The opinion
STATE OF MAINE SUPERIOR COURT
YORK, SS. Civil Action
Docket No. CV-16-0007
JAMES M. DINEEN,
Plaintiff,
V. ORDER
BANK OF AMERICA, N.A.
Defendant.
Plaintiff James M. Dineen filed this action on January 8, 2016 seeking to recover
unpaid rent allegedly due from Defendant Bank of America, N.A., from a month-to-
month tenancy that ended in January 2010. Defendant filed as a responsive pleading a
motion to dismiss the complaint under M.R. Civ. P. 12(b)(6). There have been a
number of delays and irregularities in this matter, some of which are Mr. Dineen's
responsibility and others, the court's responsibility. The history is detailed in the prior
orders of November 10, 2016, August 3, 2016 and May 26, 2016 and will not be
reiterated here. Ultimately a hearing was held on March 7, 2016. Based on that
hearing, the court rules as follows.
First, consistent with the discussion with counsel at hearing, the court addresses
the merits of Defendant's motion to dismiss. Thus the May 26"' order and that part of
the August 3.. order addressing issuance of the May 26'" order will be vacated.
Second, because it was the court's error in prematurely granting the motion to
dismiss that prompted Plaintiff's filing of the June 8"' motion to reconsider, the court
will remit to Mr. Dineen the $60 filing fee he incurred in connection with the filing of
said motion.
1
Third, the court declines Mr. Dineen's request for remittance of the second $60
filing fee associated with his second motion to reconsider, and also determines in the
circumstances that even though his August 25~ motion to reconsider will be granted in
part, the August 10, 2016 order awarding $332.40 in attorney's fees to Defendant will
stand.
Finally, with regard to the merits of Defendant's motion to dismiss the
complaint, the court must deny the motion. The first ground asserted by the motion
Plaintiff failed to comply with Rule 3' s 90-day period for filing the return of service-is
technically correct. Plaintiff filed the original complaint on January 8, 2016. He
served an amended complaint on Defendant on April 8, 2016, and filed the amended
complaint along with the return of service on that same day. In 2016, a leap year, April
8 fell on the 91" day after January 8, not the 90~ day.
Rule 3 provides that if a return of service "is not timely filed, the action may be
dismissed on motion and notice." M.R. Civ. P. 3. A showing of prejudice or lack of
good faith is generally required to justify dismissal. See Harvey, Maine Civil Practice§
3.3, 136 (2011).
Here, Plaintiff missed the Rule 3 90-day deadline by one day. Defendant
contends that it would be prejudiced nonetheless because (i) Mr. Dineen apparently
never served Defendant with the original complaint, (ii) the original complaint was
filed just two days before the expiration of the applicable six-year limitations period for
this action, (iii) the return of service filed relates to the amended complaint, and (iv) the
amended complaint was clearly served and filed beyond the expiration of the
limitations period. Thus, this contention dovetails with the second ground asserted in
Defendant's motion-that the action is barred by the statute of limitations, 14 M.R.S.
752.
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The amended complaint asserts the same cause of action as the original
complaint. Since the claim asserted in the amended complaint "arose out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in the original
pleading," it relates back to the original complaint. M.R. Civ. P. 15(c).
As noted, the original complaint was filed just under the wire-two days before
the cause of action for unpaid rent would have been barred outright. The court cannot
determine definitively from the facts averred in the complaint that the six-year statute
of limitations bars all claims Plaintiff may have with respect to unpaid rent. See 2
Harvey, Maine Civil Practice §12:12, 423 (2011); Couturier v. Penobscot Indian Nation, 544
A.2d 306, 308 (Me. 1988). Even so, Plaintiff's claim for much, if not all, of the back rent
may well be barred, as Defendant argues. The court will consider the issue upon a
properly submitted record .
Accordingly, the entry will be:
1. Plaintiff's August 25, 2016 motion to reconsider is GRANTED IN
PART.
2. The May 26, 2016 order is VACATED and the August 3, 2016 order is
VACATED IN PART.
3. The clerk shall remit to Plaintiff James M. Dineen the sum of Sixty
dollars ($60), which was incurred as the filing fee in connection with his
June 8, ·2016 motion to reconsider.
4. Defendant's motion to dismiss is DENIED.
5. Defendant shall file an answer to the complaint within 20 days of the
date this order is entered.
6. All other pending motions are DENIED.
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The clerk may incorporate this order on the docket by reference pursuant to Rule
79(a).
SO ORDERED.
DATED: March 17, 2017
Wayne
Justice,
4
CV-16-0007
PLAINTIFF PRO SE:
JAMES M DINEEN
POBOX324
KITTERY ME 03904
ATTORNEY FOR DEFENDANT:
RUFUS BROWN
POBOX7530
PORTLAND ME 04112-7530