Lacrosse v. Davis

• Court: Superior Court of Maine
• Decided: December 19, 2019
• Docket: KENcv-19-139
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CIVIL ACTION DOCKET NO. CV-19-139

GERALD W. LACROSSE,

Plaintiffs ORDER

V.

JED DAVIS,

Defendant.

Before the Court is Defendant Jed Davis's Motion to Dismiss Plaintiff Gerald LaCrosse's

complaint. Davis seeks to dismiss the complaint on the grounds that the complaint fails to state a

claim upon which relief can be granted and that there is insufficient service of process and lack of

personal jurisdiction. For the following reasons, the motion is Granted.

Background

In his complaint, Lacrosse alleges one count of defamation against Davis. Specifically,

Lacrosse alleges that Davis is an attorney who wrote a letter to Lacrosse stating that Lacrosse

made a false 911 report and that this false report constitutes a crime. The complaint further alleges

that the purpose of the letter was to demand that Lacrosse refrain from making false 911 claims

regarding Davis's client, Amy Legasse. The complaint also alleges that a copy of the letter was

sent to Legasse and that the contents of the letter were also published to staff at Davis's law office,

the Clerk of Courts and John and Jane Does 1-10. The complaint alleges that the contents of the

letter are maliciously false .

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Discussion

1. Failure to State a Claim Upon Which Relief Can Be Granted

The Court agrees with Davis's argument that LaCrosse's complaint fails to state a claim

for defamation. Maine recognizes the elements of Defamation as set forth in the Restatement

(Second) of Torts§ 558. Rippett v. Bemis, 672 A.2d 82, 86 (Me. 1996). Thus, defamation in Maine

consists of an unprivileged publication to a third party of a false and defamatory statement

concerning another. Rippett v. Bemis, 672 A.2d 82, 86 (Me. 1996).' Maine also follows the

Restatement and recognizes that an absolute privilege exists which protects a party to private

litigation from liability for defamatory statements made in the institution of a judicial proceeding.

Raymond v. Lyden, 1999 ME 59, ~ 6 & n.7, 728 A.2d 124 (citing Restatement (Second) of Torts

§§ 65,587 (1977)). Pursuant to the Restatement, this absolute privilege also extends to defamatory

communications preliminary to a proposed judicial proceeding, so long as the communication has

some relation to the proposed proceeding. (citing Restatement (Second) of Torts § 587 (1977).

Courts in Maine and Massachussets have also recognized this privilege. Smith v. IDEXX Labs.,

Inc., No. CV-99-493, 2000 Me. Super. LEXIS 6, **5-6, (Jan. 11, 2000); Theran v. Rokoff, 602

N.E.2d 191,193 (1992); Sriberg v. Raymond, 345 N.E.2d 882, 883-84 (1976). This Court believes

that if given the opportunity, the Maine Supreme Judicial Court would do the same.

In this case, the only defamatory statements that Lacrosse alleges Davis published are

statements contained in the letter Davis sent to LaCrosse. This letter, however, was sent to Davis

for the purpose of demanding that Davis cease and desist from making false claims to the 911

reporting system. The obvious thrust of the letter is that if Lacrosse does not cease and desist from

, Defamation also requires fault amounting to at least negligence on the part of the publisher and either harm caused by the publication or actionability irrespective of any harm. Id.

2 such conduct, legal action will be taken. The Letter therefore falls within the absolute privilege for

communications preliminary to a proposed judicial proceeding. See Raymond, 1999 ME 59,, 6 &

n.7, 728 A.2d 124; Restatement (Second) of Torts § 587; Sriberg, 345 N.E.2d at 883-84.

Consequently, Lacrosse cannot prevail on his claim for defamation as set forth in his complaint.

2. Insufficient Service of Process

Although the Court concludes that Lacrosse's complaint fails to state a claim for relief,

the complaint is also subject to dismissal due to insufficient service of process.

Pursuant to Rule 4 of the Maine Rules of Civil Procedure, a plaintiff may affect service by

mail by adhering to the following practice:

By mailing a copy of the summons, complaint, and notice regarding Electronic Service (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment form and a return envelope, postage prepaid, addressed to the sender. If no acknowledgment of service under this paragraph is received by the sender within 20 days after the date of mailing, service of the summons, complaint, and notice regarding Electronic Service shall be made under paragraph (2) or (3) of this subdivision.

M.R. Civ. P. 4(c)(l). In this case, LaCrosse attempted to serve Davis by mailing him the summons,

complaint, and a copy of the notice regarding electronic service by registered mail. Lacrosse did

not include an acknowledgment of service and no acknowledgment forms were returned to the

Court. Lacrosse therefore did not comply with the requirements of Rule 4 and no service occurred.'

See Brown v. Thaler, 2005 ME 75,, 11, 880 A .2d 1113 (holding that "[b]ecause the defendants

did not acknowledge service, and no acknowledgement forms were returned to the court, no service

occurred when [the plaintiff] mailed them the summons and complaint."). Consequently,

'M.R. Civ. P. 4(f) does allow service by mail when "service cannot, with due diligence, be made personally within the state." This rule is inapplicable in the present case because service would not be made upon a person outside the state. Brown, 2005 ME 75, ~ 11 n.2, 880 A.2d 1113.

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Lacrosse's complaint may also be dismissed on the alternative ground that there has been

insufficient service of process. See id.~ 13.

Conclusion

For the foregoing reasons the Court finds that LaCrosse' s complaint fails to state a claim

upon which relief may be granted and that LaCrosse did not properly affect service upon Defendant

Davis.

The entry is

Defendant Jed Davis's Motion to Dismiss is GRANTED. Pursuant to Maine Rules of Civil Procedure 12(b)(6) and 12(b)(4), Gerald Lacrosse's Complaint is DISMISSED.

The clerk is directed to incorporate this order into the docket by reference. M.R. Civ. P.

79(a).

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