G.M.G. v. FIUP Realty Co., Inc.

• Court: Superior Court of Maine
• Decided: January 21, 2003
• Docket: CUMcv-02-570
• Status: Unpublished

Opinion

STATE OF MAIN \ dmberland, ss, Cleries, Office

SUPERIOR COURT STATE OF MAINE JAN 21 2003 SUPERIOR COURT CUMBERLAND, ss. _ CIVIL ACTION RECE! DOCKET NO. CV-024570 VED REC Cui) - \/2 jr.cod G.MG., Plaintiff, ORDER ON FIUP REALTY CO., INC.’s v. MOTION TO DISMISS aps aah DONALD L. GARE ont FIUP REALTY CO., INC., LAW LIBRAS

Defendant.

FEB 22 2003 FACTUAL BACKGROUND

Defendant FIUP Realty Co., Inc.’s (FIUP’s) Motion to Dismiss Plaintiff G.M.G.’s Complaint because it failed to join Key Bank National Association (Key Bank), an - indispensable party to the lawsuit is before the court.’

In December 1977, G.M.G.’s predecessor-in-interest, Herbert Ginn (Ginn), granted an easement to Maine National Bank (MNB). Compl. I 6. This easement provided that MNB and its successors and assigns could connect with and use the storm water drainage system at the Maine Mall Plaza Shopping Center. Id. {_7. The easement agreement (agreement) provided that the grantee was to pay Ginn $1000 annually in consideration for the use of the

drainage system. Id. { 8. The easement was properly recorded in the Cumberland County

1 Although filed as a motion to dismiss, Defendant conceded at oral argument that dismissal is not required if the court finds that Key Bank should be joined. Larrabee v. Town of Knox, 2000 ME 15, { 10, 744 A.2d 544 (holding when a party is “subject to service of process” it is unnecessary to reach the question of whether the action should proceed)(citations omitted). An action will only be dismissed if the court determines that the party to be joined is “indispensable” and cannot be joined. Id. (emphasis added). See also Caron v. City of Auburn, 567 A.2d 66, 68 (Me.1989).

MLR. Civ. P. 19(a) states as follows:

(a) Persons to Be Joined if Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) 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 (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a

ve aan

On December 18, 1992, Fleet Bank of Maine, a successor-in-interest to MNB, conveyed the parcel of land to the Defendant. Id, { 9. Defendant purchased the parcel subject to all of — the terms of the Ginn easement; this transaction was also properly recorded. Id. { 10. Since the Defendant's purchase from Fleet Bank of Maine, the Defendant has been using the drainage system and has made no payments to the Plaintiff. Id. {J 11, 13, 17. Defendant conveyed a portion of the parcel to Key Bank. Key Bank also has the right to use the drainage system.

Defendant seeks to compel Plaintiff to join Key Bank National Association, an indispensable party to the lawsuit, because Key Bank’s rights and duties under the easement are at issue.

DISCUSSION

Joinder is required in the present case under Rule 19({a)(2) because if this court were to grant the declaratory relief Plaintiff seeks and declare the easement agreement void, Key Bank may lose its drainage rights. M.R. Civ. P. 19(a)(2). At oral argument, counsel for the Plaintiff admitted that he did not know whether Key Bank’s drainage would be affected by a termination of Defendant's rights to drainage. Because it is clear that Key Bank’s rights may be affected if the relief sought by Plaintiff is granted, the Plaintiff is ordered to join Key Bank

National Association as a Defendant within thirty days.

The entry is

Defendant’s Motion to Dismiss is DENIED;

Plaintiff is ORDERED to join Key Bank National Association within thirty days; and

the deadlines pertaining to ADR Conference, indicated on the November 21, 2002 Scheduling Order, are extended thirty days, all other deadlines remain unchanged.

Li, A bcnk—

Robert E. Crowley Justice, Superior Court

Dated at Portland, Maine this 21st day of January, 2003.

G.M.G.. - PLAINTIFF

Attorney for: G.M.G.

PETER RUBIN

BERNSTEIN SHUR SAWYER & NELSON 100 MIDDLE ST

PO BOX 9729

PORTLAND ME 04104-5029

THEODORE SMALL

Vs

FIUP REALTY CO., INC. - DEFENDANT

Attorney for: FIUP REALTY CO., INC. KEVIN LIBBY

MONAGHAN LEAHY LLP

95 EXCHANGE ST

PO BOX 7046

PORTLAND ME 04112-7046

Filing Document: COMPLAINT Minor Case Type: Filing Date: 11/07/2002

Docket Events:

11/07/2002

11/18/2002

11/20/2002

11/21/2002

FILING DOCUMENT - COMPLAINT FILED ON 11/07/2002 DECLARATORY JUDGMENT AND MONETARY RELIEF

Party(s): G.M.G. ATTORNEY - RETAINED ENTERED ON 11/07/2002 Plaintiff's Attorney: PETER RUBIN

Party(s): FIUP REALTY CO., INC.

RESPONSIVE PLEADING - ANSWER FILED ON 11/18/2002 Party(s): FIUP REALTY CO., INC.

ATTORNEY - RETAINED ENTERED ON 11/18/2002

Defendant's Attorney: KEVIN LIBBY

Party(s): FIUP REALTY Co., INC. MOTION - MOTION TO DISMISS FILED ON 11/18/2002 WITH EXHIBIT 1, REQUEST FOR HEARING AND PROPOSED ORDER

SUPERIOR COURT CUMBERLAND, ss. Docket No PORSC-CV-2002-00570

DOCKET RECORD

DECLARATORY JUDGMENT

ASSIGNMENT - SINGLE JUDGE/JUSTICE ASSIGNED TO JUSTICE ON 11/20/2002

ROBERT E CROWLEY , JUSTICE

ORDER - SCHEDULING ORDER ENTERED ON 11/21/2002

DISCOVERY DEADLINE Is JULY 21, 2003. PARTIES TO SELECT Page 1 of 3

ADR PROCESS AND NEUTRAL. COPIES Printed on: 01/24/2003