Opinion
CV-15-0092
11-10-2016
23 WEST CONDOMINIUM ASSOCIATION, Plaintiff, v. D. F. RICHARD, INC., Defendant.
ATTORNEYS FOR PLAINTIFF: SAMUEL RUDMAN LAMBERT COFFIN RUDMAN HOCHMAN STEVEN L SMITH (VISITING ATTORNEY) LAW OFFICE OF STEVEN L SMITH PC ATTORNEY FOR DEFENDANT STEPHEN ALEXANDER BELL MUNDHENK & BELL LLC
ATTORNEYS FOR PLAINTIFF: SAMUEL RUDMAN LAMBERT COFFIN RUDMAN HOCHMAN
STEVEN L SMITH (VISITING ATTORNEY) LAW OFFICE OF STEVEN L SMITH PC
ATTORNEY FOR DEFENDANT STEPHEN ALEXANDER BELL MUNDHENK & BELL LLC
ORDER
Hon. Wayne R. Douglas Justice, Superior Court
This matter involves a dispute over liability for damage to two condominium units resulting from ruptured frozen water pipes that flooded the units. Plaintiff is a condominimum association located in Kittery, Maine consisting of two units, one owned by Sue Bartlett and the other by Andrew Bartel. Defendant D. F. Richard, Inc. is a propane gas company with its principal place of business in Dover, New Hampshire. Defendant had an oral contract with the individual unit owners to deliver propane gas on an automatic delivery schedule.
On May 11, 2015, plaintiff filed a complaint asserting negligence and breach of contract. Defendant responded to the complaint on June 8, 2015. The court issued a standard scheduling order pursuant to M.R. Civ. P. 16(a) on August 10, 2015, which provides, among other things: "Unless otherwise ordered by the court, new parties may not be joined, and third party complaints and motions to amend the pleadings may not be filed later than 4 months from the date of this order." The deadline for joinder passed on December 10, 2015 with no request for extension from either party. On Tune 30, 2016 Defendant moved for permission to file a third-party complaint against the unit owners.
The motion to permit filing of the third-party complaint was filed over 13 months after commencement of this action and over 6 months after the scheduling order's joinder deadline. A party seeking enlargement of time to complete an act must demonstrate excusable neglect for failure to complete it before the expiration of time specified by order of the court. M.R. Civ. P. 6(b). Defendant has offered no good reason for its delay. In fact, well before the expiration of the December 10, 2015 deadline Defendant was, or should have been, aware of the circumstances it now asserts as a basis for joinder.
The court has discretion to deny a motion to add a new party on the grounds of delay and expense alone. County Forest Prods, v. Green Mt. Agency, Inc., 2000 ME 161, ¶ 58, 758 A.2d 59. Joining a third-party defendant or defendants at this point-a year and a half after the complaint was filed and well after extensive discovery has already been undertaken-may add further delay and expense. In addition, Defendant is not otherwise prejudiced in this action, and acknowledges that it "could wait and bring a free-standing complaint" against the unit owner(s), if necessary. For these reasons, Defendant has failed to show that denial of its motion would result in an injustice. See id.
Accordingly, the motion to permit the filing of a third-party complaint is DENIED.
SO ORDERED.
The clerk may incorporate this order upon the docket by reference pursuant to pule 79(a) of the Maine Rules of Civil Procedure.