The opinion
STATE OF MAINE SUPERIOR COURT
ANDROSCOGGIN, ss. CIVIL ACTION
DOCKET NO. CV-15-156
JEFFREY BROWN and AMBER )
JUN 29 '17 AM9:05
BROWN ) ANDRO SUPERIOR GOU!
Plaintiffs, )
V. ) ORDER ON DEFENDANT'S
) MOTION FOR INVOLUNTARY
JOHN B. WAHLIG, JR., M.D. ) DISMISSAL
)
Defendant. )
Pending before the court is a motion to dismiss by Defendant John B. Wahlig, Jr.,
M.D., pursuant to Maine Rule of Civil Procedure 41(b)(2), a complaint filed against him
by Plaintiffs Jeffrey Brown and Amber Brown, for failure to comply with a court order.
For the reasons below, this court grants Defendant's motion.
I. Background
On October 20, 2014, Defendant John B. Wahlig, Jr., M.D. performed back
surgery on Plaintiff Jeffery Brown. (Compl. cir 7.) One week later, Defendant performed
a second surgery on Plaintiff Jeffery Brown. (Compl. cir 14.) On September 23, 2016,
Plaintiffs filed a complaint against Defendant for: (I) alleged malpractice (negligence)
during the week between the surgeries, and (II) loss of consortium allegedly
experienced by Plaintiff Amber Brown as a result of the alleged injuries suffered by
Plaintiff Jeffery Brown. (Compl. 11 17, 23.) On September 28, 2016, Defendant
answered, and a scheduling order was signed on September 29, 2016. On December 27,
2016, Plaintiffs' counsel moved for leave to withdraw. The court granted this motion on
February 3, 2017, and ordered Plaintiffs within 20 days to secure the representation of
another attorney or to state they would be representing themselves. On March 24, 2017,
the court granted Plaintiffs' February 23, 2017 motion to extend their time to comply
with this order until March 25, 2017. On April 6, 2017, Defendant filed this motion for
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involuntary dismissal. The 21-day window for Plaintiffs to oppose Defendant's motion
expired on April 27, 2017. M.R. Civ. P. 7(c).
II. Standard of Review
A defendant may move to dismiss a claim for the failure of a plaintiff to comply
with a court order. M.R. Civ. P. 41(b )(2). The Law Court has held that the reviewing
court should, in its discretion, evaluate the circumstances of the case as to whether there
exists "good cause" to the contrary of the dismissal. West Point-Pepperell v. State Tax
Assessor, 1997 ME 58, <JI 7, 691 A.2d 1211 ("the 'good cause' showing for keeping an
action on the docket, explicit only in Rule 41(b)(l), is also applicable to 41(b)(2)".)
Involuntary dismissal "should be exercised only with full appreciation and
consideration of the plight of the plaintiff," and the trial courts should consider a lesser
sanction than dismissal. Westbrook v. Wallace, 478 A.2d 687, 689-690 (Me. 1984). An
involuntary dismissal operates as an adjudication upon the merits unless otherwise
specified by the court. M.R. Civ. P. 41(b)(3).
III. Discussion
Plaintiffs have provided no facts to the court to support a showing of good cause
to the contrary for dismissing this complaint, other than a reference to the
"voluminous" file sent to them by their first attorney. (Pl.s' Mot. to Extend Time 9I 1.)
IV. Conclusions
For these reasons, this court grants Defendant's motio or involuntary dismissal
with prejudice.
Date: t/21jl7
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JEFFREY BROWN - PLAINTIFF SUPERIOR COURT
112 NEWBURY STREET APT 2 ANDROSCOGGIN, ss.
AUBURN ME 04210 Docket No AUBSC-CV-2015-00156
AMBER BROWN - PLAINTIFF
112 NEWBURY STREET APT 2
AUBURN ME 04210 DOCKET RECORD
vs
JOHN B WAHLIG MD - DEFENDANT
Attorney for: JOHN B WAHLIG MD
DANIEL RAPAPORT - RETAINED 09/24/2015
PRETI FLAHERTY BELIVEAU PACHIOS LLP
ONE CITY CENTER
PO BOX 9546
PORTLAND ME 04112-9546
Filing Document: NOTICE OF CLAIM Minor Case Type: MEDICAL MALPRACTICE
Filing Date: 09/24/2015
Docket Events:
09/24/2015 FILING DOCUMENT - NOTICE OF CLAIM FILED ON 09/24/2015
09/24/2015 Party(s): JEFFREY BROWN
ATTORNEY - RETAINED ENTERED ON 09/24/2015
Party(s): AMBER BROWN
ATTORNEY - RETAINED ENTERED ON 09/24/2015
09/24/2015 Party(s): JOHN B WAHLIG MD
SUMMONS/SERVICE - ACCEPTANCE OF SERVICE SERVED ON 09/18/2015
THROUGH DANIEL RAPAPORT, ESQ.
09/24/2015 Party(s): JOHN B WAHLIG MD
SUMMONS/SERVICE - ACCEPTANCE OF SERVICE FILED ON 09/24/2015
09/24/2015 Party(s): JOHN B WAHLIG MD
ATTORNEY - RETAINED ENTERED ON 09/24/2015
Defendant's Attorney: DANIEL RAPAPORT
09/24/2015 CERTIFY/NOTIFICATION - NOTICE OF CLAIM SENT FOR REVIEW ON 09/24/2015
COPIES SCANNED TO HEIDI CARPENTER
11/03/2015 ORDER - PANEL CHAIR ENTERED ON 11/03/2015
ROLAND A COLE, JUSTICE
ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO
PARTIES/COUNSEL MARILYN ASHCROFT, ESQ. IS
APPOINTED AS PANEL CHAIR
12/02/2015 ORDER - SCHEDULING ORDER ENTERED ON 12/02/2015
ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO
PARTIES/COUNSEL PRELITITATION SCHEDULING
ORDER (ASHCROFT, PANEL CHAIR)
08/30/2016 ORDER - PANEL FINDING ENTERED ON 08/26/2016
Page 1 of 3 Printed on: 06/29/2017