewise Improper

11. Defendant’s Memorandum attaches “NHSC Orders” pertaining to DePamphilis’s

legal abuse against Maravelias (“Exhibit 2”), the full DePamphilis “Verified Motion” (“Exhibit

3”), and, remarkably, “[Maravelias’s entire 1/15/19] Letter to Ms. Anderson” (“Exhibit 4”).

12. While committing this conduct, Defendant accidentally proves – or strongly

suggests – her own criminal falsification. See Answer, ¶31.3 After denying “knowledge” of the

exact contents of that letter, Defendant openly attaches her own original copy thereof as an

Exhibit, inculpating herself, at the very least, in criminal Unsworn Falsification (RSA 641:3).

13. It is well-established that, in deciding a Motion to Dismiss, “review is limited to

the Complaint”. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994), Gee v.

Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010), Cervantes v. City of San Diego, 5 F.3d 1273,

1274 (9th Cir. 1993) (“Review is limited to the complaint; evidence outside the pleadings...cannot

normally be considered in deciding a [motion to dismiss].”) A narrow exception exists under the

incorporation by reference doctrine, where the court may also consider documents “whose

contents are alleged in a complaint and whose authenticity no party questions, but which are not

physically attached to the pleading.” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). The

Court may “consider documents attached to the plaintiff’s pleadings”, Chasan v. Village District

of Eastman, 128 N.H. 807, 813 (1986), or “documents the authenticity of which are not disputed

by the parties”, Beane v. Dana S. Beane Co., 160 N.H. 708, 711 (2010).

erroneously granted motion to dismiss, predicated on improper consultation of extrinsic exhibits, if he too
were to engage in this conduct, even if only responsively.)
3
Ibid., Defendant claims to be “without knowledge or information sufficient to form a belief as to whether
the language that appears within 31 of the Complaint is an exact recitation of the referenced letter.”

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 14. Here, Plaintiff attached zero documents to his Complaint. Since Defendant failed

to send Plaintiff a full copy of her memorandum including the four Exhibits, Maravelias must

dispute their authenticity, having no manner of examining their contents. As it concerns

Defendant’s “Exhibit 3”, the Complaint does admittedly cite the limited material portion thereof.

However, the remainder of the document comprises wanton, reckless libel against Maravelias,

and is immaterial (e.g., DePamphilis falsely accused Maravelias of “following” her on 10/23/18,

an absurd accusation thoroughly dismantled in the trial of that action). The immaterial remainder

of said document is highly biasing in prejudice to Maravelias, given its false libelous assertions.

15. Accordingly, Exhibits 1, 2, and 4 of Defendant’s pleading are doubtlessly

inappropriate. Plaintiff also objects to Exhibit 3 despite its partial incorporation by reference in

the Complaint, given its prejudicial, libelous, and immaterial nature.4

ii) Defendant’s “Motion to Dismiss” Makes Baseless, False, and Unnoticed

Allegations of Fact to Impugn the Virtue of Paul Maravelias and Bias This
Court Against Him

16. Ironically, Defendant’s alleged propensity to tortious defamatory conduct is

inferable from her pleading itself. A hearing on a motion to dismiss is not a factual inquiry. See

4
The incorporation by reference doctrine has its proper limits. For example, the Ninth Circuit has recently
addressed abuse of the practice in the context of securities cases in Khoja v. Orexigen Therapeutics, Case
No. 16-56069 (9th Cir. 2018). The Khoja court noted “a concerning pattern” of “unscrupulous use of
extrinsic documents” “improperly to defeat what would otherwise constitute adequately stated claims at
the pleading stage.” Id. “If defendants are permitted to present their own version of the facts at the
pleading stage—and district courts accept those facts as uncontroverted and true—it becomes near
impossible for even the most aggrieved plaintiff to demonstrate a sufficiently ‘plausible’ claim for relief.”
Id. at 16. The Khoja court articulated limitations to abusing the doctrine which the Court should apply
here to exclude Defendant’s Exhibit 3.

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M. Green, Basic Civil Procedure, 108 (1972). Nevertheless, Defendant’s pleading makes the

following disputed assertions of fact:5

• Falsely claiming that “multiple stalking orders” against Plaintiff have issued in the
underlying DePamphilis legal abuse, Def. MTD Mem., Pg. 1;

• Prefacing nearly every pleading that Plaintiff “seeks to punish and harass Ms.
Anderson” and making unsubstantiated footnote-comments on Plaintiff’s purported
extraneous legal self-defense activities to insinuate he is a vexatious litigant, itself
another act by Defendant of libel and false light, Def. MTD Mem., Pg. 2;

• Making extensive factual claims about her role in the composition and filing of the
DePamphilis Verified Motion, a crucial factual dispute, Def. MTD Mem., Pg. 3;

• Making incomplete and unsubstantiated factual claims about the degree to which her
statements influenced the DePamphilis proceedings, Def. MTD Mem. Pg., 5;

• Flatly denying that she used the adjective “harassing” and “intimidating”, asserting
that the “DePamphilis family attorney” alone chose these words, a key factual
allegation which does not even appear in her Answer, Def. MTD Mem., Pg. 12;

• Ostensibly claiming she was a “witness” in the DePamphilis case, Def. MTD Mem.,
Pg. 13, contrary to the Complaint and to her own prior assertion at Pg. 2, Ibid.

17. First, such disputed factual contentions have no place within a motion to dismiss.

18. Second, even if such disputed factual assertions were otherwise appropriate,

Defendant has violated the Court’s rules by failing to attach a sworn affidavit verifying the said.

See N.H. Super. Ct. R. 11(b):

“The court will not hear any motion grounded upon facts, unless such facts are verified by
affidavit, or are apparent from the record or from the papers on file in the case, or are agreed to
and stated in writing signed by the parties, their attorneys, or non-attorney representatives; and
the same rule will be applied as to all facts relied on in opposing any motion.”

5
Since Defendant has failed to obey this Court’s simple rule requiring numbering for paragraphs stating
factual allegations, Plaintiff is constrained herein to paraphrase verbally the offending allegations of fact.
See N.H. Super. Ct. R. 7(c), “All pleadings, motions and objections shall set forth the factual allegations
in numbered paragraphs.”

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 19. Third, Defendant curiously declined to plead many of these surprise factual

allegations in her Answer. She has instead ambushed Plaintiff inside a Motion to Dismiss,

distracting both him and the Court from the substantive dismissal arguments. This improper

tactic has deprived Maravelias advance notice as the nature of these facts. “It is well settled that a

defendant is entitled to be informed on the theory on which the plaintiffs are proceeding and the

redress that they claim as a result of the defendant’s actions [applying also in the reverse context

pertaining to defenses].” Pike Industries, Inc. v. Hiltz Const., Inc., 143 N.H. 1, 3 (1998).

20. Fourth, a handful of Defendant’s improper factual contentions serve no other

purpose than to malign Maravelias and bias these proceedings to his prejudice, in violation of the

New Hampshire Rules of Evidence. 6 Defendant garnishes her factual summary with offhand

references to Maravelias’s putative legal self-defense conduct, intimated as bad acts of vexatious

litigation (where Maravelias is in fact a victim, not a perpetrator, of the same). Her including the

immaterial extended portions of the DePamphilis Verified Motion falsely imputes numerous

“bad acts” to Maravelias, which Defendant explicitly repeats in a footnote. See Def. MTD Mem.,

Pg. 8. These diversionary harassment tactics violate N.H. R. Ev. 404 since they relate to nothing

but the suggestion of Plaintiff’s “character or disposition”, State v. Whittaker, 138 N.H. 524,

526-27, 642 A.2d 936, 938 (1994), and because they are in no way connected to the instant

action or the commencement thereof, State v. Allen, 128 N.H. 390, 397, 514 A.2d 1263, 1268

(1986). See generally State v. McGlew, 139 N.H. 505 (1995).

21. Given this foul-play, the Court should deny Defendant’s Motion to Dismiss.

6
Defendant knows Maravelias is a pro se litigant employed in a full-time occupation while facing a
strenuous 10-day allotment to file the instant objection. See N.H. Super Ct. R. 10(a). The Court could
sanction Defendant for using such burdensome diversionary tactics to overload and distract Maravelias.

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 iii) Defendant’s Non-Conforming Motion is Effectively a Motion for Summary
Judgment Masquerading as a Motion to Dismiss, Prejudicing Maravelias

22. It would seem Defendant has a curious, terrified desire to elude discovery in this

case. See Def.’s Mot. to Stay Discovery filed 3/29/19. See also Complaint, ¶20, ¶23, ¶31

(indicating Maravelias’s desire to procure indoor security footage from the Dunkin Donuts to

prove he never “recorded” nor appeared to be “recording” Defendant’s daughter, as Defendant

obdurately continues to claim in her unverified pleadings).

23. Defendant is essentially submitting a covert Motion for Summary Judgment to

suffocate Plaintiff’s ability to procure and introduce his own evidentiary materials. This

improper conduct prejudices Plaintiff, being without the benefit of discovery and the full 30-days

allotted to respond to proper Motions for Summary Judgment. See N.H. Super. Ct. R. 12(g)(2).

Nor has Defendant obeyed the statutory requirement to “accompany [such a] motion with an

affidavit based upon personal knowledge of admissible facts as to which it appears affirmatively

that the affiants will be competent to testify.” See RSA 491:8-a, II. Thus, the Court must not

construe Defendant’s Motion as one for summary judgment and rule upon it. It must be denied.

C. Defendant’s Pleading Styled as a “Motion to Dismiss” Also Fails on the Merits

24. Given these intolerable defects, The Honorable Court should not consider

Defendant’s 3/29/19 pleading. Nevertheless, even if the Court were to consider its merits, it still

fails. This dispute is factual, not legal. The legal gravamen of the Complaint necessarily turns

upon 1) whether Maravelias “recorded” Ms. Anderson’s daughter at Dunkin Donuts on 7/3/18

and 2) whether Maravelias appeared to any reasonable person to be doing so. Dismissal at this

stage would prejudice Maravelias’s ability to use discovery to establish that he never, in fact,

“recorded” anyone, nor appeared to any reasonable person to be “recording”, on 7/3/18.

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 25. “A plaintiff proves defamation by showing that the defendant failed to exercise

reasonable care in publishing a false and defamatory statement of fact about the plaintiff to a

third party, assuming no valid privilege applies to the communication.” Pierson v. Hubbard, 147

N.H. 760, 763 (2002). “To be defamatory, language must tend to lower the plaintiff in the esteem

of any substantial and respectable group, even though it may be quite a small minority.” Touma

v. St. Mary’s Bank, 142 N.H. 762, 766 (1998). In the instant context of a motion to dismiss a

defamation claim, “the issue is not whether a plaintiff will ultimately prevail but whether [he] is

entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct.

1683, 1686, 40 L.Ed.2d 90 (1974).

26. As an initial reminder, Plaintiff’s claims could proceed solely upon the allegation

that Defendant made false statements that Plaintiff “recorded” Defendant’s daughter. However,

the Complaint does allege Defendant also communicated the defamatory “harassing” and

“intimidation” amplifications. See Complaint, ¶42, ¶58 (“Defendant’s defamatory statements …

included the allegation that Maravelias “harassed” and “intimidated” Defendant’s “daughter

and family” by “recording” them”), etc.

i) Plaintiff’s Complaint Alleges Multiple Forms of Damage Resulting from

Defendant’s Conduct and Alleges Facts Proving Defendant Had Direct
Influence Over the Content of Both DePamphilis Verified Motions

27. Contrary to Defendant’s aspirations, the Complaint adequately alleges causation

as a matter of law. Defendant’s argument to the contrary addresses only one narrow aspect of

alleged damage: whether Defendant’s statements caused an unwarranted extension of the

stalking order in the DePamphilis case. See Def. MTD Mem., Pg. 5.

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 28. First, the Complaint alleges multiple damages consequent of the defamation, even

graciously assuming Defendant’s statements had zero impact on the wrongly extended

DePamphilis restraining order against Maravelias. The Complaint alleges that Defendant

communicated defamatory statements to the DePamphilis family and attorney, as made

irrefutable by the altered content of the re-filed 1/24/19 Verified Motion. See Complaint, ¶33-35.

Plaintiff also alleges Defendant’s defamatory statements to DePamphilis were published through

a public document as a broadcast mechanism, visible to the general public. Complaint, ¶40, ¶50-

52, ¶66-67. Plaintiff’s defamation claim therefore alleges actual reputational damage besides the

damage of the wrongly extended protective order. If Defendant wishes to provide factual support

for her position that the defamatory statements did not alter Maravelias “in the esteem of any

substantial and respectable group, even though it may be quite a small minority”, she has every

right to do so during discovery and/or at the trial of this action. Touma, 142 N.H 762, supra.

29. Though it does, Plaintiff’s Complaint need not allege any actual damage because

the alleged defamation constitutes defamation per se. See Lassonde v. Stanton, 157 N.H. 582

(2008) at 593; Chagnon v. Union Leader Co., 103 N.H. 426 (1961) at 441; Complaint, ¶54-69.

30. Second, the Original Complaint does adequately allege Defendant’s tortious

conduct caused the DePamphilis protective order to be extended wrongfully. Defendant’s

contentions to the contrary are inappropriate factual squabbling within a legal Motion to Dismiss.

Complaint, ¶36-39, ¶42 (“To wit, Defendant communicated that Plaintiff “recorded” her

“daughter and family” in an act of “intimidation” and “harassment” on 7/3/18 at Dunkin

Donuts.”), ¶49, ¶60 (“Defendant ... intentionally collaborated with DePamphilis to extend a

“stalking” restraining order against Maravelias by and through her defamatory conduct.”), ¶80

(“Defendant willfully caused the statements to appear in DePamphilis’s two public Motions to

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Extend the restraining order.”), ¶85-86 (“Defendant intentionally and/or recklessly endeavored

to inject her defamatory statements about Maravelias into DePamphilis’s public 1/11/19 Motion

to Extend the restraining order”). There is not the shadow of plausibility to Defendant’s

assertion the Complaint does not “establish causation” or allege “Ms. Anderson actually made

any of the statements that appear in the Verified Motion”. Def. MTD Mem., Pg. 7.

31. Third, Defendant attempts to litigate the factual merits of the causality of the

DePamphilis stalking order extension by referring to the contents of an improper, disputed

extrinsic exhibit. See supra. Plaintiff submits this is a misleading, non-final picture of the circuit

court’s reasoning for extending the stalking order. Defendant cannot attack the legal sufficiency

of allegations by hijacking a Motion to Dismiss to inject hotly contested factual stipulations.

ii) Plaintiff’s Complaint Adequately Alleges that Defendant Made Statements

Which Rise to the Level of Defamation

32. Defendant’s memorandum attempts to distance herself from the words

“harassment” and “intimidation”. Defendant may eventually introduce her own evidence to

contest Plaintiff’s well-pleaded allegation that she originated and/or directly caused these false

characterizations of Maravelias’s conduct, but the Court’s present task is not a factual inquiry.

See generally Complaint, ¶29, ¶35, ¶37, ¶42, ¶49, ¶60.

33. When reviewing a defamation Complaint, the Court should appreciate the alleged

defamatory statements within the context of the publication as a whole. See Morrissette v.

Cowette, 122 N.H. 731, 733, 449 A.2d 1221, 1222 (1982). If an average reader could reasonably

understand a statement as actionably factual, then there is an issue for a jury’s determination, and

summary judgment must be denied, let alone a motion to dismiss. See Pease v. Telegraph Pub.

Co., Inc., 121 N.H. 62, 65, 426 A.2d 463, 465 (1981).

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 34. As it goes without saying, the statement that Maravelias was randomly

“recording” a teenage girl with whom he has no acquaintance unquestionably has the tendency to

“lower the esteem” people have of him – let alone “plausibly” so: the present standard of review.

The surrounding context of the defamatory statement extremifies its tendency to “lower esteem”,

as Defendant’s spoken (or, at best, implied) words “harassment” and “intimidation” appear in

connection to the “recording” allegation. The fact that the “recording” allegation appears within

a DePamphilis Verified Motion falsely accusing Maravelias of “stalking” a friend of Defendant’s

daughter is further proof of the defamatory implication of the “recording” statement.

35. Defendant’s own memorandum duly ascribes broader defamatory meaning to the

false “recording” statement than Plaintiff himself had previously articulated. If Defendant’s

daughter were considered a “witness” in the DePamphilis case, the allegation of “intimidating”

her amounts to accusing Plaintiff of committing criminal witness intimidation. See RSA 641:5;

Def. MTD Mem., Pg. 10 (“[Maravelias] ‘intimidating’ witnesses by recording them”).

36. At the least, a material question of fact is before the Court as to the intended and

understood meaning of Defendant’s statements. Dismissal as a matter of law is not warranted.

“Plaintiff is entitled to an opportunity to prove his allegation that the defamatory meaning was in

fact the one ‘intended and understood.’” Thomson v. Cash, 119 N.H. 371, 374 (1979).

iii) Plaintiff’s Complaint Adequately Alleges Defendant Committed Tortious

Conduct Where No Valid Privilege or Immunity Could Apply

c) Defendant’s Statements Are Not Protected “Opinion” But Rather Assert

and Imply Defamatory Facts About Plaintiff’s Actual, Objective Conduct

37. The only refreshing portion of Defendant’s memorandum is her good-faith

argument that, even assuming true all facts as-alleged, Ms. Anderson’s statements about

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Maravelias’s conduct on 7/3/18 are constitutionally protected statements of “opinion”, not of

objectively verifiable fact, and thus cannot underlie a defamation claim. See Def. MTD Mem.,

Pg. 9-12. Counsel even provides a donnish exposition of some potentially relevant case law.

38. Defendant’s argument does not pass legal muster. The New Hampshire Supreme

Court held in Nash v. Keene Pub. Corp., 127 N.H. 214 (1985):

“[A] statement of opinion is not actionable, Gertz v. Robert Welch, Inc., 418 U.S.
323, 339-40 (1974); Pease v. Telegraph Pub. Co., Inc., 121 N.H. 62, 65, 426 A.2d
463, 465 (1981), unless it may reasonably be understood to imply the existence
of defamatory fact as the basis for the opinion. Duchesnaye v. Munro Enterprises,
Inc., supra at 249, 480 A.2d at 125; RESTATEMENT (SECOND) OF TORTS 566
(1977). … If an average reader could reasonably understand a statement as
actionably factual, then there is an issue for a jury’s determination, and summary
judgment must be denied. See Pease v. Telegraph Pub. Co., Inc. supra.”
(Emphasis added)

39. The expression of an opinion can serve as the basis for a defamation claim when

the statement reasonably implies the existence of nondisclosed defamatory facts, see Nash,

supra, and it is actually understood that way, Duchesnaye, supra, 125 N.H. at 249, 480 A.2d at

125. “A statement couched as an opinion that presents or implies the existence of facts which are

capable of being proven true or false can be actionable.” Levinsky’s v. Wal-Mart Stores, Inc.,

127 F.3d 122, 129 (1st Cir. 1997); See also Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19,

110 S.Ct. 2695, 2705-06, 111 L.Ed.2d 1 (1990); Restatement (Second) of Torts § 566 (1977) (“A

defamatory communication may consist of a statement in the form of an opinion, but a statement

of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the

basis for the opinion.”).

40. Defendant cites a plethora of distinguishable cases where the alleged defamatory

comments were hyperbolized, rhetorical, subjective expressions of personal judgment. “Cases

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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
are likely to protect a statement as ‘opinion’ where it involves expressions of personal judgment,

especially as the judgments become more vague and subjective in character.” Grey v. St.

Martin’s Press, Inc., 221 F.3d 243, 248 (1st Cir. 2000). “[W]hether a statement is hyperbole

depends primarily upon whether a reasonable person could interpret the statement to provide

actual facts about the individual or institution it describes.” Levinsky’s, supra.

41. As counsel points-out, a statement is protected opinion where, “though pejorative

and unflattering, [it] cannot be ‘objectively verified’.” Piccone v. Bartels, 785 F.3d 766 (1st Cir.

2015) at 772. (quoting Levinsky’s, supra, holding the term “trashy” was not actionable, but the

phrase “you are sometimes put on hold for 20 minutes” was actionable). “The fact that the phrase

is not a complimentary one does not automatically make it a libelous one.” Catalfo v. Shenton,

102 N.H. 47, 49 (1958). The “phrase” must state or imply a defamatory fact.

42. Here, Defendant made defamatory statements stating or implying an actual,

objectively verifiable fact that Plaintiff was “recording” Defendant’s teenage daughter in

Dunkin Donuts on 7/3/18, which logically is able to be true or false, and which Plaintiff

submits is able to be proven false. The Complaint thus alleges a matter of fact, not opinion.

43. No achievement of linguistic machination by counsel can enable Defendant to

overlook words’ plain meanings. If Defendant couches as opinion her hypothetical statement that

the sky is “blue”, that does not negate that the color of the sky is nonetheless a matter of fact

objectively verifiable by measuring the wavelengths of observed light. However, if the

Defendant states that the sky is “pretty”, such is solely an opinion statement.

44. Here, if Ms. Anderson were accused merely of expressing a negative “opinion”

statement that Maravelias was “a loser”, “a creep”, or perhaps even “a person I wouldn’t want

my daughter around”, it is quite unlikely she would find herself today being sued for defamation.

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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
On the contrary, Defendant’s outrageous statements as-alleged 1) state a defamatory fact (that

Maravelias was “recording”), 2) imply the same defamatory fact (that Maravelias’s “harassing”

and “intimidation” was because of his alleged “recording”), 3) imply further defamatory facts

not explicitly stated (that Maravelias’s outward manner of “recording” was unwanted and

socially inappropriate as to be “harassing” and “intimidation”), and 4) imply that Maravelias

committed criminal witness tampering (RSA 641:5), by Defendant’s own admission.

45. As alleged, these are willfully false representations of Maravelias’s actual

conduct, not subjective, interpretative opinions. As such, Defendant can rebut this factual

allegation through the appropriate means. But a Motion to Dismiss is an inapposite vehicle.

d) Defendant Cannot Claim Absolute Litigation Privilege, Especially Not at

This Stage

46. Unlike Defendant’s good-faith argument that the defamatory statements were

protected “opinion”, her argument for absolute litigation privilege as a matter of law is

completely baseless and without merit.

47. Defendant simply was not a party to any litigation – neither the DePamphilis case

nor anything else – when and where she made her defamatory statements as-alleged. See

Complaint, ¶95. Defendant’s memorandum briefly acknowledges this gaping flaw and then

appends a rushed remark that absolute litigation privilege extends beyond named parties to

“those involved with the litigation including attorneys, experts, and witnesses”. Def. MTD

Mem., Pg. 13. See McGranahan v. Dahar, 119 N.H. 758 (1979).7

7
Contrary to Defendant’s apparent assertion, McGranahan mentions “experts” [expert witnesses]
nowhere.

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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
 48. It is undisputed that Defendant was not a “witness”, “expert”, nor “attorney” in

the DePamphilis case. As Defendant herself asseverates, “[Ms. Anderson] did not testify at any

hearing nor did she provide any affidavits in the [DePamphilis] Case”. Def. MTD Mem., Pg. 2.8

49. Defendant effectively argues that a person whose friend is filing a baseless

restraining order petition against another person is automatically immunized for any and all

defamatory conduct they might commit against the second person. Absolute litigation immunity

cannot apply here; at a minimum, discovery is needed for Defendant to prove she was a “party”

or “witness” to the DePamphilis case, contrary to her own unverified memorandum’s assertion.

iv) Plaintiff’s Well-Pleaded Allegations State a Claim to Recovery Under False

Light Invasion of Privacy

50. Defendant’s arguments to dismiss this claim are derivative and effectively

identical to those for the defamation claim(s), addressed hereinabove. The one exception is

Defendant’s argument that Plaintiff’s Complaint fails to allege sufficiently the “publicity”

element of this tort. But see Complaint, ¶50 and ¶51 (alleging Defendant used both Verified

Motions as “a high-visibility public broadcast mechanism for Defendant s defamatory

statements”); See also Complaint, ¶40, ¶77, ¶80.

51. Accordingly, Defendant’s challenge to Plaintiff’s well-pleaded allegations

fulfilling the “widespread publicity” element is factual, not legal. Defendant will have every

opportunity to introduce evidence to dispute this claim; dismissal at this stage is not warranted.

8
Moreover, Defendant’s alleged defamatory statements to DePamphilis were extra-judicial – not
themselves contained in any litigation at all, even someone else’s. Even if Defendant were a “party” or
“witness” to the DePamphilis case, she could only plausibly plead absolute immunity for the Verified
Motion publication and not for her defamatory statements to DePamphilis about Maravelias’s conduct.

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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
 v) Plaintiff’s Complaint Adequately Alleges Facts Which, When Proven, Permit
Recovery for Intentional Infliction of Emotional Damage

52. Defendant’s arguments to dismiss this claim are derivative and similar to those for

the defamation claim(s), addressed hereinabove. The one exception is Defendant’s argument that

Plaintiff’s Complaint fails to allege any “exacerbating” factors to Defendant’s conduct or that the

said conduct was “extreme and outrageous” to a sufficient degree.

53. Plaintiff’s Complaint does allege “exacerbating factors”. Paragraphs 85 through

88 of the Complaint are all further “exacerbations” of the alleged conduct in Paragraph 84,

Defendant’s initial and baseline defamatory conduct:

• Defendant could have defamed Plaintiff without also intentionally collaborating

with DePamphilis to restrain, suppress, and violate Plaintiff’s fundamental
constitutional rights (Complaint, ¶39) by abetting DePamphilis in the restraining
order case, which was unfortunately successful;

• Defendant could have defamed Plaintiff once and then ceased the conduct instead
of returning to DePamphilis, after receiving Maravelias’s good-faith letter, to
persist in and extremify the defamatory, prejudicial effect of her false statements.
See Complaint, ¶33-35, ¶48 (alleging actual malice), ¶51, ¶88;

• Defendant could have defamed Plaintiff and then at least responded to Plaintiff’s
respectful, good-faith letter, likely resolving this dispute without the necessity for
Maravelias to pursue litigation. See Complaint, ¶31, ¶32, ¶87.

54. Given these extreme and outrageous alleged exacerbations, the Court cannot grant

Defendant’s motion to dismiss this claim as a matter of law. At the very least, fact-finding needs

to occur to establish whether Defendant’s tortious conduct rose to the “extreme and outrageous”

level as alleged in Plaintiff’s Complaint.

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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
 vi) Plaintiff’s Equitable Claims Should Not Be Dismissed

55. First, Plaintiff’s claim for declaratory relief is not a derivative of his tort claims. If

Defendant could hypothetically prove that insanity, coercion, or mere accidental

misunderstanding negates the alleged willful, malicious nature of her defamatory conduct, it is

theoretically plausible that no monetary damages would be awarded despite the fact that

Defendant defamed Plaintiff by communicating false statements. Accordingly, Plaintiff is

entitled to a declaratory judgment from a competent court of law that he did not, in fact, “record”

Defendant’s daughter on 7/3/18. RSA 491:22, “Declaratory Judgments”, states at Section I.:

“Any person claiming a present legal or equitable right or title may maintain a petition
against any person claiming adversely to such right or title to determine the question as
between the parties, and the court’s judgment or decree thereon shall be conclusive.”

56. The New Hampshire Supreme Court has held that, as a personal liberty interest,

individuals have a right to be free from “reputational” or “social stigma”. See State v. Veale, 158

N.H. 632 (2009). Plaintiff’s claim for declaratory relief is therefore a statutorily authorized claim

to a “present legal right” against the Defendant, who continues to this day to claim adversely to

said right by populating her pleadings in this case with the false assertion Maravelias “recorded”

her daughter.

57. Since it is at least theoretically possible Plaintiff’s claims at law for “monetary

damages” could fail without there ever being a factual finding on whether he “recorded”

Defendant’s daughter, the claim for declaratory judgment is valid and distinct.

58. Second, there are no grounds to dismiss Plaintiff’s equitable claim for injunctive

relief. The mere fact that an injunction might prohibit already unlawful conduct is not

dispositive, as Defendant appears to argue. The requirements for injunctive relief are met when it

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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
is established “that the defendants have violated [a law] and there exists some cognizable danger

of recurrent violations.” N.H. v. Mottolo, 917 A.2d 1277, 1282 (2007), quoting United States v.

Kasz Enterprises, Inc., 855 F. Supp. 534, 536 (D.R.I 1994). Dismissal is unwarranted because a

civil finding of defamation would “plausibly” satisfy this threshold.

D. Defendant’s Litigation Tactics, Emotional Ad-Hominem Attacks, and Meritless

Prayers for Attorney’s Fees Constitute Further Cause to Deny the Motion to Dismiss

59. It appears Defendant’s counsel was angered when Plaintiff filed his 3/25/19 Reply

to Defendant’s Answer, in which Plaintiff respectfully pointed-out some non-conforming,

prejudicial pleading practices enacted by counsel, with ample reference included to supporting

authorities. It appears this ill-will was inadvertently exacerbated when Plaintiff astutely noted

some questionable aspects of credibility as viewed within Defendant’s own pleadings so far in

this case. See Defendant’s 3/25/19 Reply to Plaintiff’s Objection to Motion to Attach, Part D.

60. Heading III of Defendant’s memorandum advances an upsetting demand for

punitive “attorney’s fees” within an action Defendant herself chose to necessitate. See

Complaint, ¶31 (Maravelias’s polite 1/15/19 letter attempting to resolve this dispute without

recourse to litigation). Defendant’s memorandum also includes a footnote containing a

contemptible ad hominem attack against Maravelias, effectively insinuating he is a deranged,

violent criminal. This Court should take such conduct by Defendant very seriously, in light of

Rule 3.1 of the New Hampshire Rules of Professional Conduct, and, ironically, the very

substance of this defamation action.9

9
It is well within Plaintiff’s right to file a separate Motion for Sanctions against Defendant because of this
conduct. However, at this point, in the interest of judicial economy and to avoid the appearance of cavil,
Plaintiff magnanimously declines. Ironically, while accusing Plaintiff of rule-breaking “bad faith”
conduct, Defendant herself violated N.H. Super. Ct. R. 7(g), requiring that she make such requests in a
separate motion: “Filers shall not combine multiple motions seeking separate and distinct relief into a

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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
IV. CONCLUSION

61. For the reasons above, Defendant’s Motion to Dismiss should be denied.

WHEREFORE, Plaintiff Paul Maravelias respectfully prays this Honorable Court:

I. Deny Defendant’s 3/29/19 Motion to Dismiss; and

II. Grant any further relief as may be deemed just and proper.

Respectfully submitted,

PAUL J. MARAVELIAS,

in propria persona

/s/ Paul J. Maravelias Dated: April 8th, 2019

Paul J. Maravelias
34 Mockingbird Hill Rd
Windham, NH 03087
paul@paulmarv.com
603-475-3305

single filing. Separate motions must be filed. Objections to pending motions and affirmative motions for
relief shall not be combined in one filing.”

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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
 CERTIFICATE OF SERVICE

I, Paul Maravelias, certify that a timely provided copy of this document is being sent on
this date to the Defendant pursuant to the rules of this court. I am electronically sending
this document through the court’s electronic filing system to Fred J. Desmarais, Esq.,
counsel for the Defendant, Amy Anderson, and to all attorneys or other parties who have
entered electronic service contacts in this case.

/s/ Paul J. Maravelias Dated: April 8th, 2019

Paul J. Maravelias

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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087