Petition for Writ of Certiorari — Stanley v. Boles
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“9 61711 APR 2 21997
OFFICE OF THE CLERK
No.
IN THE SUPREME COURT OF
THE UNITED STATES OF AMERICA
October Term, 1997
LINDA E. STANLEY, and JOHN F.
TAYLOR, PETITIONERS
Vv.
JOHN M. BOLES, RESPONDENT
ON PETITION FOR WRIT OF CERTIORARI TO
THE MAINE SUPREME JUDICIAL COURT
PETITION FOR WRIT OF CERTIORARI
RALPH W. BROWN
Counsel of Record for Petitioners
19 Candlewyck Road
Portland, Maine 04102
(207) 773-3133
QUESTIONS PRESENTED FOR REVIEW
I. Did the Maine Supreme Judicial Court, sitting as the
Law Court, deprive the plaintiffs of their right to due
process under the Founteenth Amendment to the United
States Constitution by denying their appeal and motion
for rehearing and affirming the Superior Court's order
dismissing the plaintiffs' complaint for failure to prose-
cute for failing to appear at trial on very short notice
after the trial court had previously informed the parties
that they would be afforded about five weeks notice of
trial and the clerk later had indicated to plaintiffs'
counsel] that the case would not be called on the list on
which it was called, when due to such short notice the
plaintiffs' were unable to obtain the appearance of one
of their two witnesses who was then residing in London,
U.K., and the only plaintiff physically and mentally
capable appearing and testifying was precluded from doing
so by circumstances beyond her control including travel
and scheduling complications resulting from the require-
ments of her employment as a senior official of the
United States Department of Justice?
Il. Did the Maine Supreme Judicial Court, sitting as the
Law Court, deprive the plaintiffs of their right to due
process under the Founteenth Amendment to the United
States Constitution by denying their appeal and motion
for rehearing and affirming the Superior Court's order
dismissing the plaintiffs' complaint for failure to prose-
cute for failing to appear at trial on very short notice
after the trial court had previously informed the parties
that they would be afforded about five weeks notice of
trial and the clerk later had indicated to plaintiffs’
counsel] that the case would not be called on the list on
which it was called, when due to such short notice the
only plaintiff physically and mentally capable appearing
and testifying was precluded from doing so by circum-
win
stances beyond her control including her inability to
purchase, for want of availability, a seat on a plane flying
from Washington, D.C. to Portland, Maine in time to
appear and testify at trial?
TABLE OF CONTENTS
Questions Presented
Table of Contents
Table of Authorities
Decisions and Orders Entered Below
Jurisdiction
Constitutional Provisions
Statement of the Case
Argument
Appendix
Memorandum of Decision
Order denying motion to vacate dismissal
- Order dismissing complaint with prejudice
Opinion of trial court (excerpt from transcript)
Motion to continue trial
Motion to vacate dismissal order
Affidavit of Ralph W. Brown
- Affidavit of Linda E. Stanley
10. Notice of Appeal
11. Amended Notice of Appeal
12. Excerpt from Brief of Appellants
1.
2.
3
4.
5. Order denying motion for rehearing
6.
7.
8.
9
13. Motion for rehearing
A-12
A-13
A-17
A-21
A-26
A-30
A-31
A-32
A-38
TABLE OF AUTHORITIES
Authority Page
Adams v. Trustees, N.J. Brewery Trust Fund, 20
29 F.3d 863 (3rd Cir. 1994)
Carter v. U.S., 780 F.2d 925 (11th Cir. 1986) 19
Davis v. Operation Amigo, Inc., 378 F.2d 101 18
(10th Cir. 1967)
Fenner v. Dependable Trucking Co., Inc., 19
716 F.2d 598 (9th Cir. 1983)
Gaspar v. Kassem, 493 F.2d 964 (3rd Cir. 1974) 18
Grochal v. Aeration Processes, Inc., 797 F.2d 1093, 18
1094-97 (D.C. Cir. 1986)
Harrah v. Morgenthau, 89 F.2d 863 (D.C. Cir. 1937) 18
Hovey v. Elliott, 167 U.S. 409, 413-14, 16
42 L.Ed. 215, 17 S.Ct. 841 (1897)
Hyser v. Hyser, 124 P. 346 (Colo. 1912) 20
Jarva V. U.S., 280 F.2d 892 (9th Cir. 1960) 18
Latham v. Crofters, Inc., 492 F.2d 913 (4th Cir. 1974) 18
Leong v. Railroad Transfer Services, Inc., 19
302 F.2d 555 (7th Cir. 1962)
Link v. Wabash Railroad Company, 370 U.S. 626, 13,15
8 L.Ed.2d 734, 83 S.Ct. 1386 (1962)
Logan v. Zimmerman Brush Co., 455 U.S. 422, 433,
71 L.Ed.2d 265, 102 S.Ct. 1148 (1981)
Lowe v. City of East Chicago, Indiana,
897 F.2d 272 (7th Cir. 1990)
McCutcheon's Administrators v. Dean,
54 SW2d 926 (Ky. 1932)
Moore v. St. Louis Music Supply Co.., Inc.,
539 F.2d 1191 (8th Cir. 1976)
Red Warrior Coal & Mining Co., Inc. v. Boron,
194 F.2d 578 (3rd Cir. 1952)
Richman v. General Motors Corporation,
437 F.2d 196 (1st Cir. 1971)
Ritchey v. “endley, 75 SE 841 (Ga. 1912)
Scarver v. Allen, 457 F.2d 308 (7th Cir. 1972)
Societe Internationales Pour Participations
Industrielles et Commerciales, S.A. v. Rogers,
357 U.S. 197, 212, 2 L.Ed.2d 1255,
78 S.Ct. 1087 (1958)
Storer v. Heitfeld, 105 P. 55 (Idaho 1909)
Trakas v. Quality Brands, Inc., 759 F.2d 185
(D.C. Cir. 1985)
Velazquez-Rivera v. Sea-Land Service, Inc.,
920 F.2d 1072 (ist Cir. 1990)
Webb v. Carpenter, 148 SE 80 (Ga. 1929)
Westbrook v. Wallace, 478 A.2d 687 (Me. 1984)
_
17
20
20
20
19,20
19
20
18
17
20
19
20
20
13-15
DECISIONS AND ORDERS ENTERED BELOW
The decision of the Maine Supreme Judicial Court,
sitting as the Law Court, in Linda E, Stanley, et al. v.
John M. Boles dated December 31, 1996 is an unpublished
memorandum of decision, Decision No. 7894.
With respect to that decision and the related order
of January 22, 1997 denying the petitioners' motion for
rehearing, which appear in full in the Appendix to this
petition as Items 1 and 5 respectively, reference is made
to Docket No. CUM-96-263 of the Maine Supreme Judicial
Court.
With respect to the relevant unpublished opinion,
which appears in full in the Appendix to this petition as
Item 4, and orders of the Superior Court for the County
of Cumberland and State of Maine, each of which is
included in the Appendix to this petition as Items 2 (order
of March 19, 1996 denying motion to vacate dismissal)
and 3 (order of February 2, 1996 dismissing plaintiffs'
complaint), reference is made to Docket No. CV-92-1380
of the Superior Court for the County of Cumberland and
State of Maine.
JURISDICTION
The judgment of the Maine Supreme Judicial Court,
sitting as the Law Court in this matter, was issued
December 31, 1996. It was stayed by the operation of
the Maine procedural rule allowing aggrieved parties a
period in which to file motions for rehearing or recon-
sideration. The petitioners, plaintiffs and appellants
below, filed a timely motion for rehearing which was
denied on January 22, 1997. This petition for writ of
certiorari was filed by first class (priority) mail within
the 90 day period from the order denying the petitioners’
motion for rehearing as permitted by Rule 13 of the
Supreme Court Rules. The Superme Court of the United
States of America has jurisdiction with respect to this
matter pursuant to the provisions of Article Ill, Section 2,
of the Constitution of the United States as this matter
is one arising under the Fourteenth Amendment to the
Constitution of the United States, and pursuant to the
provisions of 28 U.S.C. §1257(a).
CONSTITUTIONAL PROVISIONS INVOLVED
This matter involves Section1 of the Fourteenth
Amendment to the Constitution of the United States
which is set forth below.
FOURTEENTH AMENDMENT
to the
CONSTITUTION OF THE UNITED STATES
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction
thereof, are citizens of the United States and of
the State wherein they reside. No State shall make
or enforce any law which shall abridge the
privileges or immunities of citizens of the United
States; nor shall any State deprive any person of
life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction
the equal protection of the laws.
STATEMENT OF THE CASE
Facts
The plaintiffs, Linda E. Stanley and John F. Taylor,
are attorneys at law duly admitted to practice in and
before the courts of the State of California. At the time
their claim against the defendant arose, they were
partners in the San Francisco law firm of Taylor &«
Stanley.
In 1987 and 1988, the defendant, John M. Boles,
retained the law firm of Taylor & Stanley to perform
legal services on his behalf and for his benefit with regard
to certain commercial matters including defending an
action brought by Lloyd R. Crenna against Mr. Boles to
recover attorneys' fees of approximately $27,000.00,
defending an action brought by Bank of America against
the defendant to recover attorneys’ fees of aprroximately
$50,000.00, proceedings to set aside a $165,090.00
judgment against Mr. Boles in a previous action brought
by Bank of America, 4 contemplated action for breach
of fiduciary duty against a group of individuals or entities
denominated as English Bond Holder, and other matters.
By April 30, 1989, Mr. Boles owed the plaintiff $22,355.46
for legal services and related expenses. In November
or December of 1989, Mr. Boles, using a check drawn
against an account in the name of The London Manhattan
1. The partnership has ceased doing business and Plaintiff
John F. Taylor has since withdrawn from the practice
of law. Plaintiff Linda E. Stanley, who was the managing
partner, is now the partner charged with dissolving the
partnership. In 1994 she was appointed United States
Trustee for Region 17, which includes the Northern and
Eastern Districts of California and the District of Nevada.
Her office is located in San Francisco, California.
-§-
eee
2
—————————————
Co., Inc.,” paid $1,000.00 on his account leaving a balance
of $21,355.46 due and owing the plaintiffs. The plaintiffs
made demand for payment, but no further payment was
received.
After Mr. Boles moved to Maine, the plaintiffs
retained Maine counsel to collect the unpaid attorneys'
fees and expenses.
Procedure
The original complaint was filed on December 7, 1992,
and Defendant John M. Boles was duly served in hand
two days later.
During the course of a motion hearing on July 27,
1996, the Court initiated a discussion about scheduling
for trial during which the plaintiffs' counsel informed
the Court that, because the demands of Plaintiff Linda E.
Stanley's employment as United States Trustee for
Region 17 made it virtually impossible for her to appear
on short notice, because Plaintiff Stanley, who was an
essential witness,” resided in California, and because
2. Two corporate entities, Boles & Company and The
London Manhattan Co., Inc., initially were named
defendants in the plaintiffs' action. After it became
apparent that Mr. Boles had created multiple corporations
with names identical to those of the two corporate
defendants and, in any case, that the plaintiffs had been
paid for all services they had rendered with respect to
The London Manhattan Co., Inc., both corporations were
dismissed, The London Manhattan Co., Inc. with prejudice
and Boles & Company without prejudice.
3. Plaintiff Stanley, in her capacity as _ liquidating
partner, was the custodian of the business and other
records of former law firm of Taylor & Stanley. Plaintiff
Taylor, who had been peripherally involved in the work
for Mr. Boles, was mentally and physically incapcitated
and unable to testify.
«%6 .
the plaintiffs' other withness (the attorney who had
performed virtually all the services the plaintiffs former
law firm rendered for Mr. Boles) was living in London,
the plaintiffs anticipated filing a motion for special
assignment. The Court then told counsel that the case
would be placed first on & trial list to begin on a Monday,
that the parties would thus be afforded about five weeks
notice of trial, and that that was as close to a special
assignment as the parties would get.
The Court's pronouncement notwithstanding, the case
appeared on a trial list for January and February of 1996.
After the trial list was published, the plaintiffs' counsel
contacted personnel in the Clerk's office about the trial
schedule, reiterated the substance of the Court's July 27,
1995 pronouncement, and understood that the case would
not be called. On Friday, January 26, 1996, the plaintiffs'
counsel received a message indicating that the case was
then the number two back up for Monday, January 29,
1996. Upon calling the San Francisco office of Plaintiff
Linda E. Stanley, the plaintiffs' counsel was informed
that she was in the field in Nevada and would not return
to San Francisco before Monday, January 29, 1996. The
plaintiffs' counsel then filed a motion to continue trial
in which the plaintiffs expressly raised the issue of notice
with regard to the trial and the plaintiffs' reasonable
reliance on the July 27, 1995 pronouncement of the court
and their subsequent understanding from personnel in
the clerk's office that the case would not be called, as
well as reiterating the problems related to obtaining the
attendance at trial of both Plaintiff Stanley and Mr.
Reiff. See Motion to Continue, App. pp- A-13 - A-16.
After a conference with the Court in chambers, and
several telephone calls between counsel and their
respective clients, each other and the Clerk, the case
was set for trial to begin the morning of Wednesday,
4. References to the Appendix to this petition are
indicated, e.g., as "App. Pp- A-13 - A-16."
«42 «
January 31, 1996. Plaintiff Linda E. Stanley, who was
scheduled to fly to Washington, D.C., on January 30, 1996,
had managed to rearrange her schedule to permit her
to fly to Portland Tuesday evening for the trial beginning
the following day. When she got to Washington, however,
she was unable to get on the flight to Portland and was
unable to get a seat on an alternate flight. Having been
unable to fly to Portland that Tuesday evening, she
managed to reschedule her Thursday obligations in
Washington, made arrangement to fly to Portland to
arrive by 10:00 a.m. on Thursday, and so informed the
plaintiffs' counsel late that evening. See Affidavit of
Linda E. Stanley, App. A-26 - A-29.
After a conference in chambers on January 31, 1996,
counsel for the plaintiffs reiterated on the record that
Plaintiff Linda E. Stanley was not present and why,
counsel for the defendant recited his history of alleged
discovery offenses, and the Court called the case for
trial and defaulted to plaintiffs for failure to prosecute.
See Transcript excerpt, App. A-4 - A-11.
The plaintiff filed a timely motion to vacate the order
dismissing the plaintiffs' complaint together with
supporting affidavits. The motion, which tolled the
applicable appeal period, again raised the issues of notice
and the plaintiffs' reliance on the court's pronouncement
regarding trial scheduling. The supporting affidavits
provided uncontroverted detailed accounts of the court's
trial scheduling pronouncement, the subsequent related
conversation between the plaintiffs' counsel and personnel
in the clerk's office, counsel's efforts to contact and
obtain the attendance of Plaintiff Stanley, Plaintiff
Stanley's diligent effort to appear for trial, and evidence,
including more than 75 pages of ducuments, establishi
the plaintiffs' prima facie case. App. pp. A-17 - A-29.
5. The affidavit establishing the plaintiffs' prima facie
case, which has no direct bearing on their petition, has
been omitted from the appendix.
«1%-
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The plaintiffs' motion was summarily denied, and the
plaintiffs’ timely appealed. App. pp. A-2, A-29 - A-30.
On appeal, the plaintiffs’ argued among other things
that the court's denial of the motion to continue, dismissal
of the complaint and denial of the motion to vacate the
dismissal were abuses of the court's discretion and, with
the following language, specifically raised the
constitutional issue with respect to which the plaintiffs
now petitions for a writ of certiorari:
The Fourteenth Amendment to the United States
Constitution requires that the plaintiffs be given
a meaningful opportunity to assert their claim(s),
and the dismissal of their complaint in this case
deprived them of the constitutionally guaranteed
right to a fair trial and due process of law.
The Maine Supreme Judicial Court, sitting as the Law
Court, in an unpublished memorandum of decision and
without opinion or explanation other than & reference
to its decision in Westbrook v. Wallace, 478 A.2d 687,
689 (Me. 1984), affirmed the trial stating only that "the
court's decision to dismiss for want of prosecution was
within the proper exercise of its discretion." App. p. A-1.
The plaintiffs filed @ timely motion for rehearing in
which they again raised the "plaintiffs' constitutionally
protected right to due process" and distinguished the
circumstances of plaintiffs' case from those in the
Westbrook case cited by the Law Court in their case and
from the facts in Link v. Wabash Railroad Company,
370 U.S. 626, 8 L.Ed.2d 734, 82 S.Ct. 1386 (1962) which
was cited by the Law Court in its decision in the
Westbrook case. See motion for rehearing, App. A-36
- A-41. The plaintiffs' motion for rehearing was
summarily denied on January 22,1997. App. p- A-42.
6. See excerpt from petitioner's brief below, App. A-31
= A-35.
a4Z-
ARGUMENT
The Maine Supreme Judicial Court, sitting as the Law
Court, has deprived the plaintiffs of property, their cause
of action in the case below, in a manner offensive to the
fundamental right to due process guaranteed by Section 1
of the Fourteenth Amendment to the Constitution of
the United States. In so doing, the Law Court, Maine
court of last resort, has decided an important question
of Constitutional law in a way that conflicts with the
decisions of this Court or, alternatively, has decided an
important question of Constitutional law which should
be settled by this Court. Additionally, the Law Court's
decision conflicts with the decisions of various United
States Courts of Appeals and other state courts of last
resort.
Except for its reference to Westbrook v. Wallace,
478 A.2d 687 (Me. 1984), the Law Court, without opinion
or other explanation, summarily announced in its unpub-
lished memorandum of decision that the trial court's dis-
missal of the plaintiffs' complaint "for want of prosecu-
tion was within the proper exercise of its discretion"
despite the plaintiffs' Constitutionally guaranteed right
to due process. App. p. A-1.
The trial court in Westbrook dismissed the plaintiff's
complaint with prejudice after the plaintiff's counsel
failed to appear for trial. Because a few minutes before
trial was to begin the plaintiff's attorney had called the
court and told the clerk that he was ill and unable to
appear for trial, the court's dismissal order allowed the
dismissal to be stricken if, within ten days, the attorney
presented sworn testimony from two doctors attesting
to his illness and his inability to appear for trial, and paid
costs for to the defendant and defense counsel for their
appearances for trial. The attorney responded by filing
the affidavits of two physicians. The court then scheduled
=?
IE GA se 9P wa
a hearing on the plaintiff's request to strike the dis-
missal. After hearing the testimony of the two physicians
the court found that the attorney's illness was pretextual
and that the real reason for his failure to appear for trial
was his aversion to appearing before the particular pre-
siding justice, and denied the plaintiff's motion to strike
the dismissal.
On appeal, the Law Court affirmed the dismissal citing
this Court's decision in Link v. Wabash Railroad Company,
370 U.S. 626, 8 L.Ed.2d 734, 83 S.Ct. 1386 (1962) for the
proposition that that trial court had the inherent power
to dismiss the plaintiff's complaint for want of prosecu-
tion, but added the following caution:
[The power to dismiss] should be exercised only
with full appreciation and consideration of the
plight of the plaintiff. In many cases an innocent
plaintiff may be deprived of a valid claim because
of the action or inaction of his representative.
Although such a result is consistent with principles
of agency, it runs counter to the values underlying
our system of justice which favors resolution on
the merits. ... In many instances our trial courts
would do well to consider, as they have in the past,
a lesser sanction than dismissal. Only when
conduct ... seriously threatens the ability of the
court to manage its own affairs should dismissal
with prejudice be considered. Less serious forms
of ... neglect may be adequately addressed
through financial sanctions.
Westbrook, supra. at 689-90.
In Link, this Court, in a 4-3 decision, sustained the
dismissal of the oldest case on the trial court's docket
after the plaintiff's attorney failed to appear for a pre-
trial conference because "he was busy preparing papers
to file with the [Indiana] Supreme Court,” although "he
wasn't actually engaged in argument." Link, supra. at
628. The Link case had been on the docket more than
~ 18 <
ee ee
six years and involved years of continuances sought, and
other delays caused, by the plaintiff or his attorney.
370 U.S. at 628, n.2. In sustaining the dismissal with
prejudice, Justice Harlan, writing for the majority, stated
that "this is not a case in which failure to comply with
a court order 'was due to inability fostered neither by
. .. [petitioner's] own conduct nor by circumstances within
its control.” 370 U.S. at 636. Justice Black, joined by
Chief Justice Warren, dissented in a separate opinion
on the grounds that the earlier delays could not be made
the basis of the dismissal and that the dismissal unjustly
punished the plaintiff for his attorney's conduct. 370
U.S. at 636, et seq. Justice Douglas dissented without
opinion.
The present case is readily distinguishable from both
the Link and Westbrook cases in that the plaintiffs'
attorney was present and ready to proceed except that
the plaintiffs' two witnesses, including one of the plain-
tiffs who was an essential witness, were unable to be
present through no fault of the plaintiffs due to circum-
stances beyond their control.
A century ago, in deciding to reverse in a case in
which the trial court, as a sanction for the defendant's
failure to deposit with the court a sum of money, struck
his answer and thereby precluded his raising any defense,
this Court said:
The fundamental conception of a court of justice
is condemnation only after a hearing. To say that
courts have inherent power to deny all right to
defend an action and render decrees without any
hearing whatsoever, is in the very nature of things,
to convert the court exercising such an authority
into an instrument of wrong and oppression, and
hence to strip it of that attribute of justice upon
which the exercise of judicial power necessarily
depends.
Hovey v. Elliott, 167 U.S. 409, 413-14, 42 L.Ed. 215,
“$8 =
17 S.Ct. 841 (1897).
Although the Hovey holding may have been modified
somewhat since then, its essence remain intact, and as
a general rule parties may not be penalized by dismissal
or default judgment for noncompliance when that non-
compliance is due to their inability to comply as opposed
to willfulness, bad faith or other fault. See e.g. Societe
Internationales Pour Participations Industrielles et
Commerciales, S.A. v. Rogers, 357 U.S. 197, 212,
2 L.Ed.2d 1255, 78 S.Ct. 1087 (1958), in which this Court
held that because the plaintiff's noncompliance with a
discovery order was due to its inability to comply rather
than to bad faith, striking the complaint for noncompli-
ance despite good faith efforts to comply violated the
plaintiff's right to due process under the Fifth
Amendment. 357 U.S. at 210. The due process clause
of the Fourteenth Amendment grants to a party oppor-
tunity to present his case and have its merits fairly
judged. Logan v. Zimmerman Brush Co., 455 U.S. 422,
433, 71 L.Ed.2d 265, 102 S.Ct. 1148 (1981). Fourteenth
Amendment due process requires an opportunity, granted
at a meaningful time and in a meaningful manner, for
a hearing appropriate to the nature of the case. 455 U.S.
at 437.
To the extent that the decisions in these cases may
be deemed dispositive of the questions raised in this
petition, the Law Court's decision in the case below is
in conflict with them and, at the very least, is incon-
sistent with the fundamental right to due process for
which they stand. In the alternative, any limitations on
the fundamental right to due process under the Fourteenth
Amendment should be settled by this Court.
Moreover, the United States Court of Appeals in
virtually every circuit has held and continues to hold,
as a general rule, that the unavoidable and involuntary
absence of a party, @ party's attorney, Or an essential
witness whose appearance can be had at reasonable future
~ 17 «
time is sufficient grounds for a continuance and that,
absent a clear history of delay or contumacious conduct,
the inability of a party, a party's attorney or an essential
witness is not sufficient grounds for dismissal or default
judgment.
In numerous cases dismissals because a party, a party's
attorney or an essential witness was too ill to travel or
otherwise appear for trial, the United States Court of
Appeals has held that dismissal was an abuse of discretion.
See e.g. Harrah v. Morgenthau, 89 F.2d 863 (D.C. Cir.
1937). See also: Gaspar v. Kassem, 493 F.2d 964 (3rd
Cir. 1974)(it is an abuse of discretion to deny continuance
and new trial when defendant is in Syria and unable to
return for trial due to illness); Latham v. Crofters, Inc.,
492 F.2d 913 (4th Cir. 1974)(abuse of discretion to deny
motions for continuance and for new trial when president
of defendant corporation, who was an essential witness,
was unable to appear at trial due to a very severe heart
attack); Scarverv. Allen, 457F.2d 308 (7th Cir.
1972\dismissal is too harsh and an abuse of discretion
when plaintiff was unable to appear at trial due to asthma
resulting from fire in her apartment); Jarva V. U.S.,
280 F.2d 892 (9th Cir. 1960)inability of plaintiff, due
to illness, to appear for trial during four month period
is sufficient excuse for lack of prosecution); and Davis v.
Operation Amigo, Inc., 378F.2d 101 (10th Cir.
1967)(iliness of litigant severe enough to prevent him
from appearing for trial is always a legitimate ground
for seeking a continuance and dismissal is too harsh and
an abuse of discretion).
It has been held, also, that it is an abuse of the court's
discretion to deny the plaintiff's motion to continue and
to dismiss his complaint when the plaintiff's essential
witness was out of the country and the plaintiff was
unable to obtain his return in time for trial. Grochal v.
Aeration Processes, Inc., 797 F.2d 1093, 1094-97 (D.C.
o48-
Cir. 1986). See also: Richman v. General Motors Corpora-
tion, 437 F.2d 196 (1st Cir. 1971)(when plaintiff's expert
witnesses were unavailable for scheduled trial, dismissal
was too harsh and an abuse of discretion).
The Court of Appeals in the Ninth Circuit has held
that the denial of a continuance to obtain the testimony
at trial of an essential expert witness was an abuse of
discretion and denied the moving party a fair trial after
the trial court had told the party's attorney that the court
would work out the scheduling problem with the missing
expert witness. Fenner v. Dependable Trucking Co., Inc.,
716 F.2d 598 (9th Cir. 1983). See also: Leong v. Railroad
Transfer Services, Inc., 302 F.2d 555 (7th Cir. 1962)(denial
of motion to vacate dismissal of plaintiff's complaint
after attorneys for both sides failed to appear for trial
because they both had expected a call from the clerk
telling them what time trial was to begin and the trial
court refused to listen to the attorneys’ explanations held
to be an abuse of discretion); and Red Warrior Coal &
Mining Co., Inc. v. Boron, 194 F.2d 578 (3rd Cir. 1952)
(because plaintiff's complaint was dismissed when its
expert witness was not available for trial due short notice
and air travel complications, despite its attorney's reason-
able reliance upon the statement of the clerk who admin-
istered the trial list that the case would not be called
until a date ten or so days after it was called, the
dismissal was held to be too harsh and reversed).
In another case involving travel complications, the
dismissal of the plaintiff's case after she failed to appear
for trial because she didn't have, and was unable to raise,
the funds necessary to travel to Washington, D.C. for
trial, was held to be an abuse of discretion. Trakas v.
Quality Brands, Inc., 759 F.2d 185 (D.C. Cir. 1985).
Generally, dismissal for want of prosecution requires
a clear record of delay or willful contempt and a finding
that lesser sanctions would not suffice. See e.g. Carter v.
U,S., 780 F.2d 925 (11th Cir. 1986), in which the dismissal
=
was vacated because the trial court failed to consider
lesser sanctions and didn't articulate an adequate basis
to justify dismissal.
In the present case, the plaintiffs and their attorney
relied to their detriment on the July 27, 1995 pronounce-
ment of the court and subsequent communication with
personnel in the clerk's office regarding trial scheduling
which would have afforded them about five weeks notice
of trial. Such reliance was reasonable. See Red Warrior
Coal, supra. Instead of five weeks notice, the plaintiffs'
attorney had no more than five days and the plaintiffs
had no more than three days notice of trial. Because
of the very short notice, the plaintiffs were unable to
obtain the attendance of an important witness who then
resided in London, and the demands of Plaintiff Stanley's
official duties as United States Trustee for Region 17
severely complicated her ability to travel to Portland
for trial. The plaintiffs could have gone forward, although
at a disadvantage, without one of their witnesses but
not without both of them. Plaintiff Stanley made an
extraordinary effort to appear for trial but, due to cir-
cumstances beyond her control, she was unable to do so.
Even in cases of negligent and inexcuseable behavior,
dismissals have been vacated as too harsh and abuses
of discretion. See e.g. Adams v. Trustees, N.J. Brewery
Trust Fund, 29 F.3d 863 (3rd Cir. 1994); Velazquez-Rivera
v. Sea-Land Service, Inc., 920 F.2d 1072 (1st Cir. 1990);
Lowe v. City of East Chicago, Indiana, 897 F.2d 272 (7th
Cir. 1990); and Moore v. St. Louis Music Supply Co., Inc.,
539 F.2d 1191 (8th Cir. 1976).
Various state courts of last resort have also vacated
such dismissals. See e.g. Hyser v. Hyser, 124 P. 346 (Colo.
1912); Webb v. Carpenter, 148 SE 80 (Ga. 1929); Ritchey
v. Pendley, 75 SE 841 (Ga. 1912); Storer v. Heitfeld,
105 P. 55 (Idaho 1909); and McCutcheon's Administrators
v. Dean, 54 SW2d 926 (Ky. 1932).
For all the foregoing reasons, the petitions
—
respectfully pray that the Court issue a writ of certiorari
to review the decision of the Maine Supreme Judicial
Court.
Dated: April 22, 1997
hs if
Ralph W. Brown
Attorney for Petitioners
19 Candlewyck Road
Portland, Maine 04102
(207) 773-3133
ott
MAINE SUPREME JUDICIAL COURT
Reporter of Decisions
Decision No. 7894
Law Docket No. CUM-96-263
LINDA E, STANLEY
Ve
JOHN M. BOLES
Submitted on Briefs December 20, 1996
Decided December 31, 1996
Before WATHEN, C.J., and ROBERTS, GLASSMAN,
CLIFFORD, RUDMAN, and DANA, JJ.
MEMORANDUM OF DECISION
Linda A. Stanley [sic] appeals from an order of the
Superior Court (Cumberland County, Brennan, J.)
dismissing with prejudice her complaint against John M.
Boles for want of prosecution. Contrary to Stanley's
contention, the court's decision to dismiss for want of
prosecution was within the proper exercise of its discre-
tion. See Westbrook v. Wallace, 478 A.2d 687, 689 (Me.
1984).
The entry is:
Judgment affirmed.
All concurring.
A-1l
i ee
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, SS. Civil Action
Docket No. CV-92-1380
LINDA E. STANLEY, et al., )
)
Plaintiffs )
)
v. ) ORDER
)
JOHN M. BOLES, )
)
Defendant )
Upon the plaintiffs' motion to vacate the Court's Order
of February 2, 1996 dismissing their complaint for failure
to prosecute, and to restore this action to the docket
for trial, without hearing,
It is ORDERED that the plaintiffs' motion be, and
is hereby, DENIED.
Dated at Portland, Maine _ day of » 1996.
3/19/96 ___/s/ G. Arthur Brennan
G. Arthur Brennan, Justice
Maine Superior Court
A-2
STATE OF MAINE SUPERIOR COURT
Civil Action
CUMBERLAND, SS. Docket No. CV-92-1380
LINDA E. STANLEY, et al., )
Plaintiffs
Vv. ORDER
JOHN M. BOLES,
Defendant
On January 31, 1996 this case was called for non-jury
trial. Plaintiffs' counsel was present. Plaintiff was not
present. Both the defendant and his counsel were present.
When the case was called, plaintiffs' counsel indicated
he could not proceed without his client and provided me
with a detailed account concerning her absence. Defen-
dant's counsel, likewise, provided a detailed account of
the procedural history of this case. Following these pre-
sentations, and for reasons stated on the record, I indi-
cated that I would enter an order dismissing this action
with prejudice for failure to prosecute.
The entry will be as follows:
The plaintiffs' complaint is ordered dismissed
with prejudice for failure to prosecute.
The Clerk may incorporate this order on the
docket by reference.
DATED: February 2, 1996
/s/ G. Arthur Brennan
G. Arthur Brennan
Justice, Superior Court
A-3
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION |
YORK [sic] COUNTY, SS. DOCKET NO. CUM-96-263 F
LINDA E. STANLEY, ET AL. )
)
Plaintiff )
) NON-JURY PROCEEDINGS ;
VS. ) :
) [EXCERPT, pp. 1, 10-15]
JOHN M.BOLES, ETAL, _)
)
)
Defendant
BEFORE:
HONORABLE G. ARTHUR BRENNAN,
JUSTICE PRESIDING
CUMBERLAND COUNTY COURTHOUSE
PORTLAND, MAINE
JANUARY 31, 1996
APPEARANCES:
RALPH W. BROWN, ESQ.
ATTORNEY FOR THE PLAINTIFF
DAVID P. SILK, ESQ. ATTORNEY FOR THE DEFENDANT
Donald W. Mitchell, RPR, CSR
Official Court Reporter
A-4
[EXCERPT from Page 1]
JANUARY 31, 1996
(WHEREUPON THE FOLLOWING PROCEEDINGS
COMMENCED AT 9:17 a.m.)
COURT: Good morning, ladies and gentlemen. Please
be seated.
MR. SILK: Thank you, your Honor.
MR. BROWN: Thank you.
COURT: Okay. This is civil case. Matter of Linda
Stanley and others versus John Boles. Docket No.
CV-92-1380. As I understand things Miss Stanley is not
present. Mr. Boles is present. Counsel] for Miss Stanley,
Mr. Brown is present and Mr. Boles counsel, Mr. Silk is
present.
Matter's set for hearing on the merits. Jury waived
trial on the merits this morning. Mr. Brown, perhaps
I should let you state your position to start with.
[EXCERPT from Page 10 through Page 15]
A-5
COURT: Thank you, Mr. Silk. Whatever happened
in the pre-trial stage is, there are motions. There are
orders. There is pending unresolved motions to dismiss.
That is all a matter of record and so forth. The only thing
I want to comment on the history of this particular trial
list, which is mailed sometime in early December. It's
a trial docket. I can probably take judicial notice of the
difficulties of practicing bar on trial dockets. I never
go to a lunch bar meeting where the main topic of
conversation and criticism, constructive and otherwise
of the practicing bar is, trailing dockets. But that's the
system we live with through the State of Maine, certainly
throughout the southern part of the State of Maine. J
can't say that I specifically remember saying one way
or the other people that this case would get a special
assignment. Special assignment doesn't have quite the
meaning in Portland as it used to. A special assignment
in terms of art as I inderstand it indicating that a case
will be assigned to a particular judge ans as distinguished
from whoever happens to be here.
In Portland all cases when they come in and all cases
two years ago in September were assigned to a particular
A-6
oe es
judge. That's me. I certainly have given the fact that
both parties were not Maine residents. I certainly don't
deny saying we will give you some special attention in
terms of when we schedule it. But as I said I don't know,
I'm not disagreeing with what Ralph said. I just don't
have any memory of it. I would certainly take, | would
take into consideration travel schedules when the list
came out. I put my jury and non-jury matters together
on one list because I find that it is, it is a a good way
to move cases along. We had scheduled a jury trial that
I anticipated would take most of this week beginning
January 29th. We backed that up with both jury and
non-jury matters.
My understanding counsel were notified of the backup
status of this case on Thursday, which would have been
the 25th of January. On Monday morning the case that
was set for jury trial settled right before jury selection.
I invited counsel over at 1 o'clock in the afrternoon. Mr.
Brown and Mr. Silk were kind enough to come over. I
said, "We've got this case." "I really got the rest of the
week." Ralph Brown explained to me that his client,
whom I understand to be a San Francisco native, was going
A-7
to be in Washington in any event this week.
I understand from Mr. Silk that his client was a
resident of Virginia. There's a letter indicating Mr. Silk
would like at least 48 hours advance notice so the travel
arrangements can be made. Sat down with people and
said "I want to do this case this week." I said, "Ralph,
your client's in Washington." "That's a lot closer than
San Fransisco." And I think I basically said, "Ralph, you
contact your client and tell me when she wants to be
here for trial."
Ralph went back. Contacted his client. And as I
understand advised the clerk that he wanted to try the
case on Wednesday morning. We set the case for
Wednesday morning. I is somewhat ironic I think thar
if I understand things Mr. Boles flew up from Dulles, the
same airport, last night to get here, as I understand Miss
Stanley was attempting to do. So I acknowledge because
of the trial docket and I acknowledge it's not, cases are
better decided on the merits than they are based upon
default. On the other hand, within the constraints of
the trial docket, I think I have been fair in terms of trying
to accommodate everybody's schedule. I didn't say be
A-8
here at 1 o'clock on Monday afternoon. Be here on
Tuesday afternoon.
What I said was contact Miss Stanley and ask her when
this week it would be most convenient. I understand this
is a case that might take a half day to a day to try. Let
her tell us when it will be convenient for her this week
to try the matter. She picked today. She's not here. And
I guess under these — Mr. Boles is. And it was an
inconvenience for him to be here. And I understand it
the notice in terms of, we did not, the Court did not get
the notice in terms of these difficulties until after the
close of business last night. And Mr. Silk didn't get the
notice in time to avert Mr. Boles’ trip.
Under those circumstances it seems to me all I can
reasonably do to be fair to both parties is call the case
for trial and if Mr. Brown is able to proceed he's able
to proceed. And I feel sorry about that but I really think
that I have been reasonable in trying to accommodate
everybody's schedule. And as I say whatever the past
difficulties have been here, thay have been dealt with
my orders and so forth. Nothing that I am doing here
is based on past difficulty. It's based on this case getting
A-9
oo |
called for trial in a chronological fashion that we all
discussed. So you're on, Ralph. 7
MR. BROWN: Your Honor, my client is not here and
I am unable to proceed.
COURT: All right. Case is going to be, Plaintiffs'
case will be defaulted and I'll enter an order dismissing
the case with prejudice on failure to prosecute. I don't
know, what I know from representations from Ralph which
I accept that his client intended to get here but travel
conplications prohibited it. Under those circumstances
I'm not going to impose costs without the opportunity
for hearing. I'm not going to. If you feel strongly about
that, David, you want to mark that up, I mean if it was
a determination that Miss Stanley did not make a good
faith effort to get here and be here after notifying Mr.
Brown of that, that's one thing. On the other hand, if
it's a genuine travel difficulty that precluded her
appearance here it seems to me that's something else
again. So in the absence of Miss Stanley being here and
me being able to make, you know, face-to-face
determination about essentially good faith, bad faith kinds
of things, I would be reluctant to impose costs. I'm not
A-10
reluctant to simply dismiss the case with prejudice for
want of prosecution. If you want to follow that up, that's
a choice for you to make.
MR. SILK: I doubt she will be here in Maine where
I can ascertain the information but I hear what you're
saying and I'll discuss that with my client and if my client
wants to pursue that I understand you...
COURT: I'm not precluding it. I'm just saying I'm
not prepared to enter that kind of order today based on
what I know about Miss Stanley's difficulties.
MR. SILK: Thank you.
COURT: Okay. Thank you very much, folks.
(WHEREUPON THE HEARING WAS RECESSED AT
9:40 a.m.)
A-11
STATE OF MAINE
SUPREME JUDICIAL COURT
Sitting at the Law Court
Law Docket No. Cum-96-263
Decision No. 7894
LINDA A. STANLEY
Plaintiff/Appellant
JOHN M. BOLES,
Defendant/Appellee
)
)
)
v. ) ORDER
)
)
)
Upon the motion of Appellant for reconsideration,
it is ORDERED that the motion be, and it hereby is
DENIED.
The mandate shall issue forthwith.
Dated: January 22, 1997
For the Court
/s/ David E. Roberts
Justice, Supreme Judicial Court
A-12
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, SS. Civil Action
Docket No. CV -92-1380
LINDA E. STANLEY, etal., )
Plaintiffs )
Vv. )
JOHN M. BOLES, )
Defendant )
MOTION TO CONTINUE TRIAL
COME NOW the plaintiffs, by and though counsel, and
respectfully move this Honorable Court for an order continuing the
trial in this action to a time when it can be scheduled at the
beginning of a trial list so as to afford the parties five (5) or so
weeks notice, on the grounds that: (1) on July 27, 1995 Justice
Brennan, in conjunction with a hearing plaintiffs’ motion to amend
and defendant's most recent motion to dismiss and in the course of
a discussion about trial scheduling and the prospect of a motion for
special assignment, informed the parties that the case would be
place first on a trial list to begin on a Monday so as to afford five (5)
or so weeks notice of trial, and that that was as close to a special
assignment as we will get; (2) the undersigned attorney for the
plaintiffs has been unable to reach Plaintiff Linda E. Stanley, who is
an essential witness for the plaintiffs, to inform her of the prospect
of trial; (3) Mark Reiff, who is the other of the plaintiffs’ witnesses,
is presently living in Great Britain and cannot be present on such
short notice: and (4) the undersigned attorney for the plaintiffs
presently is scheduled to appear Monday before Justice Cole in a
criminal matter and in the District Court on an unrelated civil matter.
In support of their motion, the plaintiffs respectfully represent the
following:
1. On July 27, 1995, Justice Brennan held a hearing on the
plaintiffs’ motion to amend the complaint and the defendant's most
recent motion to dismiss. In conjunction with that hearing, the Court
and counsel discussed trial scheduling in this case. When the
undersigned attorney stated that the plaintiffs intended to file a
A-13
motion for special assignment because the obligations and duties of
Plaintiff Linda E. Stanley as the United States Trustee for Region 17
covering Northern California and all of Nevada, and the presence of
one of the plaintiffs’ witnesses in Great Britain, necessitated
substantial advance notice of trial to clear their schedules and make
travel arrangements, Justice Brennan informed the parties that the
case would be placed first on a trial list to begin on a Monday, that
that should afford five (5) or so weeks advance notice of tral, and
that that was as close to a special assignment as the parties would
get.
2. Since the present trial list was published, the undersigned attorney
for the plaintiffs on at least one occasion has spoken with personnel
in the Clerk's office about the scheduling of this case and
understood that case would not be called.
3. On the morning of Friday, January 26, 1996, the undersigned
attorney for the plaintiffs retrieved a message from the Clerk's office
indicating that the case was now the number two back-up case for
Monday, January 29,1996.
4. The plaintiffs have two witnesses, Plaintiff Linda E. Stanley and
Mark Reiff, Esquire.
Linda E. Stanley is employed by the United States
Department of Justice as the United States Trustee for Region 17
covering Northern California and all of Neveda. Her official duties
and obligations require her to travel frequently throughout Region
17 and other places throughout the United States in connection with
her employment.
Mark Reiff presently resides in Great Britain, is difficult to
reach by phone, and requires reasonable advance notice to make
travel arrangements and for the forwarding of funds to pay for such
travel.
5. Early this afternoon (morning in San Francisco), the undersigned
attomey for the plaintiffs telephoned the office of Plaintiff Linda E.
Stanley in San Francisco, was informed that she was in the field in
A-14
Nevada and would not return to San Francisco until Monday,
January 29, 1996 at the earliest, and left message for her on her
E-mail. It appears unlikely that the undersigned attorney will be able
to reach Plaintiff Linda E. Stanley before Monday.
6. The undersigned attorney for the plaintiffs is presently scheduled
to appear before Justice Cole at 8:30 o'clock A.M. in a criminal
matter encaptioned State of Maine v. Anthony W. Worrey, and is
scheduled to appear in the District Court at 9:00 o'clock A.M. on a
civil matter encaptioned Francis X. Picher v. Carson's Family
Restaurant, Inc. The undersigned attorney does not know how
much time will be required by these other matters, but anticipates
being tied up for most of the morning.
MEMORANDUM
The primary purpose of the procedural rules is to promote
the ends of justice. Rule 1, Maine Rules of Civil Procedure. See:
Wright & Miller, Federal Practice & Procedure, Civil 2d, §1029
(1987). See also: General Mill Supply Co. v. $.C.A. Services, Inc.,
697 F.2d 704, 711 (6th Cir. 1982); Samuels v. Health & Hospitals
Corp. of the City of New York, 591 F.2d 195 (2d Cir. 1979);
Caracci_v. Brother Intemational Sewing Machine Corp., 222
F.Supp. 769, affirmed 341 F.2d 377 (Sth Cir. 1965); Fis ange Vv.
McGowan, 585 F.Supp. 978 (D.R.I. 1984); Polaroid Corp.
Casselman, 213 F.Supp. 379, 381 (D.N.Y. 1962).
The plaintiff should be able to rely on the Court's July 27,
1995 statement with regarding the scheduling of trial. The truth
cannot be found nor can justice be done without a fair trial. A fair
trial requires the presence and participation of the plaintiffs’
witnesses, both of whom are located well outside the State of Maine
and require reasonable advance notice to travel to Portland for tal.
WHEREFORE, the plaintiffs pray that trial in this action be
continued until it can be scheduled for trial in accordance with the
Court's prior instruction.
Dated at Portland, Maine this twenty-sixth day of January, 1996.
A-15
/s/_ Ralph W. Brown
Ralph W. Brown
Attorney for Plaintiffs
19 Candlewyck Road
Portland, Maine 04102
(207) 773-3133
A-16 |
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, SS. Civil Action
Docket No. CV-92-1380
LINDA E. STANLEY, et al., )
Plaintiffs MOTION TO VACATE
)
)
7 ORDER, AND FOR NEW
‘ ) TRIAL WITH INCORPOR-
)
)
)
JOHN M. BOLES, ATED MEMORANDUM
Defendant
COME NOW the plaintiffs, by and through counsel,
pursuant to Rule 59 of the Maine Rules of Civil Proce-
dure, and respectfully move this Honorable Court for
an order vacating its February 2, 1996 Order by which
the plaintiffs' complaint was dismissed for failure to pro-
secute because Plaintiff Linda E. Stanley was unable to
appear for trial, and restoring this action to the docket
for a new trial, and the grounds that, given the minimal
notice of trial, Plaintiff Linda E. Stanley despite her best
efforts and due to circumstances beyond her control was
unable to appear for trial. The plaintiffs' motion is
supported by the affidavits of Linda E. Stanley and
Ralph W. Brown.
MEMORANDUM
1. As shown in the accompanying Affidavit of Ralph W.
Brown, the Court had informed counsel on July 27, 1995
that the case would be placed first on a trial list to begin
on a Monday, that that would afford the parties five or
so weeks' advance notice of trial, and that that was as
close to a special assignment as the parties would get.
The pleintiffs justifiably relied on the Court's statement.
The case, nevertheless, was included on the trial list
beginning in January. The plaintiffs' attorney had at least
A-17
one conversation with personnel in the Clerk's office as
a result of which he understood that the case would not
be called. At the same time, the plaintiffs’ attorney
necessarily was attending to a very demanding and time
consuming bankruptcy matter, and was struggling to keep
up with the other matters in which he was engaged.
As detailed in the affidavits accompanying this
motion, when it appeared that the case would be called
notwithstanding the plaintiffs' understanding that they
would have five or so weeks' notice, Plaintiff Linda E.
Stanley made a diligent effort to be present for trial.
Through no fault of hers, she was unable to be present
on the day the case was actually called for trial.
2. While there have been procedural problem with this
case, the plaintiffs have already paid for their short-
comings. The balance of the defendant's alleged pro-
cedural problems are grossly exagerated. The defendant
has uniformly responded to what he characterized as
failures to comply with court orders with successive
motions to dismiss despite the fact that the plaintiffs
have consistently acted in good faith. Whenever, for
example, a discovery dispute arose, rather than address
the issues in the context of the relevant discovery
motion(s), the defendant filed another motion to dismiss.
Each time the defendant subsequently found an excuse
to file yet another motion to dismiss, the defendant re-
iterated his ever longer and selfserving list of motions
to dismiss.
3. The Law Court has repeatedly said that the decisions
of the federal courts construing the federal rules upon
which the Maine rules are modeled are entitled to great
weight. Westman v. Armitage, 215 A.2d 919, 921 (Me.
1966); Kittery Electric Light Co. v. Kittery, 219 A.2d
744, 747 (Me. 1966); Wormelle v. George, 325 A.2d 4,
n. 3 (Me. 1974); and Allen [v.] Cole Realty, Inc., 325 A.2d
A-18
19 (Me. 1974). See also: State v. Wedge, 322 A.2d 328
(Me. 1974).
The primary purpose of the procedural rules is to
promote the ends of justice. Rule 1, Maine Rules of Civil
Procedure. See: Wright & Miller, Federal Practice &
Procedure, Civil 2d, $1029 (1987). See also: General Mill
Supply Co. v. S.C.A. Services, Inc., 697 F.2d 704, 711
(6th Cir. 1982); Samuels v. Health & Hospitals Corp. of
the City of New York, 591 F.2d 195 (2d Cir. 1979);
Caracci v. Brother International Sewing Machine Corp.,
222 F.Supp. 769, affirmed 341 F.2d 377 (5th Cir. 1965);
Fisher v. McGowan, 585 F.Supp. 978 (D.R.I. 1984); and
Polaroid Corp. v. Casselman, 213 F.Supp. 379, 381 (D.N.Y.
1962).
Rule 1 therefore requires that rules of procedure
are to be applied in a fashion that will promote
the ends of justice. ... The force of the first
and greatest of the federal rules is felt in all of
the remaining rules, and the spirit with which they
have been applied by the federal courts for more
than thirty years confirms this impression.
Thayer v. Liggett & Meyers Tobacco Co., (W.D.
Mich., Feb. 9, 1970, Civ. A. No. 5314).
"Dismissals not going to the merits ... are viewed
with disfavor in the federal courts." David v. Sinclair
Refining Co., 25 F.R.D. 190, 191 (D.N.Y. 1960). "To fall
back on a technicality and refuse to permit a case to
come to issue on the merits is to sap the very heart out
of the rules and to obviate the very purpose for which
they are intended." DeFranco v. United States, 18 F.R.D.
156, 159 (D.Cal. 1955). See also: Foman v. Davis, 371 U.S.
178, 181 L.Ed.2d 222, 83 S.Ct. 227, 230 (1962).
A-19
ee
4. Regardless of any previous procedural inadequacies,
the action had come to the point of trial. The plaintiffs
had been told that they would have about five weeks
advance notice of trial. The notice actually afforded
the plaintiffs, depending on where you start the clock,
was five days at most. Plaintiff Linda E. Stanley made
an extraordinary effort to come to Portland for trial.
Her efforts in that regard far surpassed mere good faith,
but were thwarted by circumstances beyond her control.
In the absence of bad faith, such quirks of fate should
not form the basis for the dismissal of the plaintiffs'
meritorious claim against the defendant.
CONCLUSION
For all the foregoing reasons, the plaintiffs pray that
the Court enter an order vacating its Order of February 2,
1996 and restoring this action to the docket for trial.
Dated at Portland, Maine this twelfth day of February,
1996.
/s/ Ralph W. Brown
Ralph W. Brown
Attorney for Plaintiffs
19 Candlewyck Road
Portland, Maine 04102
(207) 773-3133
A-20
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, SS. Civil Action
Docket No. CV -92-1380
LINDA E. STANLEY, et al., )
Plaintiffs)
V.
JOHN M. BOLES
Defendant
eee eee”
AFFIDAVIT OF RALPH W. BROWN
I, Ralph W. Brown, being first duly sworn, hereby depose and
say that:
1. 1am an attomey at law duly admitted to practice in and before the
courts of the State of Maine with an office in the City of Portland,
County of Cumberland and State of Maine.
2. I am the attorney of record for the plaintiffs in this action, and
make this affidavit based upon my persona! knowledge.
3. On July 27, 1995, the attorney for the defendant and I appeared
before Justice Brennan for a hearing on the plaintiffs’ motion to
amend the complaint and the defendant's most recent motion to
dismiss. In conjunction with that hearing, the Court and counsel
discussed trial scheduling in this case. When the undersigned
attorney stated that the plaintiffs intended to file a motion for special
assignment because the obligations and duties of Plaintiff Linda E.
Stanley as the United States Trustee for Region 17 covering
northern and eastern California and all of Nevada, and the presence
of one of the plaintiffs’ witnesses in Great Bnitain, necessitated
substantial advance notice of trial to clear their schedules and make
iravel arrangements, Justice Brennan informed us that the case
would be placed first on a trial list to begin on a Monday, that that
should afford the parties five or so weeks advance notice of tnal,
and that that was as close to a special assignment as we would get.
A-21
4. On November 16, 1995, acting on behalf of other clients, I filed
in the United States Bankruptcy Court for the District of Maine, a
voluntary petition for relief under Chapter 13. The Chapter 13 case
involved the liquidation of a corporation and the transfer of its
business operations, a restaurant, and assets to its principal
shareholder who is one of the joint debtors in that case. The
restaurant employees a few more than thirty people. The debtors
have over $400,000.00 in secured debt and about $230,000.00 in
unsecured debt. The case involves several significant legal issues
with respect to which the law is uncertain and some of which issues
are already being litigated in the context of a motion for relief from
stay filed by one of the debtors’ secured creditors. The debtors’ plan
hinges in part on their obtaining new credit to expand the dining
room and provide additional operating capital to get the business
through the present off season. The debtors’ personal and business
cash flow presently is extremely tight and precarious. In early
December, 1995, one of the debtors’ unsecured creditors, despite
actual knowledge of the transfer of its operations and assets in
exchange for the assumption of its obligations and actual knowledge
of the debtors’ subsequent bankruptcy, filed a state court collection
action against the liquidated corporation. Later that month, the
creditor obtained an ex parte attachment and, on January 2, 1996,
attached on trustee process $7,300.00 of the debtors’ business funds
which were on deposit in a formerly corporate account. The
attachment created an immediate and severe financial crisis for the
debtors and jeopardized their business and their Chapter 13 case. In
addition to defending the action against the liquidated corporation, i
was necessary to intervene on behalf of the debtor in the action
against the corporation and commence an adversary proceeding in
the Bankruptcy Court in an ongoing effort to recover the debtors’
urgently needed funds. The debtors case and the related state court
actions have demanded constant attention and consumed the vast
majority of my time.
5. After the trial list was published, I has a telephone conversation
with personnel in the Clerk's office about the trial scheduling of this
and another case on the same trial list. During the course of that
conversation I reiterated the substance of Justice Brennan's
instruction of July 27, 1995 and understood that the case would not
A-22
be called. Due to the press of other urgent business and relying
upon my understanding from the Clerk that the case would not be
called, I filed neither a motion to continue nor a letter request for
protection.
6. On the morning of January 26, 1996, I retrieved from my
answering machine a message from the Clerk's office which had
apparently been left the previous afternoon indicating that the case
was now the number two back-up case for Monday, January 29,
1996.
7. That afternoon, I called the San Francisco office of Plaintiff Linda
E. Stanley, was informed that she was in the field in Nevada and
would not return to San Francisco until Monday, January 29, 1996
at the earliest, and left a message for her stating among other things
that the case was likely to be called for trial the following week and
that we needed to talk as soon as possible. Having been unable to
reach my client and principal witness, I prepared and filed a motion
to continue trial.
8. On Sunday evening, January 28, 1996, I received a telephone
called from Linda E. Stanley, who informed me that she was
scheduled to fly to Washington on Tuesday and, because of several
other previously scheduled commitments, did not expect to be
available for trial before February 21, 1996.
9. On the afternoon of Monday, January 29, 1996, opposing
counsel and I met with Justice Brennan in chambers, at which time
I informed the Court of my client's scheduling and travel problems.
At that time we were informed that the Court would be available to
try the case any time that week and that the Court was not inclined
to continue the case, and instructed to work toward a tnal later that
week. Later that day I spoke with Linda E. Stanley by telephone
and informed her that the case had been reached for trial, that Justice
Brennan had indicated that he was not inclined to continue the case,
and that he would be available to try the case any day that week. She
told me she would do what she could to appear in Portland for tral
that week.
A-23
10. On Tuesday, January 30, 1996, I received a telephone call from
Linda E. Stanley who informed me that she was at the airport in
San Francisco about to fly to Washington, she said there was an
early evening flight from Washington to Portland which would
enable her to be in Portland for tnal on Wednesday morning at 9:00
o'clock. I then informed both the Clerk's office and opposing
counsel that she had found a flight which would bring her to
Portland for trial Wednesday morning.
11. At about 5:00 o'clock p.m. on Tuesday, January 30, 1996, I
received another call from Linda Stanley during which she told me
that she was in Washington but that she had been unable to get a
plane for Portland and was looking for alternative arrangements. |
immediately called opposing counsel and informed him of the
problem. He in turn informed me that his client was already en
route Portland from Virginia. I later received another telephone call
from Linda E. Stanley during which she told me she had been
unable to make other arrangements to travel to Portland for trial on
Wednesday, but had been able to reschedule her meetings, etc., so
that she could fly to Portland for tral on Thursday.
12. In addition to Linda E. Stanley, the plaintiffs have one other
witness, Mark R. Reiff, Esquire. The billing statement which the
plaintiffs would have offered in evidence indicate that Mr. Reiff
performed the overwhelming majority of the work done for the
plaintiffs. Mr. Reiff, however, presently resides in London,
England. Given the relatively short notice of trial, it was not
possible to contact Mr. Reiff and arrange for his travel to Portland
for tnal the week of January 29, 1996.
13. Although the plaintiffs have a meritorious claim against the
defendant for something in excess of $21,000.00, I could not
proceed with tnal without at least one of the plaintiffs’ principal
witnesses.
14. On Wednesday, January 31, 1995, opposing counsel and I
again met with Justice Brennan at which time I explained that Linda
E. Stanley had been unable to travel to Portland, but that she had
rearranged her schedule and was able to fly to Portland for tnal the
A-24
next day. We moved to the courtroom where I reiterated the
circumstances surrounding my client's absence. The case
subsequently was called for trial and, in view of my inability to
proceed without my client, the plaintiffs’ complaint was dismissed
for failure to prosecute. The Court issued a written order to that
effect on Friday, February 2, 1996.
Further, your deponent saith not.
Dated at Portland, Maine this twelfth day of February, 1996.
/s/_ Ralph W. Brown
Ralph W. Brown
STATE OF MAINE February 12, 1996
CUMBERLAND, SS..
Then personally appeared before me the above-named Ralph
W. Brown, a person known to me, who subscribed the foregoing
affidavit and made oath that the matters contained therein were true.
/s/_ Francis M. Jackson
Francis M. Jackson
Attorney at Law
A-25
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, SS Civil Action
Docket No. CV -92-1380
LINDA E. STANLEY, et al., )
)
Plaintiffs )
‘i,
)
)
)
JOHN M. BOLES, )
)
)
Defendant
AFFIDAVIT OF LINDA E. STANLEY
I, Linda E. Stanley, being first duly sworn, hereby depose
and say that:
1. 1am a member of the bar and a resident of the State of California
and make this affidavit based upon my personal knowledge.
2. | am a plaintiff in this action and the former managing partner
and now the partner in charge of the dissolved law partnership,
Taylor & Stanley, which was a San Francisco law firm. The subject
of the litigation is unpaid legal fees for services performed in San
Francisco for the defendant John M. Boles (Boles). Boles had been
sued by Bank of America on a guaranty. Judgment had been
entered against him in excess of $165,000 and his former attomney
was suing him as I am now for unpaid legal fees.
3. I give this affidavit to set forth my good faith attempts to appear
at a tnal of this matter during the week of January 29 through
February 2, 1996. The first time I was able to appear and stay for a
tral was 11:00 a.m. on Thursday, February 1, 1996, but I was
advised by my attorney, Ralph Brown, on Wednesday, January 31,
that the court had dismissed my case. There were no plane
connections for me to get to Portland by 9:00 a.m. on Wednesday,
January 31.
A-26
dont e bak tet Riek <n ea oH Re oF ee
+O ta ond Dine tum
Ss ee Ge Bees ONES
4. [hold a senior government position in the Department of Justice.
I have a very heavy meeting and travel schedule. As the United
States Trustee for Region 17, I am_ responsible for the
administration of the over 50,000 cases filed in my region which
covers the federal districts of Northern and Eastern California and
all of Nevada. I have eight offices and 75 employees. In addition, |
chair the national commitee for administration of Chapter 13 and
serve on the national Advisory Committee for the agency.
5. On Friday, January 26, 1996, I flew to Nevada to conduct 17
interviews of staff and job applicants in my Las Vegas office.
6. When I returned to San Francisco in the evening, I picked up a
message from my attorney, Ralph Brown, that my case would go to
trial the following week if the case preceding it for trial were settled.
7. On Monday, January 29, 1996, I learned from Mr. Brown that
the preceding case had settled and my case could be tried that week.
8. The next day, I had been long-scheduled to fly to Washington,
D.C. for a round of meetings and a presentation to a board of
bankruptcy judges from around the country about the work of my
committee. The meetings included meetings with the director of my
agency, the deputy director, the general counsel, the Deputy
Associate Attorney General of the Department of Justice, and three
United States trustees who were also flying to Washington.
9. Knowing and appreciative of the difficulty of trial scheduling for
courts, I began the lengthy complicated process of trying to fly to
Portland for my trial and at the same time to meet the scheduled
obligations of my job.
10. I called U.S. Air on Monday and found that U.S. Air had a
"6:30" plane from Dulles to Boston and another plane to Portland
arriving at Portland at "9:20."
11. When I arrived at San Francisco Airport on Tuesday morning
for my 8:00 a.m. United plane to Washington via Chicago, I called
Mr. Brown and told him I was trying to get on a direct United flight
A-27
to Washington and a connecting "6:30" flight on U.S. Air to
Portland and would be arriving in Portland at 9:20 p.m. and asked if
it were possible to start the trial at 9:00 a.m. the next day so I could
leave in mid-afternoon to fly back on a direct flight to Washington
for appointments I could not reschedule.
12. By standing by, I was able to get on a direct flight to
Washington but I was not able to reach U.S. Air.
13. When I arrived at Dulles, I learned that there was no "6:30"
connection on U.S. Air for Boston and Portland. The 6:30 plane
was a 6:30 a.m. plane not a 6:30 p.m plane. The last flight to Boston
for Portland was at 2:00 p.m. It was impossible for me to fly to
Portland in a day.
14. I called Mr. Brown and told him I had missed a connection to
Portland, but I would again try to reschedule so that I could free up
Thursday for the tal.
15. I rescheduled every appointment for Thursday including my
presentation to the judges which was rescheduled to early Friday
morning. I called Mr. Brown and told him I could fly out of
National Airport at 7:00 a.m. and get to Portland for a tral on
Thursday starting at 11:00 am. and that I was able to stay late on
Thursday because I was able to change the beginning time of my
presentation to the judges to Friday morning.
16. I appreciate the problems of scheduling court tal calendar. I
apologize to the court for my inability to get to court in Portland by
9:00 a.m. on Wednesday, January 31, and I deeply regret the
problems the court had in clearing its calendar.
17. The week made available for trial coincided with an
extraordinarily busy time for me. I made extraordinary efforts to be
available for trial the week of January 29, and I was available but
not at the first time I thought I could be.
18. Iam a plaintiff in this lawsuit. I have no interest in evasion or
delay. | am disturbed that defendant and coursel have seized on
A-28
every opportunity to ask for a dismissal relying on _ logistic
difficulties of an out-of-state party living on the other side of the
country. Defendant's counsel has focused little on the merits of the
case. I was surprised that at my deposition in Portland last spring
(May 22, 1995), counsel had not even examined or asked for the
delivery of the documents I produced in this case relating to the
work and the billings of my former law firm. I shipped these
documents to Portland more than a year before my deposition.
Counsel looked at them for the first time at my deposition.
19. I deeply apologize to the court. At the same time, I humbly
request an opportunity for a trial so that my case can be decided on
the merits.
Further, your deponent saith not.
Dated at San Rafael, California this tenth day_of February, 1996.
Is/_ Li nley
Linda E. Stanley
STATE OF CALIFORNIA February 10, 1996
MARIN COUNTY
Then personally appeared before me the above-named
Linda E. Stanley, a person known to be, who subscribed the
foregoing affidavit and made oath that the matter contained therein
were true.
__/s/_ Howard Salkin
[NOTARY SEAL]
A-29
ee
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, SS. Civil Action
Docket No. CV-92-1380
LINDA E. STANLEY, et al., )
Plaintiffs
Vv. NOTICE OF APPEAL
)
)
)
'
JOHN M. BOLES, )
)
)
Defendant
COME NOW the plaintiffs, by and through counsel,
pursuant to Rule 73(b) of the Maine Rules of Civil
Procedure, and hereby give Notice that the plaintiffs,
Linda E. Stanley and John F. Taylor, Fe2reby Appeal to
the Law Court from the Superior Court's order of
February 5, 1996 (entered on the docket in this action
on February 5, 1996) dismissing with prejudice the
plaintiff's action for failure to prosecute, from its order
of March 19, 1996 (entered on the docket in this action
on March 21, 1996) denying the plaintiffs' Rule 59 motion
to vacate its order of February 5, 1996, and from so much
of its interlocutory order of July 28, 1995 (entered on
the docket in this action on July 31, 1995) which denied
the plaintiffs' motion for leave [to] amend their
complaint.
Dated at Portland, Maine this nineteenth day of April,
1996.
/s/ Ralph W. Brown
Ralph W. Brown
Attorney for Plaintiffs
19 Candlewyck Road
Portland, Maine 04102
(207) 773-3133
A-30
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, SS. Civil Action
Docket No. CV~-92-1380
LINDA E. STANLEY, et al., )
Plaintiffs
AMENDED
Ve NOTICE OF APPEAL
)
)
)
:
JOHN M. BOLES, )
)
)
Defendant
COME NOW the plaintiffs, by and through counsel,
pursuant to Rule 73(b) of the Maine Rules of Civil
Procedure, and hereby give Notice that the plaintiffs,
Linda E. Stanley and John F. Taylor, hereby Appeal to
the Law Court from the Superior Court's order of
February 2, 1996 (entered on the docket in this action
on February 5, 1996) dismissing with prejudice the
plaintiff's action for failure to prosecute, from its order
of March 19, 1996 (entered on the docket in this action
on March 21, 1996) denying the plaintiffs' Rule 59 motion
to vacate its order of February 5, 1996, and from so much
of its interlocutory order of July 28, 1995 (entered on
the docket in this action on July 31, 1995) which denied
the plaintiffs' motion for leave amend their complaint.
Dated at Portland, Maine this nineteenth day of April,
1996.
/s/ Ralph W. Brown
Ralph W. Brown
Attorney for Plaintiffs
19 Candlewyck Road
Portland, Maine 04102
(207) 773-3133
A-31
STATE OF MAINE SUPREME JUDICIAL COURT
CUMBERLAND, SS. SITTING AS THE LAW COURT
Law Docket No. CUM-96-263
LINDA E. STANLEY, et al.
Appellants
Vv.
JOHN M. BOLES
Appellee
ON APPEAL FROM THE SUPERIOR COURT
BRIEF OF APPELLANTS
[Excerpt from Pages 11 through 14]
Ralph W. Brown
Attorney for Appellants
19 Candlewyck Road
Portland, Maine 04102
(207) 773-3133
ARGUMENT
THE SUPERIOR COURT DID COMMIT REVERS-
IBLE ERROR BY DEFAULTING THE PLAINTIFFS
AT TRIAL AND DISMISSING THEIR COMPLAINT
WITH PREJUDICE BECAUSE PLAINTIFF
LINDA E. STANLEY WAS UNABLE TO APPEAR
TO TESTIFY, AND BY DENYING THE PLAIN-
TIFFS' MOTION TO VACATE THE ORDER DIS-
MISSING THEIR COMPLAINT WHEN: THE COURT
HAD PREVIOUSLY INFORMED THE PARTIES
THAT BECAUSE PLAINTIFF LINDA E. STANLEY
WAS EMPLOYED IN SAN _ FRANCISCO,
CALIFORNIA AS UNITED STATES TRUSTEE FOR
REGION 17, RESIDED IN CALIFORNIA AND
WOULD HAVE TO TRAVEL A GREAT DISTANCE
TO MAINE FOR TRIAL, AND BECAUSE ONE OF
THE PLAINTIFFS' WITNESSES THEN RESIDED
IN LONDON, U.K., THE CASE WOULD BE
PLACED FIRST ON A TRIAL LIST TO BEGIN ON
A MONDAY SO AS TO AFFORD THE PARTIES
ABOUT FIVE (5) WEEKS NOTICE OF TRIAL, AND
THAT THAT WAS AS CLOSE TO A SPECIAL
ASSIGNMENT AS THE PARTIES WOULD GET;
THE CASE WAS CALLED FOR TRIAL ON VERY
SHORT NOTICE; AND PLAINTIFF LINDA E.
STANLEY MADE A DILIGENT EFFORT TO BE
PRESENT FOR TRIAL BUT THROUGH NO FAULT
OF HER OWN WAS UNABLE TO BE PRESENT
THE DAY THE TRIAL WAS TO BEGIN.
The Law Court has repeatedly said that the decisions
of the federal courts construing the federal rules upon
which the Maine rules are modeled are entitled to great
weight. Westman v. Armitage, 215 A.2d 919, 921 (Me.
1966); Kittery Electric Light Co.v. Kittery, 219 A.2d
744, 747 (Me. 1966); Wormelle v. George, 325 A.2d 4,
n. 3 (Me. 1974); and Allen v. Cole Realty, Inc., 325 A.2d
19 (Me. 1974). See also: State v. Wedge, 322 A.2d 328
(Me. 1974).
A-33
The primary purpose of the procedural rules is to
promote the ends of justice. Rule 1, Maine Rules of Civil
Procedure. See: Wright & Miller, Federal Practice &
Procedure, Civil 2d, §1029 (1987). See also: General
Mill Supply Co. v. S.C.A. Services, Inc., 697 F.2d 704,
711 (6th Cir. 1982); Samuels v. Health & Hospitals Corp.
of the City of New York, 591 F.2d 195 (2d Cir. 1979);
Caracci v. Brother International Sewing Machine Corp.,
222 F.Supp. 769 (E.D.La. 1963), affirmed 341 F.2d 377
(5th Cir. 1965); Fisher v. McGowan, 585 F.Supp. 978
(D.R.J. 1984); and Polaroid Corp.v. Casselman,
213 F.Supp. 379 (S.D.N.Y. 1962).
The rules also embody strong policy considerations
favoring the resolution of actions on their merits.
Traguth v. Zuck, 710 F.2d 90, 94 (2nd Cir. 1983);
Meehan v. Snow, 652 F.2d 274, 277 (2nd Cir. 1981); and
Smith-Weik Machinery Corp. v. Murdock Machine &
Engineering Co., 423 F.2d 842, 844 (5th Cir. 1970).
Dismissals with prejudice and defaults "are drastic
sanctions, termed ‘extreme’ by the Supreme Court."
Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863,
863-64 (3rd Cir. 1984). "Dismissals must be a sanction
of last, not first, resort." Ibid., at 869. "The decision
is committed to the discretion of the ... court, but ‘[a]n
abuse of discretion need not be glaring to justify reversal.'
The narrow scope of the... court's discretion stems from
‘strong policies favoring the resolution of genuine disputes
on the merits,’ and for the same reasons, ‘doubts are to
be resolved in favor of a trial on the merits." Traguth v.
Zuck, 710 F.2d, at 94. "The sanction of dismissal is the
most severe sanction a court can apply, and its use must
be tempered by a careful exercise of judicial discretion."
Richman v. General Motors Corp., 437 F.2d 196, 199 (ist
Cir. 1971). "The decided cases, while noting that a
dismissal is a discretionary matter, have generally per-
mitted it only in the face of a clear record of delay or
contumacious conduct by the plaintiff." Ibid. See:
Sheepscot Land Corp. v. Gregory, 383 A.2d 16, 22 (Me.
1978).
A-34
In the instant case, the plaintiffs had two witnesses,
Plaintiff Linda E. Stanley and a former associate who
then lived in London, U.K. (The other plaintiff was too
ill and lacked the capacity to travel to Maine, much less
meaningfully participate in the trial.) The Court had
previously told the parties, for a variety of reasons
including the demands of Plaintiff Linda E. Stanley's
employment as United States Trustee for Region 17, her
residing in California, and the location of one of the plain-
tiffs' witnesses in London, that the case would be placed
at the beginning of a trial list to begin on a Monday so
as to afford the parties about five or so weeks advance
notice of trial. The Court's representation notwith-
standing, the case showed up in the midst of the trial
list for January and February of 1996. When the plain-
tiffs' attorney brought the Court's scheduling representa-
tions to the attention of personnel in the Clerk's office,
he was led to believe that the case would not be called.
The plaintiffs reasonably relied on the representations
of both the Court and the personnel in the Clerk's office,
and should not be penalized for their reliance. Frenner v.
Dependable Trucking Co., Inc., 716 F.2d 598, 602 (9th
Cir. 1983).
Despite the statements of the Court and the personnel
in the Clerk's office, the case was called for trial on a
Thursday as number two back up for the following
Monday. The plaintiffs' attorney received the Clerk's
message on Friday, and promptly attempted to reach
and inform his client, but was unable to contact her until
Sunday evening. Despite her numerous prior official
commitments in Washington, D.C. for that week, the
plaintiff managed to rearrange her schedule and made
a diligent, even valiant, effort to fly to Maine. Her
efforts far surpassed mere good faith, but were thwarted
by circumstances beyond her control. The was no willful-
ness, no bad faith, and no dilatory or contumacious
conduct on the part of the plaintiffs. In the interim, the
plaintiffs' counse] had immediately filed a motion to con-
tinue trial based upon the plaintiffs' reliance on the prior
A-35
representations of the Court and personnel in the Clerk's
office, the resultant surprise, and the anticipated unavail-
ability of his client as well as the witness in London. The
case ultimately was called for trial without the Court
expressly ruling on the motion to continue. Under such
circumstances, the Court's not granting the motion to
continue trial and its subsequent dismissal of the plain-
tiffs' complaint for failure to prosecute were an abuse
of the Court's discretion. Aghnides v. Marmon Group,
Inc., 344 F.Supp. 829, 834-35 (S.D.W.Va. 1972). See:
Smith-Weik Machinery Corp.v. Murdock Machine &
Engineering Co., 423 F.2d, at 843; Fenner v. Dependable
Trucking Co., Inc., 716 F.2d, at 598; Latham v. Crofters,
Inc., 492 F.2d 913, 916 (4th Cir. 1974); Gaspar v. Kassm,
493 F.2d 964, 968-69 (3rd Cir. 1974); Royster v. Lederle,
128 F.2d 197, 200 (6th Cir. 1942). The result was severe
prejudice to the plaintiffs. Smith-Weik Machinery
Corp. v. Murdock Machine & Engineering Co., 423 F.2d,
at 844. The Fourteenth Amendment to the United States
Constitution requires that the plaintiffs be given a mean-
ingful opportunity to assert their claim(s), and the
dismissal of their complaint in this case deprived them
of the constitutionally guaranteed right to a fair trial
and due process of law. See: Employee Staffing of
America, Inc. v. Travelers Insurance Co., 674 A.2d 506,
508 (Me. 1996).
We come now to the plaintiffs' Rule 52 motion to
vacate the Court's order dismissing their complaint. The
analysis is essentially the same except that in order to
justify vacating the dismissal, the plaintiffs must also
show a meritorious claim. Davis v. Musler, 713 F.2d 907,
915 (2nd Cir. 1983). A claim will be deemed meritorious
if the allegations of the pleadings, if established at trial,
would support recovery by the plaintiff. Poulis v. State
Farm Fire & Casualty Co., 747 F.2d, at 869-70; United
Coin Meter v. Seaboard Coastline Railroad, 705 F.2d 839,
846 (6th Cir. 1983). The plaintiffs' meritorous claim is
more than apparent from the complaint, the amended
complaint and one of the affidavits of Linda E. Stanley
A-36
submitted in support of their motion.
The orderly rules of procedure do not require the
sacrifice of the rules of fundamental justice. Davis v.
Musler, 713 F.2d, at 917. "To fall back on a technicality
and refuse to permit a case to come to trial on the merits
is to sap the very heart out of the rules and to obviate
the very purpose for which they are _ intended.”
DeFranco v. United States, 18 F.R.D. 156, 159 (S.D.Cal.
1955).
A-37
STATE OF MAINE SUPREME JUDICIAL COURT
CUMBERLAND SS. SITTING AS THE LAW COURT
Law Docket No. CUM -96-263
LINDA E. STANLEY, et al.,)
)
Appellants)
)
v. )
)
JOHN M. BOLES, )
)
Appellee )
MOTION FOR REHEARING WITH
INCORPORATED MEMORANDUM
COME NOW, the appellants, Linda E. Stanley and John F.
Taylor, by and through counsel, pursuant to the provisions of Rule
76A of the Maine Rules of Civil Procedure, and respectfully move
this Honorable Court for rehearing with respect to its decision on
the appeal in above -encaptioned matter on the grounds that the Law
Court appears to have overlooked or misapprehended the denial of
the plaintiffs’ constitutionally protected nght to due process given
the plaintiffs’ reasonable reliance on the Court's prior statements
regarding trial scheduling and the tnal Court's subsequent dismissal
of the plaintiffs’ complaint as a consequence of Plaintiff Linda E.
Stanley's proper performance of her official duties as a senior
official of the United States Department of Justice and other
circumstances beyond her control which precluded her from being
present for trial despite her valiant efforts to attend and testify. This
motion is supported by the previously filed affidavits of Linda E.
Stanley and Ralph W. Brown dated February 10, 1996 and
February 12, 1996 respectively, a true copy each of which is
appended hereto and incorporated herein.
A-38
I, Ti seh eit aes Ae i too Tet Ma
MEMORANDUM
The Law Court has repeatedly said that the decisions of the
federal courts construing the federal rules upon which the Maine
rules are modeled are entitled to great weight. Westman _v.
Armitage, 215 A.2d 919, 921 (Me. 1966); Kittery Electric Light
Co. v. Kittery, 219 A.2d 744, 747 (Me. 1966 Wormelle v. George,
325 A.2d 4, n.. 3 (Me. 1974); and Allen v. Cole Realty, Inc., 325
A.2d 19 (Me. 1974).
The primary purpose of the procedural rules is to promote
the ends of justice. Rule 1, Maine Rules of Civil Procedure. See:
Wright & Miller, Federal Practice & Procedure, Civil 2d, §1029
(1987). The rules also embody strong policy considerations
favoring the resolution of actions on their merits. Traguth v. Zuck,
710 F.2d 90, 94 (2nd Cir. 1983); Meehan v. Snow, 652 F.2d 2 4
277 (2nd Cir. 1981); and Smith-Weik Machinery Corp. v. Murdock
Machine & Engineering Co., 423 F.2d 842, 844 (Sth Cir. 1970).
Dismissals with prejudice and defaults "are drastic sanctions,
termed ‘extreme’ by the Supreme Court.” Poulis v. State Farm Fire
& Casualty Co., 747, F.2d 863, 863-64 (3rd Cir. 1984).
"Dismissals must be a sanction of last, not first, resort." Ibid., at
869. "The decision is committed to the sound discretion of the ...
court, but [aJn abuse of discretion need not be glaring to justify
reversal.' The narrow scope of the ... court's discretion stems from
"strong policies favoring the resolution of genuine disputes on the
merits,’ and for the same reasons, ‘doubts are to be resolved in favor
of atrial on the merits." Traguth v. Zuck, 710 F.2d at 94. "The
sanction of dismiss is the most severe sanction a court can apply,
and its use must be tempered by a careful exercise of judicial
discretion.” Richman v. General Motors Corp., 437 F.2d 196, 199
(1st Cir. 1971). "The decided cases, while noting that a dismissal is
a discretionary matter, have generally permitted it only in the face of
a clear record of delay or contumacious conduct by the plaintiff.”
Ibid. See: Sheepscot Land Corp. v. Gregory , 383 A.2d 16, 22 (Me.
1978).
The Law Court, nevertheless, affirmed the Superior Court's
decision to dismiss the plaintiffs’ complaint for want of prosecution
A-39
stating only that it was "within the proper exercise of [the trial
court's] discretion" and citing Westbrook v. Wallace, 478 A.2d 687,
689 (Me. 1984).
A few minutes after trial was scheduled to begin in the
Westbrook v. Wallace case, the plaintiffs’ attorney called and
informed the clerk that he was iil and unable to attend. In view of
the attorney's call, the tral court entered a conditional order
dismissing the plaintiffs’ action with prejudice but allowing the
dismissal to be stricken if, within ten (10) days:
(a) The Plaintiffs' Counsel presents sworn testimony of two
doctors that he in fact was ill and unable to attend Court on
th[{at]} date[, and]
(b) Plaintiffs’ Counsel pays the costs for the Defendant and
Defense Counsel, including attorneys fees, for their
appearance in Court on th{at] date.
Ibid. at 688 (emphasis in original). Four days later the plaintiffs’
attorney responded to the conditional order of dismissal by filing the
affidavits of two physicians. The trial court then scheduled a hearing
on the plaintiffs’ request to strike the dismissal. After hearing at
which the two physicians both testified, the trial court found that:
plaintiffs’ counsel consulted the two doctors ... only after he
was advised ... cf the dismissal and the conditions for
reinstatement of the case. Counsel consulted one doctor
between 11:00 a.m. and 1:00 p.m. ... and consulted the
second doctor at approximately 1:30 p.m. on the same day.
... [The plaintiffs'] counsel related different symptoms of
his ailment to the two doctors and ... both characterized their
objective findings of illness as "minimal" or "few." Finally,
the justice found as fact that counsel's illness was pretextual
and that the true reason for his failure to appear was that he
did not want to appear before the particular presiding
justice.
Ibid. Although denying the plaintiffs appeal, the Law Court added
the following "word of caution":
[The power to dismiss] should be exercised only with full
appreciation and consideration of the plight of the plaintiff.
In many cases an innocent plaintiff may be deprived of a
valid claim because of an action or inaction of his
representative. Although such a result is consistent with the
principles of agency, it runs counter to the values
underlying our system of justice which favors resolution on
the merits. ... In many instances our trial courts would do
well to consider, as they have in the past, a lesser sanction
than dismissal, Only when conduct . . . seriously threatens
the ability of the court to manage its own affairs should
dismissal with prejudice be considered. Less serious forms
of . . . neglect may be adequately addressed through
financial sanctions.
Ibid. at 689-90.
In sharp contrast to the circumstances in the Westbrook v.
Wallace case, Plaintiff Linda E. Stanley's inability to appear for tral
was not the result of "contumacious" conduct, there was no "clear
record of delay,” and there was there no “neglect" of any kind,
which might justify the dismissal of the plaintiffs’ complaint. On the
contrary, Linda Stanley is a senior federal official the performance
of whose official duties initially precluded, and then interfered with,
her appearing for trial. Having successfully rearranged her official
obligations in Washington, D.C., she made a_ valiant, though
unsuccessful, effort to travel to Maine for trial. To paraphrase
Justice Harlan writing for the majority in Link v. Wabash Railroad
Company, 370 U.S. 626, 8 L.Ed.2d 734, 82 S.Ct. 1386 (1962), this
is a case in which Linda Stanley's failure to appear for trial "was due
to inability fostered neither by . . . [her] own conduct nor by
circumstances within [her] control.” Link, 370 U.S. at 636. Under
such circumstances, the trial Court's dismissal exceeded the narrow
scope of its discretion and was an abuse of that discretion. Traguth
v. Zick, 710 F.2d 90, 94 (2nd Cir. 1983); and Aghnides_v.
Marmon Group, Inc., 344 F.Supp. 829, 834-35 (S.D.W.Va. 1972).
See: Smith-Weik Machinery Corp. v. Murdock Machine &
Engineering Co., 423 F.2d 842, 843-44 (Sth Cir. 19,0), Fenner _v
Dependable Trucking Co., inc., 716 F.2d 598, 598 (9th Cir. 1983):
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Latham v. Crofters, Inc., 492 F.2d 913, 916 (4th Cir. 1974); Gaspar
v. Kasam, 493 F.2d 964, 968-69 (3rd Cir. 1974); and Royster v.
Lederle, 128 F.2d 197, 200 (6th Cir. 1942).
Due to the severity of a dismissal or default, and the
constitutional complications of such action, the Law Court has
observed that "the trial court's discretion in imposing either ultimate
sanction is narrow indeed and will be given close scrutiny on
appeal.” Pelletier v. Pathiraja, 519 A.2d 187, 190 (Me. 1986).
The fundamental requirement of Constitutional due process
under the Fourteenth Amendment is the meaningful opportunity to
heard. Grannis v. Ordean, 234 U.S. 385, 394, 58 L.Ed. 1363, 34
S.Ct. 779 (1914); Collins v. Hoke, 705 F.2d 959, 963 (8th Cir.
1983); and Adams _v. Wainwright, 512 F.Supp. 948, 954 (N.D.Fla.
1981). Constitutional due process also requires that the opportunity
to be heard be at a meaningful time, in a manner appropriate to the
situation and must be tailored to the capacities and circumstances of
those who are to be heard. Goldberg v. Kelly, 397 U.S. 254,
268-69, 25 L.Ed.2d 287, 90 S.Ct. 1011 (1970); and Armstrong _v.
Manzo, 380 U.S. 545, 552, 14 L.Ed.2d 62, 85 S.Ct. 1187 (1950).
A meaningful hearing means, among other things, a hearing at
which the plaintiff could be present to present her case and have its
merits fairly judged. Logan v. Zimmerman Brush Co., 455 U.S.
422, 433, 71 L.Ed.2d 265, 102 S.Ct. 1148 (1981); and Pollack v.
Baxter Manor Nursing Home, 716 F.2d 545, 546-47 (8th Cir.
1983).
In the present case. the plaintiffs effectively were denied the
opportunity to be heard and their fundamental night to assert their
claim was terminated when the trial court denied their motion to
continue the trial sufficiently to allow Linda Stanley to be present to
testify. Inasmuch as the plaintiffs’ other witness then was in London
and unavailable for trial and Linda Stanley was precluded initially by
her official duties as a senior Justice Department official and then,
having resolved those conflicts, was unable to obtain air passage to
Maine, the plaintiffs were denied their Fourteenth Amendment right
to due process. See also: Halperin v. Kissenger, 606 F.2d 1192
(D.C. Cir. 1979); Pension Benefit Guaranty Corp. v. LTV Steel
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Corp., 119 F.R.D. 339 (D.N.Y. 1988); and U.S._v._Miracle
Recreational Equipment Co., 118 F.R.D. (D. lowa 1987) pertaining
to the policy of accommodation afforded senior government
officials with regard to discovery.
WHEREFORE, the plaintiffs pray that their motion for
rehearing be granted, that their appeal be sustained, and that this
matter be remanded to the Superior Court with instructions to vacate
the Court's orders of February 2, 1996 and March 19, 1996, vacate
that portion of the Court's order of July 27, 1995 which denied the
plaintiffs’ motion for leave to amend their complaint, and restore the
plaintiffs’ action to the docket for new trial and such other
proceedings as may come before the court.
Dated at Portland, Maine this fourteenth day of January, 1997.
/s/_ Ralph W. Brown
Ralph W. Brown
Attorney for Appellants
19 Candlewyck Road
Portland, Maine 04102
(207) 773-3133
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.