[ NI f. E t D ~Uu 1 9 2Gl4
STATE OF :MAINE SUPERIOR COURT YORK, SS. DOCKET NO. CV-14-37
BONNIE F. HALL, ) 30N-10 R- v~-~ 1- J4- ) Plaintiff, ) v. ) ORDER ) JONATHAN S. HALL, ) ) Defendant. )
Before the court are the folloWing motions: Plaintiff's Motion to Waive Alternative
Dispute Resolution, Plaintiff's Motion for a Protective Order, Plaintiff's Motion to
Consolidate, and Defendants Motion to Dismiss and for Judgment on the Pleadings.
I. Plaintiff's Motion to Waive Alternative Dispute Resolution
Plaintiff moves the court to waive ADR on the basis that the parties have already
participated in ADR two times, Plaintiff does not believe further mediation will
facilitate any agreement, and Plaintiff believes that the only purpose mediation would
serve would be to increase attorney fees. Defendant argues that ADR could be
successful. Considering the two unsuccessful attempts, the court grants Plaintiff's
Motion. The court will attempt to schedule a judicially assisted settlement conference in
lieu of ADR.
IT. Plaintiff's Motion for Protective Order
Plaintiff moves the court for protective order limiting discovery to paper discovery
with the exception of the deposition allowed in the companion action, CV-11-271. The
Court has allowed four hours of deposition to be taken of Bonnie Hall in CV-11-271.
Defendant contends that the actions are not so similar that Defendant could collect all
necessary detail about both actions in the four hours allowed in CV-11-271. The court
grants Plaintiff's Motion for Protective Order, however, the court allows four hours of
1 deposition by Defendant of Plaintiff Bonnie Hall on the issues underlying CV-14-37.
After consolidation, the court permits Defendant to take eight total hours of deposition
of Plaintiff Bonnie.
ill. Plaintiff's Motion to Consolidate
Plaintiff moves the court to consolidate the current action, an interference with
expectancy claim against her brother, Jonathan Hall; with CV-11-271, an interference
with expectancy claim brought by Jonathan against Bonnie and their brother Jeffrey
Hall. Jeffrey assents to the motion. Plaintiff asserts that there are common questions of
law and fact in both actions. Plaintiff asserts that consolidation will avoid duplication of
discovery or trial efforts and will not cause prejudice. Because the foundational facts of
the family dynamics will be the same in the two cases, and in the interest of judicial
economy, the court grants Plaintiff's Motion to Consolidate. See M.R. Civ. P. 42.
IV. Defendant's Motion to Dismiss and for Judgment on the Pleadings
Defendant moves the court to dismiss for lack of jurisdiction. Defendant argues that
the claims against Defendant, a New Hampshire resident, are of undue influence in
Massachusetts, and that there are no assertions of wrongful acts in Maine.
On a motion to dismiss, the court must take the facts as pled in the complaint to be
true.
In order for Maine to exercise personal jurisdiction over a nonresident defendant, due process requires that (1) Maine have a legitimate interest in the subject matter of this litigation; (2) the defendant, by his conduct, reasonably could have anticipated litigation in Maine; and (3) the exercise of jurisdiction by Maine's courts comports with traditional notions of fair play and substantial justice.
Murphy v. Keenan, 667 A.2d 591,593 (Me. 1995) (citing Interstate Food
Processing Corp., 622 A.2d at 1191; Harriman v. Demoulas Supermarkets, Inc., 518 A.2d
1035, 1036 (Me.1986); Foreside Common Dev. Corp. v. Bleisch, 463 A.2d 767, 769
2 (Me.1983)). The burden is on the plaintiff to demonstrate that the first two conditions
are met, and then the burden shifts to the defendant to demonstrate that the exercise of
jurisdiction would fail to comport with fair play and substantial justice. Commerce Bank
& Trust Co. v. Dworman, 2004 :ME 142, ~ 14, 861 A.2d 662. The Plaintiff must meet its
burden using "specific facts in the record," but the court will interpret the record in the
light most favorable to the plaintiff. Bickford v. Onslow Mem'l Hasp. Found., Inc., 2004
ME 111, <[ 10, 855 A.2d 1150, 1155. When, as in this instance, the court decides the
jurisdiction question simply on the affidavits and pleading of the parties, the plaintiff
only needs to make a prima facie showing of jurisdiction. Dorf v. Complastik Corp.,
1999 ME 133, <[ 14, 735 A.2d 984.
To determine whether personal jurisdiction may be exercised, the court will
apply the minimum contacts requirement as enunciated in International Shoe Co. v.
Washington, 326 U.S. 310 (1945). See Dworman, 2004 ME 142, <[ 14,861 A.2d 662. The
Supreme Court has held that "For a State to exercisejurisdiction consistent with due
process, the defendant's suit related conduct must create a substantial connection with
the forum state." Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014). The Court specified that
the relationship between the Defendant and the forum State "must arise out of contacts
that the 'defendant himself' creates with the forum State ... ," and the court's analysis
must examine "the defendant's contacts with the forum State itself, not the defendant's
contacts with persons who reside there." Id. at 1122 (citing Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985))(emphasis in the
original).
A. Maine's Legitimate Interest
3 In determining whether or not Maine has a legitimate interest in the subject matter
of the litigation, the Law Court has qualified that "[a]lthough Maine has an interest in
providing its citizens with a means of redress against nonresidents, an interest beyond
mere citizenry is necessary, such as the protection of its industries, the safety of its
workers, or the location of witnesses and creditors within its border." Murphy v.
Keenan, 667 A.2d 591, 594 (Me. 1995) (citations omitted.)
The current case concerns the influence Defendant held over his father, a longtime
Maine property owner who spent much of the year in Maine. While Plaintiff may be the
only party that resides all year in Maine, Defendant and the parties' father both spent
much of the year in Maine at the family property. Because much of the history of the
family and the case occurred in Maine, Maine has an interest in the outcome of the
litigation.
B. Purposeful A vailment
In order to find that a party should anticipate the possibility of litigation in Maine,
the court has found that a party "must purposefully avail oneself of the privilege of
conducting activities within the jurisdiction and benefit from the protection of its laws."
Dworman, 2004 ME 142, 9[ 16,861 A.2d 662, 667 (citing Burger King Corp. v.
Rudzewicz, 471 U.S.
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[ NI f. E t D ~Uu 1 9 2Gl4
STATE OF :MAINE SUPERIOR COURT YORK, SS. DOCKET NO. CV-14-37
BONNIE F. HALL, ) 30N-10 R- v~-~ 1- J4- ) Plaintiff, ) v. ) ORDER ) JONATHAN S. HALL, ) ) Defendant. )
Before the court are the folloWing motions: Plaintiff's Motion to Waive Alternative
Dispute Resolution, Plaintiff's Motion for a Protective Order, Plaintiff's Motion to
Consolidate, and Defendants Motion to Dismiss and for Judgment on the Pleadings.
I. Plaintiff's Motion to Waive Alternative Dispute Resolution
Plaintiff moves the court to waive ADR on the basis that the parties have already
participated in ADR two times, Plaintiff does not believe further mediation will
facilitate any agreement, and Plaintiff believes that the only purpose mediation would
serve would be to increase attorney fees. Defendant argues that ADR could be
successful. Considering the two unsuccessful attempts, the court grants Plaintiff's
Motion. The court will attempt to schedule a judicially assisted settlement conference in
lieu of ADR.
IT. Plaintiff's Motion for Protective Order
Plaintiff moves the court for protective order limiting discovery to paper discovery
with the exception of the deposition allowed in the companion action, CV-11-271. The
Court has allowed four hours of deposition to be taken of Bonnie Hall in CV-11-271.
Defendant contends that the actions are not so similar that Defendant could collect all
necessary detail about both actions in the four hours allowed in CV-11-271. The court
grants Plaintiff's Motion for Protective Order, however, the court allows four hours of
1 deposition by Defendant of Plaintiff Bonnie Hall on the issues underlying CV-14-37.
After consolidation, the court permits Defendant to take eight total hours of deposition
of Plaintiff Bonnie.
ill. Plaintiff's Motion to Consolidate
Plaintiff moves the court to consolidate the current action, an interference with
expectancy claim against her brother, Jonathan Hall; with CV-11-271, an interference
with expectancy claim brought by Jonathan against Bonnie and their brother Jeffrey
Hall. Jeffrey assents to the motion. Plaintiff asserts that there are common questions of
law and fact in both actions. Plaintiff asserts that consolidation will avoid duplication of
discovery or trial efforts and will not cause prejudice. Because the foundational facts of
the family dynamics will be the same in the two cases, and in the interest of judicial
economy, the court grants Plaintiff's Motion to Consolidate. See M.R. Civ. P. 42.
IV. Defendant's Motion to Dismiss and for Judgment on the Pleadings
Defendant moves the court to dismiss for lack of jurisdiction. Defendant argues that
the claims against Defendant, a New Hampshire resident, are of undue influence in
Massachusetts, and that there are no assertions of wrongful acts in Maine.
On a motion to dismiss, the court must take the facts as pled in the complaint to be
true.
In order for Maine to exercise personal jurisdiction over a nonresident defendant, due process requires that (1) Maine have a legitimate interest in the subject matter of this litigation; (2) the defendant, by his conduct, reasonably could have anticipated litigation in Maine; and (3) the exercise of jurisdiction by Maine's courts comports with traditional notions of fair play and substantial justice.
Murphy v. Keenan, 667 A.2d 591,593 (Me. 1995) (citing Interstate Food
Processing Corp., 622 A.2d at 1191; Harriman v. Demoulas Supermarkets, Inc., 518 A.2d
1035, 1036 (Me.1986); Foreside Common Dev. Corp. v. Bleisch, 463 A.2d 767, 769
2 (Me.1983)). The burden is on the plaintiff to demonstrate that the first two conditions
are met, and then the burden shifts to the defendant to demonstrate that the exercise of
jurisdiction would fail to comport with fair play and substantial justice. Commerce Bank
& Trust Co. v. Dworman, 2004 :ME 142, ~ 14, 861 A.2d 662. The Plaintiff must meet its
burden using "specific facts in the record," but the court will interpret the record in the
light most favorable to the plaintiff. Bickford v. Onslow Mem'l Hasp. Found., Inc., 2004
ME 111, <[ 10, 855 A.2d 1150, 1155. When, as in this instance, the court decides the
jurisdiction question simply on the affidavits and pleading of the parties, the plaintiff
only needs to make a prima facie showing of jurisdiction. Dorf v. Complastik Corp.,
1999 ME 133, <[ 14, 735 A.2d 984.
To determine whether personal jurisdiction may be exercised, the court will
apply the minimum contacts requirement as enunciated in International Shoe Co. v.
Washington, 326 U.S. 310 (1945). See Dworman, 2004 ME 142, <[ 14,861 A.2d 662. The
Supreme Court has held that "For a State to exercisejurisdiction consistent with due
process, the defendant's suit related conduct must create a substantial connection with
the forum state." Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014). The Court specified that
the relationship between the Defendant and the forum State "must arise out of contacts
that the 'defendant himself' creates with the forum State ... ," and the court's analysis
must examine "the defendant's contacts with the forum State itself, not the defendant's
contacts with persons who reside there." Id. at 1122 (citing Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985))(emphasis in the
original).
A. Maine's Legitimate Interest
3 In determining whether or not Maine has a legitimate interest in the subject matter
of the litigation, the Law Court has qualified that "[a]lthough Maine has an interest in
providing its citizens with a means of redress against nonresidents, an interest beyond
mere citizenry is necessary, such as the protection of its industries, the safety of its
workers, or the location of witnesses and creditors within its border." Murphy v.
Keenan, 667 A.2d 591, 594 (Me. 1995) (citations omitted.)
The current case concerns the influence Defendant held over his father, a longtime
Maine property owner who spent much of the year in Maine. While Plaintiff may be the
only party that resides all year in Maine, Defendant and the parties' father both spent
much of the year in Maine at the family property. Because much of the history of the
family and the case occurred in Maine, Maine has an interest in the outcome of the
litigation.
B. Purposeful A vailment
In order to find that a party should anticipate the possibility of litigation in Maine,
the court has found that a party "must purposefully avail oneself of the privilege of
conducting activities within the jurisdiction and benefit from the protection of its laws."
Dworman, 2004 ME 142, 9[ 16,861 A.2d 662, 667 (citing Burger King Corp. v.
Rudzewicz, 471 U.S. 462,474-75 (1985)). "Due process requires that a defendant be
haled into court in a forum State based on his own affiliation with the State, not based
on the 'random, fortuitous, or attenuated' contacts he makes by interacting with other
persons affiliated with the State." Walden v. Fiore, 134 S. Ct. 1115, 1123 (2014) (quoting
Burger King, 471 U.S. at 475 (internal quotation marks omitted)).
"A defendant's activities are sufficient to establish minimum contacts when (1) the
activities of the defendant have been directed at the forum's residents; (2) the defendant
deliberately engages in significant activities in the forum; or (3) the defendant creates
4 continuing obligations between itself and residents of the forum." Cavers v. Houston
McLane Co., Inc., 2008 ME 164, 9I 24, 958 A.2d 905.
The effect in Maine of an out-of-state act is one factor to be analyzed as a part of the
minimum contacts test. Bickford, 2004 ME 11, 9I 12, 855 A.2d 1150 (quoting Murphy, 667
A.2d at 595). "'[T]he commission outside the forum state of an act that has
consequences in the forum state is by itself an insufficient contact where all the events
necessary to give rise to a tort claim occurred outside the forum state."' Id. Defendant
asserts that the alleged actions that gave rise to this case could only have occurred in
Massachusetts. Plaintiff disagrees and alleges that even if the undue influence occurred
in Massachusetts, Defendant has numerous contacts in Maine. Defendant spent a
significant amount of time in the state at the family property in Kennebunk and
Defendant has availed himself of the judicial system by bringing actions in the Maine
courts concerning the Kennebunk property. The court finds that Defendant deliberately
engaged in significant activities in Maine and created continuing obligations between
himself and residents of Maine. Defendant has benefitted from the protection of laws in
Maine and could have reasonably anticipate litigation in Maine.
C. Fair Play and Substantial Justice
The last factor to consider is whether Maine's exercise of jurisdiction "comports with
traditional notions of fair play and substantial justice." Dworman, 2004 ME 142, 9I 14,
861 A.2d 662. ''This analysis requires consideration of 'a variety of factors including the
nature and purpose of defendant's contacts with the forum state, the connection
between the contacts and the cause of action, the number of contacts, the interest of the
forum state ... , and the convenience and fairness to both parties."' Cavers, 2008 ME
164, 9I 36,958 A.2d 905 (quoting Labbe v. Nissen Corp., 404 A.2d 564,570 (Me.1979).
Defendant argues that the witnesses to the litigation are in Massachusetts, and that the
5 laws that properly govern the litigation are those of Massachusetts. Because the court
has found Defendant has sufficient contacts with the state, because the dispute partially
concerns the Kennebunk property, and because Defendant has brought a case in Maine
which is based upon similar foundational facts, the court finds that this case is fairly
brought in Maine. The court finds that the court has jurisdiction over the person of
Defendant. Defendant's Motion to Dismiss is Denied.
V. Conclusion
Plaintiff's Motion to Waive Alternative Dispute Resolution is GRANTED. The court
will attempt to schedule a judicial settlement conference.
Plaintiff's Motion for a Protective Order is GRANTED, not withstanding that
Defendant may depose Plaintiff for four additional hours concerning the facts of CV-14-
37, totaling eight hours of deposition after consolidation with CV-11-271.
Plaintiff's Motion to Consolidate is GRANTED.
Defendants Motion to Dismiss and for Judgment on the Pleadings is DENIED.
DATE: John O'Neil Justice, Superior Court
6 CV-14-037
ATTORNEY FOR PLAINTIFF: GREGORY MCCULLOUGH MCCULLOUGH LAW OFFICES POBOX910 SANFORD ME 04073-0910
ATTORNEY FOR DEFENDANT: DAVID TURESKY LAW OFFICE OF DAVID TURESKY 477 CONGRESS STREET STE 400 PORTLAND ME 04101
CONSOLIDATED WITH CV-11-271
ATTORNEY FOR PLAINTIFF: DAVID TURESKY LAW OFFICE OF DAVID TURESKY 477 CONGRESS STREET STE 400 PORTLAND ME 04101
ATTORNEYS FOR DEFENDANT BONNIE FRASER HALL: GREGORY MCCULLOUGH & RANDA A CAPPONI MCCULLOUGH LAW OFFICES PO BOX 910 SANFORD ME 04073-0910
ATTORNEYS FOR DEFENDANT JEFFREY H HALL: MICHAEL J O'TOOLE & JAMES B SMITH WOODMAN EDMANDS DANYLIK AUSTIN SMITH JACQUES POBOX468 BIDDEFORD ME 04005-0468