Opinion
SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-15-156
06-29-2017
JEFFREY BROWN and AMBER BROWN Plaintiffs, v. JOHN B. WAHLIG, JR., M.D. Defendant.
STATE OF MAINE
ANDROSCOGGIN, ss. ORDER ON DEFENDANT'S MOTION FOR INVOLUNTARY DISMISSAL
Pending before the court is a motion to dismiss by Defendant John B. Wahlig, Jr., M.D., pursuant to Maine Rule of Civil Procedure 41(b)(2), a complaint filed against him by Plaintiffs Jeffrey Brown and Amber Brown, for failure to comply with a court order. For the reasons below, this court grants Defendant's motion.
I. Background
On October 20, 2014, Defendant John B. Wahlig, Jr., M.D. performed back surgery on Plaintiff Jeffery Brown. (Compl. ¶ 7.) One week later, Defendant performed a second surgery on Plaintiff Jeffery Brown. (Compl. ¶ 14.) On September 23, 2016, Plaintiffs filed a complaint against Defendant for: (I) alleged malpractice (negligence) during the week between the surgeries, and (II) loss of consortium allegedly experienced by Plaintiff Amber Brown as a result of the alleged injuries suffered by Plaintiff Jeffery Brown. (Compl. ¶¶ 17, 23.) On September 28, 2016, Defendant answered, and a scheduling order was signed on September 29, 2016. On December 27, 2016, Plaintiffs' counsel moved for leave to withdraw. The court granted this motion on February 3, 2017, and ordered Plaintiffs within 20 days to secure the representation of another attorney or to state they would be representing themselves. On March 24, 2017, the court granted Plaintiffs' February 23, 2017 motion to extend their time to comply with this order until March 25, 2017. On April 6, 2017, Defendant filed this motion for involuntary dismissal. The 21-day window for Plaintiffs to oppose Defendant's motion expired on April 27, 2017. M.R. Civ. P. 7(c).
II. Standard of Review
A defendant may move to dismiss a claim for the failure of a plaintiff to comply with a court order. M.R. Civ. P. 41(b)(2). The Law Court has held that the reviewing court should, in its discretion, evaluate the circumstances of the case as to whether there exists "good cause" to the contrary of the dismissal. West Point-Pepperell v. State Tax Assessor, 1997 ME 58, ¶ 7, 691 A.2d 1211 ("the 'good cause' showing for keeping an action on the docket, explicit only in Rule 41(b)(1), is also applicable to 41(b)(2)".) Involuntary dismissal "should be exercised only with full appreciation and consideration of the plight of the plaintiff," and the trial courts should consider a lesser sanction than dismissal. Westbrook v. Wallace, 478 A.2d 687, 689-690 (Me. 1984). An involuntary dismissal operates as an adjudication upon the merits unless otherwise specified by the court. M.R. Civ. P. 41(b)(3).
III. Discussion
Plaintiffs have provided no facts to the court to support a showing of good cause to the contrary for dismissing this complaint, other than a reference to the "voluminous" file sent to them by their first attorney. (Pl.s' Mot. to Extend Time ¶ 1.)
IV. Conclusions
For these reasons, this court grants Defendant's motion for involuntary dismissal with prejudice. Date: 6/29/17
/s/_________
MaryGay Kennedy
Justice, Superior Court