The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
CUMBERLAND, ss DOCKET NO. CV-03-519
Roe ope
STATE OF MAINE Office
Wallace Brown, Cumberland, Ss, Clee et
Plaintiff SUPERIOR CO
AUG 31 2004
v. RECEIV ED ORDER
Jeffrey A. Thaler, Esq.,
Bernstein, Shur, Sawyer & Nelson, P.A., and ee
Berman & Simmons, P.A,
Defendants SEP 24 2004
This case comes before the court on Plaintiff Wallace Brown’s Motion for
Judicial Notice and Reconsideration, and Defendant Berman & Simmons’ Motion
to Dismiss, and Defendants Jeffrey A. Thaler and Bernstein, Shur, Sawyer &
Nelson’s Motion to Dismiss.
FACTS
Plaintiff Wallace Brown was a commercial fisherman who owned three
fishing vessels damaged on Sept. 27, 1996, when the tanker JULIE N spilled oil in
Portland Harbor. Plaintiff contends his vessels were cleaned incorrectly
following the spill, damaging them, and causing one of them, the FAIRHAVEN,
to sink. Plaintiff retained Defendant Attorney Jeffrey A. Thaler, of Defendant
Berman & Simmons, P.A., ona contingency fee basis to represent him in claims
relating to the oil spill. a BC
On November 1, 1996, Thaler declined to appear on Plaintiff’s behalf
when Plaintiff appeared before the Portland Board of Harbor Commissioners,
where he signed affidavits concerning his damages. On April 1, 1997, Thaler also
declined to attend an emergency meeting with Plaintiff before the Board
following the sinking of the FAIRHAVEN. Thaler also declined to assist Plaintiff
in negotiations with Plaintiff’s bank to consolidate and refinance, after Plaintiff
defaulted on commercial loans following the damage to his fishing vessels.
Thaler also failed to file a claim on Plaintiff’s behalf before a September 27, 1997,
deadline for filing under Maine’s Coastal and Inland Surface Oil Clean-up Fund
In June 1997, Attorney Thaler left Berman & Simmons to work for Bernstein,
Shur, Sawyer & Nelson, P.A. (BSSN).
On January 20, 1998, Plaintiff filed for Chapter 13 Bankruptcy, engaging
new counsel. Plaintiff did not include potential recoveries from any Defendants
on his list of assets in his bankruptcy petition, and listed BSSN and Thaler as
potential creditors with claims against his estate? On September 27, 2001,
Plaintiff's remaining two fishing vessels were sold, along with their commercial
fishing permits, at public auction.
Plaintiff filed his Complaint on September 24, 2003, alleging Attorney
Thaler’s malpractice, negligence, and misrepresentation, and the vicarious
liability of his employers, Berman & Simmons, and later, BSSN. On November
24 and 25, 2003, Plaintiff served the Defendants by certified mail. All three
certified mail return receipts were signed, returned, and filed with the court.
However, none of the Defendants acknowledged service. On December 19, 2003
,
*In 2001-2002, Plaintiff appears to have recovered a $25,6000 interim award,
$ 86,561 for loss of profits and earning capacity, and $82,520.08 for property
damage from National Pollution Funds Center. His attorney in this matter was
Richard P. Olsen, Esq. who was also his bankruptcy attorney.
* Plaintiff’s bankruptcy was voluntarily dismissed on July 24, 2001. He received
no discharge, and no bankruptcy estate was created.
Plaintiff requested, and the Superior Court Clerk’s office entered a default
judgment in his favor against all Defendants. On December 23, 2003, the
Superior Court (Warren, J.) vacated the default judgments as error, and ordered
Plaintiff to effect service under M.R. Civ. P. 4(c)(2) or (3). To date, none of the
Defendants has been served by Plaintiff or has waived such service.
On July 6, 2004, Defendants Thaler, and BSSN filed a Motion to Dismiss,
asserting (1) insufficiency of service; (2) that claims were barred by the statute of
limitations; (3) that Plaintiff was not damaged; and (4) preclusion under theories
of res judicata and judicial estoppel.
On July 6, 2004, Defendant Berman & Simmons filed a separate Motion to
Dismiss asserting insufficiency of service and that claims were barred by the
statute of limitations. Berman & Simmons also adopted by reference the
additional arguments of BSSN,
On July 19, 2004, Plaintiff filed a Motion to Reconsider the December 22,
2003, order vacating Plaintiffs default judgments. Plaintiff asserts that
Defendants were properly served by certified mail under rule M.R. Civ. P.
4(c)(3) (“other method permitted or required by this rule or by statute”) and had
not been served by first class mail, under M.R. Civ. P. 4 (c)(1). Plaintiff requests
that the court take judicial notice under MR. of Evid. 201(b) of various
documents, including advisory notes to Maine Rules of Civil Procedure, the
Maine Constitution, and Postal Service procedures.
I. Plaintiff's Motion for Judicial Notice
Judicial notice may be requested under Maine rules of Evidence 201 asa
means for the court to “inform]] itself, during the course of litigation other than
by formal evidentiary proof.” Field & Murray, Maine Evidence § 201.1 (1987 ed.)
Facts may be judicially noticed when they are not subject to reasonable dispute
because they are generally known within the territorial jurisdiction of the trial
court or are readily capable of accurate determination? Id. § 201.2. However, the
rule “has nothing to do with judicial notice of the law. The courts judicially
notice the public statutes of the State of Maine and its common [or case] law.” Id.
at § 201.1. The rule likewise does not apply to decisions regarding what law
governs an action before the court. Id. Plaintiff’s Motion requesting judicial
notice of Maine statutes, cases, Restatements adopted in Maine case law, and the
Maine constitution is therefore denied.
II. Plaintiff’s Motion to Reconsider
Under Maine rules of Civil Procedure, a motion to reconsider an order
“shall not be filed unless required to bring to the court’s attention an error,
omission or new material that could not previously have been presented.” M.R.
Civ. P. 7(b)(5).. “The court may in its discretion deny a motion for
reconsideration without hearing and before opposition is filed.” Id. The
Advisory Committee on Maine rules explains that Rule 7(b)(5) was added to
“make[] clear that such motions are not to be encouraged. Too frequently,
disappointed litigants bring motions to reconsider not to alert the court to an
error... . but solely to reargue points that were or could not have been presented
to the court on the underlying matter.” M.R. Civ. P. 7(b)(5) advisory committee’s
note to 2000 amend. Me. Rptr., 746-754 A.2d XXVIIL
* For example, the Law Court found a foreign currency exchange rate to be a
proper subject of judicial notice. Royatex Ltd. V. Daughan, 551 A.2d 454, 455
(Me. 1988). Although judicial notice might properly be taken of standard postal
procedures, this court's ruling on Plaintiff’s Motion to Reconsider makes it
unnecessary to address such procedures.
Here Plaintiff maintains the court was in error in its December 23, 2003,
order vacating Plaintiffs default judgments and ordering Plaintiff to properly
serve Defendants under Rule 4(c)(2), (by sheriff), or 4(c)(3), (“by other method
permitted or required by Rule 4 or by statute”). Plaintiff maintains his initial
service was made correctly, and initially under Rule 4(c)(3). Plaintiff maintains
service by certified mail is a method permitted by Rule 4(c)(3) and by statute for
service on these Defendants and that he deliberately by-passed service by
ordinary mail under Rule (c)(1).4
Plaintiff fails to explain his almost seven-month delay in filing his Motion
to Reconsider. More importantly, he does not explain how his present argument
for error is one “that could not previously have been presented” under the clear
mandate of rule 7(b)(5). Instead, Plaintiff seeks simply to reargue the issue, or
argue it anew, using theories that could have, but were not asserted at the time
‘the order was made. Plaintiffs Motion to Reconsider is denied.
* The Advisory Committee contemplated such a by-pass: “Plaintiff may,
however, chose at the onset to bypass Rule 4(c)(1) and make service initially by a
method specifically provided by rule or statute for the type of defendant in
question, which may be personal service or another method such as registered or
certified mail. If service is attempted under Rule 4(c)(1) but fails for lack of
acknowledgement, plaintiff must resort to either personal service or another
method as appropriate in order to obtain jurisdiction.” M.R. Civ. P. 4(c) advisory
committee’s note to 1992 amend., Me. Rptr., 602-617 A.2d XCI. Plaintiff's
statutory basis for serving Defendants Berman & Simmons and BSSN by certified
mail is Maine’s Business Corporation Act § 502, which names a corporation’s
a corporation.” 13-C § 502 (3) (Supp. 2003). Plaintiff does not provide arule ora
statutory basis for service on Defendant Thaler by certified mail. Instead,
5
Ill. Defendants Berman & Simmons, Thaler and Bernstein, Shur,
Sawyer & Nelson’s Motions to Dismiss.
Defendants move to dismiss on four grounds: (1) insufficiency of process
and of service of process under M.R. Civ. P. 12(b)(4), (5); (2) failure to state a
claim for which relief may be granted under M.R. Civ. P. 12(b)(6) on grounds the
action is barred by the statute of limitations; (3) lack of damage; and (4) judicial
estoppel and res judicata.
A Motion to Dismiss is examined ina light most favorable to the plaintiff
to determine whether plaintiff’s complaint “sets forth elements of a cause of
action or alleges facts that would entitle the plaintiff to relief pursuant to some
legal theory.” Moody v. State Liquor & Lottery Com’n, 2004 ME 20, { 7, 843 A.2d
43, 46 (citation omitted). When deciding a motion to dismiss for failure to state a
claim upon which relief may be granted, “the material allegations of the
complaint must be taken as admitted.” Id, at 47 (citation omitted).
“Unless the court in its order for dismissal otherwise specifies, a dismissal
... other than a dismissal for lack of jurisdiction, for improper venue, or for
failure to join a party under Rule 19, operates as an adjudication upon the
merits.” MLR. Civ. P. 41 (b)(3)(2003). The Law Court has held that insufficiency
of service under rule 12 (b)(5) is an issue of personal jurisdiction included in the
exception for “lack of jurisdiction” to Rule 41 (b)(3), and is not a dismissal with
prejudice. Fries v. Carpenter, 567 A.2d 437, 439 (Me. 1989).
A. Insufficiency of Service
“Failure to serve a defendant ina timely manner may prevent a court
from having personal jurisdiction over that defendant.” Town of Ogunquit v,
Dept. of Public Safety, 2001 ME 47, J 10, 767 A.2d 291, 294 (citation omitted). The
purpose of timely service is to assure the court that a party has “adequate notice
and will not be prejudiced by having to defend a stale claim.” Id. at {11 (citing
Jackson v. Borkowski, 627 A.2d 1010, 1012-13 (Me. 1993)). The Law Court holds
that “excessive or unreasonable delay in service may be a ground for dismissal
unless shown to be the result of mistake or excusable neglect.” Dalot v. Smith,
551 A.2d 448, 449 (Me. 1988). Maine rule 6(b) allows the court, when finding
“excusable neglect” to enlarge the time within which an act is required or
allowed to be done upon motion if the time to act has expired. M.R. Civ. P.
6(b)(2). Here, Plaintiff has filed no motion to enlarge time, nor has Plaintiff
alleged excusable neglect. The period for acting under the December 23, 2003
order “pursuant to Rules 4(c) (2) or 4(c)(3)” although not specified in the court’s
order, extends under Rule 3, at most, to ninety days beyond December 23, 2003.
This court is authorized to dismiss Plaintiff’s complaint for insufficiency of
service, and therefore, failure to properly assert personal jurisdiction over the
defendants. Qualey v. Sect’y of State, 628 A.2d 1035, 1037 (Me. 1993).
B. Statute of Limitations
Here Plaintiff is alleging malpractice, negligence and negligent
misrepresentation against Attorney Thaler, and also against both his employers,
Berman & Simmons and BSSN, under a theory of vicarious liability.
Except as otherwise provided by statute, all civil actions in Maine “shall
be commenced within 6 years after the cause of action accrues and not
afterwards.” 14 M.R.S.A. § 752 (2003). With exceptions not applicable here,
actions against attorneys for negligence or malpractice must be brought within
six years, under the general rule for civil actions. 14 MRS.A. § 752 (2003). By
law, the statute of limitations in such actions “starts to run from the date of the
act or omission giving rise to the injury, not from the discovery of the
malpractice, negligence or breach of contract, except as provided in this section
or as the statute of limitations may be suspended by other laws.’”° 14 M.RS.A. §
753-B (1)(2003). The Law Court holds that accrual of a cause of action begins at
“the point at which a wrongful act produces an injury for which a potential
plaintiff is entitled to seek judicial vindication.” Williams v. Ford Motor Co., 342
A.2d 712,714 (Me. 1975). Simply, the “test is when plaintiff... was first entitled
to sue.”
Here, there is no time within the six-year statute of limitations on
Plaintiff's action when Defendant Thaler acted or failed to act while employed by
Berman & Simmons. Dismissal is granted with prejudice with respect to Berman
& Simmons, on this ground.
However, Plaintiff's harm was allegedly caused a series of acts or
omissions on the part of the Defendant Thaler while employed at BSSN, some
falling within, and some falling outside, the applicable statute of limitations. In
such cases, the Law Court has found the defendant, not the plaintiff, has the
burden of establishing those injuries for which the defendant is not responsible.
Palleschi v. Palleschi, 1998 ME 3, 7 3, 704 A.2d 383, 385 (citing Lovely v. Allstate
Ins. Co., 658 A.2d 1091 (Me. 1995)). Defendants Thaler and BSSN’s Motion to
Dismiss cannot therefore, rely on this ground.
The court does not reach Defendants arguments under theories of lack of
damage, judicial estoppel, or res judicata at this time.
WHEREFORE this court DENIES Plaintiff’s Motion for Judicial Notice
and Motion to Reconsider, and GRANTS Defendant Berman & Simmons’
Motion to Dismiss with prejudice, pursuant to 14 MRS.A. § 752. This court
GRANTS without prejudice Defendants Jettrey Thaler and Bernstein, Shur,
Sawyer & Nelson’s Motion to Dismiss, on grounds of insufficient service
pursuant to M. R. Civ. P. 12 (b)(5).
Date QJ A 200% i;
Roland A. Cole <
Justice, Superior Court
Cumberland County
P.O. Box 287
Portland, Maine 04112-0287
CHRISTOPHER TAINTOR ESQ
PO BOX 4600
PORTLAND ME 04112
CLERK OF COURTS
Cumberland County
P.O. Box 287
Portland, Maine 04112-0287
WALLACE BROWN
10 HARDY ROAD
FALMOUTH ME 04105