Opinion
BCD-CIV-2022-00047
06-15-2023
JONATHAN E. BUCK and BUCK'S HARBOR MARINA, INC., Plaintiffs, v. TOWN OF BROOKSVILLE, TOWN OF BROOKSVILLE HARBOR COMMITTEE, and DEBRAE BISHOP, in her capacity as Brooksville Harbormaster. Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS COUNTS MV AND VI-VIII OF PLAINTIFFS' COMPLAINT
Thomas R. McKeon Justice
Before the court is Defendants' the Town of Brooksville, Town of Brooksville Harbor Committee, and Debrae Bishop, in her official capacity as Town of Brooksville Harbormaster, Motion to Dismiss Counts I through IV and VI through VIII of Plaintiffs' Complaint in the above-captioned matter. The court heard oral argument on Defendants' motion on June 1, 2023. For the reasons discussed below, Defendants' Motion to Dismiss is granted in part and denied in part.
Also before the court is Plaintiffs' Motion for a Trial of the Facts and Defendants' Motion to Dismiss Counts II through V of Plaintiffs' Amended Complaint in the administrative appeal docketed as BCD-APP-2022-00005. The Rule 80B appeal was consolidated with this civil action by order of the court dated October 12, 2022. Order on Consented to Motion for Consolidation, Buck v. Town of Brooksville, No. BCD-CIV-2022-00047, slip op. at * 1 (Me. B.C.D, Oct. 12, 2022). The court addresses those motions by separate order.
MOTION TO DISMISS STANDARD
A motion to dismiss under Maine Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of the complaint and does not probe the merits of the underlying case." Carey v. Bd. of Overseers of the Bar, 2018 ME 119, ¶ 19, 192 A. 3d 589 (internal quotation marks omitted). In reviewing a motion to dismiss, courts must "consider the facts in the complaint as if they were admitted." Bonney v. Stephens Mem. Hosp., 2011 ME 46, ¶ 16, 17 A.3d 123 (citing Saunders v. Tisher, 2006 ME 94, ¶ 8, 902 A.2d 830). The complaint is viewed "in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." Id. (quotation marks omitted). "Dismissal is warranted when it appears beyond a doubt that the plaintiff is not entitled to relief under any set of facts that he might prove in support of his claim." Id. (quotation marks omitted).
Generally, a court may consider only the pleadings on a motion to dismiss. Est. of Robbins v. Chebeague & Cumberland Land Tn, 2017 ME 17, ¶ 2 n.2, 154 A.3d 1185 (citing Moody v. State Liquor & Lottery Comm 'n, 2004 ME 20, ¶¶ 8-9, 843 A.2d 43). However, official public documents, documents central to the plaintiff's complaint, and documents referred to therein may also be considered in a ruling on a motion to dismiss "without converting [the] motion ... into a motion for summary judgment when the authenticity of such documents is not challenged." Id. (citing Moody, 2004 ME 20, ¶ 10, 843 A.2d 43).
FACTUAL ALLEGATIONS
Jonathan E. Buck ("Buck") is the owner and operator of the corporation Buck's Harbor Marina, Inc. (the "Marina"). (Compl. ¶¶ 1-2, 7.) Buck is also a mooring inspector approved by the Town of Brooksville Harbormaster. (Compl. ¶ 7.) He oversees thirty-five moorings owned by and installed in the Marina. (Compl. ¶ 8.)
Buck and the Marina are referred to collectively as the "Plaintiffs."
On August 4, 2020, a large vessel tied on to one of the Marina's moorings, without the Marina's notice or approval, in anticipation of a passing storm. (Compl. ¶ 9.) The Town of Brooksville Harbormaster, individual Defendant Debrae Bishop (the "Harbormaster"), reported that storm winds moved the vessel, which dragged the mooring. (Compl. ¶¶ 5, 10.) Her report explained that the vessel damaged another boat and a dock. (Compl. ¶ 10.) The Harbormaster further explained that she spoke to Buck and the vessel's crew before the storm and she encouraged them to move the vessel because it was too large for the mooring, but Buck had assured her that "the boat would be fine on that mooring." (Compl. ¶ 10.)
On August 8, 2020, the Harbormaster met with Defendant the Town of Brooksville Harbor Committee (the "Harbor Committee") to discuss the August 4 incident. (Compl. ¶ 12.) Then, on August 10, 2020, the Harbormaster issued an order to the Marina that acknowledged the Harbor Committee's observation that Plaintiffs violated the Defendant Town of Brooksville's Harbor Ordinance, and determinations that (1) Buck was no longer approved as a mooring inspector for Buck's Harbor, and (2) the Marina's moorings must be inspected by an approved inspector within two weeks of the order. (Compl. ¶ 13.) The Marina filed a complaint seeking review of that order pursuant to Maine Rule of Civil Procedure 80B. (Compl. ¶ 13.)
The Harbormaster, Committee, and the Town of Brooksville are referred to collectively as the "Defendants."
The Harbor Ordinance required that all mooring installations comply with "commonly accepted marina practice," and the Marina has never before had a mooring fail. (Compl. ¶ 14.) However, one basis for the order asserting violations of the ordinance by Plaintiffs was the Marina's failure to comply with the Hamilton Marine Master Catalog's Mooring System Standards. (Compl. ¶ 14.)
The court considers the Harbor Ordinance, as amended, in deciding Defendants' Motion to Dismiss pursuant to the Moody exception. (Defs.' Mot. Dismiss Ex. B [hereinafter Harbor Ordinance].)
On September 29, 2020, the parties entered into a consent agreement (the "Consent Agreement"), under which the Defendants agreed to reinstate Buck's status as an approved mooring inspector, and to not (1) pursue fines for any alleged violations of the Harbor Ordinance flowing from the August 4 incident; (2) bring any enforcement action during tire pendency of the Rule 80B appeal; or (3) communicate with any of the Plaintiffs' clients about the Marina's compliance with the Consent Agreement. (Compl. ¶¶ 16-18.) For its part, the Marina agreed that it would relabel its moorings, and that Buck would inspect all of the Marina's moorings by July 1, 2021, subject to oversight by another approved mooring inspector. (Compl. ¶ 18.) The parties further agreed to bear their owns attorneys' fees and costs. (Compl. ¶ 18.) Finally, the parties' agreed that, if the Town enacted any modifications to the Harbor Ordinance that affected mooring standards or requirements, the Marina would be permitted to bring its moorings into compliance therewith according to an amortization schedule that would be agreed upon by the parties or incorporated into the Harbor Ordinance. (Compl. ¶ 19.)
The court also considers the Consent Agreement pursuant to the Moody exception. (Defs.' Mot. Dismiss, Ex. A.)
Contrary to the Consent Agreement, the Harbormaster approached or directly contacted the Marina's clients and others moored in Bucks Harbor. (Compl. ¶ 20.) This included incidents on July 2 and on July 12, 2021. (Compl. ¶¶ 21-22.) Meanwhile, the Marina attempted in good faith to comply with the Consent Agreement through July of 2021. (Compl. ¶ 23.) This involved expenditures on mooring tackle, inspections, and other material costs including compensation for two other approved mooring inspectors to oversee Buck's inspections. (Compl. ¶ 23.) The Marina kept the Harbormaster apprised of its inspection activities, progress, and anticipated delays. (Compl. ¶ 24.) However, due to certain factors beyond the Plaintiffs' control, five of the Marina's moorings were not inspected by July 1, 2021. (Compl. ¶ 24.)
On July 8, 2021, the Harbormaster prescribed the Marina's maximum vessel sizes for its moorings, thereby reducing the maximum size permitted on the moorings relative to prior years and reducing the Marina's anticipated revenues. (Compl. ¶ 27.) Additionally, she ordered the Marina to relabel, by July 19, its moorings to reflect the new maximum vessel sizes and threatened to fine the Marina if vessels exceeding the new maximum sizes were permitted to use the moorings. (Compl. ¶ 28.) On July 29,2021, the Harbormaster mailed a notice to the Marina reaffirming these requirements and warning that failure to observe them by August 1 would result in a $100 fine per mooring per day. (Compl. ¶¶ 29-30.) The Marina appealed this notice to the Harbor Committee pursuant to the Harbor Ordinance, and the committee affirmed the notice after a de novo hearing. (Compl. ¶ 31.) The Marina appealed, under Rule 80B, that decision during November of 2021. (Compl. ¶ 32.)
After Plaintiffs filed their appeal, on November 23, 2021, the Town demanded that the Marina make additional modifications to mooring tackle and placement and pay $30,000 in legal fees by December 31, 2021. (Compl. ¶ 33.) The Town further demanded that Buck relinquish his status as an approved mooring inspector. (Compl. ¶ 33.) The Town threatened an enforcement action, wherein it would seek fines accrued between July and November 2021 for alleged violations to the Harbor Ordinance and the Consent Agreement. (Compl. ¶ 33.) The Marina consequently amended its complaint in the Rule 80B appeal. (Compl. ¶ 35.)
On January 18, 2022, the Harbor Committee approved amendments to the Harbor Ordinance. (Compl. ¶ 39.) The Marina was not aware of this development, and was not notified about it. (Compl. ¶ 40.) The Town enacted the proposed amendments on March 8,2022. (Compl. ¶ 41.) In essence, the amendments codify the "Hamilton Marine" standards that Defendants sought to impose upon the Plaintiffs. (Compl. ¶ 44.) The standards introduced in the amended ordinance only apply to moorings located within Buck's Harbor, but not to moorings located within the other harbors in the Town of Brooksville. (Compl. ¶¶ 45-46.)
On March 22, 2022, the Harbormaster notified Plaintiffs about the amendments. (Compl. ¶ 47.) That notice included proposed permit approvals for the Marina's moorings, which required modifications to maximum vessel lengths relative to the Marina's existing mooring permits. (Compl. ¶ 49.) The Harbormaster did not propose, and the parties did not discuss, creation of an amortization schedule for the modifications to the Marina's moorings. (Compl. ¶ 48.)
On April 7, 2022, the Harbormaster sent the Marina another notice that it was not in compliance with the Harbor Ordinance due to the absence of a record from 2021 of a mooring inspection for one of the Marina's moorings. (Compl. ¶ 50.) The Marina was required to inspect that mooring and file an inspection report within twenty-one days of receipt of the Harbormaster's notice, or else the mooring would be removed at the Marina's expense. (Compl. ¶ 51.) Buck had inspected that Mooring on August 21, 2021, and he had submitted a completed inspection report to the Harbormaster. (Compl. ¶ 52.)
On February 15, 2022, the Marina sent the Town a notice of claim pursuant to the State of Maine's Tort Claims Act, 14 M.R.S. §§ 8108-8118 (2023), concerning the Marina's tort claims against the Harbormaster. (Compl. ¶ 55.) Since that time, the Harbormaster has continued to interfere with the Marina's relationships with existing and prospective clients. (Compl. ¶ 57.)
DISCUSSION
Defendants seek dismissal of Counts I-IV and VI-VIII of Plaintiffs' Complaint. The court addresses Defendants' Motion to Dismiss and the parties' arguments in the context of each of Plaintiffs' causes of action.
In their civil action, Plaintiffs seek declarations that the Harbor Ordinance's amendments, as applied to the Marina, are discriminatory (Count 1), that the ordinance's mooring-inspection provision is otherwise vague on its face (Count II), and that the Harbormaster attempted to enforce a mooring permit-renewal process inconsistent with that provided by the Harbor Ordinance (Count III). (Compl. ¶¶ 60-87.) Next, Plaintiffs claim Defendants breached the Consent Agreement when the Town adopted amendments to the Harbor Ordinance that did not provide an amortization schedule (Count IV). (Compl. ¶¶ 88-96.) Finally, Plaintiffs allege causes of action sounding in tort concerning the Harbormaster's dealings with the Marina and interactions with Plaintiffs' clientele (Counts VI-VIII). (Compl. ¶¶ 102-135.)
I. Whether adoption of the amendments to the Harbor Ordinance constitutes discrimination against Plaintiffs (Count I).
In Count I of their Complaint, Plaintiffs complain of disparate treatment by the Town of Brooksville and the Harbor Committee. Specifically, Plaintiffs claim that the amendments to the Harbor Ordinance, including promulgation of the "Hamilton Marine" standards, apply only to moorings in Buck's Harbor and therefore constitute arbitrary and unreasonably discrimination against the Marina, which owns the majority of moorings there.
A plaintiff alleging a violation of equal protection rights must allege that they were selectively treated compared with others who are similarly situated, and that the selective treatment was based on impermissible considerations including a malicious or bad faith intent to injure. Marshall v. Town of Dexter, 2015 ME 13 5, ¶ 30,125 A. 3 d 1141. A plaintiff who alleges "selective treatment as an individual and not as a member of a specific class ... bears the burden of showing that his comparators are similarly situated in all respects relevant to the challenged government action." Id. "Conclusive generalities asserting that the plaintiff was treated differently will not suffice;" the complaint must allege "facts that could demonstrate that the challenged decision had a discriminatory effect and that it was motivated by a discriminatory purpose." Id. ¶ 31 (citations and internal quotations marks omitted).
The equal protection guarantees of the Maine and United States Constitution are coextensive. Marshall, 2015 ME 135, ¶ 30, 125 A.3d 1141 (citation omitted).
Here, there is no question that the Complaint successfully alleges facts that could demonstrate, if proven, Defendants' malicious or bad faith intent to injury Plaintiffs. The Complaint otherwise indicates how owners of rental, transient and service moorings located in harbors within the Town of Brooksville other than Buck's Harbor are not subjected to the new standards imposed by the amended Harbor Ordinance.
The Defendants argue that the Marina does not own all of the moorings in Buck's Harbor. Therefore, the amended Harbor Ordinance applies to the Buck's Harbor mooring owners other than the Marina just as it does to the Marina. While that may ultimately preclude an equal protection claim, there may be a set of facts showing that the actual impact of the statute effects only the Marina. Therefore, the Complaint is not dismissed as to Plaintiffs' Count I.
During oral argument, the parties confirmed that the Marina owns thirty-four out of the fifty moorings in Buck's Harbor. Five other permits have been issued to five other mooring renters or owners.
II. Whether the Harbor Ordinance's mooring-inspection provision is impermissibly vague (Count II).
Plaintiffs allege that section 8.11.2 of the Harbor Ordinance is vague and challenge the constitutionality of the ordinance on its face. Section 8.11.2 provides that "[a]ll moorings shall be inspected* annually by an inspector approved by the Harbormaster in order to retain a mooring permit. Those individuals or businesses approved by the Harbormaster to perform mooring inspections shall keep records of their inspection work." (Harbor Ordinance § 8.11.2) Further, "*[w]hat constitutes inspection shall be in the judgment of the inspector and be subject to review by the Harbormaster." (Id.) Plaintiffs allege that this language is vague because it neither provides standards describing what constitutes permissible inspection, nor imposes limits upon the Harbormaster's review of a mooring inspection or her authority to approve or disapprove of a given inspection. (Compl. ¶¶ 73-75.)
When, as here, a facial challenge to an ordinance does not implicate any fundamental rights or liberties the court should uphold the challenge only if the ordinance is impermissibly vague in all of its applications. Town of Baldwin v. Carter, 2002 ME 52, ¶ 8, 794 A.2d 62. An ordinance is presumed to be constitutional, and the party challenging its constitutionality "has the burden of establishing its infirmity." Kenny v. Dep't of Human Servs., 1999 ME 158, ¶ 7, 740 A.2d 560. An ordinance is improperly vague when "its language either forbids or requires the doing of an act in terms so vague that people of common intelligence must guess at its meaning,... or if it authorizes or encourages arbitrary and discriminatory enforcement." Carter, 2002 ME 52, ¶ 10, 794 A.2d 62 (quotations and citations omitted). Interpretation of an ordinance is a matter of law. Kurlanski v. Portland Yacht Club, 2001 ME 147, ¶ 9, 782 A.2d 783. Courts must construe the language at issue so as to give effect to the ordinance's objectives and whole text. JPP, LLC v. Town of Gouldsboro, 2008 ME 194, ¶ 8, 961 A.2d 1103 (quotation and citation omitted).
This is because concepts of due process flowing from both the Fourteenth Amendment of the United States Constitution and Article I, section 6-A, of the Maine Constitution, require that those subject to sanction by law be given fair notice of the standard of conduct to which they can be held accountable. Carter, 2002 ME 52, ¶ 10, 794 A.2d 62.
First, the inspection process goes to retention of mooring permits. A permit may be retained upon an inspection of the mooring and the permit's renewal. The Harbor Ordinance sets forth regulations that serve as guidelines for the approval and issuance of mooring permits, mooring placement, removal of moorings, and identification of moorings. (See Harbor Ordinance §§7.1, 7.7.1-2, 7.9.3-4, 8.5.1, 8.8, 8.12.) A party whose moorings are subject to inspection reasonably should expect the mooring inspector to utilize these provisions, according to which the mooring permit was initially approved and issued, in the context of the mooring's inspection and the permit's renewal.
Second, the Harbor Ordinance imparts procedural safeguards that diminish Plaintiffs' allegation that the Harbormaster wields uncabined authority to approve or disapprove of a mooring inspection. See Ouellette v. Saco River Corridor Comm'n, 2022 ME 42, ¶ 18, 278 A.38 1183. The Harbor Committee is charged, in part, with oversight of the Harbormaster's duties. (Harbor Ordinance § 5.6.2.) It is responsible for hearing appeals of any person aggrieved by a decision, act, or failure to act by the Harbormaster. (Id. § 5.6.7.) This includes any written decision made by the Harbormaster. (Id. § 13.5.) The committee's oversight is enabled by the ordinance's requirements that no mooring may be placed before the Harbormaster issues a written permit specifying its location, size, type and scope, and the maximum size and type of boat to be moored, and that inspectors maintain records of their inspection work. (Id. §§ 8.1, 8.11.2.)
The court understands that Plaintiff is concerned these safeguards are inadequate in light of perceived bias, conflicts of interest, and discrimination. However, these issues go to enforcement and do not bear upon the constitutionality of the Harbor Ordinance's terms.
While it may be true that the Harbor Ordinance implements broad language within section 8.11.2, the court concludes that language is not vague as a matter of law. Hence, Plaintiff is not entitled to relief under any set of facts they might prove in support of their vagueness claim. This is especially true in light of the aforementioned (1) guidelines for permit issuance that reasonably apply to mooring inspections underlying permit renewal and retention, and (2) guardrails available to prevent arbitrary approval or disapproval of mooring inspections. The court grants Defendants' Motion to Dismiss regarding Plaintiffs' Count II.
III. Whether the Harbormaster wrongfully declined to renew Plaintiffs' mooring permits (Count III).
The Harbor Ordinance provides that" [renewals of permits shall be granted if there is no substantial change in the content of the application (such as size of watercraft)." (Harbor Ordinance §8.4.1.) Plaintiffs argue that they are entitled to a declaration by the court that because there was no substantial change to the content of the Marina's mooring permit applications, the Harbormaster was required to renew Plaintiffs' mooring permits. (Pls.' Opp'n to Defs.' Mot. Dismiss § C.) Defendants counter that dismissal is appropriate because Plaintiffs' claim hinges on an interpretation of the Harbor Ordinance that creates absurd or illogical results, and thusly it must be avoided, see Olson v. Town of Yarmouth, 2018 ME 27, ¶ 16,179 A.3d 920. (Defs? Mot. Dismiss 9-11.)
The Harbor Ordinance does not define what qualifies as a "substantial change." Nor does it contain an express "grandfather" clause. However, the absence of such a provision is not evidence that there is no grandfathering contemplated by the ordinance. The renewal provision is reasonably read to allow grandfathering when there is no "substantial change" to the contents of the application underlying a permit before the Harbormaster for renewal. A "substantial change," then, should be measured against the contents of the permit application, which itself must adhere to various standards and requirements. (See Harbor Ordinance §§ 8.4.1,8.5.1.1.) Defendants have not provided a legal basis to justify dismissal of Plaintiffs' Count III, and the motion is denied concerning this claim.
IV. Whether Defendants breached the Consent Agreement when the Town adopted amendments to the Harbor Ordinance that did not provide an amortization schedule (Count IV).
Defendants argue that the Consent Agreement is unambiguous, and that no amortization schedule is required because the amendments to the Harbor Ordinance's mooring standards apply only to Buck's Harbor, and not to "all mooring owners" in the Town of Brooksville. (Defs.' Mot. Dismiss 11-13; Harbor Ordinance §§ 8.5.1.1, App, VI.) During oral argument, Defendants added that the Town's intent underlying the Consent Agreement was partly that the Harbor Ordinance would ultimately be amended consistent with the agreement's terms. Plaintiffs, on the other hand, argue that the intention of the Consent Agreement's amortization schedule requirement was to provide time for Plaintiffs to implement costly modifications to bring the Marina into compliance. (Pls.' Opp'n to Defs.' Mot. Dismiss § D.)
The Consent Agreement provides, in relevant part, that:
[Plaintiffs] shall maintain all moorings in accordance with applicable Hamilton Marine Mooring Standards and with any other "commonly accepted marine practice" pursuant to the Harbor Ordinance and as identified by the Harbormaster. Should the Harbor Ordinance be amended to provide for different or more specific standards for "commonly accepted marine practice" that apply to all mooring owners and would require modifications to moorings owned by [Plaintiffs], Buck shall make those modifications pursuant to an amortization schedule that is either agreed to by all parties ... or that is included in the Harbor Ordinance and generally applicable to all mooring owners.
(Defs.' Mot Dismiss Ex. A § 3.) The amended Harbor Ordinance does not provide any such amortization schedule.
The determination of whether a contract's terms are ambiguous is a question of law. Dow v. Billing, 2020 ME 10, ¶ 13, 224 A.3d 244. A court can consider extrinsic evidence of the parlies' intent if contract language is ambiguous. McDonald v. Scitec, Inc., 2013 ME 59, ¶ 10,79 A.3d 374. A contract's language is ambiguous when it is reasonably susceptible to different meanings. Scott v. Fall Line Condo. Ass n, 2019 ME 50, ¶ 6, 206 A.3d 307. Construction of an ambiguous contract is a question of fact. Lee v. Scotia Prince Cruise, Ltd., 2003 ME 78, ¶ 10, 828 A.2d 210 (citation omitted).
The court concludes that the disputed language from the Consent Agreement is ambiguous. The phrase "all mooring owners" could reasonably be read to mean "all mooring owners [in the Town of Brooksville]," or "all mooring owners [in Buck's Harbor]." The court agrees that, in consideration of the temporal and monetary costs associated with modification of mooring tackle, it is unlikely that the Consent Agreement contemplated an amortization schedule shielding Plaintiffs from business risks flowing from those costs only if mooring standards applicable to all mooring owners are updated. A factfinder could conclude that, under the Consent Agreement, the relevant mooring standards are those that the Harbor Ordinance applies to the Marina. Hence, the Complaint alleges facts that could entitle Plaintiff to relief, and dismissal of Plaintiffs' Count IV is not warranted.
V. Plaintiffs' tort claims (Counts VI through VIII).
Plaintiffs assert three distinct tort claims against the Harbormaster. Defendants seek dismissal of these claims because they are based on actions and activities for which the Harbormaster enjoys "discretionary function" immunity. 14 M.R.S. § 8111(1)(C) (2023). That immunity only applies when the government employee's conduct was within the scope of their employment. Darling v. Augusta Mental Health Institute, 535 A.2d 421, 425 (Me. 1987). The Harbormaster is an "employee" within the meaning of the Maine Tort Claims Act. Id. § 8102(1).
Plaintiffs allege that the Harbormaster's dealings and interactions with Plaintiffs' clientele constitutes tortious interference with contract and with Plaintiffs' prospective economic advantage (Count VI); the Harbormasters activities in Buck's Harbor amount to tortious interference with contract and with Plaintiffs' prospective economic advantage (Count VII); and the Harbormaster defamed Plaintiffs (Count VIII).
Courts apply a four-factor test to determine the scope of a government employee's duties or whether complained of activities were undertaken within the employee's scope of employment, and the applicability of discretionary function immunity. See Darling, 535 A.2d at 426; Lawson v. Willis, 2019 ME 36, ¶ 9, 204 A.3d 133 (citation omitted). These factors are:
Courts utilize this test when the duties of the government employee are not clear, but otherwise look first to the plain language of the statute delineating the employee's duties if one is provided by the Legislature. Gove v. Carter, 2001 ME 126, ¶14,755 A.2d 368. Here, the legislature adopted a statute that enables harbor masters' enforcement of rules and regulations adopted by municipal officers. See 38 M.R.S. § 2 (2023). In consideration of the breadth of this language and the parties' disputes regarding the meaning of the Harbor Ordinance and Consent Agreement, the court will use the Darling factors to determine whether the Harbormaster is entitled to discretionary function immunity.
(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of tire policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?Id. Application of these four factors is a fact-intensive exercise. See Cayer v. Town of Madawaska, No. CV-18-0135, 2022 Me. Super. LEXIS 114, at *18-39 (applying the Darling factors to certain of the plaintiff's tort claims on summary judgment and determining that the statements of material facts justified application of discretionary function immunity). "A discretionary act requires judgment or choice, whereas a ministerial act is mandatory and requires no personal judgment or choice." Lawson, 2019 ME 36, ¶ 10, 204 A.3d 133; Jorgensen v. Dep't of Transp., 2009 ME 42, ¶¶ 16, 18, 969 A.2d 912 ("[I]n cases where the questioned conduct has little or no purely governmental content but instead resembles decisions or activities carried on by people generally, discretionary function immunity is not afforded. ... only those more significant decisions involving the weighing of competing public policy considerations are entitled to immunity.").
a. The Motion to Dismiss is denied with respect to Plaintiffs' Count VI.
Plaintiffs' Count VI complains of statements by the Harbormaster to the Marina's potential clientele and to other third parties regarding Buck's status as an approved mooring inspector and the quality of his inspections. At this stage of the litigation, the court cannot say whether these communications were "essential to the realization or accomplishment of' the Harbor Ordinance, or whether they were made within or beyond the Harbormaster's scope of employment. Accordingly, the court denies Defendants' Motion to Dismiss with respect to Plaintiffs' Count VI.
b. The Motion to Dismiss is denied with respect to Plaintiffs' Count VII.
Plaintiffs' Count VII complains of activities and statements by the Harbormaster that were intended to interfere with the Marina's business. This included the Harbormaster allegedly informing potential customers that the Marina was full when it was not, and disturbing and harassing the Marina's clients. Again, without more facts available to the court it cannot determine the availability of discretionary function immunity for the activities and statements complained of in Count VII. For this reason, the Motion to Dismiss is denied with respect to Count VII.
c. The Motion to Dismiss is granted in part and denied in part with respect to Plaintiffs' Count VIII.
Plaintiffs' Count VIII complains of three instances of defamation by the Harbormaster. Plaintiffs first allege that she made defamatory statements to the Harbor Committee about the August 4, 2020, incident involving the dragged mooring. Second, Plaintiffs allege that she made defamatory statements about Buck's moorings and his status as a mooring inspector to an individual on the Town's mooring waiting list. Third, Plaintiffs allege that the Harbormaster submitted false paperwork to the town.
The first communication complained of, the Harbormaster's letter to the Harbor Committee describing the August 4, 2020, incident clearly falls within the Harbormaster's discretionary function immunity. Reporting violations of the Harbor Ordinance to the Harbor Committee is a basic and essential function charged to the Harbormaster. When the employee performs a discretionary function, the immunity conferred by the Maine Tort Claims Act is absolute, even if the employee "abused her discretion or exercised it in bad faith." Lawson, 2019 ME 36, ¶ 13, 204 A.3d 133. That is what transpired here, and the court grants in part the Motion to Dismiss Plaintiffs' Count VIII with respect to this communication.
Otherwise, regarding the second and third allegedly defamatory statements at issue, in the court's view more facts are needed to determine fully the contours of the Harbormaster's scope of authority, and whether the statements are within or fall outside of that scope of authority. Hence, the Motion to Dismiss is denied, in part, regarding these two allegedly defamatory statements.
CONCLUSION
Based on the foregoing, the entry will be: Defendants' Motion to Dismiss is GRANTED as to Count II of Plaintiffs' Complaint and on Count VIII in part. The Motion to Dismiss is otherwise DENIED.
So ordered.
The Clerk is requested to enter this Order on the Docket, incorporating it by reference pursuant to Maine Rule of Civil Procedure 79(a).