The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. AP-05-29
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SHARRON V. A. WOOD,
Petitioner
DECISION ON MOTION
MAINE EDUCATION
ASSOCIATION, et al.,
Respondents
This matter comes before the court on motions by both respondents to dismiss
this appeal pursuant to M.R. Civ. P. 12(b)(l)for lack of jurisdiction. Also pending is the
respondents' motion in opposition to late filing, the other side of the coin. By
agreement of the parties, these motions are decided on the briefs. Because the court
finds that the petition was filed late, depriving the court of its jurisdiction, the motions
will be granted.
Facts
On April 21, 2005, the Maine Labor Relations Board issued a Decision and Order
whch is the subject matter of the petitioner's purported appeal. Along with the
Decision and Order was a notice stating that any appeals had to be filed with the
Superior Court w i h n 15 days of that date. 26 M.R.S.A. sec. 1029 (7). The petitioner
attempted to file her appeal on May 5, 2005, w i h n the 15 days, but did so without a
summary sheet. The clerk thus returned the complaint as an incomplete filing in
accordance with Administrative Order SJC-114. The fifteenth day after issuance of the
Decision was May 6, 2005. The petition was refiled with the summary sheet one week
later on May 13,2005, together with a motion for late filing.
Discussion
The decision on these motions falls squarely witlun the holding of the Law Court
in City of Lmiston v.Maine State Employees Assn., 638 A.2d 739 (Me. 1994). Pursuant to
that holding, the court has no authority to grant any extensions of the statutorily
derived appeal period and has no jurisdiction to hear the appeal once the appeal period
has expired. Receipt of the filing in the clerk's office on May 5, 2005, did not constitute
a "filing" since it was incomplete. Both the completed appeal and motion for late filing
arrived on May 13,2005, and were considered "filed" as of that date.
The petitioner's attempts to avoid dismissal by arguing the difference between
"filing" and "docketing" also fail. The petitioner suggests that when an incomplete
filing is returned to a party and a completed filing is later submitted, the completed
filing should be post-dated to the date of the original incomplete filing. This argument
is simply contrary to Rule 5(f), which provides in part: "The offerer may refile the
documents when all elements are complete. The filing will be docketed when the
complete filing is received." According to the Advisory Committee's notes of May 1,
2001, the change in Rule 5(f) to require the clerk to retain a copy of the document
purported to be "filed" was simply to allow later review of the clerk's action. "The
amendment addresses this problem by having the clerk retain a copy of the document
attempted to be filed so that some reflection of timing of the filing is preserved and
some recourse is possible in case of an error in rejecting a document." However, the
amendment to the rule does not imply that corrected filings would be considered nunc
pro tunc to the date of the original incomplete filing.
For the reasons stated, the entry will be:
The motions to dismiss and to oppose late filing are GRANTED
and O D E F E D that the appeal is DISMISSED for want of subject matter
jurisdiction.
Dated: October 6 , 2 0 0 5
S. IGrk Studstrup Q
Justice, superio; Court
Date Filed 5/13/05 Kennebec Docket No. AP05-29
County
Action Petition for Review
80C
Sharron V.A. Wood VS. Maine Education Association & Maine
Plaintiff's Attorney I Defendant's Attorney Cornunity College System
Grover G. Alexander, Esq. Donald Fontaine, Esq. (MEA)
P.O. Box 346 97 India Street
Gray, Maine 04039 PO Box 7590
Portland, Maine 04112
- Linda McGi 11 . P c q . (MCCS)
P.O. Box 9729'
Portland, maine 04104
- Lisa Copenhaver, Esq. (ME. Labor Bd.)
90 State House Station
Date of Augusta, Maine 04333-0090
Entry
Petition for Review of Final Agency Action, filed. s/Alexander, Esq.
Motion for Late Filing, filed. s/Alexander, Esq.
Proposed Order, filed.
Entry of Appearance, filed. s/Copenhaver, Esq.
Entry of Appearance, filed. s/Fontaine, Esq.
Opposition of Respondent Maine Education Association to Motion for Late
Filing, filed. s/Fontaine, Esq.
Motion to be Joined as a Defendant in rule-80€!Appeal, filed. s/Copenhaver
Motion to Dismiss for Lack of Jurisdiction and Opposition to Motion for
Late Filing, filed. s/Copenhaver, Esq.
Proposed Order, filed.
Respondent Maine Community College System's Opposition to Petitioner's
Motion for Late Filing and Motion to Dismiss, filed. s/McGill, Esq.
Notice of setting of hearing on motion for late filing on 6/16/05 at
8:30 a.m. sent to attys of record.
' ~ n t of
r ~Appearance on behalf of Maine Community College System, filed.!
s/L. McGill, Esq.
Plaintiff's Motion to Continue, filed. S/G. Alexander, Esq.
Respondent Maine Community College Systems's Objection to Request to
Continue Hearing on Motion for Late Filing, filed. s/McGill, Esq.
Respondent Maine Community College Systems's Objection to Request to
Continue Hearing on Motion for Late Filing, filed. s/McGill, Esq.
Plaintiff's Motion to Continue is GRANTED. New date to be set by Clerk.
s/Studstrup, J. Copies issued to counsel of record.
Petitione?'sfResponse to Motinns to-Dismissand Motion to Join as a Party,
filed. slhlexander, Esq.