Opinion
SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-19-327
02-26-2020
CUMBERLAND COUNTY SHERIFF'S OFFICE, Plaintiff, v. MAINE AMMO COMPANY and ELIAS BASSILE, Defendants.
For Plaintiff: Robert Bower, Esq. & Michael Devine, Esq. Defendant(s): Pro-Se Litigants
For Plaintiff:
Robert Bower, Esq. & Michael Devine, Esq. Defendant(s): Pro-Se Litigants STATE OF MAINE
CUMBERLAND, ss.
ORDER ON PLAINTIFF'S MOTION TO DISMISS COUNTERCLAIM
Before the Court is Plaintiff Cumberland County Sheriff's Office's Motion to Dismiss Defendants Maine Ammo Company and Elias Bassile's Counterclaim pursuant to M.R. Civ. P. 12(b)(6). For the following reasons, Plaintiff's Motion is granted.
I. Background
On August 13, 2019, Cumberland County Sheriff's Office (the "Sheriff's Office") filed a five-count complaint against Maine Ammo Company ("MAC") and its owner and principle, Elias Bassile ("Mr. Bassile"). The Complaint alleges that MAC refused to reimburse the Sheriff's Office for defective ammo it purchased from MAC and, separately, that MAC refused to return a payment that was inadvertently made by the Sheriff's Office for ammo that it did not order or receive. (Pl.'s Compl. ¶¶ 8-9.)
The Complaint contains the following counts: (Count I) Breach of Contract; (Count II) Conversion; (Count III) Breach of Implied Warranty under 11 M.R.S. § 2-314; (Count IV) Breach of Implied Warranty under 11 M.R.S. § 2-315; and (Count V) Punitive Damages.
On October 23, 2019, Defendants filed a counterclaim against Plaintiff, which was signed by Mr. Bassile as "Representative for Maine Ammo Company and Elias Bassile." (See Def.s' Countercl.) Mr. Bassile is appearing pro se on behalf of himself, and as a representative of MAC. The Counterclaim does not assign a title to the theories. Rather, Defendants allege that Plaintiff tested the ammunition it purchased from MAC without notice to MAC or inviting MAC to attend. (Def.s' Countercl. ¶¶ 15, 17.) Defendants allege that Plaintiff is not capable of testing ammunition and that the testing "destroyed evidence and altered findings." (Def.s' Countercl. ¶ 16.) Defendants further allege that the Complaint was motivated by malice, and designed to cause MAC to use up its assets. (Def.s' Countercl. ¶¶ 19-20.) The Counterclaim contends that Plaintiff's Complaint is "causing damage to MAC's law enforcement business," and "[a]s a consequence Maine Ammo Company has suffered damages." (Def.s' Countercl. ¶¶ 18, 21.)
Plaintiff moves for dismissal on the grounds that Mr. Bassile has engaged in unauthorized practice of law by representing MAC and filing a counterclaim on its behalf. (Mot. Dismiss 2.) In the alternative, Plaintiff argues that the Counterclaim, which Plaintiff's claim can best be interpreted as a claim for malicious prosecution, may not be brought until after the underlying proceeding has ended. (Mot. Dismiss 3.)
In civil actions, malicious prosecution is more appropriately termed "wrongful use of civil proceedings." Pepperell Trust Co. v. Mountain Heir Fin. Corp., 1998 ME 46, ¶ 16, 708 A.2d 651.
II. Standard of Review
A motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) tests the legal sufficiency of the counterclaim. State v. Weinschenk, 2005 ME 28, ¶ 10, 868 A.2d 200. The court "examine[s] the [counterclaim] 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." Livonia v. Town of Rome, 1998 ME 39, ¶ 5, 707 A.2d 83. The court accepts as true the material allegations in the counterclaim. Id. The counterclaim will be dismissed "only when it appears beyond a doubt that a plaintiff is entitled to no relief under any set of facts that he might prove in support of his claim." Heber v. Lucerne-in-Maine Village Corp., 2000 ME 137, ¶ 7, 755 A.2d 1064.
III. Discussion
As a threshold matter, the Counterclaim does not allege that Mr. Bassile has suffered damages, or otherwise set forth "a short and concise statement of the claim showing that the pleader is entitled to relief" in his personal capacity. (M.R. Civ. P. 8(a); see Def.s' Countercl. ¶¶ 15-21.) To the extent the Counterclaim does show MAC is entitled to relief under some legal theory, Mr. Bassile is not a party to the Counterclaim.
The Counterclaim states: "NOW COME Maine Ammo Company and Elias Bassile counterclaims against the Plaintiff."
Pursuant to 4 M.R.S. § 807(1), "[n]o person may practice law or profess to practice law within the State or before its courts, or demand or receive any remuneration for those services rendered in this State, unless that person has been admitted to the bar of this State . . . ." Section 807 does however contain the following exception:
For purposes of defending a civil action filed against a corporation, an officer of the corporation if the corporation is organized in this State and has 5 or fewer shareholders.4 M.R.S. § 807(3)(J) (2019). Mr. Bassile filed with the Secretary of State, Articles of Incorporation, listing "Maine Ammo Company" as the name of the corporation. (Pl.s' Ex. B.) Regardless of whether MAC has five or fewer shareholders, the Law Court has explained that "[a] counterclaim is a separate claim for relief, and thus a corporation must retain counsel in order to assert a counterclaim." Carey v. Indian Rock Corp., 2005 ME 6, ¶ 3, 863 A.2d 289. Without a licensed attorney to represent MAC, the Counterclaim presently before the Court is null. See Haynes v. Jackson, 2000 ME 11, ¶ 15, 744 A.2d 1050.
"Official public documents, documents that are central to a plaintiff's claim, and documents referred to in the complaint, may be properly considered on a motion to dismiss without converting the motion to one for a summary judgment when the authenticity of such documents is not challenged." Moody v. State Liquor & Lottery Comm'n, 2004 ME 20, ¶ 8, 843 A.2d 43.
The Law Court held that part of "defending" a corporation pursuant to Section 807(3)(J), does not include the authority to file a counterclaim. Carey, 2005 ME 6, ¶ 3, 863 A.2d 289.
Alternatively, Defendants' Counterclaim could be dismissed because, examining the Counterclaim in the light most favorable to Defendants, it fails to set forth elements of a cause of action or state facts that could entitle Defendants to relief under some legal theory. Bean v. Cummings, 2008 ME 18, ¶ 7, 939 A.2d 676. --------
IV. Conclusion
For the foregoing reasons, Plaintiff's Motion to Dismiss Defendants' Counterclaim is GRANTED. Defendants' Counterclaim is hereby DISMISSED without prejudice.
The Clerk is directed to incorporate this Order into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a). Dated: 2/26/2020
/s/_________
MaryGay Kennedy, Justice
Maine Superior Court