Drew v. Moore

• Court: Superior Court of Maine
• Decided: September 23, 2022
• Docket: OXFre-21-08
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT OXFORD, ss. CIVIL ACTION DOCKET NO. RE-21-08

NANCY V. DREW, ) ) Plaintiff ) ORDER ON PLAINTIFF'S MO'l'ION ) TO DISMISS ACTION PURSUAN'l' V. ) TO M.R. CIV. P. 41(a)(2) ) AMELIA A. MOORE ) ) Defendant )

'!'his is an equitable partitien action involving real estate jointly owned by the

parties in Paris, Maine (the "Real Estate''). The plaintiff has filed a motion to

dismiss the action without prejudice. The defendant opposes the motion. For the

following reasons, the plaintiffs motion to dismiss without prejudice is granted,

BACKGROUND The plaintiff, Nancy V. Drew, is the mother of tho defendant, Amelia A.

Moore. On April 5, 2021, the plaintiff filed a complaint for equitable partition of the

Real Estate. In an answer filed on May 24, 2021, the defendant sought dismissal of

tho complaint with prejudice, and an award of costs and attorney's fees. The

defendant did not assert any counterclaims. The parties have twice engaged in

mediation, and on March 23, 2022, they jointly moVfid to stay the matter for 90 clays

to continue settlement discussions.

On May 31, 2022, the plaintiff filed a motion pursuant to M.R. Civ. P. 4l(a)(2)

to dismiss the action without prejudice, and without costs and fees. The defendant

opposes the motion to dismiss, and seeks an award of her costs and attorney's fees

1 incurred in defense of the motion. No other pretrial motions have been filed in this

matter.

DISCUSSION

Maine Rule of Civil Procedure 4l(a) governs voluntary dismissal of a civil

action. A plaintiff Cttn dismiss his or her own action without court approval,

provided that dismissal occurs before the filing of the answer or that the parties

have stipulated to clismissal. M.R. Civ. l'. 4l(a)(l). If those conditions have not

been met, the court may order dismissal "upon such terms and conditions" as it sees

fit; such dismissals are without prejudice, unless the court orders otherwise. M.R.

Civ. P. 41(a)(2). 'l'he rule thus grants the court "discretion to dismiss a case with or

without prejudice." Green Tree Servicing, LLC v. Cope, 2017 ME 68, ,r 16, 158

A.3d 931.

Here, because the defendant has filed an answer and will not stipulate to

dismissal, Rule 41(a)(2) governs. Voluntary dismissal in this matter will result in

continued joint ownership of the Real Estate. This appears to be tho outcome the

defendant desired from the outset of the litigation, when she filed an answer asking

the court to dismiss the complaint and did not file any counterclaims. 'l'he court

accordingly finds that dismissal in this matter will not prejudice the defendant.

'I'he court further finds that the matter should he dismissed without

prejudice, consistent with the presumption set forth in Rule 4 l(a)(2). '!'here is no

evidence in the record that the parties have engaged in extensive pretrial

proceedings or that the plaintiff seeks dismissal for purposes of tactical advantage

2 or tlelay. See 1'D Banh North, N.A. v. Hawkins, 2010 MB 104, ~I 23, 5 A.3d 1042.

Finally, the defondant seoks costs and attorney's fees, but has citod no statutory or

contractual basis for awarding her costs and foes incurred in defending the

plaintif/'s motion to dismiss.

For the foregoing reasons, the plaintiffs motion to dismiss without projudice

is GHAN'l'mD. The dofendant's request for costs and attorney's foes is DENTED.

'fhe clerk is directed to incorpornte this order on the docket by reference

pursuant to M.R. Civ. P. 79(a).

DATED:

3 Braden M. Clement I Bar No. 5290

Skelton Taintor &Abbott /i.lUlllNl:YS /\'f 1/\W

June 28, 2022

Michelle Racine, Clerk Oxford County Superior Court 26 Western Avenue South Paris, ME 04281

Re: Nancy V. Drew v. Amelia A. Moore Docket No. RE-2021-08

Dear Ms. Racine:

Enclosed for filing please find Plaintiffs Reply Briefin Supp01t of Motion to Dismiss Action Pursuant to M.R. Civ. P. 4l(a)(2).

If you have any questions, please feel free to contact me. Thank you.

With best regards,

BMC/dm Enclosure

cc: Jason Dionne, Esq. (via e-mail) Nancy V. Drew (via first-class mail)

500 Canal Street• Lewiston, ME 04240 • 207.784.3200 011•1cr • 207.784.3345 rMc bclement@sta-law.com L-.IViAII. • sta-law.com Vi/L.H Dionne law, P.A. June 20, 2022

Oxford County Superior Court Michelle Racine, Clerk 26 Western Ave. South Paris, ME 04281

Re: Nancy V. Drew v. Amelia A. Moore Docket No: RE-21-08

Dear Michelle:

Enclosed for filing, please find Defendant's Opposition to Motion to Dismiss. Thank you for your attention to this matter.

Very truly yours,

ENC Cc: Braden Clement

86 Main Street, P.O. Box 317, Auburn, ME 04212 (207) 489-2160 toye@dionnelaw.me