Opinion
CIVIL ACTION Docket No. CV-12-233
07-12-2012
BRETT CANNEY, et al, Plaintiffs v. ALBERT MOORE, Defendant
ORDER
Before the court are four matters that appear to have been fully submitted: (1) a request for the entry of a default against defendant Albert Moore; (2) a pro se motion by Moore for an extension of time in which to answer; (3) a motion by plaintiffs Brett and Michael Canney for an attachment; and (4) a motion to dismiss filed by counsel for Moore.
1. Request for Default and Motion for Extension
The complaint in this case was filed on May 18, 2012, along with a motion for an attachment in the amount of $ 188,040.
On June 14, 2012 counsel for plaintiff filed a request for the entry of a default. That request represented that defendant had been served on May 23, 2012. However, at that time no return of service was contained in the file.
Plaintiff was therefore seeking entry of a default two days after the deadline for serving an answer had expired.
On June 19, counsel for plaintiff filed a return of service confirming that service of the summons and complaint had been made on May 23. However, on the same date Moore filed a pro se answer, along with a pro se motion for an extension of time in which to answer. Both the motion and the answer appear to have been drafted with assistance. In that motion Moore stated, inter alia, that he was elderly, functionally illiterate, had minimal financial support, and was without an attorney at that time. Moore's answer and motion were filed seven days beyond the deadline.
Because there was an answer in the file by the time the return of service was filed, the clerk's office did not enter a default. At that time it could not certify that the defendant had failed to plead or otherwise defend. See Form CV-061. The remedy in such cases, where a late answer has been filed, is for the party seeking a default to move to strike the answer and then have a default entered. For the reasons set forth in this order, no point would be served by such a motion in this case.
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On June 22, 2012 Charles Taitt, Esq. filed an entry of appearance and a motion to dismiss on behalf of Moore. Subsequently counsel for plaintiffs filed an opposition to Moore's pro se motion for an extension and attorney Taitt filed an opposition to the request by plaintiffs for entry of a default.
The court finds that Moore has shown excusable neglect for his seven day delay in filing an answer and therefore grants Moore's June 19 motion for an extension of time and accepts his answer as timely filed. Plaintiffs argue that no excusable neglect has been shown because there is evidence in the record that Moore consulted an attorney before his deadline for answering. However, that attorney was unable to represent Moore because the attorney was a potential witness to the transaction that forms the basis for certain of plaintiffs' claims, and Moore's consultation with that attorney demonstrates that Moore was not ignoring the case but was diligently attempting to determine how to defend the action.
For purposes of this motion, the court also accepts Moore's assertions that he is elderly and functionally illiterate and notes that the allegations of the complaint that Moore has had emotional problems lend some credence to the proposition that he would have more difficulty than an average person in responding to this lawsuit.
In addition, under the circumstances of this case it would be very hard to sustain a default given Moore's relatively short delay in answering, the absence of any apparent prejudice to plaintiffs, the strong preference in Maine law for deciding cases on their merits, see, e.g., Thomas v. Thompson, 653 A.2d 417, 420 (Me. 1995), and the fact that Moore has now appeared and is prepared to defend the action.
2. Motion for Attachment
Plaintiffs filed a motion for attachment with their complaint. No opposition has been filed to that motion, but there is no evidence in the file that the motion was served on Moore. The return of service lists only the summons and complaint as having been served and does not indicate service of the attachment motion.
If plaintiffs wish to pursue that motion, they shall serve a copy of the motion on the attorney who has now appeared for Moore. However, in view of Moore's affidavit stating that he has not received any part of the bequest that forms the basis for count I of the complaint, it is not clear what purpose an attachment would serve. Accordingly, the motion for an attachment is denied without prejudice to renewal and without prejudice to any motion that the plaintiffs might file to have $ 188,040 of any bequest amounts received by Moore placed in escrow to await the outcome of this case.
3. Motion to Dismiss
Moore's motion to dismiss argues that because no bequest amounts have been received, this action is premature. This fails for a number of reasons. First, the motion is not based on the pleadings but relies on facts outside of the pleadings. If the court were to treat the motion as a motion for summary judgment, moreover, it would be denied. Whether or not Moore has received any portion of the bequest, this action is not premature because plaintiffs have adequately alleged an anticipatory repudiation of Moore's agreement. Finally, counts II, III, and IV of plaintiffs' complaint do not depend on whether a bequest is received and this action would proceed regardless of the outcome of the breach of contract claim.
Counsel for Moore has also filed a motion for further briefing and a hearing on the default and motion for enlargement of time issue. In light of this order, that motion is moot. The entry shall be:
Plaintiffs' application for entry of a default is denied. Defendant's motion for an extension of time to answer the complaint is granted and his answer filed June 19 is accepted as timely filed.
Plaintiffs' motion for an attachment is denied without prejudice to renewal upon a showing that defendant has received the bequest at issue and without prejudice to a motion seeking other relief, such as an order placing a portion of any bequest received in escrow.
Defendant's motion to dismiss is denied.
The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).
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Thomas D. Warren
Justice, Superior Court
01 0000002300 CAMPBELL, JOHN S
59 BAXTER BOULEVARD PORTLAND ME 04101
F BRETT M CANNEY PL RTND 05/18/2012
F MICHAEL CANNEY PL RTND 05/18/2012
02 0000004324 TAITT, CHARLES W
374 MAIN STREET SACO ME 04072
F ALBERT E MOORE DEF RTND 06/22/2012