ORDER ON DEFENDANT'S MOTION TO DISMISS COUNT 1

D. BROCK HORNBY, District Judge.

Only one count remains in the plaintiffs' First Amended Complaint — Count I, a claim under the Maine Unfair Trade Practices Act, 5 M.R.S.A. §§ 205-A et seq. The defendant GMAC has moved to dismiss that claim, asserting that it is barred by Maine's common law absolute privilege for statements made during judicial proceedings. Because Maine's Law Court has never addressed whether that common law privilege applies to a statutory claim, and decisions from other jurisdictions are divided, I conclude that it is appropriate to certify the issue of Maine law to the Maine Supreme Judicial Court sitting as the Law Court pursuant to 4 M.R.S.A. § 57 and Rule 25(a) of the Maine Rules of Appellate Procedure.1

WAIVER

First, however, I reject the plaintiffs' argument that GMAC has waived the judicial proceedings privilege by failing to assert it in either its first motion to dismiss or in its Answer.2 Failure to plead an affirmative defense generally results in waiver of the defense.3 But here GMAC's Answer does raise the defense of failure "to state a claim upon which relief can be granted."4 That defense is capable of encompassing the judicial proceedings privilege.5 As the First Circuit said in Williams v. Ashland Engineering Co. Inc., unless there has been unfair prejudice, "general, non-specific language in a defendant's answer ... suffices to preserve an affirmative defense."6

The reason Federal Rule of Civil Procedure 8(c) requires pleading an affirmative defense is "to give the court and the other parties fair warning that a particular line of defense will be pursued."7 However, "`[w]here ... a plaintiff clearly anticipates that an issue will be litigated, and is not unfairly prejudiced when the defendant actually raises it,' the Court may excuse the failure to plead it earlier."8 The First Circuit has instructed trial court judges to "examine the totality of the circumstances and make a practical, commonsense assessment" on whether there has been surprise and unfair prejudice.9

Here, there was no undue delay in asserting the judicial proceedings privilege and no unfair prejudice to the plaintiffs in allowing GMAC to assert the defense, if it is a viable defense. Procedurally, we are still at the beginning stages of this lawsuit (discovery has not commenced), and both parties have fully briefed the judicial proceedings privilege issue.10

Thus, I conclude that there was no waiver.

UNCERTAIN QUESTION OF MAINE LAW

Maine has recognized a privilege for witnesses testifying in judicial proceedings since the nineteenth century.11 In a 1978 case, Dineen v. Daughan, the Law Court reaffirmed and extended the privilege, finding that "allegations made in pleadings are absolutely privileged."12 Maine's tort law treatise says that "[w]here the privilege applies, all causes of action, not just defamation claims, are barred."13 The absolute privilege "reflects public policy regarding the importance and necessity of the free flow of information during such proceedings."14

In 1969, Maine adopted its Unfair Trade Practices Act, enforceable by the Maine Attorney General.15 In 1973,16 it added a private remedies provision that currently reads:

That is the basis for the plaintiffs' request for recovery in Count I. The Maine Unfair Trade Practices Act says nothing about how this right of recovery interacts with common law privileges.18

The parties have cited no Maine decision that applies the judicial proceedings privilege defense to a statutory claim.19 Although Maine's tort law treatise says the privilege bars "all causes of action, not just defamation claims,"20 the treatise does not deal explicitly with statutory claims.

GMAC cites cases from two other jurisdictions that it says apply the judicial proceedings privilege to statutory (not UTPA) claims.21 The plaintiffs cite a Utah case that held that the privilege does not apply to a consumer protection statute.22 In response, GMAC points out that another Utah federal court decision, Johnson v. Riddle,23 reached the opposite conclusion. However, in Johnson, the district judge reconsidered that decision on a motion by the plaintiff and decided to certify to the Utah Supreme Court the question whether the judicial proceedings privilege applies to a newly created statutory cause of action.24 The parties then settled the case before the Utah Supreme Court ruled on the certified question.25

I conclude, therefore, in the terminology of Rule 25 of the Maine Rules of Appellate Procedure, that there is involved in this proceeding before me a question of law of the State of Maine which may be determinative of the case and that there are no clear controlling precedents in the decisions of the Supreme Judicial Court.26 I propose to certify the following question of law to the Law Court:27

The parties shall have until May 24, 2011 to comment on how I have framed the question. I invite them also by that same date to stipulate any proposed language for the other components of the certification under Rule 25(b) of the Maine Rules of Appellate Procedure (e.g., "statement of facts showing the nature of the case and the circumstances out of which the question of law arises") or, if they are unable to stipulate, to propose their respective language for those components.

SO ORDERED.