Cianchette v. Tucker Chevrolet, Inc.

STATE OF MAINE SUPERIOR COURT

KENNEBEC, ss. CIVIL ACTION

Docket No. AUGSC-CV-2021-94

)

MICHAEL J. CIANCHETTE, )

)

Plaintiff, )

)

v. )

) DECISION AND ORDER

TUCKER CHEVROLET, INC., )

JACK STEERUM, LLC, )

TUCKERJ. CIANCHETTE, )

KELLY, REMMEL, & ZIMMERMAN, )

and TIMOTHY NORTON, )

)

Defendants. )

)

INTRODUCTION

On June 7, 2019, Defendant Tucker Cianchette ("Tucker") submitted a bar

complaint against Plaintiff with the Maine Board of Bar Overseers ("the Board"). In

response to the allegations in that bar complaint, Plaintiff initiated the present action

against Tucker, Jack Steerum, LLC, and Tucker Chevrolet, Inc. as well as Tucker's

attorneys, Kelly, Remmel, & Zimmerman and Timothy Norton (collectively "the Attorney

Defendants"). In the motions pending before the court, all Defendants seek to dismiss

Plaintiff's complaint under M.R. Civ. P. 3. Additionally, Defendants Tucker, Jack Steerum,

LLC, and Tucker Chevrolet separately move for dismissal pursuant to Maine's Anti­

SLAPP statute and M.R. Civ. P. 12(b)(6). All motions have been fully briefed, and a

decision is in order.

FACTS/BACKGROUND

By way of some background, Plaintiff and Tucker are half-brothers. Many of the

allegations in the bar complaint center around Plaintiff's representation of PET LLC

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("PET"), an entity owned by three members of the Cianchette family. Those three family

members are: Tucker, Eric Cianchette (the father of Plaintiff and Tucker), and Peggy

Cianchette (Plaintiff's mother and Tucker's stepmother). For additional context regarding

the interfamilial dispute that preceded this action, see Cianchette v. Cianchette, 2019 ME

87,209 A.3d 745.

Plaintiffs Complaint. Plaintiff filed the complaint in this matter on June 3, 2021.

He alleges that Tucker made certain statements within the bar complaint and during the

Board proceedings that were false and defamatory and/or unsupported. Specifically,

Plaintiff asserts that:

• Tucker accused Plaintiff of absconding with his mail as well as "engag[ing] and/or

aid[ing] directly in fraud, forgery, perjury, misrepresentations, dishonesty, deceit,

unauthorized taking, and self-serving among other things." Tucker made these

allegations notwithstanding the fact that Plaintiff has never been formally accused

or convicted of a crime.

• With respect to a Merrill Lynch bank account Plaintiff opened on PET's behalf,

Tucker stated that the opening balance of the account was $750,000 when it was

actually $600,000.

• Tucker claimed that Peggy requested to pick up the check providing for the opening

balance ofthe Merrill Lynch account, when in fact it was Tucker who delivered the

check to Plaintiff.

• Tucker requested that the board investigate certain deeds executed by Plaintiff

without citing any legal authority.

Moreover, Plaintiff alleges that Tucker told third parties about the bar complaint

and its content. The complaint also names Tucker's attorneys, the firm Kelly, Remmel, and

Zimmerman as well as Attorney Timothy Norton, and accuses them of providing material

assistance with respect to the bar complaint. According to Plaintiff, responding to the bar

complaint was time consuming and necessitated the hiring of experts and counsel, which

required plaintiff to expend funds. Plaintiff requests damages, including punitive damages,

as well as an order enjoining Defendants from filing complaints against Plaintiff without

prior leave of the court.

Plaintiff pursues relief in four counts. Counts 1-111 pertain to the conduct of Tucker,

Jack Steerum, LLC, and Tucker Chevrolet, Inc., asserting claims of Defamation/False

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Light (Count I), Wrongful Use of Civil Proceedings/Malicious Prosecution (Count II), and

Tortious Interference with an Advantageous Relationship (Count III). Count IV,

meanwhile, brings a claim of Civil Conspiracy/Aiding and Abetting against Attorney

Defendants.

Service/Defendants' Rule 3 Motions. After filing the complaint in this matter,

Plaintiff submitted three motions seeking additional time to serve process on the

Defendants- the first filed on September 1, 2021, the second on December 28, 2021, and

the third on March 2, 2022. The first motion was granted, but the second and third were

denied. On April 11, 2022, the court issued a form notice indicating that the action would

be dismissed pursuant to M.R. Civ. P. 3 unless Plaintiff filed a timely motion to remain on

the docket. Plaintiff filed such a motion, which the court granted. The Defendants were

thereafter served, with Plaintiff filing the returns of service on July 11, 2022. All

Defendants have moved for dismissal pursuant to M.R. Civ. P. 3. The facts relevant to the

Rule 3 motions are set forth in greater detail below.

Special Motion to Dismiss. In August 2022, Tucker filed a special motion to dismiss

pursuant to Maine's anti-SLAPP statute, asserting that all claims against him are based on

his constitutionally protected petitioning activity- specifically, his filing of the bar

complaint with the Board. 1 Additionally, Tucker, Jack Steerum, LLC, and Tucker

Chevrolet, Inc. have moved for dismissal on Rule 12(b)(6) grounds. In support, Tucker has

submitted his own affidavit and various accompanying documents, including a copy of the

bar complaint itself. A brief summary of the allegations in the bar complaint is in order.

In the bar complaint, Tucker accused Plaintiff of multiple violations of the rules of

professional conduct, and- as Plaintiff asserts in his complaint- "engag[ing] and/or

aid[ing] directly in fraud, forgery, perjury, misrepresentations, dishonesty, deceit,

unauthorized taking, and self-serving among other things." To support these allegations,

Tucker provided a multi-page narrative, in which he cited to deposition testimony and

various exhibits. In that narrative, Tucker asserted, among other things, that:

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Attorney Defendants have not pursued dismissal on anti-SLAPP or Rule 12(b)(6) grounds.

• Plaintiff helped orchestrate the opening of a Merrill Lynch bank account where

hundreds of thousands of dollars of PET money was deposited.

• Plaintiff forged Tucker's signature on several documents needed to open the Merrill

Lynch account.

• Plaintiff facilitated a $375,000 "no interest or repayment schedule loan" from PET

funds held in the Merrill Lynch account to a corporate entity in which Plaintiff held

a beneficial interest. Plaintiff, however, failed to disclose his interest to Tucker.

• Plaintiff perjured himself in a separate proceeding. Specifically, Plaintiff falsely

testified that Tucker signed the Merrill Lynch documents when Plaintiff collected a

check from Tucker on September 15, 2014. 2

• Plaintiff engaged in unethical behavior with respect to Tucker's proposed buyout of

Peggy and Eric's interests in PET.

• After Tucker involved authorities regarding some mail that went missing, it was

discovered that "[Plaintiff] did have knowledge of [Tucker's] absconded mail." This

created unnecessary work for the investigating authorities and made "an outright

mockery of the US Postal Service."

Along with the bar complaint, Tucker's motion papers also included a copy of the

Board's decision dated March 3, 2022. In that decision, a three-member panel unanimously

found violations with respect to three of the four counts alleged. Specifically, the Board

determined that Plaintiff (1) violated M.R. Prof. C. 4.1 by "intentionally" signing the

Merrill Lynch documents without Tucker's authorization; (2) violated M.R. Prof. C. 1.8(a)

by failing to obtain informed consent prior to facilitating a loan to an entity in which

Plaintiff held a financial interest, and; (3) violated M.R. Prof. C. l.13(f) by failing to

disclose his representation of Peggy and Eric during the proposed buyout of PET and by

failing to obtain Tucker's consent.

In opposition to the motion, Plaintiff has submitted his own affidavit. Plaintiffs

affidavit notes that he has never been arrested, charged, or convicted of a crime. He further

characterizes Tucker's claim that Peggy requested to pick up the check as false.

2 To support his claim that Plaintiffs version of events was untrue, Tucker stated, inter alia, that

he had no memory of signing the documents; that he was out oftown from September 14-16, 2014;

that the person signing the documents made a mistake when transcribing Tucker's address; and

that Peggy had requested to pick up the check herself.

4

Additionally, Plaintiff provided his account of the circumstances surrounding

Tucker's missing mail. Plaintiff explained that mail addressed to Tucker's business, Tucker

Chevrolet, had been delivered to a property that Plaintiff managed. A tenant of that

property contacted Plaintiff, and Plaintiff retrieved the mail. Plaintiff then provided the

mail to his attorney with a request that the mail be delivered to Tucker's counsel. In a

separate affidavit, Plaintiffs attorney confirmed that Plaintiff had given him the mail, after

which it was hand-delivered to Tucker's attorneys.

With respect to his injuries, Plaintiff states that "[a]fter the Bar Complaint was filed

[he] expended funds to retain and obtain the assistance of counsel from the firm of

Rudman Winchell." Moreover, "[a]fter the Board's investigation was complete, [he]

expended funds to retain and obtain the assistance of counsel from the firm of Richardson,

Whitman, Large, and Badger. [H]e further expended funds for expert witness testimony

with the firm of Thompson Bowie, and Hatch."

While Tucker provided the court with a copy of the Board's decision and the bar

complaint, Plaintiff has not produced copies of any of the documents filed in connection

with the underlying proceedings before the Board.

DISCUSSION

I. Special Motion to Dismiss {anti-SLAPP)

A Strategic Lawsuit Against Public Participation ("SLAPP") is a lawsuit filed with

the goal of stopping "'citizens from exercising their political rights or to punish them for

having done so."' Thurlow v. Nelson, 2021 ME 58, ~ 8,263 A.3d 494. To avoid a chilling

effect on the right to petition, many states have passed anti-SLAPP statutes. Id. Maine's

is found at 14 M.R.S. § 556:

When a moving party asserts that the civil claims . . . against the moving

party are based on the moving party's exercise of the moving party's right of

petition under the Constitution of the United States or the Constitution of

Maine, the moving party may bring a special motion to dismiss .... The court

shall grant the special motion, unless the party against whom the special

motion is made shows that the moving party's exercise of its right of petition

("

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was devoid of any reasonable factual support or any arguable basis in law

and that the moving party's acts caused actual injury to the responding

party. In making its determination, the court shall consider the pleading and

supporting and opposing affidavits stating the facts upon which the liability

or defense is based.

14 M.R.S. § 556.

This statutory framework has given rise to a two-step analysis that was adopted by

the Law Court in Morse Bros. v. Webster, 2001 ME 70, 1 19, 772 A.2d 842, refined

in Nader v. Me. Democratic Party, 2012 ME 57, 1131-33, 41 A.3d 551, and refashioned

in Thurlow, 2021 ME 58, ,r 19, 263 A.3d 494.

The first step, a question of law, decides whether the anti-SLAPP statute applies.

Nader, 2012 ME 57, ,r 15, 41 A.3d 55 (hereinafter Nader I). At this step, the party seeking

special dismissal (the moving party) carries the burden of demonstrating that '"the claims

against the moving party are based on the moving party's exercise of the right to petition

pursuant to the federal or state constitutions."' Thurlow, 2021 ME 58, ,r 12, 263 A.3d

494. If the moving party establishes that the anti-SLAPP statute applies, the burden shifts

to the non-moving party (typically the plaintiff) to satisfy the second step of the procedure.

Nader v. Me. Democratic Party, 2013 ME 51, ,r 13, 66 A.3d 571 (hereinafter Nader II).

At the second step, "the court must dismiss the non-moving party's claims unless

the non-moving party demonstrates, through the pleadings and affidavits, that the moving

party's petitioning activity does not fall within the protection of the anti-SLAPP

statute." Id. ,r 14. "This requires prima facie evidence that at least one of the moving party's

petitioning activities was 'devoid of any reasonable factual support or any arguable basis

in law and ... caused actual injury to the [non-moving party].'" Id.; see also Thurlow, 2021

ME 58, ,r 19,263 A.3d 494.

The court considers Tucker's special motion to dismiss in light of this two-step

analysis.

A. Step 1 oftlte anti-SLAPP analysis

The first step requires the court to determine whether the complaint alleges any

conduct that may be characterized as an "exercise of the right of petition." If so, the court

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then must decide the extent to which the plaintiffs claims are "based on" those petitioning

activities. These questions are addressed separately below.

1. Petitioning Activities

The anti-SLAPP statute defines the type ofconduct that is subject to its protections.

Specifically, the statute defines "a party's exercise of its right of petition" to include:

any written or oral statement made before or submitted to a legislative,

executive or judicial body, or any other governmental proceeding; any

written or oral statement made in connection with an issue under

consideration or review by a legislative, executive or judicial body, or any

other governmental proceeding; any statement reasonably likely to

encourage consideration or review of an issue by a legislative, executive or

judicial body, or any other governmental proceeding; any statement

reasonably likely to enlist public participation in an effort to effect such

consideration; or any other statement falling within constitutional protection

of the right to petition government.

14 M.R.S. § 556.

Here, Plaintiffs complaint appears to take issue with two categories of Tucker's

statements: (1) statements made in the bar complaint and during the proceedings before the

Board and (2) statements to third parties regarding the bar complaint and its substance. The

court has no doubt that the first category of statements qualifies as an exercise of the right

to petition. Indeed, the Board "is a quasi-judicial agent of the [Supreme Judicial] Court."

M. Bar R. 12. Thus, by filing the bar complaint and participating in the grievance process,

Tucker was expressing his concerns to a "judicial body" or other governmental entity about

a licensed Maine attorney's professional conduct.

The second category of statements- communications to third parties regarding the

existence and content of the bar complaint-presents a closer call. With respect to this

category, Tucker observes that 14 M.R.S. § 556's definition of petitioning activity includes

"any written or oral statement made in connection with an issue under consideration or

review" by a governmental entity. Such a definition, Tucker argues, is broad enough to

capture the third-party statements at issue here. The critical question before the court, then,

is whether the statements were made "in connection with" the Board's consideration ofthe

bar complaint, such that they constitute petitioning activity under the anti-SLAPP statute.

Finding no Law Court decisions on point, both Plaintiff and Tucker point the court

to Massachusetts case law interpreting the scope of Massachusetts's nearly identically

worded anti-SLAPP statute. The court agrees that Massachusetts decisions provide useful

guidance. See Gaudette v. Mainely Media, LLC, 2017 ME 87, 115, 160 A.3d 539 ("The

Massachusetts court's interpretation of its anti-SLAPP statute provides useful guidance for

interpreting Maine's statute"). Notably, the Supreme Judicial Court of Massachusetts has

held that "[t]o fall under the 'in connection with' definition of petitioning under the anti­

SLAPP statute, a communication must be 'made to influence, inform, or at the very least,

reach governmental bodies - either directly or indirectly.'" Blanchard v. Steward Carney

Hosp., 75 N.E.3d 21, 30 (Mass. 2017). "The key requirement of this definition of

petitioning is the establishment of a plausible nexus between the statement and the

governmental proceeding." Id.

In Blanchard, for instance, the court addressed a hospital's statements regarding the

termination of several nurses made while a governmental investigation into patient abuse

allegations was pending. Id. at 30-33. Two types of communications were at issue:

statements made in an internal staff email and statements made to the Boston Globe. See

id. While the court concluded that the Boston Globe statements were protected, the

statements in the staff email were outside the anti-SLAPP statute's scope. Id. Unlike the

Boston Globe statements, the staff email was a "private statement to a select group of

people" without "any audience for the message other than hospital employees." Id. at 32.

Absent any evidence that the communication was reasonably likely to reach a

governmental official or entity, it did not fall under the "in connection with" definition of

petitioning activity. Id. at 30-33.

Similarly here, Tucker's private conversations with third-parties regarding the bar

complaint do not qualify for protection under the anti-SLAPP statute. The court reaches

this conclusion notwithstanding Tucker's affidavit, which asserts that the third-party

conversations were limited to confirming the bar complaint's existence and describing

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some of its allegations. While these assertions may ultimately give rise to a colorable truth

defense to Plaintiffs defamation claim, they do not convince the court that Tucker's private

communications constitute petitioning activity. Indeed, there is no indication that his

communications- even if only mere reiterations of the bar complaint- were made to

influence, inform, or otherwise reach a governmental body. Id. at 30. 3 Thus, while Tucker's

statements in the bar complaint were protected petitioning activity, his statements to the

third-party individuals were not.

2. Whether Plaintiff's claims are "based on" petitioning activity.

The anti-SLAPP statute is silent with regard to how a moving party must show that

a claim is "based on" the right of petition. Town ofMadawaska v. Cayer, 2014 ME 121, 1

12, 103 A.3d 547. The Law Court, however, has accepted the Massachusetts approach as

articulated in Duracraft Corp. v. Holmes Prods. Corp., 691 N.E.2d 935 (Mass. 1998):

"[T]he moving party must show that the claims at issue are 'based on the petitioning

activities alone and have no substantial basis other than or in addition to the petitioning

activities."' Cayer, 2014 ME 121,112, 103 A.3d 547; Nader I, 2012 ME 57,122, n.9, 41

A.3d 551. Further, the Law Court has explained that "discrete claims within a single action

may be individually dismissed pursuant to a special motion to dismiss, and only the claims

specifically based on the moving party's petitioning activity are properly considered for

dismissal." Pollackv. Fournier, 2020 ME 93,114,237 A.3d 149. Thus, the court examines

each claim alleged in the complaint to determine whether the claim is based on petitioning

activity and subject to dismissal under the anti-SLAPP statute

Here, Plaintiff asserts three claims against Tucker: Defamation/False Light (Count

I), Wrongful Use of Civil Proceedings/Malicious Prosecution (Count II), and Tortious

Interference with an Advantageous Relationship (Count III). Plaintiff concedes that Count

3

Tucker likens the statements in this case to those involved in Wynne v. Creigle, in which the

court found petitioning activity where the statements at issue "were essentially mirror images" of

those made during a governmental investigation. 825 N.E.2d 559,566 (Mass. App. Ct. 2005).

The court finds Wynne distinguishable because the statements in that case were made to a

newspaper; thus, they were reasonably likely to reach a governmental body.

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II is based solely on Tucker's petitioning activity. Moreover, Plaintiffs' Tortious

Interference count specifically alleges that Tucker "interfered with Plaintiffs economic

relationship by filing fraudulent claims with the Board." Thus, the court finds that the

Tortious Interference count, as pleaded in the complaint, is based solely on Tucker's

protected petitioning conduct before the Board.

Plaintiffs single Defamation claim is broad and appears to encompass Tucker's

statements to the Board- which qualify as protected petitioning activity- as well as

Tucker's statements to third-parties- which are unprotected. Thus, to the limited extent

that Plaintiffs Defamation claim is based on Tucker's unprotected statements to third­

parties, the special motion to dismiss is denied. Tucker, however, has met his burden under

Step 1 with respect to Wrongful Use of Civil Proceedings/Malicious Prosecution (Count

II), Tortious Interference (Count III), and to the portion of the Defamation claim (Count I)

that is based on Tucker's protected statements before the Board.

B. Step 2 oftlte anti-SLAPP analysis

Having detennined that the anti-SLAPP statute applies to the extent described

above, the burden now shifts to Plaintiffto present the court with prima facie evidence that

the petitioning activities were devoid of factual or legal support. Thurlow, 2021 ME 58, ~

19, 263 A.3d 494. In deciding whether this burden has been satisfied, the focus "is on

whether the facts as presented by [the plaintiff], if believed, would prove that the [moving

party's] allegations are devoid of any reasonable factual support or have no arguable basis

in the law." Id.~ 26. "[T]he plaintiff need[s] only to meet this burden as to any one of the

petitioning activities at issue." Id. (emphasis original).

Plaintiffs burden at Step 2 also requires prima facie evidence that the challenged

"petitioning activit[y] ... caused actual injury" to him. Id. ~ 19 (quotation marks omitted).

The Law Court has interpreted "actual injury" to mean "'a reasonably certain monetary

valuation of the injury suffered by the plaintiff."' Weinstein v. Old Orchard Beach Family

Dentistry, LLC, 2022 ME 16, ~ 7, 271 A.3d 758. Additionally, "[t]he existence of actual

injury may be considered in this analysis only to the extent that the asserted injury was

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both alleged in the complaint and established on a prima facie basis in opposition to the

special motion to dismiss." Id. , 8.

Here, Plaintiff falls short of meeting his burden. At the outset, the court notes that

Plaintiff failed to present documents germane to the court's inquiry under Step 2. Nader II,

2013 ME 51, ,, 20, 22. 66 A.3d 571. For instance, Tucker cited to deposition testimony

and various exhibits in his bar complaint, relying on these sources to support his

allegations. Tucker's bar complaint was also the subject of a multi-day hearing before the

Board. Yet, Plaintiff has not produced a transcript ofthe hearing or copies ofthe documents

relied upon in the bar complaint. In Nader II, the plaintiffs failure to introduce relevant

documents of this nature was important to the Law Court in determining that the plaintiff

failed to meet his burden. See id. Similarly here, the court has been left to speculate about

the substance of documents and proceedings that are critical to assessing the factual and

legal basis for Tucker's claims.

More fundamentally, the court is unable to conclude that Plaintiff satisfied his

burden where the Board found validity in many of Tucker's core allegations and ultimately

determined that Plaintiff violated multiple rules of professional conduct. For example,

consistent with the allegations in the bar complaint, the Board found that Plaintiff signed

certain documents in Tucker's name without Tucker's authorization and that Plaintiff's

"conduct was intentional." The Board also found that Plaintiff facilitated a business

transaction from which he could have financially benefited without disclosing his interest.

Plaintiff offers no evidence challenging the factual and legal basis for most of Tucker's

primary allegations.

Instead, Plaintiff narrowly focuses on several isolated statements in the bar

complaint. 4 In doing so, Plaintiff emphasizes the Law Court's holding that "the plaintiff

4

Plaintiff devotes special attention to Tucker's allegation that Plaintiff "engaged and/or aided

directly in fraud, forgery, perjury, misrepresentations, dishonesty, deceit, unauthorized taking, and

self-serving among other things." But Plaintiffs affidavit- which merely asserts that Plaintiff has

never been the subject of a formal criminal complaint, charge, or conviction- fails to provide

prima facie evidence that Tucker's allegation was devoid of any basis in fact or law. Moreover,

the court again emphasizes the Board's unchallenged finding that Plaintiff intentionally signed

i1

need only[] meet [his] burden as to any one ofthe petitioning activities at issue." Thurlow,

2021 ME 58, ~ 26, 263 A.3d 494 (emphasis original). Plaintiff and Tucker differ in their

interpretation of this language and how "petitioning activit[y ]" should be measured in this

context. According to Tucker, "petitioning activity" should be measured broadly, and as

such, Plaintiff succeeds in satisfying his burden only if he demonstrates that the bar

complaint as a whole was devoid of any factual and legal basis. Plaintiff, on the other hand,

suggests that "petitioning activity" should be measured at the individual statement level,

and he need only show that a single sentence within the bar complaint was devoid of a

basis in fact or law.

The court is skeptical of Plaintiffs interpretation. See Nader II, 2013 ME 51, ~ 17,

66 A.3d 571 (individual grounds set forth in a complaint challenging the plaintiffs

inclusion on the ballot "[we ]re not themselves discrete petitioning activities because they

[we ]re part of a single request for relief'). But in any event, Plaintiff fails to carry his

burden even assuming he is correct in this regard. The court thinks that if a plaintiff chooses

to challenge a single statement within a complaint as factually and legally devoid, his

showing of actual injury must be based on the same. In other words, a plaintiff cannot meet

his burden by showing that a single statement within a multi-allegation complaint is

factually and legally devoid, but that the complaint as a whole caused actual injury; the

single statement must be the cause of actual injury. See Thurlow, 2021 ME 58, ~ 19,263

AJd 494 (requiring prima facie evidence that at least one "petitioning activit[y] was

devoid of any reasonable factual support or any arguable basis in law and . .. caused actual

injury to the [nonmoving party]" (emphasis added) (quotation marks omitted)).

As noted, Plaintiffs affidavit targets the factual and legal basis of certain select

statements made in the bar complaint, leaving much of the bar complaint unchallenged.

Even assuming these selected statements were devoid of any basis in fact or law, Plaintiffs

affidavit does not describe how the statements caused him to suffer any actual injury.

Tucker's signature to documents without authorization to do so and submitted those documents to

Merrill Lynch. Such conduct could be characterized as "fraud," a "misrepresentation," "forgery,"

etc., at least as those terms are used in their non-technical sense.

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Rather, it merely explains that the bar complaint and resultant Board investigation caused

him to incur attorney fees and expert expenses- generalized losses incurred defending

against the bar complaint in its entirety. For all these reasons, Plaintiff has failed to satisfy

his burden.

On a final note, the court is mindful of the purpose of the anti-SLAPP statute:

barring lawsuits brought to punish or deter petitioning parties from exercising their

constitutional right to petition the government. Thurlow, 2021 ME 58, ,i 8, 263 AJd 494;

Town ofMadawaska v. Cayer, 2014 ME 121, ,i 2, 103 A.3d 547. It strikes the court that

the claims in this action are precisely of the sort that the statute was designed to preclude.

Accordingly, Tucker is entitled to dismissal of Counts II and III in their entirety as well as

the portion of Count I based on statements in the bar complaint and before the Board.

II. Motion to Dismiss (M.R. Civ. P. 12(b)(6))

Defendants Tucker Chevrolet, Inc., Jack Steerum, LLC, and Tucker Cianchette have

also moved to dismiss the complaint for failure to state a claim upon which relief may be

granted pursuant to M.R. Civ. P. 12(b)(6). Because matters outside the pleadings were

presented to and not excluded by the court, the 12(b)( 6) motion will be treated as one for

summary judgment in accordance with Rule 56. After careful consideration, summary

judgment will be granted to Defendants Tucker Chevrolet, Inc. and Jack Steerum, LLC.

A motion to dismiss for failure to state a claim calls for a review of the legal

sufficiency of the complaint, which is examined in the light most favorable to the plaintiff

"'to determine whether it sets forth elements of a cause of action or alleges facts that would

entitle the plaintiff to relief pursuant to some legal theory."' Meridian Med. Sys., LLC v.

Epix Therapeutics, Inc., 2021 ME 24, ,i 2, 250 A.3d 122; see also Nadeau v. Frydrych,

2014 ME 154, ,i 5, 108 A.3d 1254. As the Law Court has explained, "this standard is

forgiving," but it still must "'give fair notice of the cause of action by providing a short

and plain statement of the claim showing that the pleader is entitled to relief."' Meridian

2021 ME 24, ii 3, 250 AJd 122; Howe v. MMG Ins. Co., 2014 ME 78, ii 9, 95 A.3d 79.

The court is not bound to accept bare legal conclusions, nor is the mere recital of the

~. 13

elements of a claim enough to survive a Rule 12(b)(6) motion to dismiss. America v.

Sunspray Condo Ass'n., 2013 ME 19, ,r 13, 61 A.3d 1249; Seacoast Hangar Condo. II

Ass 'n. v. Martel, 2001 ME 112, ~ 16, 775 A.2d 1166.

The rules provide that if, on a Rule 12(b)(6) motion to dismiss, matters outside of

the pleadings are presented to and not excluded by the court, the motion shall be treated as

one for summary judgment and disposed of as provided in Rule 56. See M.R. Civ. P. 12(b).

Here, matters outside the pleadings, including affidavits and exhibits, have been presented

to and not excluded by the court. The complaint alleges that Tucker Chevrolet, Inc., Jack

Steerum, LLC and Tucker Cianchette "collectively filed a Complaint against Plaintiff with

the Maine Board of Bar Overseers." See Complaint at, 9. Based on the summary

judgment record, however, there is no genuine issue of material fact that it was Tucker

Cianchette, and only Tucker Cianchette, who filed the bar complaint against the Plaintiff.

There is no evidence generating a disputed issue of fact that Tucker Chevrolet, Inc. or Jack

Steerum, LLC, had anything to do with the filing of that bar complaint. Accordingly,

Defendants Tucker Chevrolet, Inc. and Jack Steerum, LLC are entitled to judgment as a

matter of law. 5

III. Motion to Dismiss (M.R. Civ. P. 3)

All Defendants have moved to dismiss the complaint pursuant to M.R. Civ. P. 3

because the returns of service were not filed with the court "within 90 days after the filing

of the complaint." The procedural history of this case on this issue requires some

explanation.

Plaintiff is an attorney licensed to practice law in Maine. He is representing himself

in this action. On June 3, 2021, the Plaintiff filed the complaint in this matter. On

September 1, 2021, he filed the first Motion to Enlarge Time to Serve Process. That motion

5 Tucker also argues that he is entitled to dismissal pursuant to Rule 12(b)(6) because all claims

against him are subject to Maine's litigation privilege. The disposition ofthe claims on anti-SLAPP

grounds renders it unnecessary to reach this argument. To the extent Plaintiffs claim survives the

anti-SLAPP motion, it survives only with respect to Plaintiffs allegations regarding Tucker's

statements to third-parties. Statements to third parties made outside the Board proceedings are not

protected.

--,:

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was granted by the court (Stokes, J.) the following day, September 2, 2021. The Order

signed by the court, which was drafted by the Plaintiff, purported to enlarge the time "to

serve process on the Defendants to December 31, 2021."

On December 28, 2021 , the Plaintiff filed his second Motion to Enlarge Time to

Serve Process until March 31, 2022. That motion was denied by the court (Stokes, J.) on

January 25, 2022. The Plaintiff has stated that he did not receive a copy of that Order.

On March 2, 2022, the Plaintiff filed his third Motion to Enlarge Time to Serve

Process to May 31, 2022. This motion was denied by the court (Stokes, J.) on April 11,

2022. Also issued on April 11, 2022, was a form "DISMISSAL UNDER RULE 3," which

stated:

If no motion to remain on the docket is filed within fourteen days of the date

of this Order, the following cases [Cianchette v. Tucker Chevrolet, Inc., et al

CV-2021-94] are dismissed without prejudice and without further notice

under M.R. Civ. P. 3 due to no return of service having been filed.

On April 22, 2022, the Plaintiff filed a Motion to Remain on the Docket. The court

(Stokes, J.) granted that motion and signed an order drafted by Plaintiff that stated that

within 60 days of the order:

Plaintiff shall deliver the Complaint to an authorized person for service upon

the Defendants, or otherwise serve said Complaint on the Defendants. In the

event Plaintiff fails to serve the Complaint in accordance with this Order, the

matter shall be dismissed without prejudice.

The Plaintiff filed the returns of service on July 11, 2022. All of the Defendants

filed timely answers to the complaint on July 20, 2022. On August 18, 2022, Defendants

Kelly, Remmel and Zimmerman and Timothy Norton, Esq., moved to dismiss the

complaint pursuant to Rule 3. On August 29, 2022, Defendants Tucker Chevrolet, Jack

Steerum, LLC, and Tucker Cianchette also moved to dismiss under Rule 3.

M.R. Civ. P. 3 provides for two methods of commencing a civil action. The first is

by serving the complaint and summons upon the defendant. If this method is used, the

complaint must be filed with the court within twenty days of the completion of service.

The second method, which is the one the Plaintiff used in this case, is by filing the

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complaint with the court. If this method is used, "the return of service shall be filed with

the court within 90 days after the filing of the complaint." Under either method, "[i]f the

complaint or the return ofservice is not timely filed, the action may be dismissed on motion

and notice ...." In this case, it is undisputed and the court can take judicial notice of its

own records, that the complaint was filed on June 3, 2021, but the returns of service were

not filed until July 11, 2022, more than 13 months later.

The court acknowledges that it lacked familiarity with the history of litigation

involving the parties here when the Plaintiff filed the complaint in June 2021, and later

when he repeatedly moved to "extend the time to serve process." The court did not

understand the context of what was going on or what the Plaintiff was trying to achieve by

filing the complaint with the court but not serving the Defendants as required under Rule

3.

In considering the motion to dismiss under Rule 3, the court notes that at no time

did the Plaintiff file a motion to enlarge the time within which to file the returns of service.

Rather, he filed three motions to enlarge the time within which to serve process. Although

the first motion was granted, the last two were denied. Because the time within which to

file the returns of service had expired, the provisions of Rule 6(b )(2) apply, namely, the

Plaintiff must show that his failure to timely file the returns of service was the result of

excusable neglect.

For his part, the Plaintiff heavily relies upon the court's Order granting his motion

to remain on the docket dated May 2, 2022 (Docket Order). That Docket Order, however,

did not purport to find "excusable neglect" for the failure to timely file the returns of

service, nor did it purport to pre-determine how a motion to dismiss under Rule 3 would

be decided. Indeed, Rule 3 itself contemplates that dismissal of an action for failure to file

the return of service in a timely manner will be made "on motion and notice ...." No

motion to dismiss under Rule 3 could have been made in May 2022 for the obvious reason

that the Defendants were unaware that the complaint had been filed. The Docket Order

allowed the matter to remain on the docket, but it did not preclude the Defendants from

arguing that Rule 3 was not followed and moving for dismissal.

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Moreover, the Plaintiffs claim that he has met the excusable neglect showing

because he did not receive a copy ofthe court's January 25, 2022 Order denying his second

motion to extend the time to serve process is unavailing. The court accepts the Plaintiffs

representation that he did not receive a copy of that Order. Nevertheless, as noted above,

the Plaintiff never filed a motion to extend the time within which to file the returns of

service. On the contrary, he filed multiple motions to extend the time to serve process, a

procedural device that does not appear to be recognized by Rule 3. In any event, the source

of the confusion in this case is the Plaintiffs own actions and his decision to proceed in

the manner he did, namely, filing the complaint with the court but wishing to keep the

Defendants ignorant of its existence. The Plaintiffs rationale for this is not a mistake or

excusable neglect, but a deliberate decision to keep the Defendants in the dark until the bar

complaint was resolved.

In the exercise of its discretion, the court concludes that dismissal of the complaint

without prejudice as to all Defendants is warranted pursuant to Rule 3. See Dalot v. Smith,

551 A.2d 448 (Me. 1988)

CONCLUSION

The entry is:

The special motion to dismiss pursuant to 14 M.R.S. § 556, filed by Defendant

Tucker Cianchette, is GRANTED, except as to that portion of the Complaint alleging that

Tucker Cianchette made statements to third parties about the bar complaint and its

substance.

The motion to dismiss for failure to state a claim upon which relief may be granted

pursuant to M.R. Civ. P. 12(b)(6), filed by Defendants Tucker Chevrolet, Inc. and Jack

Steerum, LLC, is GRANTED.

The motion to dismiss without prejudice pursuant to M.R. Civ. P. 3, filed by all

Defendants, is GRANTED.

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The Clerk is directed to incorporate this Order into the docket of this case by

reference in accordance with M.R. Civ. P. 79(a).

Date: January 6, 2023

Justice

F.ntered on thedocket 1/ Le l a3

.,

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