The opinion
STATE OF MAINE
CUMBERLAND, ss:
TABATHA WOODSIDE,
PLAINTIFF
v.
ORDER ON POST JUDGMENT
DAVID COPPERSMITH d/b/a MOTION FOR RELIEF
Pine Tree Autobody,
DEFENDANT ~:Ec~u (:l:~~E~ ClE~:Y~S iJF;C
~!r./~ 11 ~19 FF-:1:Lt?i
1
The hearing on plaintiff's small claims' action was rescheduled for
12 / 13/ 18. On that day plaintiff appeared but neither defendant nor defendant's
counsel appeared. 1 A default was entered and the court then entered judgment
for plaintiff after a brief hearing on damages for the maximum level of recovery
($6,000.00) allowed in a small claims action. 2 Defendant's counsel had filed a
motion to continue the hearing on 11 / 30 / 18 due to a 'longstanding plans' for
vacation out of the country, but that motion was denied by an order entered on
12/ 11 / 18. A previous motion for continuance filed by defendant's counsel had
b en granted on 11 / 28 / 18 to continue the original 11/29/ 18 hearing to allow
counsel more time to prepare for the hearing. 3 A motion to set aside default, or
in the alternative for relief from judgment' was filed by defendant on 12/ 19/ 18.4
Plaintiff has filed a written opposition to this motion objecting to all relief
requested by defendant.
The provisions of Rule 9 of the Maine Rules of Small Claims Court
provide, in pertinent part, that "[o]n written request of a party setting forth good
1 In the motion, defendant claims that replacement counsel showed up at court after receipt of a
copy of the order denying the continuance in the mail on the day of the hearing, but that
appearance was after the hearing was completed and judgment had been entered (and plaintiff had
presumably departed the courthouse).
2 14 M.R.S. § 7482. Plaintiff established a basis for damages in excess of$6,000.00 but agreed to
reduce her claim, aware of the preclusive effect of that reduction, to pursue a small claims action.
See, 14 M.R.S. § 7485.
3 Defendant filed the first motion for continuance on 11/2 7/18, two days before the original
hearing date, although defendant was served with the statement of claim on 10/25/18 and was
sent notice of the hearing by the court on 10/3 0/18.
4 Defendant has also filed a motion to extend the appeal deadline which is addressed by separate
order and is granted in part.
cause, the court may ... relieve a party from the effect of a judgment in accordance
with Rule 60 of the Maine Rules of Civil Procedure." The provisions of
M.R.Civ.P. Rule 60 (b)(l) incorporate the standard of 'excusable neglect'. In
reviewing motions to vacate judgments enter d by default or relief from
judgment the Law Court has required the moving party seeking relief to
demonsh·ate a good excuse for the failure to act or appear and a meritorious
defense. Richter v. Ercolini, 2019 ME 38, <[ 15. The moving party must also
demonstrate that denial of the motion" ... works a plain and unmistakable
injustice against the defendant. .. " R.C. Moore v. Les-Care Kitchens, Inc.,
2007 ME 138 <[ 27. The excusable neglect standard5 has been held to be a strict
standard that requires a showing that extraordimu:y circumstances exist that
would create an injustice if the motion was not granted. Lingley v. Maine Worker's
Compensation Board, 2003 ME 32 <[ 3.
A mere mistake by a party's attorney is not a 'good excuse' and does not
rise to the level of excusable neglect. Maroon Flooring, Inc. v. David Austin.,
2007 ME 75 <[ 9, quoting Begin v. ]e1'ry's Sunoco, Inc., 435 A.2d 1079, 1083 (Me.
1981). In the present case counsel essentially is saying that because she believed
she had a good rea.s on for not being available for the trial date, the motion would
or should be granted, and this justifies her failure to appear or to arrange for
timely coverage. This is simply not an acceptable practice, particularly where
there has been a prior continuance granted at the same party's request and the
motion for continuance was not agreed to by the opposing party. 6 There is no
question that counsel knew at the very least that her motion had not been acted
upon before she left for vacation, and she failed to make proper plans for follow
up, referral or coverage. The court denied the second request for continuance
because it frustrated ·the purpose of small claims proc edings to provide " ... a
just, speedy and inexpensive determination of every action ... "M.R.Sm.Cl. Rule 1.
Having determined that the defendant has failed to demonstrate a good
excuse or 'excusable neglect' to set aside the (default) judgment, the court does
not need to determine whether defendant has a meritorious defense. The court
notes that H conducted a damage hearing and reviewed and relied on testimony
and substantial documentation in determining damages. At the very least the
court is confident after its review and determination of the evidence presented
that an "unmistakable injustice" will not occur if the defendant's motion is
denied.
5 The Lingley case discusses the 'excusable neglect standard' in relation to the deadline for filing
an appeal of an administrative adjudication.
6 The court notes that in her second motion for continuance defendant's counsel again failed to
make any contact with plaintiff to inquire about her position on the continuance request.
Although Rule 7 (b)(4) does not strictly apply in small claims' proceeding, the corresponding
Rule 7 of Small Claims Court Rules does admonish the parties that continuances are
"disfavored", and it is prudent and standard practice for an attorney to make inquiry of the
opposing party and to state the position of that party (if known) related to all continuance or
enlargement motions or requests in all cases.
2
Therefore, for all of the above stated reasons, the defendant's motion is
HEREBY DENIED.
The Clerk of Court shall, pursuant to M.R.Civ. P. 79 (a) incorporate this
order by reference by a notation made upon the civil docket as follows,
"Defendant's motion for post judgment relief is DENIED."
Dated: January 11, 2019 ~ Hon.PeterDarvin
Judge, District Court
3
prod/2.2-10 MAINE JUDICIAL INFORMATION SYSTEM 01/11/2019 erichard
PORTLAND DISTRICT COURT mjxxi013
PAGE A - ATTORNEY BY CASE VIEW
TABATHA WOODSIDE VS DAVID COPPERSMITH DBA PINE TREE AUTO BODY
UTN:AOCSsr -2018-0083371 CASE #:PORDC-SC-2018-00758
01 0000005799 MAHER LAURA A
PO BOX 7046 95 EXCHANGE STREET PORTLAND ME 04112-7046
F DAVID COPPERSMITH DEF RTND 11/27/2018
--------------------
Enter Option: A=Add, B+Sel=Browse, M=More, R+Sel=RltnEdit: