Farm Credit of Maine v. Bessey
Opinion
STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss Location: Portland 1 Docket No.: BCD-CV-1 rsl / ;1.1] f>~{M .\_) 'Y;- '\I) 0/. :'•;) l<'/ '"',1.. f " '
) \.. " \ ·-· ··l ""'t. /
FARM CREDIT OF MAINE, ACA, )
)
Plaintiff, )
)
V, )
)
JOSEPH W. BESSEY, RANGELEY )
STATION, LLC, nnd VALLEY )
ACQUISITIONS, INC., )
)
Defendants ) Order ) (Motion fo1· Default)
)
JOSEPH W. BESSEY, VALLEY ) ACQUISITIONS INC., and RANGELEY ) STATION, LLC, )
)
Plaintiffs, )
)
V. )
)
FARM CREDIT OF MAINE, ACA and ) SCOTT G. KENNEY, )
)
Defendants )
)
Joseph Bessey, Valley Acquisitions, [nc., and Rangeley Station, LLC (collectively, the "Bessey parties,) move for default and default judgment against Defendants Farm Credit of Maine, ACA and Scott G. Kenney (collectively, Fmm Credit) ill tllis consolidated mattet·. 1 The Court took the motion under advisement on Februmy 7, 2014, pursmmt to the Case Management Conference Order issued that datc. 2
1 Purswmt to the Order on Motion to Consolid!lto dated F'obrulll)' 26, 20 I4, BCD-CV-13-81 nnd BCD-CV -14-09 were consolidated.
The Bessey parties initiated this matter in Aroostook County Superior Cm.u"t on August 28, 2013, by filing a complaint and motion fo1' temporary restraining m·der (TRO) to enjoin a pending power of sale foreclosme sched\lled fot· September 5, 2013. See M.R. Civ. P. 3. The complaint was not verified and the motion did not include an nffldnvH as required by M.R. Civ.
P. 65(a). Justice Cuddy initiated a telephonic conference of counsel on August 29,2013. During the call, Justice Cuddy noted the inadequacies of the complaint and motion. The matter was continued for a hcal'ing on Septembct· 3, 2013.
Fat"m Credit and Kenney filed an opposition to the TRO, supported by the afftdnvit of Julianne Ray, on September 2, 2013. Pl'ior to the henrhlg on Septembe1· 3, 2013, the Bessey pm·ties filed an amended and verified complaint signed by Mr. Bessey. Juslice Cuddy denied the TRO by order dnted September 4, 2013. On September 5, 2013, the Bessey parties filed fl notice of appeal of the denial of the TRO and motion to stay the matter ]Jending appeal. After a phone conference with cowlsel/ Justice Cuddy denied the motion by order dated September I 0, 2013.
Justice Hunter issued n scheduling order on October 18, 2013. The Bessey pa11ies filed a second amended complnint on October 28, 2013. On December 18, 2013, Ftu'm Credit nnd Kenney filed their motion to dismiss, bur did no! otherwise answer cmy of the filed complaints. See M.R. Civ. P. 12(b). On Janum·y 6, 2014, the Bessey pa11ies moved for defa\llt and default judgment. No return of service has ever been filed with the com·t following the filing of the original complaint, the mnended complaint, or the second amended complaint.
2 Pnnn Crcdll hns moved to dismiss this mnlter for fhilurc to file 11 reh1rn of service and insufficient service of process. See M.R. Clv. P. 3, 12(ll)(5). Counsel for Farm Credit Informed the Court 111 the Case M11nngemcnt Conference, in the presence of Counsel for the Plaintiffs in this matter, lh11t it would be withdrnwing this 11\0tion should the Court deny the motion for defnull and defnull judgment. Accordingly, the Court does not nddress lhe merits of the motion to dismiss nt lhis time. J During the phone conference wilh Juslice Cuddy, counsel advised lhnt the auction snle hnd been rescheduled until October 8, 2013.
The Bessey parties assert that because Farm Credit has defended through the temporary restraining order and motion for stay and has not answered the complaint, Farm Credit has failed to respond and the Bessey parties are entitled to default judgment. The Bessey pat1ies also assert that the same fncts constitute waiver of the defect in the return of service.
A default is on..ly appropriate "[w]hen a patiy against whom a judgment for affmnative relief is sought has failed to plead or otherwise defend as provided by these mles and that fact is made to appe!U' by affidavit 01' otherwise." M.R. Civ. P. 55(a). Nevertheless, 11 [b]ecause a party has no duty to plead until properly served, sufficient service of process is a prerequisite to entry of default." Adams v. Howe, 2:10-CV-13529, 2011 WL 1743428, at *2 (E.D. Mich. Apt·. 13, 2011 ); accord Silver v. Brown, 678 F. Supp. 2d 1187, 1199 (D,N.M. 2009) ("A motion fm· default judgment is meritless, however, when the defendants were never properly served.") rev 'd in part on other grounds, 382 F. App'x 723 (lOth Cu·. 2010). See also M.R. Civ. P. 12(a) (uA defendant shall serve that defendant's answer withlu 20 days c(/ler the ser11/ce of the summons and complaint . .. "(emphasis added)).
In this case, the Comt is not entirely clenr upon which form of service the Bessey parties rely. The motion for default, which was attested to by Attomey Chute, states that the Bessey parties "simultaneously with the flling with this Conrt, served in hand the defendants, Farm Credit of Maine and Scott Kenney, through counsel, with the Complaint together with its Motion for Temporary Restraining Ordcl' and Preliminary Injunction. (A true copy of the receipt for service upon UPS delivery nppended hereto.)." 4 (M. Default 1.) The service could th\IS be pursuant to M.R. Civ. P. 4(d)(9) Ol' pursuant to M.R. Civ. P. 4(c)(1). In either case, however, the Bessey parties were required to file a retmn of service with the comt pmsuant to M.R. Civ. P.
4 It is not clear if "lluough counsel" means thnt lhe complaint was lumdcd from counsel to counsel, or tlu~t the Bessey parties hRndcd the complnint to Farm Credit's counsel. The Court fttrther notes that service of process requires service of both summons and complaint, not just a complaint. M.R. Civ. P. 4(c), (d).
J
4(h). See Brown v. Thaler, 2005 ME 75, ~~ 4-5, 880 A.2d 1113. No return of service has been filed. Having failed to show proper service that would require Farm Credit or Kenney lo nnswer pursuant to M.R. Civ. P. l2(n), the Bessey pm1ies are not entitled to defa\llt OJ' default judgment agftinst Fm·m Credit or Kenney.
Based on the foregoing, the motion of Joseph Bessey, Vftlley Acquisitions, Inc., and Rangeley Station, LLC for default and default judgment is DENIED. The Clerk sbaU note this Ordet· on the docket pmsuant to Rule 79(a) of the Maine Rules of Civil Procedme.
Dale: _...:._") _/_:;.,o_/_1'-1.,--'---
M. icbaehMurphy
Business and Consmner Comt
Entered on the Docket:~(JtJki -
Copies sent via Maii_Eiectronically~
Farm Credit of Maine, ACA v. Joseph W. Bessey, Rangeley Station, LLC and Valley Acquisitions, Inc. BCD-CV-13-81
Farm Credit of Maine, ACA Petitioners I Plaintiffs
Counsel: Randy Creswell, Esq.
Shawn K. Doil, Esq.
One Canal Plaza
Suite 900
P.O. Box426
Portland, ME 04112
Joseph W. Bessey, Rangeley Station, LLC and Valley Acquisitions, Inc.
Respondents I Defendants
Counsel: Stephean C. Chute, Esq.
P.O. Box 707
South Casco ME 04077
Scott G. Kenney 3rd Party Defendant
Counsel: Lauren Weliver, Esq.
One Canal Plaza
Suite 900
P.O. Box 426
Portland, ME 04112
STATE OF MAINE BUSINESS AND CONSUMER COURT ./ CUMBERLAND, ss Location; Portland DocketNo.: BCD-CV. -13;8~
FARM CREDlT OF MAINE, ACA, )
)
JV1('{Y{\- c.tttn - y o_ o ;to 1LJ
1
)
Plaintiff, )
)
~ )
)
JOSEPH W. BESSEY, RANGELEY ) STATION, LLC, and VALLEY ) ACQUISITIONS, INC., )
)
Defendonts ) O•·clel'
) (Motion for Valuation and Tempomry ) Restraining Order)
JOSEPH W. BESSEY, VALLEY ) ACQUISITIONS INC., nnd RANGELEY ) STATION, LLC, )
)
Plaintiffs, )
)
v. )
)
FARM CREDIT OF MArNE, ACA and ) SCOTT G. KENNEY, )
)
Defendants )
)
BACKGROUND
Before the Court is Defenchmts' "Verified Motion Valuatiot\ for Redemption
14 M.R.S.A. § 9-1623 Temporary Restmining Ot·der Rule 65 M.R.Civ.P", which the Comt took under advisement on February 7, 2014, pursuant to the Case Management Conference Order issued that date. 1
1 Pursunnt to the Order on Motion to Consolidate dntcd February 26, 2014, this case was consolidated with BCD·CV-14-09.
Free access — add to your briefcase to read the full text and ask questions with AI
Farm Credit of Maine v. Bessey (Farm Credit of Maine v. Bessey) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.