STATE OF MATNE BUSINESS & COUNSUMER DOCKET CUMBERLAND 1 ss. DOCKET NO. BCD-CV-18-28 ./
RONALD F. BARRIAULT, ) ) Plaintiff, ) ) v. ) ORDER ON DENNIS A. BARRIAULT'S ) VERIFIED MOTION FOR JOINDER DENRON, 1NC., ) AND FOR RELIEF FROM JUDGMENT ) Defendant. )
This matter comes before the Court on Movant Dennis A. Barriault's verified motion for
jolnc!cr and for relief from judgment brought pursuant to M.R. Civ. P. I9(a) 1 and 60(b). Plaintiff
Ronald Baniault and Defendant Denron, Inc. both oppose the motion. The Court heard oral
argument on the motion on August 6. Ronald Lebel, Esq. appeared on behalf of Dennis;• Kurt
Olafsen, Esq. appeared fol' Plaintiff Ronald; and Timothy Bryant, Esq. appeared for Denron.
BACKGROUND
Ronald and Dennis are brothers who are also officers of Denron: Ronald is the president
of Demon and Dennis is its treasurer. (Mot. Joinder & Relief~~ 1-6; Consent Judgment 11 3.)
Denron maintained an operating business checking account with Androscoggin Bank, account
ending t/5168, in its name; Denron deposited all its income into this account. (Mot. Joinder &
Relief~ 9.) On October 13, 2016, without the knowledge or consent of Dennis, Ronald withdrew
' Although captioned as being brought pursuant to M.R. Civ. P, 19, 20, and 21, Dennis's memorandum of law in support of his motion addresses only M.R. Civ. P. 19(a), At the oral argument Dennis likewise gl'ounded his argument for joinder exclusively in Rule 19(a). See Mehlhorn v. Derby, 2006 ME 110, ~ 11,905 A.2d 290 (quoting United States v. Zannino, 895 F.2d l, 17 (1st Cir. I 990)) ("Because they have neither supplied argument nor suggested a rationale in support of their position , .. we decline to reach the issue."). ' Becat1se the two Individual parties share the same last name, the Court refers to them both by their first names thrnughout this Order.
1 $400,000 from the Denron account and deposited the money in a joint account in Demon and
Ronald's name at the Androscoggin Bank, account number ending in 113659. (Mot, Joinder &
Relief~ 10; Bxs, 1, 2A.) On November 9, 2016, Ronald filed his Complaint against Denron
commencing the instant lawsuit. (Mot. Joinder & Relief~ 16.) Dennis claims that mnny of the
allegations contained in that Complaint were false and that Ronald knew of their falsity when he
signed the Complaint. (Mot. Joinder & Relief~~ 17-18 1 24.)
Neither Ronald nor his attorney provided Dennis with notice of this proceeding. (Mot.
Joinder & Relief~ 27.) Sometime prior to November 8, 2016, Ronald retained Timothy Bryant,
Esq., as legal counsel to Denron. (Mot. Joinder & Relief~ 29.) Sometime prior to November 8,
20 l 6 1 Ronald directed Mr. Bryant to file an Answer on behalf of Denron that admitted the material
allegations in the Complaint. (Mot. Joinder & Relief~ 30.) Sometime prior to Novembel' 10, 2016,
Ronald directed Mr. Bryant to consent to a judgment in Ronald's favor and against Demon in this
proceeding. (Mot. Joinder & Relief, 31.) The consent judgment procmed by Ronald permits him
alone to issLte additional distributions from the assets of Denron as frequently as quarterly in
amounts up to $400,000. (Consent Judgment,r~ 8-9,)
ST ANDARD OF REVIEW When interpreting the Maine Rules of Civil Procedure, a court looks to the plain language
of the rule to determine its meaning. Gauthier v. Gerrish, 2015 ME 60, ~ 9, 116 A.3d 461. In
relevant part, M,R, Civ. P. 19(a) states:
A person who is subject to service of process shall be joined as a party in the action if ... the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may ... as a practical matter impair or impede the person's ability to protect that interest ... . If the person has not been so joined, the court shall order that the person be made a party.
2 M.R. Civ, P. 19(a)(2)(i). The Rule's "aim is perhaps best summed up by the statement that it
'protects unjoined but interested parties by assuring that their interests wiJJ not be prejudiced
without theil' participation and it protects active parties by assuring that issues wilJ not have to be
relitigated."' 2 Harvey & Merritt, Maine Civil Practice § 19:1 at 558 (3d, 2011 ed.) (quoting
Ocwen. Fed. Bank v. Gile, 2001 ME 120,, 14, 777 A.2d 275). A court's interpretation of a Maine
Rule of Civil Procedure ls subject to de nova review on appeal. Gauthier, 2015 ME 60, f 9, ( 16
A.3d 461.
DJSCUSSION
At the oral argument, Dennis agreed that the motion for joinder must be considered before
ruling on the motion for relief from judgment because Rule 60(b) expressly limits relief from
judgment to parties to that judgment. See M.R. Clv. P. 60(b). However, Dennis was unable to bring
to the Court's attention any precedent for the procedure he requested; that is,joinder of a party to
an action pursuant to M.R. Civ. P. 19(a) after the entry of final judgment in order to allow that
party to bring a motion for relief from judgment under Rule 60(b), The Court need not decide
whether such a pl'ocedure is allowable as a general rule because Dennis is not a necessary party
under M.R. Civ. P. 19(a).'
Dennis claims that joinder is required because he "was an indispensable party," as he
"claims an interest relating to the subject matter of Ronald's Complaint . , .. 11 (Mot. Joinder &
Relief~~ 25-26.) However, Dennis never identifies that interest. At the oral argument, Dennis
, Alrltough in their briefs and at oral argument the parties framed the issue as whether Dennls was an "indispensable" party, the inquiry under Rule 19(a) is whether a party Is "necessary.'' See 2 Harvey & Merrill, Maine Civil Practice § 19:J at 559 (3d, 2011 ed.) ("Such a patty [who meets the requirements of M.R. Civ. P, 19(a)]. to borrow the terminology of earlier cases, is al least 'necessary.' . , . If a necessary pa1ty cannot be served with process, the court must then determine under Rule 19(b) , , . whether be is 'indispcnsnble' in tho sense that the suit cannot proceed without him.").
3 suggested that his status as 50% owner, board member, and treasurer renders him an indispensable
party under Rule 19(a). The question of whether a board member of a corporation is a necessary
party under Rule 19(a) in an action against the corporation is undecided under Maine law. The
weight of authority supports the conclusion that he is not. See Whittemore v. Cont 1l Mills, 98 F.
Supp. 387, 394 (D. Me. 1951); Pioneer Capttal Corp. v. Environamics Corp., No. 02-217-P-C,
2003 U.S. Dist, LEXIS 2229, at *10- 11 (D. Me. Feb. 14, 2003). But see Guitard v. Gorham Sav.
Bank, No. CV-00-326, 2002 Me. Super. LEXIS 82, *7 n.4 (Apr. 9, 2002).
More to the point, Dennis's claim that he "is so situated that a disposition of the action in
his absence impairs and impedes his ability to protect that interest within the meaning of'M.R. Civ.
P. l 9(a)" lacks any supporting argument. See M.R. Civ, P. 19(a)(2)(i). (Mot. Joinder & Relief~
26.) Dennis's motion merely recites the language of M.R, Civ. P. 19(a)(2), Dennis fails to explain
why his absence impedes his ability to protect whatever his unidentified "interest" in the litigation
may be. The circumstances of this case indicate that Dennis would not have been able to maintain
such an argument.
Dennis's interest cannot be a financial one. At the oral argument, the parties' attorneys
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STATE OF MATNE BUSINESS & COUNSUMER DOCKET CUMBERLAND 1 ss. DOCKET NO. BCD-CV-18-28 ./
RONALD F. BARRIAULT, ) ) Plaintiff, ) ) v. ) ORDER ON DENNIS A. BARRIAULT'S ) VERIFIED MOTION FOR JOINDER DENRON, 1NC., ) AND FOR RELIEF FROM JUDGMENT ) Defendant. )
This matter comes before the Court on Movant Dennis A. Barriault's verified motion for
jolnc!cr and for relief from judgment brought pursuant to M.R. Civ. P. I9(a) 1 and 60(b). Plaintiff
Ronald Baniault and Defendant Denron, Inc. both oppose the motion. The Court heard oral
argument on the motion on August 6. Ronald Lebel, Esq. appeared on behalf of Dennis;• Kurt
Olafsen, Esq. appeared fol' Plaintiff Ronald; and Timothy Bryant, Esq. appeared for Denron.
BACKGROUND
Ronald and Dennis are brothers who are also officers of Denron: Ronald is the president
of Demon and Dennis is its treasurer. (Mot. Joinder & Relief~~ 1-6; Consent Judgment 11 3.)
Denron maintained an operating business checking account with Androscoggin Bank, account
ending t/5168, in its name; Denron deposited all its income into this account. (Mot. Joinder &
Relief~ 9.) On October 13, 2016, without the knowledge or consent of Dennis, Ronald withdrew
' Although captioned as being brought pursuant to M.R. Civ. P, 19, 20, and 21, Dennis's memorandum of law in support of his motion addresses only M.R. Civ. P. 19(a), At the oral argument Dennis likewise gl'ounded his argument for joinder exclusively in Rule 19(a). See Mehlhorn v. Derby, 2006 ME 110, ~ 11,905 A.2d 290 (quoting United States v. Zannino, 895 F.2d l, 17 (1st Cir. I 990)) ("Because they have neither supplied argument nor suggested a rationale in support of their position , .. we decline to reach the issue."). ' Becat1se the two Individual parties share the same last name, the Court refers to them both by their first names thrnughout this Order.
1 $400,000 from the Denron account and deposited the money in a joint account in Demon and
Ronald's name at the Androscoggin Bank, account number ending in 113659. (Mot, Joinder &
Relief~ 10; Bxs, 1, 2A.) On November 9, 2016, Ronald filed his Complaint against Denron
commencing the instant lawsuit. (Mot. Joinder & Relief~ 16.) Dennis claims that mnny of the
allegations contained in that Complaint were false and that Ronald knew of their falsity when he
signed the Complaint. (Mot. Joinder & Relief~~ 17-18 1 24.)
Neither Ronald nor his attorney provided Dennis with notice of this proceeding. (Mot.
Joinder & Relief~ 27.) Sometime prior to November 8, 2016, Ronald retained Timothy Bryant,
Esq., as legal counsel to Denron. (Mot. Joinder & Relief~ 29.) Sometime prior to November 8,
20 l 6 1 Ronald directed Mr. Bryant to file an Answer on behalf of Denron that admitted the material
allegations in the Complaint. (Mot. Joinder & Relief~ 30.) Sometime prior to Novembel' 10, 2016,
Ronald directed Mr. Bryant to consent to a judgment in Ronald's favor and against Demon in this
proceeding. (Mot. Joinder & Relief, 31.) The consent judgment procmed by Ronald permits him
alone to issLte additional distributions from the assets of Denron as frequently as quarterly in
amounts up to $400,000. (Consent Judgment,r~ 8-9,)
ST ANDARD OF REVIEW When interpreting the Maine Rules of Civil Procedure, a court looks to the plain language
of the rule to determine its meaning. Gauthier v. Gerrish, 2015 ME 60, ~ 9, 116 A.3d 461. In
relevant part, M,R, Civ. P. 19(a) states:
A person who is subject to service of process shall be joined as a party in the action if ... the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may ... as a practical matter impair or impede the person's ability to protect that interest ... . If the person has not been so joined, the court shall order that the person be made a party.
2 M.R. Civ, P. 19(a)(2)(i). The Rule's "aim is perhaps best summed up by the statement that it
'protects unjoined but interested parties by assuring that their interests wiJJ not be prejudiced
without theil' participation and it protects active parties by assuring that issues wilJ not have to be
relitigated."' 2 Harvey & Merritt, Maine Civil Practice § 19:1 at 558 (3d, 2011 ed.) (quoting
Ocwen. Fed. Bank v. Gile, 2001 ME 120,, 14, 777 A.2d 275). A court's interpretation of a Maine
Rule of Civil Procedure ls subject to de nova review on appeal. Gauthier, 2015 ME 60, f 9, ( 16
A.3d 461.
DJSCUSSION
At the oral argument, Dennis agreed that the motion for joinder must be considered before
ruling on the motion for relief from judgment because Rule 60(b) expressly limits relief from
judgment to parties to that judgment. See M.R. Clv. P. 60(b). However, Dennis was unable to bring
to the Court's attention any precedent for the procedure he requested; that is,joinder of a party to
an action pursuant to M.R. Civ. P. 19(a) after the entry of final judgment in order to allow that
party to bring a motion for relief from judgment under Rule 60(b), The Court need not decide
whether such a pl'ocedure is allowable as a general rule because Dennis is not a necessary party
under M.R. Civ. P. 19(a).'
Dennis claims that joinder is required because he "was an indispensable party," as he
"claims an interest relating to the subject matter of Ronald's Complaint . , .. 11 (Mot. Joinder &
Relief~~ 25-26.) However, Dennis never identifies that interest. At the oral argument, Dennis
, Alrltough in their briefs and at oral argument the parties framed the issue as whether Dennls was an "indispensable" party, the inquiry under Rule 19(a) is whether a party Is "necessary.'' See 2 Harvey & Merrill, Maine Civil Practice § 19:J at 559 (3d, 2011 ed.) ("Such a patty [who meets the requirements of M.R. Civ. P, 19(a)]. to borrow the terminology of earlier cases, is al least 'necessary.' . , . If a necessary pa1ty cannot be served with process, the court must then determine under Rule 19(b) , , . whether be is 'indispcnsnble' in tho sense that the suit cannot proceed without him.").
3 suggested that his status as 50% owner, board member, and treasurer renders him an indispensable
party under Rule 19(a). The question of whether a board member of a corporation is a necessary
party under Rule 19(a) in an action against the corporation is undecided under Maine law. The
weight of authority supports the conclusion that he is not. See Whittemore v. Cont 1l Mills, 98 F.
Supp. 387, 394 (D. Me. 1951); Pioneer Capttal Corp. v. Environamics Corp., No. 02-217-P-C,
2003 U.S. Dist, LEXIS 2229, at *10- 11 (D. Me. Feb. 14, 2003). But see Guitard v. Gorham Sav.
Bank, No. CV-00-326, 2002 Me. Super. LEXIS 82, *7 n.4 (Apr. 9, 2002).
More to the point, Dennis's claim that he "is so situated that a disposition of the action in
his absence impairs and impedes his ability to protect that interest within the meaning of'M.R. Civ.
P. l 9(a)" lacks any supporting argument. See M.R. Civ, P. 19(a)(2)(i). (Mot. Joinder & Relief~
26.) Dennis's motion merely recites the language of M.R, Civ. P. 19(a)(2), Dennis fails to explain
why his absence impedes his ability to protect whatever his unidentified "interest" in the litigation
may be. The circumstances of this case indicate that Dennis would not have been able to maintain
such an argument.
Dennis's interest cannot be a financial one. At the oral argument, the parties' attorneys
confirmed that Dennis received his 50% share of the disbursement that Ronald unilaterally
declared and then attempted to legltimize in this lawsuit. The fact that Dennis l'eceived his share
of the disbursement belies the proposition that he "is so situated that the disposition of the action
[n (his·1absence may .. , as a practical matter impair or impede [his] ability to protect [his] interest"
in that money. See M.R. Civ, P. 19(a)(2)(i). At the oral argument, Dennis effectively conceded that
his interest in this litigation boils down to Ronald's alleged fraud and breach of fiducial'y duty to
Demon and Dennis by making the challenged disbursement and then prosecuting/ defending this
4 lawsuit. That interest can be protected through an action• against Ronald for breach of fiduciary
duty. Dennis has in fact already brought a complaint for judicial dissolution of Denron under 13C
M.R .S. § 143 based on Ronald's actions in this lawsuit: Barriault v. Denron, Inc. et at., BCD-CV
17-39. In that case, Dennis alleges that Ronald breached his fiduciary duties to Dennis and Demon;
this lawsuit and Ronald's maneuvering to obtain a consent judgment herein make up most the
facttrnl allegations pied in that other action. (See Amended Compl., 4 in Barriault v. Denron, Inc.
et at., BCD-CV-17-39.) In the consolidated case of Barriault v. Barriault, et al., BCD-CV-17-54,
Dennis brings a Counterclaim against Ronald in which he seeks damages for Ronald's alleged
breach of fiduciary duty arising out of the same factual allegations. (See Def' s Countercl. ~~ 9-11,
20-30, 42-44 in Barriault v. Barriault, et al., BCD-CV-17-54.) The Court therefore concludes that
even if Dennis has "claimed an interest relating to the subject of the action" based on his status as
50% owner, board member, and treasurer of Denron, the circumstances of this case and the
companion lawsuit filed by Dennis show that he is not so situated that the disposition of this action
in bis absence as a practical matte!' impaired or impeded his ability to protect that interest. See
M.R. Civ. P. 19(a)(2)(i).
Jn sum, this case does not present a situation where the Court would consider the novel
procedure urged by Dennis to join him as a party under M.R, Civ. P. 19(a) in order to allow him
to bring a motion for relief from judgment under M.R. Civ. P. 60(b) because Dennis is not a
necessary party under Ruic 19(a). As a non-party Dennis is foreclosed from bringing a Rule 60(b)
motion in this case.
· At the oral argument, Dennis argued that even lf he concededly had a cause of action against Ronald lhat Demon's rights could only be protected thl'ough Dennis's being joined Jn Lhis lawsuit. However, as pointed out by Denron's counsel, Dennis could bring a derivative action agalnst Ronald on behalfof Demon, although Dennis personally would not have much to gain in such an action as he is the only other shareholder of Demon and has already received half of the dlsburscmenl of which Dennis complains.
5 CONCLUSION
Based on the foregoing it is hereby ordered:
That non-party Movant Dennis A. Barriault' s verified motion for joinde1· and for relief from
judgment is DENIED.
The Clerk is requested to enter this Order on the docket for this case by incorporating it by
reference. M.R. Civ. P. 79(a).
Dated: ·chaela Murphy Justice, Business and Consumer Comt
Entered on the Docket: Kb> I rI I Copies sent via Mail_Electronically--1("