# Pollack v. Quirion

> Superior Court of Maine · October 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10812055

## Case

- **Court:** Superior Court of Maine
- **Decided:** October 28, 2020
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Daniel I. Billings
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

STATE OF MAINE SUPERIOR COURT
SAGADAHOC, SS. CIVIL ACTION
DOCKET NO.: BATSC-CV-2018-24

MATTHEW POLLACK )
and )
JANE QUIRION )
)
Plaintiffs, )
)
)
v. ) ORDER ON PENDING
) MOTIONS
)
JESSICA FOURNIER )
)
Defendant. )

The parties' motions to exceed page limits are GRANTED.

The Plaintiffs' Motion to Strike is GRANTED, in part. The new facts alleged in the

Defendant's Reply are struck and will not be considered by the court.

The Law Court has held that this court has statutory authority to grant attorney

fees in this action because the Defendant's Special Motion to Dismiss was granted, in part.

Pursuant to the Law Court's mandate, this matter is before the court to determine if an

award of attorney fees is warranted due to the court granting the Defendant's Special

Motion to Dismiss as to Count 3 and, in part, as to Count 4, and if so, to determine an

appropriate award of attorney fees in proportion to them. See Maietta Constr., Inc. v.

Wainwright, 2004 ME 53, ." Party, Black's Law Dictionary, 1297 (10th ed. 2014).
Fournier was not a party or a litigant to the prior suit even though the Plointiffs could have chosen
to name her as a defendant.

26
claim splitting if no claim was brought against her to be split. Therefore, because Fournier

was not a party to the prior suit, she could not have acquiesced to claim splitting.

Again, because Fournier has met the elements of res judicata, and the Plaintiffs

have not shown that she is judicially estop ped from asserting it as a defense, or that she

acquiesced to the splitting of the causes of action, the court grants Fournier's Second

Motion to Dismiss in its entirety. However, the court will address below the parties'

arguments regarding whether the statute of limitations additionally bars the Plaintiffs'

claims, and whether some of the claims should be dismissed on the merits.

VI. Fournier's Second Motion to Dismiss Based on the Statute of Limitations

Fournier argues that the Maine Tort Claims Act (MTCA) bars the Plaintiffs'

wrongful use of civil proceedings and abuse of process claims against her. The MTCA

requires that, within 180 days after a claim or cause of action arises, a claimant shall file

a written notice containing specific requirements, including the "name and address of

any governmental employee involved." 14 M.R.S. § 8107(1)(C). An action may not be

brought if the notice provisions are not substantially complied with. § 8107(4). Section

8110 provides that "[e]very claim against a governmental entity or its employees

permitted under this chapter is forever barred from the courts of this State, unless an

action therein is begun within 2 years after the cause of action accrues ... ."

Fournier argues that because the Plaintiffs have not served written notice upon the

District th at complies with the 180-day timeframe prescribed by § 8107, or the two-year

timeframe allowed by § 8110, the abuse of process and wrongful use of proceedings

claims must be dismissed. They further argue that the MTCA applies to claims against

government employees in their individu al cap acity.

In response, the Plaintiffs maintain that Fournier's statute of limitations argument

fails because they do not allege that she was acting in the course and scope of her

27
employment, or on behalf of the District when she engaged in the conduct on which their

claims are based. They argue that because Fournier's actions against them were not taken

in her role as an employee, or a person "acting on behalf of a governmental entity(,]"

§ 8102(1), that neither the notice requirement nor the two-year limitations period applies

to them.

Because Complaint 3 refers to Fournier as acting within the course of employment,

the MTCA clearly applies. The Plaintiffs' claims for wrongful use of civil proceedings and

abuse of process are dismissed as barred by the MTCA for failing to comply with the

notice requirement and as occurring outside the two-year limitations period. The Law

Court has not had much occasion to determine when an amended complaint entirely

supersedes an initial complaint. Because of that, this court applies the same reasoning as

laid out in Section II of this Judgment, and considers the factual allegations of Complaint

3 in deciding the Second Motion to Dismiss based upon the statute of limitations and the

merits of the claims. Because Complaint 3 refers to Fournier as acting within the course

of employment, the MTCA clearly applies. The Plaintiffs' claims for wrongful use of civil

proceedings and abuse of process are dismissed as barred by the MTCA for failing to

comply with the notice requirement in the statute.

VII. Fournier's Second Motion to Dismiss as it Addresses the Merits of the
Plaintiffs' Claims

A motion to dismiss pursuant to M..R. Civ. P. 12(b)(6) "tests the legal sufficiency of

the allegations in the complaint, not the sufficiency of the evidence the plaintiffs are able

to present." Barnes v. McGough, 623 A.2d 144, 145 (Me. 1993) (internal citations omitted).

The court shall "consider the facts in the complaint as i£ they were admitted.'1 Bonney v.

Stephens Mem. Hosp., 2011 ME 46, 'f[ 16, 17 A.3d 123, 127. The complaint is viewed "in the

light most favorable to the plaintiff to determine whether it sets forth elements of a cause

28
of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal

theory." Id. (quoting Saunders v. Tisher, 2006 ME 94, 'II 8, 902 A.2d 830, 832). "Dismissal

is warranted when it appears beyond a doubt that the plaintiff is not entitled to relief

under any set of facts that he might prove in support of his claim." Id. Fournier maintains

that the Plaintiffs do not state a claim for which relief can be granted for any of the counts

in Amended Complaint 3.

i. Abuse of Process

A plaintiff maintains a claim for abuse of process if he can show "(1) the use of

process in a manner improper in the regular conduct of the proceeding, and (2) the

existence of an ulterior motive." Advanced Constr. Corp. v. Pilecki, 2006 ME 84, 'II 23, 901

A.2d 189 (quoting Potter, Prescott, Jamieson & Nelson, P.A. v. Campbell, 1998 ME 70, 'II 7, 708

A.2d 283) (internal citation marks omitted). Filing a lawsuit is a regular use of process

and does not amount to abuse of process, regardless of the plaintiff's motive. Advanced

Constr. Corp., 2006 ME 84, ciI 23, 901 A.2d 189. "[A]buse of process claims arise when
litigants misuse individual legal procedures, such as discovery, subpoenas, and

attachrnen( after a lawsuit has been filed." Id. However, an abuse of process claim can

arise when a plaintiff misuses the procedures for obtaining a lien if material

misstatements of facts are contained in the lien statement. Id.

Fournier maintains that the Plaintiffs £ail to state a claim for abuse of process

because a pre-suit notice of claim cannot give rise to an abuse of process claim as no

lawsuit had already been filed, or, at best, it was a regular use of proceedings and

therefore cannot amount to an abuse of process. The Plaintiffs argue that an abuse of

process claim can arise before a lawsuit is filed, and that because they alleged that

Fournier never intended to sue them, they have sufficiently stated a claim upon which

relief may be granted.

29
In Jennings v. Maclean, a defendant attorney who had obtained a money judgment

against a plaintiff sent a letter and copy of the money judgment to an attorney "handling

an unrelated real estate closing in a successful attempt to have [the plaintiff's) share of

the proceeds withheld." 2015 ME 42, <JI l, 114 A.3d 667. The letter explained that the funds

payable to the plaintiff needed to be placed in escrow "pending a further turnover by the

court" that the defendant attorney would seek. Id. '1[ 3. The plaintiff filed suit in Superior

Court alleging that the letter amounted to abuse of process. Id. '1[ 4. The Superior Court

(Knox County, Horton, J.) granted the defendant attorney summary judgment. No

material facts were in dispute, so the central question for the Law Court on appeal was

whether the plaintiff presented a prima facie case of abuse of process.

The Court explained that the defendant attorney "did not employ any process, and

did nothing improper, when he sent the letter to [the real estate attorney] . We have cited

as examples of the improper use of process for purposes of this tort the 'misuse of

individual legal procedures, such as discovery, subpoenas, and attachment, after a

lawsuit has been filed, and the misuse of the procedures for obtaining a lien." Id. '1[ 7

(internal quotations and alterations omitted). The Court clarified that the letter

did not involve any "process" because it was not a legal procedure, even
though it suggested that a second turnover order-a procedure entirely
proper in the regular course of attempting to collect on a judgment-would
be sought from the court. Unlike a true instrument of legal process, the
letter did not purport to compel [the real estate lawyer] to perform any legal
obligation, and he was free to ignore it if he thought that [the defendant
attorney] was wrong concerning his professional responsibilities.

Id. <[ 8.

Here, accepting the facts in the Complaint as true, the plaintiffs have sufficiently

alleged Fournier's ulterior motive. Therefore, the crux of the issue is whether Fourrlier's

Notice can amount to abuse of process. Contrary to Fournier's contention, an action that

occurs pre-suit, such as obtaining a lien via a lien statement that contains gross

30
misstatements of material fact, can amount to abuse of process. However, Fournier' s

Notice is more akin to the letter at issue in Jennings. Although a noti.ce of claim is sent

pursuant to 14 M.R.S. § 1602-B(5), 11 it is a "regular use of process." It is not a "true

instrument of legal process" as it did not purport to compel the Plaintiffs to perform any

legal obligation.

Because Fournier's Notice is a regular use of process, it cannot form the basis of an

abuse of process claim. Therefore, the Plaintiffs have failed to state a claim upon which

relief may be granted, and this court dismisses the abuse of process claim on the merits.

u. Violation of the Maine Civil Rights Act

The Maine Civil Rights Act (MCRA) p rohibits any person from intentionally

interfering "by physical force ... or by the threat of physical force against a person" with

that person's exercise of their rights under the Constitution or other laws. 5 M.R.S. § 4682.

The Plaintiffs base their claim on the harassment notices that were served upon

Quirion threatening her with arrest if she had contact with anyone listed in the notices.

The possibility of arrest is the threat of physical force that the Plaintiffs allege under the

MCRA, which they argue is enough to state a claim und er the MCRA.

Fournier main tains that the possibility of arrest contained within the harassment

notices should not be enough to state a claim upon which relief may granted. She argues

that the MCRA is Maine's hate crime sta tute, is limited in scope, and is intended to apply

to "hate groups." She contends that to allow the Plaintiffs' claim to go forw ard on this

alleged threat of force "would mean that any victim who filed a protection from

11 "Prejudgment interest accrues from the time of notice of dc,im setting forth under oath the
cause of action, served personally or by registered or certified mail upon the defendant until the
date on which an order of judgment is entered."

31
harassment or abuse notice or claim could be vulnerable to a retribution lawsuit under

Maine's hate crime statute" which would chill those in need from seeking them.

To date, the Law Court has not addressed the MCRA and the " threat of force"

element it contains in any meaningful way. Often, violations of the MCRA are brought

by people who were in voluntarily committed to a psychiatric hospitals. See Doe v. Graham,

2009 ME 88, 977 A.2d 391; Saunders v. Tisher, 2006 ME 94, 902 A.2d 830. In Graham, the

plaintiff failed to state a claim upon which relief could be granted, even though she

alleged that she understood a Spring Harbor doctor telling her that the doctor had no

control over the security guards' actions, to be threats of force. 2009 ME 88, 9I 4, 977 A.2d

391. But, the Law Court did not rest its decision on that aspect of the MHRA, and instead

analyzed the case to determine whether the plaintiff was deprived of her liberty under

the federal and Maine Constitutions. Id. 9I 22. Ultimately, after her two-hour detention,

and given the many procedural safeguards in the involuntary commitment process, it

determined that she did not state a claim of 'deprivation" under the either the State or
1

federal standard and dismissal of her civil rights claims was warranted. Id. 9[ 26.

In Saunders, a doctor signed an involuntary commitment application and the

plaintiff was involuntarily held for twenty-one days after being arrested and forcibly

transported to a hospital. 2006 ME 94, <[9[ 3-4, 902 A.2d 830. There, the majority did not

address whether the arrest was sufficient force under the MCRA, as the Court determined

that the plaintiff's claims were barred by the three-year statute of limitations in the Maine

Health Security Act. Id. 116. In dissent, Justice Alexander quoted the MCRA in relevant

part, referred to the plaintiff's arrest and subsequent involuntary commitment, and

opined that the record did not preclude his MCRA claim "beyond a doubt." Id. <fl9I 24-26.

Here, the threat of force is the print contained in the harassment notices. It is, as

Fournier argues, attenuated from her as she did not make the 11threat11 directly, because

32
it was issued through a notice to Quirion after Fournier was granted a temporary

protection from harassment order. It is clear to the court that the case at bar, and the
12
"threat of force" it contains, is not the type that the MCRA was intended to address.

The threat of arrest contained within the harassment notices served upon Quirion does

not amount to a threat of force sufficient to state a claim upon which relief may be granted

under the MCRA.

CONCLUSION

The Defendant's Second Motion to Dismiss is granted in its entirety based on res

judicata. The Motion is also granted regarding Counts I, II, and III as barred by the statute

of limitations. Finally, the Motion is also granted for Counts I and IV as the Plaintiffs fail

to state a claim upon which relief may be granted.

The Clerk is directed to incorporate this Order by reference into the docket for this

case, pursuant to Rule 79(a), Maine Rules of Civil Procedure. '""­

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12 See Connolly v. Henrietta D. Goodall Hospital where a nurse who offended hospital officials was
placed on a one-day suspension without pay, and the suspension was reported to the Board of
Nursing. 2006 Me. Super Lexis 3, at *1 Oan. 6, 2006). In dismissing her MCRA claims, the Superior
Court (York County, Fritzsche, J.) wrote that "[n)o hospital official hit her, shot her, lynched her,
burnt her house, trespiissed upon her property or otherwise violated this law. The [MCRA] was
not designed to encompass all potential interferences with civil rights. The precise words chosen
by the Legislature cannot be cast aside. The law focuses on force, violence, damage or destruction
of property or trespass, none of which exist here." Id. at *7.

33

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10812055. Public record. Not legal advice.