Lincoln v. Shea, 361 Mass. 1 (1972); Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627 (2010); G.L. c. 231, § 59H; G.L. c. 260, § 2A
Malicious prosecution and abuse of process in Massachusetts — and the anti-SLAPP problem
A claim in Massachusetts trial courts · Last verified August 26, 2026
Two claims about the misuse of legal process share this page.
Malicious prosecution is about a case that should never have been brought. Abuse of process is about a case brought for a purpose the process was not designed to serve — and it does not require that the underlying case was groundless or that it ended in your favour.
Massachusetts is more receptive to these claims than many states, because it does not require special injury for the civil form. It is also more dangerous to bring them here than almost anywhere, because the anti-SLAPP statute was written for exactly this shape of lawsuit.
Malicious prosecution
What a plaintiff has to prove
- The institution or continuation of proceedings against the plaintiff;
- By or at the defendant's direction;
- With malice;
- Without probable cause; and
- Termination of the proceedings in the plaintiff's favour.
Plus damages. Lincoln v. Shea, 361 Mass. 1 (1972), states the elements.
No special injury requirement
This is the significant Massachusetts difference. Many states — New York among them — require a civil malicious prosecution plaintiff to show special injury: an interference with person or property beyond the ordinary burden of defending a lawsuit.
Massachusetts does not. The ordinary costs and disruption of defending a groundless case can support the claim, which makes it available on facts that would fail elsewhere.
Probable cause
The central battleground. Probable cause means facts that would lead a reasonable person to believe the claim was valid — assessed at the time the case was brought, on what the defendant then knew.
Advice of counsel is a strong defence where the defendant made a full and fair disclosure and acted on the advice given.
A favourable outcome for the plaintiff does not establish absence of probable cause. Losing a case is not evidence that it should never have been brought.
Favourable termination
The underlying case must have ended in the plaintiff's favour. A settlement, a voluntary dismissal in exchange for consideration, or a disposition on a ground unrelated to the merits generally does not qualify.
A pending appeal means the claim has not ripened.
Abuse of process
What a plaintiff has to prove
- Process was used — a writ, an attachment, a subpoena, a lis pendens, the complaint itself;
- For an ulterior or illegitimate purpose; and
- Damage resulted.
Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627 (2010), is the modern statement.
The difference that matters
Abuse of process does not require that the underlying case lacked merit, and it does not require favourable termination. A perfectly valid claim can be abused if it was used as a lever for something it was not designed to obtain.
What it requires is a wrongful use after the process issued. The classic case is a lis pendens or an attachment recorded not to secure a judgment but to freeze a sale until the defendant pays something unrelated — the process is used as a form of extortion.
Merely bringing a case with a bad motive is not enough. There must be a use of the process to accomplish an end it was not designed for.
The anti-SLAPP statute is the real obstacle
Both claims are, by definition, based on the defendant's petitioning activity — filing and prosecuting a lawsuit. That puts them squarely within G.L. c. 231, § 59H.
The mechanics. The defendant files a special motion to dismiss, discovery is stayed, and the motion is heard early.
The framework, after Blanchard v. Steward Carney Hospital, 477 Mass. 141 (2017), and 483 Mass. 200 (2019):
- The special movant must show the claim is based solely on its petitioning activity.
- The burden shifts to the plaintiff, who may defeat the motion by showing either that the petitioning was a sham — devoid of reasonable factual support or arguable legal basis, and causing actual injury — or that its own suit was not brought primarily to chill the movant's legitimate petitioning.
A successful movant recovers costs and reasonable attorney's fees. That exposure is one-directional: winning the anti-SLAPP motion pays the defendant; defeating it pays the plaintiff nothing.
How the two doctrines interact. The sham prong and the malicious prosecution elements overlap substantially — a case brought without probable cause is close to a case devoid of reasonable factual support. So a meritorious malicious prosecution claim can survive the motion. A weak one does not, and costs the plaintiff the other side's fees.
That calculation should be made before filing, not after the motion arrives.
How long you have to file
Three years for both, under G.L. c. 260, § 2A.
Neither falls within the one-year provisions of c. 260 § 4. That section reaches actions against attorneys and accountants for malpractice, assault and battery, false imprisonment, slander and libel — all at three years — and its shorter periods do not cover these claims.
Accrual is the favourable termination for malicious prosecution, and the abusive use of process for abuse of process.
What has to happen before you file
The underlying case must be over, and over in your favour — for malicious prosecution.
Nothing for abuse of process, which can be brought while the underlying case is still running, since it does not depend on the outcome.
What the claim pays
Actual damages — the cost of defending the underlying proceeding, lost income, harm to reputation, and emotional distress.
Attorney's fees from the underlying case, which are recoverable as damages here. That is a meaningful feature: fees that were not recoverable in the first case become the measure of loss in the second.
Twelve percent prejudgment interest.
No punitive damages at common law, and no fee award for prevailing on these claims.
Chapter 93A, where the abusive litigation was conduct in trade or commerce — which brings the multiplier and mandatory fees, and is regularly pleaded alongside abuse of process in commercial disputes.
Who can be sued
The party who brought or continued the underlying proceeding.
Their attorney, in principle — though the litigation privilege protects statements made in the proceeding, and a lawyer acting on a client's instructions with a colourable basis is difficult to reach.
Not the judge or the prosecutor, who are absolutely immune.
Common defenses
- Probable cause, which defeats malicious prosecution.
- Advice of counsel after full disclosure.
- No favourable termination — a settlement or a disposition off the merits.
- A legitimate purpose for the process used, which defeats abuse of process.
- The litigation privilege, for statements made in the proceeding.
- The anti-SLAPP statute, with fees.
- Limitations — three years.
What people get wrong
Massachusetts does not require special injury. Guidance written for New York or Texas is wrong here, and the claim is available on ordinary defence costs.
Abuse of process does not need a groundless case. A valid claim used as leverage for something else qualifies, and the underlying case need not have ended.
Winning the first case does not prove the second. Absence of probable cause is judged on what the defendant knew when they filed.
Suing over a lawsuit invites a fee award against you. The anti-SLAPP statute reaches these claims by their nature, and a losing plaintiff pays.
Sanctions may be the better route. Rule 11 and the ordinary sanctions machinery operate inside the case that is bothering you, without a three-year fuse and without anti-SLAPP exposure.
Where it came from
The common law has always been ambivalent about suing over a lawsuit. The interest in compensating someone dragged through a groundless case runs directly against the interest in keeping the courts open to people who may be wrong.
Most states resolved that with the special injury requirement — a filter that let through only cases where something beyond litigation cost had happened, an arrest, an attachment, a receivership. Massachusetts declined to adopt it, on the view that the elements of malice and want of probable cause already do the filtering, and that a person put to the expense of defending a case brought in bad faith has suffered a real loss whether or not their property was seized.
Then, in 1994, the Legislature enacted the anti-SLAPP statute — and it re-imposed a filter from the other direction. Section 59H was aimed at developers and employers suing citizens who had objected to them before a public body, but its terms reach any claim based on petitioning, which includes every malicious prosecution and abuse of process case ever filed.
The result is a jurisdiction where the substantive law is unusually friendly to these claims and the procedure is unusually hostile. A strong case survives both. A weak one is dismissed early and costs the plaintiff the defendant's legal fees — which is, in effect, the special injury requirement arriving through a different door.
Common questions
Do I need special injury to sue for malicious prosecution in Massachusetts?
No. Massachusetts does not require interference with person or property beyond the ordinary costs of defending the case.
What is the difference between malicious prosecution and abuse of process?
Malicious prosecution is about a case that should not have been brought, and requires that it ended in your favour. Abuse of process is about using valid process for an improper purpose, and requires neither.
How long do I have to sue?
Three years — from the favourable termination for malicious prosecution, and from the abusive use for abuse of process.
Can I recover the legal fees I spent defending the first case?
Yes, as damages in the second case.
What is the anti-SLAPP risk?
These claims are based on the defendant's petitioning activity, so a special motion to dismiss under G.L. c. 231 § 59H is nearly automatic — and if it succeeds you pay the defendant's costs and attorney's fees.
Can I sue the other side's lawyer?
In principle, but the litigation privilege protects statements made in the proceeding and a lawyer acting on instructions with a colourable basis is hard to reach.