Opinion
Civil Action CV-18-253
02-14-2019
ROBYN KATZ, Individually and as Beneficiary of the Reuben Katz Testamentary Trust, and WAYNE LAWSON, Plaintiffs v. DAVID TURESKY, Defendant
ORDER ON PLAINTIFFS' MOTIONS FOR RECONSIDERATION
Nancy Mills, Justice
Before the court are plaintiffs Robyn Katz and Wayne Lawson's motions for reconsideration filed December 20, 2018 and January 7, 2019. For the following reasons, plaintiffs' motion filed December 20, 2018 is granted in part and denied in part. Plaintiffs' motion filed January 7, 2019 is denied.
I. Procedural Background
Plaintiffs filed a complaint on June 4, 2018. On June 28, 2018, plaintiffs filed a first amended complaint. On August 13, 2018, defendant (1) answered the first amended complaint, (2) filed two separate counterclaim documents that were later dismissed without prejudice (November 30, 2018 Order), (3) moved to disqualify plaintiff's counsel, (4) moved to strike, (5) moved to dismiss counts from the complaint, and (6) requested a hearing. On August 31, 2018, plaintiffs filed an opposition to defendant's motions to dismiss and disqualify counsel, On September 7, 2018, defendant (1) filed replies to plaintiffs' oppositions to defendant's motions to disqualify and dismiss and (2) moved for an entry of default judgment on his counterclaims, On September 10, 2018, plaintiffs (1) answered defendant's counterclaim documents, (2) filed an opposition to defendant's motion to strike, (3) moved to reply nunc pro tunc to defendant's counterclaims, (4) moved to dismiss defendant's counterclaims, and (5) moved to strike. On September 25, 2018, defendants filed an opposition to plaintiffs' motions to reply nunc pro tunc, dismiss, and strike. On October 1, 2018, plaintiffs replied to defendants' opposition to their motions to reply nunc pro tunc, dismiss, and strike.
On November 30, 2018 the court issued an order on all pending motions except for the motion to disqualify plaintiffs' counsel. Additionally, on November 30, 2018, both parties submitted simultaneous affidavits in regards to the motion to disqualify. On December 18, 2018, the court issued an on the motion to disqualify. On December 27, 2018, the court issued an order regarding plaintiffs' representation.
In this proceeding to date, seven motions have been filed. In addition, plaintiffs have now filed two motions for reconsideration.
Plaintiffs filed a motion for reconsideration pursuant to Maine Rules of Civil Procedure Rule 7(b)(5) on December 20, 2018. In the motion, they seek to vacate the court's dismissal of plaintiffs' claim for wrongful use of civil proceedings. (November 30, 2018 Order.) Defendant filed an opposition to plaintiffs' motion on January 9, 2019. Plaintiffs filed a reply to defendant's opposition on January 14, 2019.
Plaintiffs filed a second motion for reconsideration pursuant to Rule 7(b)(5) on January 7, 2019. In this motion, they seek to vacate the court's order disqualifying attorney Jeffrey Bennett, Esq. from representing plaintiffs in this case. (December 18, 2018 Order.) Defendant filed an opposition to plaintiffs' motion on January 25, 2019. Plaintiffs filed a reply to defendant's opposition on January 30, 2019.
II. Standard of Review
A motion for reconsideration "shall not be filed unless required to bring to the court's attention an error, omission or new material that could not previously have been presented." M.R. Civ. P. 7(b)(5). "Rule 7(b)(5) is intended to deter disappointed litigants from seeking to reargue points that were or could have been presented to the court on the underlying motion." Shaw v. Shaw. 2003 ME 153, ¶ 8, 839 A.2d 714 (quotation marks omitted).
III. Discussion
a. Plaintiffs' First Motion for Reconsideration
Plaintiffs argue that the court erred in dismissing their claim because in plaintiffs' first amended complaint, they pleaded the necessary elements for wrongful use of civil proceedings and the court must accept the facts in the complaint as true. Specifically, plaintiffs point to their complaint, in which they alleged that the first and third forcible entry and detainer actions brought against them by defendant terminated in their favor. Defendant argues that the court did not err, because the court properly considered the FED orders, which were "official public documents" and "documents that are central to the plaintiff's claim" pursuant to Moody v. State Liquor & Lottery Comm'n. and that the FED orders contradict plaintiffs' claim that they received favorable termination in the previous civil actions. Moody. 2004 ME 20, ¶ 10, 843 A.2d 43.
The court clarifies the November 30, 2018 order. Plaintiffs' claim of wrongful use of civil proceedings in count VIII is dismissed with regard to the second and third FED actions that did not terminate in plaintiff Katz's favor. The first FED action initiated against plaintiff Lawson only is not dismissed as defendant did not seek a dismissal of that claim in his motion to dismiss. (See Def.'s Reply Mot. Dismiss 3 ("Plaintiffs state that Plaintiff Lawson succeeded on the first FED action and that is true, which is why Defendant is not seeking dismissal of Lawson's claim.")); see also (Def.'s Mot. Dismiss 4-6.)
b. Plaintiffs' Second Motion for Reconsideration
Plaintiffs argue that the court misapplied the Morin standard in its order to disqualify attorney Jeffrey Bennett, Esq. from representing the plaintiffs. Morin v. Me. Educ. Ass'n. 2010 ME 36, ¶¶ 5 9-10, 993 A.2d 1097. Plaintiffs state the error is due to the court basing its decision on general allegations of prior relationships and not on a "specific, identifiable harm [defendant] will suffer in the litigation by opposing counsel's continued representation." Id. at ¶ 10. Plaintiffs state that the only harm defendant has alleged, "likely to confuse the fact-finder," is speculative.
Plaintiffs argue next that defendant did not identify Attorney Bennett's potential testimony and did not show the testimony is "necessary" pursuant to Maine Rules of Professional Conduct 3.7. Finally, plaintiffs submit Attorney Bennett's affidavit, in which he challenges the statements in Attorney David Turesky's affidavit, as new material for the court to consider. Plaintiffs state that the information in Attorney Bennett's affidavit could not have been produced earlier because the court required simultaneous affidavits from plaintiffs and defendant.
Plaintiffs' arguments and submitted materials in support of this motion have previously been heard by the court or could have been presented in earlier submissions. Although Attorney Bennett's affidavit is a direct response to Attorney Turesky's affidavit, the Bennett affidavit contains information that Attorney Bennett either did provide or could have provided to the court in an earlier submission. Accordingly, the arguments and the new affidavit do npt constitute grounds for reconsideration of the court's order. M.R. Civ. P. 7(b)(5).
The entry is
Plaintiffs' Motion for Reconsideration and to Vacate Dismissal of Count VIII is GRANTED as follows: the Court's Order filed November 30, 2018 is Amended as follows: Count VIII of Plaintiffs' Complaint is NOT DISMISSED as to the Forcible Entry and Detainer action filed against Wayne Lawson and Count VIII of Plaintiffs' Complaint IS DISMISSED as to the two Forcible Entry and Detainer actions filed against Robyn Katz.
Plaintiffs' Motion for Reconsideration of Disqualification Order is DENIED.