Opinion
CV-22-80
05-24-2022
LIONEL A. NIMA NGAPEY, Plaintiff v. BEST BUY, Defendant
ORDER
Thomas D. Warren Active Retired Justice
Subsequent to the court's March 30, 2022 order plaintiff Lionel Ngapey filed a motion for a default judgment. Counsel appeared for defendant Best Buy Stores LP (named as "Best Buy" in the complaint and referred to hereafter by that name) and filed an opposition to Ngapey's motion for a default along with a motion to dismiss.
Plaintiff's Motion for Default Judgment
Ngapey's motion for a default judgment is denied. The court's March 30, 2022 order had held the action in abeyance for 30 days to allow Ngapey, if he chose, to seek a default judgment and to allow counsel for Best Buy to appear. Counsel for Best Buy appeared within the 30 days specified.
As a general matter the court adheres to the principle that defaults should be set aside where no "gross neglect" was involved in the late filing and where no prejudice has been shown. E.g, Thomas v. Thompson, 653 A.2d 417, 420 (Me. 1995), This is consistent with the strong preference for deciding cases on their merits, see id, and the rule that doubts should be resolved in favor of setting aside a default so that the merits may be heard. 3 C. Harvey, Maine Civil Practice § 55:7 (2011). In this case no default has ever been entered. Best Buy filed a timely response to the complaint (although not by an attorney).
The Law Court has suggested that, when a party has appeared and is prepared to litigate the issues, only "serious instances of noncompliance with pretrial procedures" should lead to a default. Design Build of Maine v. Paul, 601 A.2d 1089, 1091 (Me. 1992). Best Buy's response in this case does not constitute either gross neglect or a serious instance of noncompliance.
Defendant's Motion to Dismiss
Best Buy notes that Ngapey's complaint asserts that he is suing for punitive damages, unfair trade practice, and discrimination based on gender.
Best Buy is correct that the unfair trade practice statute only applies to purchases for personal, family, or household purposes. 5 M.R.S. § 213(1). Mr. Ngapey's complaint alleges that the cellphone purchase that forms the basis for his complaint was "for my business." Accordingly, the complaint fails to state a claim under the unfair trade practice statute.
Best Buy is also correct that Ngapey's complaint does not state a claim for discrimination based on gender. Ngapey's complaint alleges that "two eastern Muslim females" assisted Ngapey with the purchase of cellphones at Best Buy. The complaint does not, however, allege that Ngapey was treated adversely based on his gender. In addition, the complaint seeks monetary and punitive damages, and those damages are not available for gender discrimination unless a plaintiff alleges and establishes that the claim of gender discrimination has first been filed with the Maine Human Rights Commission. 5 M.R.S. § 4622(1).
Ngapey's gender identity and sex are not set forth in the complaint. Plaintiffs motion for a default judgment, however, uses the possessive pronoun "his."
Finally, Best Buy is correct that a claim for punitive damages is not a separate cause of action. Punitive damages are a remedy that is available to a prevailing party on certain tort and statutory claim and severely only if there is a showing by clear and convincing evidence that a defendant has acted not just negligently, recklessly, or wrongfully but with malice. E.g., Waxier v. Waxier, 1997 ME 190 ¶ 15, 699 A.2d 1161.
This means that if Ngapey's complaint is interpreted as solely asserting claims for gender discrimination, unfair trade practice, and punitive damages, it should be dismissed.
However, a complaint must be read in the light most favorable to the plaintiff to determine if it sets forth elements of a cause of action or alleges facts that would entitle plaintiff to relief pursuant to some legal theory. Bisson v. Hannaford Bros. Co., Inc., 2006 ME 131 ¶ 2, 909 A.2d 1010. Dismissal is appropriate only when it appears beyond doubt that the plaintiff is not entitled to relief under any set of facts that he might prove in support of his claim. Moody v. State Liquor &Lottery Commission, 2004 ME 20 ¶ 7, 843 A.2d 43.
In the light most favorable to the plaintiff, the court reads Ngapey's complaint as alleging a contract claim - that he is alleging either (1) that the sales attendants agreed to his request to pay monthly and then breached that agreement or (2) that there was never a meeting of the minds and no valid contract was formed. Punitive damages and damages for emotional distress are not available on contract claims, but Ngapey's complaint states a claim for contract damages or for restitution.
In the latter case Ngapey would have a claim that he should have been able to return the phones for a refund, which he alleges that he requested.
See Drinkwater v. Patten Realty Corp., 563 A.2d 772,777 (Me. 1989; McAfee v. Wright, 651 A.2d 371, 372-73 (Me. 1994).
The entry shall be:
1. Plaintiff's motion for a default judgment is denied.
2. Defendant's motion to dismiss is granted with respect to plaintiffs claims of gender discrimination, unfair trade practices, and punitive damages.
3. The court nevertheless finds that the complaint states claim for breach of contract or for restitution, and as to that claim the complaint will not be dismissed.
4. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).