The opinion
Lé RO,
SUPERIOR COURT
CIVIL ACTION
2002 oct POEKET NO. CV-00-201
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PASO OOo.
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STATE OF MAINE
MEY
CUMBERLAND, ss. ,
DARLENE LIBERTY,
Plaintiff
DONALD L. GARBRECHT
v. ORDER LAW LIBRARY
SCOTT LIBERTY, DEC 3 am
Defendant
a Set
Before this court is Darlene Liberty (Plaintiff)’s motion for injunctive relief.
More specifically, the Plaintiff is asking this court to grant an order that would
enjoin the Defendant and related parties from filing actions, motions or
complaints, inter alia, before any judicial, administrative or other body without
first obtaining the authorization of this court. Notably, the Plaintiff moved this
court to enter an Order on April 2, 2002, decreeing that “tnleither party or their
attorneys who represent them in this case are to file any further motions,
pleadings, complaints and/or other documents in this case without first
obtaining the prior approval of this Court.” Whereas that Order applied to both
parties, the Plaintiff’s current motion essentially seeks to broaden the scope of the
injunction as it pertains to the Defendant and related parties. From a
jurisdictional standpoint the present matter is complicated by the fact that Scott
Liberty (Defendant) has filed a Chapter 13 proceeding with the United States
' Bankruptcy Court. The Plaintiff's attorney is a creditor in the bankruptcy
proceedings.
ot
The abovementioned Order was based on the principle that this court can
use its equitable powers to “enjoin a party from filing frivolous and vexatious
lawsuits.” Spickler v. Key Bank of Southern Maine, 618 A.2d 204, 207 (Me. 1992).
In the present case the Plaintiff has the burden to “make a detailed showing of a
pattern of abusive and frivolous litigation.” Id. The Plaintiff points out that the
Defendant has engaged in a pattern of harassing and vexatious litigation tactics,
which has resulted in driving up litigation costs along with emotionally taxing
not only the Plaintiff, but also her family, her lawyer and her lawyer's family.
For example, the Plaintiff estimates that the Defendant has filed in District and
Superior Court at least eight motions to obtain a so-called sex videotape. The
Defendant has also filed a variety of meritless complaints ranging from reporting
the Plaintiff to the Maine Department of Human Services for endangering her
children to reporting the Plaintiff's attorney to the Board of Overseers of the
(Maine) Bar for professional misconduct. Having examined numerous
pleadings, motions, transcripts, affidavits etc. contained in eighteen files, this
court is well aware that a great deal of animosity has grown between the
Defendant and the Plaintiff as well as the Defendant and the Plaintiff’s attorney.
However, this “court must be careful not to issue a more comprehensive
injunction than is necessary.” Id. The Plaintiff is requesting that this court screen
any complaints the Defendant makes to such entities as the police, the Registry of
Deeds, the United States Postmaster, and the federal courts. The holding in
Spickler was limited to accessing the courts in Maine and not to other
governmental entities or the federal system. See id. Moreover, the permanent
injunction in Spickler was restricted to one of the parties and did not extend to
non-parties. See id. This court is wary of curtailing the Defendant’s freedom of
speech. See U.S. CONST. amend. I (as it applies to the States through the
Fourteenth Amendment); MAINE CONST. art. I §1. Furthermore, the difficulty
with, say, restricting the Defendant's ability to file a complaint with the District
Attorney is that this court would be thrust into the position of exercising
prosecutorial discretion, which runs counter to the Legislature’s intentions. See
30-A M.R.S.A. § 283 (2002). On a more practical level, there is no mechanism,
procedurally speaking or otherwise, for this court to stop the Defendant from
pursuing a suit in the federal arena.
The Plaintiff has quoted Justice Selya for the proposition that a party has
no right to perpetrate an “unconscionable scheme calculated to interfere with the
judicial system’s ability impartially to adjudicate a matter by improperly
influencing the trier or unfairly hampering the presentation of the opposing
party’s claim or defense.” Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1* Cir.
1989). Of course, Justice Selya was correct in his pronouncement. Nevertheless,
the Aoude case can be distinguished in that it was concerned with a plaintiff
perpetrating a fraud on the court by annexing a bogus purchase agreement to a
complaint. See id. at 1117. Much of the Plaintiff’s present claim pertains to
events that are occurring outside of the jurisdiction of this court. The Plaintiff
goes on to point out that in another case involving divorce “[this] court acted
within its discretion when it entered an order enjoining [one of the parties] from
filing complaints, pleadings, or petitions against any individual involved in this
litigation without the signature of a licensed attorney and the approval of a
judge.” Vogt v. Churchill, No. Mem 00-6 (Me. Jan. 24, 2000) (mem.) However,
per an order of the Law Court, this court cannot rely on a Memorandum Opinion
as proper authority.’
The Law Court has noted that the courts in Maine have historically taken
a conservative approach when considering injunctive relief. See Bar Harbor
Banking & Trust Co. v. Alexander, 411 A.2d 74, 79 (Me. 1980) (quoting R.
WHITEHOUSE, EQUITY JURISDICTION § 563 (1900)). Hence, this court will only
grant an injunction when there is no remedy at law and only when justice
demands such relief. See id. In the present case, at least in dealing with the
Plaintiff’s claims outside of this court’s direct jurisdiction, the Plaintiff and the
Plaintiff’s attorney can avail themselves of such remedies at law as permitted by
statute or case law. The Plaintiff argues that injunctive relief should be granted
upon satisfying four criteria: (1) irreparable injury to the plaintiff, (2) the injury
outweighing the harm of the injunctive relief, (3) a likelihood of success on the
merits, (4) the public interest not adversely being affected. Dep’t of Envtl. Prot.
v. Emerson, 563 A.2d 762, 768 (Me. 1989). However, this court has yet to be
convinced that the broad scope of the relief being sought by the Plaintiff will not
be outweighed by the harm such relief will cause the Defendant.
Notwithstanding, this court is concerned with the fact that the Defendant
has been convicted of crimes entailing extreme domestic violence. This court is.
concerned with allegations of death threats being made. This court is
particularly concerned that the animosity between the parties has reached the
point where violence may ensue. Hence, this court will remind the attorneys
that they have an affirmative duty to not “directly or indirectly violate,
_ The Maine Law Court has issued an Order dated August 20, 1996 (No. SJC-216) advising that
“Memorandum Decisions and Summary Orders shall not be published in the Atlantic Reporter
and shall not be cited as precedent for any matter addressed therein.”
_ circumvent, or subvert any provision of the Maine Bar Rules.” M. Bar. R.
3.1(f)(1). Accordingly, the attorneys shall immediately bring to the attention of
this court any breach of duty owed to the court, the parties or to other attorneys.”
WHEREFORE, this court shall DENY the Plaintiff’s motion for injunctive
relief insofar as it seeks to extend the April 2, 2002 Order to matters outside this
court’s jurisdiction and to non-parties. For reasons stated above, this court shall
take no action to deny the Defendant’s proposed suit in federal court. Finally, to
minimize conflict and expedite justice, this court will continue to screen any
claims, motions or correspondence of any type filed within the Superior Court to
ensure that there is a legitimate basis for the underlying action.
Dated: October_39 , 2002
/) Roland. A. Cole —
Justic¢, Superior Court
2 For example, Maine Bar Rule 3, the Code of Professional Responsibility, contains the following
provisions:
“A lawyer who receives information clearly establishing that a client has during
the representation perpetrated a fraud upon any person or tribunal shall
promptly call upon the client to rectify the same; and if the client refuses or is
unable to do so, the lawyer shall reveal the fraud to the affected person or
tribunal, except when the information is protected as a privileged
communication. If a person other than a client has perpetrated a fraud upon a
tribunal, the lawyer shall promptly reveal the fraud to the tribunal.” M. Bar R.
3.6(b).
While lawyers have a duty to preserve their clients’ confidences and secrets, they
may disclose their “client’s intention to commit a crime or the information
necessary to prevent the crime or to avoid subjecting others to risk of harm.” M.
Bar. R. 3.6(h)(4).
“A lawyer shall not file a suit, assert a position, delay a trial, or take other action
on behalf of a client when the lawyer knows, or should know, that such action
would merely serve to harass or maliciously injure another.” M. Bar R. 3.7(a).
Date Filed 03-23-00 CUMBERLAND Docket No. __ CV 00-201
County
Action PERSONAL INJURY
DARLENE LIBERTY SCOTT LIBERTY
VS.
Plaintiff's Attorney Defendant’s Attorney PETER FESSENDEN, ESQ.
JEFFREY BENNETT ESQ 773-4775 OBABRSEBKSY.aRustee
PO BOX 7799, PORTLAND ME 04112
Anne C. Pomroy, Esq. (co-counsel) ROXRREXERLQ Pro Se
P.O. Box 750, Old Orchard Beach, ME 04064 XRQRERAMD Mex Otkeexx P.O. Box 963
ML CHAEL MARTIN, ESQ. Gt- DAVIS, FsQ_) Gray, ME 04039-0963
BWO.. BOX 9733, PORTLAND, _ME--04-104 05033. DOK OGE COCCOUNSET,
Qeposition issue only) RISES RSO ORIG OSEISE
DASOD-VAN- DYKE, ESQ, withdrew 1-28-02
THOMAS- TALLETT-ESQ.--(eo~courrsed )
Entry JUDE SPuawhn "Ste, “Cape “err ZABETH 04107
Mar. 24 Received 03-23-00:
Complaint Summary Sheet filed.
" " Verified Complaint and Jury Demand filed.
" " Plaintiff's Motion for Ex Parte Order Approving Attachment and Trustee
Process with Incorporated Memorandum of Law with attachment & Exhibit A
filed.
" " Affidaivit of Jeffrey Bennett Esq., In Support of Motion for’ an Ex Parte Order
Approving Attachment and Trustee Process filed.
woof Plaintiff's Request for Ex Parte Hearing filed.
" " Réceived 03-24-00:
Letter from Jeffrey Bennett, Esq. regarding the need for an ex parte order
with Exhibit A filed. (Exhibit A filed with Motion for Ex Parte Otder)
mu On 03/24/00:
EX PARTE ORDER APPOVING ATTACHMENT AND TRUSTEE PROCESS filed. (Warren, .)
ORDERED: i) An attachment, including trustee process, may be made against
the porperty of Defendant Scott Liberty in the amount of $500,000.00 :
to secure payment of damages to Plaintiff, if and when awarded in the
above-entitled action, however, the ‘first $109.00 d&mdndsbdnk . accounts
held by one trustee shal be exempt from Trustee Process isuued pursuant
to this =x Parte Order; and ii) This order may be incorporated by re~
-ference on the Court's Civil Docket.
un mn On 03/24/00: Copy given in hand to Jeffrey Bennett, Esq.
Mar 31 Received 3-31-00:
Letter from Morgan Stanley Dean Witter; Monica Tucker regarding account
filed.
Mar. 31 . | Received 3-31-00.
: /Plaintiff's Notification of Discovery Service filed.
Notice to Take Oral Deposition of Scott Liberty served by Sheriff
in hand on Defendant Scott Liberty on 3-30-00.
April 4 Received 04/04/00:
Plaintiff's Motion for Temporary Restraining Order and Preliminary
Injunction in Aid of Preserving a Damages Remedy with Incorporated
Menorandum of Law with exhibits A-E filed.
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