Opinion
SUPERIOR COURT Civil Action Docket No. CV-15-0296
04-24-2017
FRANCINE KELLY and WAYNE J. KELLY, Plaintiffs, v. SPRUCE BEND LLC, WORLD KITCHEN, LLC d/b/a CORNING CONSUMER PRODUCTS COMPANY, and KITTERY PLACE, LLC, Defendants.
ATTORNEY FOR PLAINTIFF: THOMAS P ELIAS ELIAS LAW OFFICES 28 LONG SANDS ROAD SUITE 5 YORK ME 03909 ATTORNEY FOR DEFENDANTS: SPRUCE BEND LIMITED LIABILITY COMPANY & KITTERY PLACE LLC THOMAS MARJERISON NORMAN HANSON & DETROY LLC PO BOX 4600 PORTLAND ME 04112 ATTORNEYS FOR DEFENDANT WORLD KITCHEN LLC; JOEL PIERCE CHARLES MONE PIERCE DAVIS & PERRITANO LLP 10 POST OFFICE SQUARE BOSTON MA 02109
STATE OF MAINE
YORK, ss. ORDER DENYING DEFENDANT WORLD KITCHEN, LLC's MOTION TO REMOVE DEFAULT
Before the court is Defendant World Kitchen, LLC's revised motion to remove default and enlarge time within which to answer. Based on the affidavits submitted in support of and opposition to the motion and for the reasons set out below, the motion is denied.
Plaintiffs bring this action to recover damages for injuries arising out of Francine Kelly's fall on September 10, 2012 while shopping at the Corningware, Corelle & More store in Kittery, Maine. The complaint, filed on December 30, 2015, named as defendants Spruce Bend, LLC, the owner of the property at 336 U.S. Route 1 in Kittery, and World Kitchen, LLC d/b/a Corning Consumer Products Company ("World Kitchen") and owner of Corningware, Corelle & More. World Kitchen's registered agent, CT Corporation, accepted service on or about March 15, 2016.
One week later, World Kitchen's Senior Legal Analyst, Celeste E. Levindoski, contacted Plaintiffs' attorney, Thomas Elias, Esq. Subsequently, on March 29, 2016 Ms. Levindoski emailed Plaintiffs' counsel to confirm that he had "granted World Kitchen a 60 day extension in which to file their answer." Pl.'s Opp. To Def.'s Mot. to Remove Default and File Answ. Late, Ex. D. World Kitchen did not file an answer within the extended 60-day period (which ended on or about May 29th).
On June 15, 2016, Plaintiffs filed an amended complaint, which added Kittery Place, LLC as a defendant but was otherwise substantively identical to the original complaint. Kittery Place, LLC is the owner and operator of the shopping mall (under a long-term land lease from Spruce Bend, LLC) where the incident occurred. Answers to the amended complaint were due to be filed by August 5, 2016. World Kitchen did not file an answer to the amended complaint by that date.
On August 5, 2016 Plaintiffs filed a request for default against World Kitchen. The clerk entered a default pursuant to M.R. Civ. P. 55(a) on August 19, 2016.
World Kitchen filed a motion to remove the default and file a late answer. The motion was denied without prejudice for failure to comply with M.R. Civ. P 7(b)(1)(A) and 7(b)(4).
World Kitchen then filed a revised motion to remove default and file a late answer, the motion here under consideration. There was no affidavit filed in support of the revised motion. Counsel for World Kitchen stated in the body of the motion itself that there is good cause to set aside the default because:
The delay in answering was due to inadvertence or excusable neglect of the defendant's counsel, attributed to, but not caused by the defendant World Kitchen. Defendant's counsel has for many years had a system in place to diary in advance of due dates for filing pleadings, including answers to complaints. Somehow, inexplicably, defendant's counsel did not heed the system.Rev. Mot., 1-2. The motion further avers that World Kitchen has meritorious defenses to the allegations in the complaint. The motion was signed by "Charles K. Mone (JP)." Charles K. Mone, Esq., is counsel of record in this matter for World Kitchen. The initials, "JP", indicate the pleading was actually signed by Joel F. Pierce, Esq., a partner in the same firm not admitted to practice law in Maine. Attorney Pierce was subsequently admitted pro haec vice upon motion to represent World Kitchen in this case.
A telephonic conference was scheduled for March 24, 2017 at 9:30 am to address outstanding issues in the case, including World Kitchen's motion to remove default. Attorney Elias appeared in person. Attorney Mone and Thomas Majerison, Esq., representing World Kitchen and Spruce Bend/Kittery Place, respectively, appeared by telephone with permission. Attorney Pierce, who had intended to appear in person, called shortly before the conference to indicate that he would be 40 minutes late due to an incorrect GPS setting, which apparently had diverted him to Portland. The telephone conference line arranged by Attorney Mone's office disconnected shortly into the conference. The court terminated the conference, and rescheduled the matter to April 11, 2017.
On April 11th, Attorney Elias, Attorney Mone, and Attorney Majerison appeared. Attorney Pierce did not appear. The clerk had been informed on the preceding day that Attorney Pierce was unable to attend due to illness but that counsel still wanted the proceeding to go forward. Even though Mr. Mone is counsel for World Kitchen, he stated he was not prepared to address his motion to remove the default because the court's notice did not expressly indicate that the motion would be heard, and also because Attorney Pierce was in a better position to address the motion. At Attorney Mone's request, the court deferred action on his motion, ordered that counsel file affidavits addressing the "good cause" standard in M.R. Civ. P. 55(c), and indicated it would rule on the motion based on the affidavits submitted.
On April 18, 2017, Attorney Pierce filed an affidavit in response to the court's request. The affidavit states in material part as follows:
• "The delay in answering was due to my inadvertence or excusable neglect, attributed to, but not caused by the defendant World Kitchen, LLC (¶ 1)See Affidavit of Joel F. Pierce, dated April 14, 2017. Attorney Elias also submitted an affidavit in opposition to the motion.
• "I reviewed my email communications regarding this case. I received Plaintiff's [sic] original Complaint by way of email from World Kitchen LLC on May 16, 2017 [sic]." ( ¶ 2)
• "On that day I received approximately 144 emails in total." (¶ 3)
• "Our firm's established practice in receiving case-retention requests is as follows: (a) When my support staff member has received a copy of the retention request, any future deadlines are calendared; (b) If the support staff member is not copied on the retention request, the receiving attorney forwards the retention request with instructions to calendar future events." (¶ 4)
• "Due to my inattention I failed to forward that email to my support staff member with appropriate instructions. This allowed the deadline to answer the Complaint to pass without action." (¶ 5)
• "I did not remember independently to look into the Complaint, or to take any further action regarding the Complaint or World Kitchen's answer." (¶ 6)
The court reads this as "May 16, 2016."
The affidavit does not contain a standard jurat, which would attest that the affiant swears under oath that the statements therein are true based on personal knowledge or to the best of his knowledge and belief.
Rule 55(c) authorizes the lifting of a default upon demonstration of "good cause." M.R. Civ. P. 55(c). "Good cause" requires a showing of a "good excuse for the untimeliness and a meritorious defense." Levine v. KeyBank Nat. Assoc., 2004 ME 131 ¶ 20, 861 A.2d 678; Estate of Gordon, 2004 ME 23 ¶ 19, 842 A.2d 1270; Hanby v. Thomas Realty, Assoc., 617 A. 2d 562, 564 (Me. 1992). A "good excuse" means a reasonable excuse or a reasonable explanation. See Levine, 2004 ME 131, ¶¶ 20-21.
Attorney Pierce has not offered a reasonable excuse or a reasonable explanation for the failure to file a timely answer. He acknowledged receiving a copy of the complaint on May 16, 2016 by email from his client. As of that date, there were still 13 days remaining in which to file a timely answer to the original complaint. It is unclear from his affidavit whether he actually saw or read the email on that same day.
Attorney Pierce states that the Levindoski email was one of 144 he received on May 16th. While the court appreciates the high volume of emails received, this does not, without more, constitute a reasonable excuse or reasonable explanation for not opening, reading, and acting on this email by the May 29th (or August 5th) deadline. Because Attorney Pierce failed to forward the email to support staff (either on May 16th or at a later date), the deadline for filing the answer was not calendared, and because he "did not remember independently to look into the Complaint, or to take any further action regarding the Complaint," an answer was not timely filed under M.R. Civ. P. 12(a).
The affidavit suggests, but does not explicitly state, that Ms. Levindoski had not copied support staff directly on her email. Even if she had, this would not excuse the firm's failure to calendar the deadline for filing an answer or, if the deadline had been calendared, to heed the deadline. The court infers, however, that the email had not been copied directly to support staff, in which case Attorney Pierce's inattention was the sole cause of the failure to file a timely answer. --------
This does not constitute a good excuse. See Boit v. Brookstone Co., 641 A.2d 864, 856 (Me. 1994) (finding no good excuse for late response where complaint had been transmitted from registered agent to corporate clerk to client's mail room, where it was temporarily misplaced); Interstate Food Processing Corp. v. Pellerito Foods, Inc., 622 A.2d 1189, 1193 (Me. 1993) (finding no good excuse for untimely filing where out-of-state counsel mistakenly believed extension had been given and failed to secure local counsel). Because World Kitchen has not demonstrated a good excuse for its failure to answer timely, it has failed to satisfy Rule 55(c)'s "good cause" standard and the court need not address whether there are meritorious defenses to the complaint. See Interstate Food, 622 A.2d 1193.
Accordingly, Defendant World Kitchen, LLC's (revised) motion pursuant to Rule 55(c) to remove default and enlarge time within which to answer is DENIED. The default entered against Defendant World Kitchen, LLC on August 19, 2016 stands.
The clerk may incorporate this order by reference on the docket pursuant to M.R. Civ. P. 79(a). SO ORDERED. Date: April 24, 2017
/s/_________
Wayne R. Douglas
Justice, Maine Superior Court CV-15-296 ATTORNEY FOR PLAINTIFF:
THOMAS P ELIAS
ELIAS LAW OFFICES
28 LONG SANDS ROAD SUITE 5
YORK ME 03909 ATTORNEY FOR DEFENDANTS: SPRUCE BEND LIMITED LIABILITY
COMPANY & KITTERY PLACE LLC
THOMAS MARJERISON
NORMAN HANSON & DETROY LLC
PO BOX 4600
PORTLAND ME 04112 ATTORNEYS FOR DEFENDANT WORLD KITCHEN LLC;
JOEL PIERCE
CHARLES MONE
PIERCE DAVIS & PERRITANO LLP
10 POST OFFICE SQUARE
BOSTON MA 02109