Coastal Restoration Svs., Inc. v. Green

• Court: Superior Court of Maine
• Decided: December 15, 2009
• Docket: CUMcv-09-107
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO: CV-09-107

COASTAL RESTORAnON SERVICES, INC.

Plaintiff ORDER v.

ROBERT C. GREEN, SUSAN DIPIETRO GREEN

Defendants

Before the Court is defendants Robert C. Green and Susan DiPietro­

Green's Rule 12(b) Motion to Dismiss due to plaintiff Coastal Restoration

Services' failure to make timely service of process and failure to timely file the

return of service in violation of Rule 3.

BACKGROUND Plaintiff Coastal Restoration Services, Inc. (Plaintiff), commenced this

action on February 20,2009 by filing its Complaint for breach of contract, unjust

enrichment, a mechanic's lien claim, and violation of the prompt payment

statute. The Complaint named Robert C. Green and Susan DiPietro-Green

(collectively "Defendants") as defendants, and named CitiMortgage, Inc. as a

party-in-interest. Plaintiff had until May 21, 2009, ninety days after filing its

complaint, to file returns of service with the Court. M.R. Civ. P. 3. Plaintiff has

never attempted to extend this deadline pursuant to M.R. Civ. P. 6(b).

1 Plaintiff filed a return of service on party-in-interest CitiMortgage on

March 6, 2009, but did not file any returns for Defendants. Plaintiff claims that in

February 2009 it"discussed acceptance of service by counsel for the Defendants,"

and that "[a] form of acceptance was provided and never executed." Plaintiff

then"did not follow up or otherwise make service" on Defendants until August

5,2009. That service was filed with the Court on August 11,2009, one hundred

seventy-two days after Plaintiff filed its complaint. On July 30 and 31, 2009,

Plaintiff did file a Motion to Retain the Case on the Docket that was granted in a

summary order by the Court, Wheeler, J., but Plaintiff has not filed any Motion

to Enlarge or otherwise requested an extension pursuant to M.R. Civ. P. 6(b).

Plaintiff references a "Rule 3 Order" issued on July 1, 2009, but no evidence of

that order exists in the record.

DISCUSSION

Defendants filed this Motion to Dismiss pursuant to M.R. Civ. P. 12(b) on

August 24,2009. Plaintiff argues that dismissal will substantially harm it and

deliver Defendants a windfall by causing Plaintiff's lien to collapse. Plaintiff

contends that equity, the July 31st order, and the February correspondence with

Defendants' counsel add up to "excusable neglect" in this case.

Rule 3 expressly authorizes dismissal as the sanction for untimely service,

absent excusable neglect shown through a Rule 6 motion. Dismissal is not

mandatory, but is encouraged. M.R. Civ. P. 3 ("the action may be dismissed");

M.R. Civ. P. 3 advisory committee's note to 1989 amend. ("[R]eturn of service

must be filed within 90 days after the filing of the complaint with the sanction of

dismissal"). "Excusable neglect will be found only when there are extraordinary

2 circumstances that work an injustice." Dyer Goodall & Federle, LLC v. Proctor, 2007

ME 145, «JI 18, 935 A.2d 1123, 1127. Excusable neglect often consists of a sudden

emergency coupled with minimal delay. See id. at «JI«JI 19-21, 935 A.2d at 1127

(citing Gregory v. City of Calais, 2001 ME 82, 771 A.2d 383; Solomon's Rock Trust v.

Davis, 675 A.2d 506 (Me. 1996)). The "press of other business" offers no excuse.

Id. at «JI 20, 935 A.2d at 1127.

Plaintiff did not serve process on Defendants or file the return until almost

three months after the deadline. Plaintiff gives no reason to explain, much less

justify, its failure to "follow up" its initial communications with Defendants'

counsel. Plaintiff discussed service with Defendants' counsel in February, and

then ignored its lawsuit for five months. Plaintiff does not allege that Defendants

acted in bad faith. Rather, Plaintiff simply neglected to pursue its case, and there

is nothing extraordinary in the record to excuse that neglect. Under these

circumstances dismissal is appropriate pursuant to M.R. Civ. P. 3.

The entry is:

Defendants' Motion to Dismiss is granted and PIa' vCl>tnolaint and all claims contained therein are dismissed with prejudice.

3 11/10/2009 MAINE JUDICIAL INFORMATION SYSTEM gmerritt CUMBERLAND COUNTY SUPERIOR COURT mjxxi013 PAGE A - ATTORNEY BY CASE VIEW COASTAL RESTORATION SERVICES INC VS ROBERT C GREEN ET ALS UTN:AOCSsr -2009-0018956 CASE #:PORSC-CV-2009-00107

SEL VD REPRESENTATION TYPE DATE 01 0000008007 ATTORNEY:HEPLER, BRUCE ADDR:75 PEARL STREET PORTLAND ME 04101 F FOR:ROBERT C GREEN DEF RTND 08/24/2009 F FOR:SUSAN DIPIETRO GREEN DEF RTND 08/24/2009

02 0000007539 ATTORNEY: SHERRY, SAMUEL M ADDR:41 BATES STREET PO BOX 18201 PORTLAND ME 04112-8201 F FOR:COASTAL RESTORATION SERVICES INC PL RTND 02/20/2009

Enter Option: A=Add, B+Sel=Browse, M=More, R+Sel=RltnEdit:

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,r,c/, {i:'----' COASTAL RESTORATION SERVICES, INC.

The plaintiff moves under Rule 59(e) for reconsideration of the Court's

November 10, 2009 Order granting the defendants' Motion to Dismiss. The Court

treats a motion to reconsider as a motion to alter or amend a judgment.

Geyerl1f71171 v. United Stntes Fid. [1 Gum. Co., 1999 ME 40, c:rr 9, 724 A.2d 1258, 1260.

"It is a procedural vehicle to correct a judgment where there has been an error of

Jawor clear error amounting to an abuse of discretion." Westbrook Assocs. v. City

of Westbrook, 1994 Me. Super. LEXIS 216 (June 3, 1994).

In this case the plaintiff filed its return of service of process eighty-two

days after the deadline established by M.R. Civ. P. 3. The plaintiff argued that it

believed the defendants' counsel would execute the requisite documents, and

that this mistaken belief excused the plaintiff's failure to follow-up on the case

for over five months. This Court disagreed and granted the defendants' Motion

to Dismiss.

1 The plaintiff does not point to any error of law, abuse of discretion, or

newly discovered evidence that might call the Court's original Order into doubt.

The plaintiff instead restates its original argument, asking "a second time for the

same relief, citing essentially the same reasons, and brought for no other

apparent reason than an inability or unwillingness to accept the [C]ourt's

previous ruling." Westbrook Assocs., 1994 Me. Super. LEXIS 216 (June 3,1994).

The defendants' counsel's failure to execute service was not an extraordinary

circumstance excusing the plaintiff's admitted failure to prosecute its case within

the time allotted by Maine's Rules of Civil Procedure.

The plaintiff's Motion for Reconsideration is de

DATE: . Cole f the Superior Court

2 CUA::i'l'lU.J Kr.;::i'l'UKA'l' .iUN ::ir.;KV.iCr.;::i .iNC V::i KUJjr.;K'l' C ljKr.;r.;N r.;'l' AL::i UTN:AOCSsr -2009-0018956 CASE #:PORSC-CV-2009-00107

01 0000008007 HEPLER, BRUCE 75 PEARL STREET PORTLAND ME 04101 DEF -F ROBERT C GREEN RTND 08/24/2009 F SUSAN DIPIETRO GREEN DEF RTND 08/24/2009

02 0000007539 SHERRY, SAMUEL M 41 BATES STREET PO BOX 18201 PORTLAND ME 04112-8201 F COASTAL RESTORATION SERVICES INC PL RTND 02/20/2009