The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO;6-
R A ~
7
CHRISTOPHER BOUGOPOULOS I
Plaintiff
ORDER ON PLAINTIFF'S AND
DEFENDANT'S MOTION TO
DISMISS RULE 80C APPEAL
v.
STATE OF MAINE BOARD OF
DENTAL EXAMINERS
Defendant
This case comes before the Court on Bougopoulos~sMotion to Dismiss his
80C appeal without prejudice, and the Board's Motion to Dismiss the appeal
with prejudice and with an award of costs.
BACKGROUND
Christopher Bougopoulos ("Bougopoulos"), a licensed dentist in Maine,
filed an 80C appeal in this Court in April 2006. Bougopoulos sought review of a
March 2006 decision of the State Board of Dental Examiners ("The Board"),
which suspended Bougopoulos's dentistry license for 15 days, imposed fines,
and instituted a five-year period of probation based on its findings that
Bougopoulos violated certain standards of practice.
In his appeal, Bougopoulos alleged that he did not receive due process in
the months leading up to his hearing in February 2006. The Board, however,
contends that Bougopoulos did receive due process and that its decision should
be affirmed. After correspondence between attorneys for the parties,
Bougopoulos offered to voluntarily dismiss the appeal in return for a meeting
with the Board to discuss its hearing processes. The Board rejected this proposal
and began preparing to fully and vigorously defend the appeal. Although
neither party has submitted a brief1 per Rule 80C, The Board, as required by the
rule, did order hearing transcripts and other materials to be included in the
record it intended to file with h s Court. Bougopoulos later moved to dismiss
his appeal without prejudice, citing financial concerns. The Board moved to
dismiss the appeal with prejudice, also contending that Bougopoulos should
reimburse the Board for the costs of preparing the r e ~ o r d . ~
DISCUSSION
1. Standard of Review for Voluntarv Dismissal.
The primary issue in h s case is whether Bougopoulos is entitled to a
voluntary dismissal without prejudice. Voluntary dismissal of a civil action is
governed by M.R. Civ. P. 41(a)(l). A plaintiff can dismiss h s or her own action
without approval of the court, provided that dismissal occurs before the filing of
the answer or that the parties have stipulated to dismissal. Id. If those
conditions have not been met, however, the court may order dismissal "upon
such terms and conditions" as it sees fit; such dismissals are without prejudice,
unless the court orders otherwise. M.R. Civ. P. 41(a)(2).
Here, Bougopoulos provided a stipulation of dismissal to the Board,
whch would not stipulate because the parties disagree about whether the
dismissal should be with or without prejudice, and about who should pay the
costs of compiling the record. Tlus Court must therefore determine whether
Bougopoulos's Motion to Enlarge the time for filing his brief was granted by this Court pending
resolution of these motions.
2
The Board indicates that the total cost of preparing the record was $4,246.00.
dismissal is warranted, and with what ramifications. This is a purely
discretionary decision. VAS, LLC v. Davric Me. Corp., PORSC-CV-2003-661 (Me.
Super. Ct. Cum. Cty., Jul. 7,2004) (Crowley, J.).
As indicated above, the Maine Rules of Civil Procedure presume that
voluntary dismissals are without prejudice. In this instance, however, the Board
prepared the appellate record and was ready to defend the appeal. Bougopoulos
had an opportunity to file a brief and fully pursue his appeal, but elected not to
do so. Given this, he will not be permitted to re-file tlus appeal, which is hereby
dismissed with prejudice.
While the Court appreciates the Board's concern about having incurred
the costs of preparing the record, such costs are typically borne by the agency.
No costs for amassing the record will be awarded to the Board.
The entry is:
Plaintiff's motion to dismiss his 80C appeal without prejudice is
DENIED. Defendant's motion to dismiss with prejudice is
GRANTED, with no costs.
DATE:
' ~ u s t i kSuperior
, Court
COURTS
)d County
)x 287
e 041 12-0287
J E N N I F E R RIGGLE ESQ
93 EXCHANGE STREET
PORTLAND ME 0 4 1 0 1
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30x 287
ne 041 12-0287
DENNIS SMITH AAG
6 STATE HOUSE STATION
AUGUSTA ME 0 4 3 3 3