Margaret F. Inc. v. G. Fiorentino Marine Sales

• Court: Superior Court of Maine
• Decided: October 10, 2014
• Docket: CUMcv-13-222
• Status: Unpublished

Opinion

£ 1\1 TERED OCT 1 5 2014

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. CV-13-222 C141v1-\DW- I (7 ~) tJ -14-

MARGARET F. INC.,

Plaintiff,

v. ORDER

G. FIORENTINO MARINE SALES and GERRARD FIORENTINO, STAT~ OF=~ Cumbetland. "· Defendants. OCT 14 2014

RECElVED Before the court are defendants' motion to dismiss and plaintiff's motion for summary

judgment. Defendants' motion to dismiss is based on the death of Gerrard Fiorentino, whicQ was

noted on a suggestion of death filed by defense counsel on January 28, 2014. The suggestion of

death stated that the other defendant in the case, G. Fiorentino Marine Sales, was a sole

proprietorship. The suggestion of death stated that counsel was in the process of trying to make

contact with Mr. Fiorentino's estate and sought a consented-to 90 day stay for that purpose. The

stay was ordered on January 31,2014.

On May 1, plaintiff moved to continue the stay by agreement for an additional 30 days,

stating that neither counsel had yet located a personal representative or heir. That stay expired on

June 1, 2014.

On June 2, defendants filed a motion to dismiss on the ground that no motion to

substitute had been filed within 30 days of the suggestion of death. Plaintiff opposed that motion on the ground that the 30 days had been extended by the stays granted by the court and on the ground that defendants' suggestion of death had not named a personal representative who could be substituted.

On June 11 plaintiffs filed a motion for summary judgment, based on several affidavits

and on a request for admissions that had not been timely responded to. Defendants did not

oppose the motion for summary judgment on the merits but reiterated the arguments made in the June 2 motion to dismiss.

Defendants' motion to dismiss is denied. As to Mr. Fiorentino, although M.R.Civ.P. 25

states that an action "shall" be dismissed if no motion to substitute is made 90 days after a

suggestion of death on the record, the 90 day time period did not run here because of the stays

entered by the court and because the suggestion of death did not name a personal representative

who could be substituted. See Thornton v. Adams, 2003 ME 104 ~ 6 n.6, 829 A.2d 517.

As to G. Fiorentino Marine Sales, defendants have stated but have provided no affidavit or other documentation that G. Fiorentino Marine Sales was a sole proprietorship. If it was a sole

proprietorship, then plaintiffs claim against it merges with plaintiffs claim against Mr.

Fiorentino. If it is not a sole proprietorship, plaintiffs claim can continue against G. Fiorentino

Marine Sales.

Plaintiffs motion for summary judgment has not been opposed on the merits but cannot

be granted at this time because it is undisputed that Gerrard Fiorentino is dead and judgment

cannot be entered against a deceased person. As against G. Fiorentino Marine Sales, plaintiff has

pointed out that defendants' answer admits that G. Fiorentino Marine Sales is a business entity.

However, that does not establish the absence of any dispute that G. Fiorentino Marine Sales is

not a sole proprietorship. A sole proprietorship is one kind of a business entity.

Some more discovery and/or factual development appears necessary as to the status of G. Fiorentino Marine Sales. Without disclosing any attorney client communications, defense

counsel can advise plaintiff whether defense counsel still has a client and if so, who is acting for

the client. Moreover, under Maine law a creditor can obtain the appointment of a personal

2 representative if no one else steps up, see In re Estate of Kruzynski, 2000 ME 17, 744 A.2d

1054, and California may have a similar provision.

The entry shall be:

Defendants' motion to dismiss is denied. Plaintiffs motion for summary judgment is

denied without prejudice. The clerk is directed to incorporate this order in the docket by

reference pursuant to Rule 79(a).

Dated: October _j_f)_, 2014

Thomas D. Warren Justice, Superior Court

3 cDLERK OF COURTS Cumberland County 205 Newbury Street, Ground Floor Portland, ME 04101

THOMAS DOUGLAS r:sQ DOUGLAS MCDANIEL CAMPO & SCHOOLS LLC PA 90 BRIDGE STREET , WESTBROOK ME 04092 ~~C\"\S F\th)\C'\e._f

CLERK OF COURTS Cumberland County 205 Newbury Street, Ground Floor Portland, ME 04101

\

TIMOTH STEIGELMAN ESQ ?\o..\(\-1\~"\"> A1-1-d0CJe~; KELLY REMMEL & ZIMMERMAN ( PO BOX 597 PORTLAND ME 04112-0597