Nadeau v. Hunt

Opinion

STATE OF MAINE SUPERIOR COURT YORK, ss. CIVIL ACTION Docket No. CV-05-221

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ROBERT M.A. NADEAU~ et al., '

Plaintiffs,

ORDER

JACK HUNT, et al.,

Defendants.

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Before the court are separate motions by defendant Jack Hunt and by defendants 4 1

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Amy McGarry, Pamela Holmes, and McGarry &'Wolmes LLC for a more definite

statement.

Count I of the complaint is brought by plaintiffs Robert M.A. Nadeau and Nadeau & Associates P.A. against Hunt. It alleges that Hunt has engaged in unspecified defamation of Nadeau and his law firm. A party who is sued for defamation is entitled to know the precise statements he is claimed to have made. Picard v. Brennan, 307 A.2d 833, 834-35 (Me. 1973).

Count I1 of the complaint is also brought by Nadeau and his law firm against Hunt. It alleges that Hunt engaged in unspecified interference with advantageous relationsl~ips.Count I1 does not give Hunt any notice of what actions he is alleged to have taken that interfered with advantageous relationships nor does it identify what alleged advantageous relationships were interfered with.

Count 111 of the complaint is brought by Nadeau and his law firm against all defendants. It alleges that defendants engaged in abuse of process but provides no indication as to what process is alleged to have been abused.

Count IV of the complaint alleges negligent and intentional infliction of emotional distress but gives absolutely no indication as to what defendants did that allegedly constituted an infliction of emotional distress.'

Count V of the complaint is brought on behalf of all plaintiffs against all defendants. It alleges that defendants committed violations of the Unfair Trade Practice Act and suggests generally that unethical conduct by attorneys constitutes an unfair trade practice. However, the complaint does not identify what conduct by defendants is alleged to have been unethical or how that conduct could constitute a violahon of the Unfair Trade Practice Act.

Finally, Count VI seeks punitive damages for unspecified extreme and outrageous conduct but does not in any way identify the conduct in question.

Although notice pleading does not require great specificity, a party is entitled to sufficient notice of the claim against him so that he can frame a defense. The complaint in this action is sufficiently vague so that defendants cannot be expected to frame any responsive pleading other than a general denial, w h c h is what they have filed. Defendants are entitled to a pleading with sufficient specificity that they can decide whether to file a motion to dismiss for failure to state a claim or a motion for judgment on the pleadings, and the court is entitled to a pleading with sufficient specificity that it can decide such a motion if one is filed.

Plaintiffs argue that the defendants have notice of their claims based on certain bar complaints that they have filed against defendants. That is not sufficient. Not every violation of a bar rule gives rise to a tort and vice versa. The court is also not privy to the substance of any bar complaints that may have been filed. The issues in this case are

This cause of action is brought against Hunt on behalf or Robert Nadeau individually as well as on behalf of his two children. As against defendants McGarry, Holmes, and McGarry & Holmes I,T,C, thisclaim is asserted solely on behalf of the children.

whether plaintiffs have stated cognizable tort claims and whether defendants are liable 011 those claims regardless of any bar violations that may - or may not - have occurred.

Defendants are entitled to know the basis of the tort claims alleged against them in this action.

Plainliffs also suggest that they are entitled to discovery before they need to identify their claims. A party is entitled to discovery in order to find evidence to substantiate its claims. However, a party is not entitled to file an action solely to allow it to engage in discovery for the purpose of figuring out if there is any basis to bring a claim.

The entry shall be:

Defendants' motions for a more definite statement are granted in all respects.

Plaintiffs shall file an amended complaint by November 14, 2005 that identifies the statements made by Hunt that form the basis for the defamation claim and that identifies the actions taken by each defendant that constitute the basis for eacl~cause of action asserted against that defendant. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a). Dated: 0ctoberL9& 2005

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Thomas D. Warren

Robert M. A. Nadeau, I n d i v . ( P r o s e ) - PL cour~ Justice, Superior

Robert M. A. Nadeau, Esq. ( I a n Robert Nadeau and E r i n Roland Nadeau) - PLS Susan D r i s c o l l , Esq. - Defs. Pamela S. Holmes, Amy B. McGarry & McGarry & Holmes, LLC Wendell L a r g e , Esq. - Def. J a c k Hunt a / k / a John C . Hunt

STATE OF MAINE SUPERIOR COURT YORK, ss. CIVIL ACTION Docket No. CV-05-221

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ROBERT%~.A. NADEAU, individual1y and as parent and guardian of IAN ROFERT NADEAU and ERIN ROLAND N-ADEAU, e t al.,

Plaintiffs,

v. ORDER

JACK HUNT, et al., -

Defendants.

Before the court is a motion to dismiss filed by defendants Amy McGarry, Pamela Holmes, and McGarry & Holmes LLC (hereafter, the "McGarry defendants").

The McGarrp defendants' motion is directed to the amended complaint filed on November 14, 2005 by plaintiffs Robert M.A. Nadeau, the law firm of Nadeau & Associates, and two of Nadeau's minor children in response to this court's order granting the McGarry defendants' initial motion for a more definite statement.

At the outset, although the amei~dedcomplaint is not a model of clarity on this issue, piaintiffs have represented in their opposition to the McGarry defendants' motion that Count I ("Invasion of Privacy/Defamation"), Count I11 ("Emotional Distress"), and Count V ("Punitive Damages") are only asserted against the McGarry defendants on behalf of plaintiff Robert Nadcau's minor children and that Count I1 ("Interference with Advantageous Relations") is not asserted against the McGarry defendants at all.' As a result, the issue to be decided on this motion is whether Nadeau's children can proceed

S and V and whether Nadeau, his law against the McGarry defendants on C O L ~ I I,I ~111,

'See Plaintiffs' Combined Objections to Defendants' Motion to Dismiss and Motion to Enlarge Scheduling Order, dated November 30,2005 and filed December 1,2005, at 3,4,5,7.

firm, and his minor children can procecd against the McGarry defendants on Co~u11tIV ("Unfair Trade practice^").^ As to all of these claims, the McGarry defendants have two basic drguments. The first is that these claims were already litigated between Nadcau, his law firm and the McGarry defendants in Docket No. (3"-03-267 and that, as a result, further litigatioi~is barred by the doctrines of res jlldicatn and collateral estoppel. The second argument is that Nadeau's minor children do not have standing to complain about torts that were allegedly committed, not against them, but against their father.

Two procedural issues should be addressed at the outset. First, in considering the issues of res jiiclicata and collateral estoppel, the McGarry defendants have attached copies of the court's November 1, 2005 judgment and order in Docket No. CV-03-267 and have also attached copies of the October 28, 2005 transcript in which the court orally set forth its findings of fact and conclusions of law on the record in CV-03-267.

to the submissinn of those materials, and it is Plaintiffs have not raised any nhjectic?~~

well settled that a court can take judicial notice of its own records. See, e . G Currier v.

570 A.2d 1205, 1207-08 (Me. 1990);IVarren v. Waterville Urban Renewal Authority, 290 A.2d 362, 367 (Me. 1972). Indeed, in resolving the res judicatn and collateral estoppel issues raised by the McGarry defendants, the court will take judicial notice of the entire record in CV-03-267.

Second, after plaintiffs filed their opposition to the McGarry defendantsf motion and after the McGarry defendants filed 1' reply brief, plaintiffs filed a reply of their own - in effect, a surreply brief not contemplated under the rules. Although the filing in

Symptomatic of the lack of clarity that surrounds the claims asserted in the amended complaint, paragraph 22 of that document suggests that recovery on Count IV is sought against the McGarry defendants solely on behalf of Nadeau's minor cl-iildren. However, in their papers opposing the motion to dismiss, plaintiffs argue that all plaiiitiffs are pursuing this count against the McCarry defendants.

question has not been objected to by the McCarry defendants, plaintiffs neither sought nor were granted leave from the court to file the s~tbmissionin question. As a result, the surreply should be disregarded. Motion practice is not a free-for-all in w h c h parties are entitled to file surreplies or rejoinders whenever they feel like it.

In addition, even if the court were to consider plaintiffs' surreply submission, there is nothing in that document that wrould affect the court's ruling on the motion."

1. Count I - Invasion of Privacy and Defamation Claims - Res jtldicatn -

In the original complaint, plaintiffs appeared to be bringing Count I as a

defamation claim solely against defendant Hunt" but the amended cornplaint now asserts invasion of privacy and defamation claims against the McGarry defendants on behalf of Nadeau's chldren. The original complaint was also singularly deficient in specifics. In response to the court's order granting the McGarry defendants' motion for a more definite staterrren!, plaintiffs' amended cornplaii~tnow lists various alleged defamatory statements and one alleged invasion of privacy. These are set forth in paragraphs 8 and 9 of the amended complaint.

At one point in that document, plaintiffs state that the McGarry defendants are not entitled to summary judgment because they have not presented any undisputed facts. Plaintiffs' Reply to Defendants McGarry, Holmes, and McGarry & tlolmes LLC's lieply Brief, dated December 22,2005 and filed December 27,2005, at 3 (last full paragraph). The court agrees that no motion for summary judgment has been filed and that disputed factual issues cannot be reached on a motion to dismiss. Plaintiffs have not argued, however, that the court cannot determine, based on its own records, what issues were litigated and decided in CV-03-267. See Currier v& 570 A.2d at 1208 (court can take judicial notice of the entire record in another proceeding before the court ant1 there are no factual issues to be resolved in determining the effect of the prior decision). If plaintiffs wished to raise such an argument, they were required to d o s o in their original opposition rather than in an ~ ~ n a u t h o r i z esurreply.

d In any event, as Currier v Cyr demonstrates, the record in CV-03-267 is determinative of what was litigated in that case, and the effect of the prior decision upon the present action is a question of law. 570 A.2d at 1207-08. As a result, res j~ldicutmissues can be resolved a t this stage without any need to file a motion for summary judgment. The original complaint also was not a model of clarity, but the "Wherefore" clause in Count I was directed soIely against Hunt.

However, most if not all of the incidents referred to in paragraphs 8 and 9 of the amended complaint, to the extent that they relate to the McGarry defendants, have already 6een litigated at length and decided as part of the counterclaim brought by Nadeau and h s law firm against the McGarry defendants in CV-03-267:

Thus, paragraph 8(b) of the amended complaint alleges that the hlcGarry defendants defamed Nadeau in a niccting with Lynnann Frydrych at Litchfield's Restaurant in November 2003. Amended Complaint qlql 8 (b)(l)-(10).This was the

subject of considerable testimony at the trial in CV-03-267 and resulted in express -

findings that no defamation occurred and that no damage to Nadeau resulted.

October 28, 2005 Transcript in CR-03-267 (hereafter "October 28, 2005 Tr.") 38-41.5 Similarly, paragraph 8(c) of the amended complaint alleges that Holmes made defamatory statements about Nadeau to Kristie Cote. Those allegations were also part of the trial in CV-03-267 and also resulted in a finding against Nadeau and his law firm. October 28, 2005 Tr. 37-38.6 Paragraph 8(d) of the amended complaint alleges that the McGarry defendants, through statements, "facial gestures," and other actions, publicized false and reckless views about Nadeau to a variety of people. One of the persons listed as the alleged recipient of a defamatory communication (Karen Frink Wolf) was called as a witness at trial in CV-03-267. Three others werc subpoenaed for trial but were not called as witnesses (Neil Jamieson, Dana Prescott, and Lise Wagner). At least one of the remaining individuals (Donna Bailey) was deposed in CV-03-267 to discover if she had been the recipient of defamatory or disparaging communications. Nadeau also sought to depose one of the remaining individuals listed (Meredith Richardson) in CV-03-267,

In the transcript Frydrych's name appears as "I~riedrick". In the October 28, 2005 transcript, Cote's narnc appears as "Coty".

but the court ruled that any conversations between the McGarry defendants and Ms. Richardson were privileged. Order dated August 11, 2004 and filed August 12, 2004 in CV-03-267. If Nadeau had evidence that any of individuals listed in paragraph 8(d) had been the recipients of nonprivileged defamatory statements made by the McGarry defendants, he could have offered that evidence at the trial in CV-03-267. The court's findings against Nadeau on all his defamation claims in CV-03-267 reflected the failure by Nadeau and his law firm to substantiate any of those claims at trial.

Paragraph 8(e) of the amended complaint in this case does not allege any -&

cognizable claim of defamation or invasion of privacy. That paragraph, moreover, involves allegations that were litigated at some length in CV-03-267 and were the subject of findings by the court. See October 28, 2005 Tr. 41-45. On those issues the court found that when McGarry and Holmes left Litchfield's Restaurant, they had been told that Ms. Frydrych did not object to the matters that had been placed in the

pleadings in CV-03-267 so long as her name was not mentioned. Id. The court also found that Ms. Frydrych's counsel thereafter expressed the view that Ms. Frydrych's

confidentiality had not been adequately protected. The court did not find that McGarry or Holmes had lied with respect to any of these issues.

The claim that defendant Holmes filed a frivolous judicial conduct complaint against Nadeau, see Amended Complai~it7J 8(f)(l),was also litigated in CV-03-267 and resulted in a ruling against Nadeau in tliat case. October 28, 2005 Tr. 45-46. Likewise,

'I'he court does agree with plaintiffs tliat the October 28, 2005 transcript is inaccurate in one respect. \What the court intended to sap o n page 45 of the Lranscript is that "I would not find plaintiffs to be above reproach in connection here." Either this sentence was inaccurately transcribed or the court, in announcing its decision, swallowed the word "not." In this connection the court was making three points. First, statements in pleadings are absoiutelp privileged so long as they are relevant, and all the statelnents made in the McGarry defendants' pleadings in CV-03-267 were relevant to the issues in that proceeding. Second, the McCarry defendants' statements that Nadeau had an affair with a person who at the time of the affair was a client were in fact true. See October 28, 2005 Tr. 28-29, 30-31. 'Third, although this did not affect the outcome of any claims in CV-03-267,the court was not sure that all of the facts with respect to Nadeau's affair with a client needed to be set forth in the initial papers tliat were filed.

the facts with respect to Holly Hender-son's retraction of an affidavit and Holmes's attitude toward Nadeau's request to seal the pleadings, see Amended Complaint ¶¶ 8(f)(2)and (3), were fully explored at the trial in CV-03-267. If Nadeau thought those facts had given rise to some lund of independent claim against Holmes (as opposed to merely bearing on her motivation), he could have asserted that claim in CV-03-267.

Finally, plaintiffs' claim in this action that Nadeau was subjected to an invasion of privacy, see Amended Complaint 1'1 9, was fully litigated in CV-03-267 and was upheld in part and rejected in part. October 28, 2005 Tr. 60-70. This is the one claim on_ which Nadeau partially prevailed in CV-03-267. However, res jzrdicata bars relitigation of claims on which a party has prevailed as well as claims on which a party was unsuccessful. Restatement (Second) of Judgments 55 18(1),21(1).

The above facts amply demonstrate that if Nadeau and his law firm were asserting the claims set forth in Count I of the amended complaint against the McGarry defendants, those claims would be barred by res jz~dicata, collateral estoppel, or both. Indeed, this is virtually acknowledged by plaintiffs because, as against the McGarry defendants, Count I is brought only on behalf of Nadeau's minor children.

The doctrine of res judicflffl (also called "claim preclusion") bars relitigation of a claim if (1) the same parties or their privies are involved with both actions; (2) a valid final judgment was entered in the prior ackion; and (3) the matters present for decision now were, or might have been, litigated in the prior action. Camps Newfound/Owatonna Corp. v. Town of Harrison, 1998 ME 20 'il 11, 705 A.2d 1109, 1113; Currier v. Cvr, 570 A.2d at 1208.911 this case, Nadeau and Nadeau & Associates

'The doctrine of collateral estoppel (also called "issue preclusion") prevents relitigation of specific factual issues already decided if the identical issue was determined by a prior final judgment and the party estopped had a fair opportunity and incentive to litigate the issue in a prior proceeding. Cline v Maine Coast Nordic, 1999 ME 72 1[ 9,728 A.2d 686, 688; Restatement (Second) of Judgments 5 27. Since brought counterclaims against Amy McGarry, Pamela Holmes, and McGarry & Holmes LLC in CV-03-267, and those claims have been resolved by a valid final judgment. Although an appeal has been taken from the judgment in CV-03-267, that does not deprive the judgment of finality for purposes of res judicata. Restatement (Second) of Judgments 13, comment f; 18A \:?;right, Miller & Cooper, Federal Practice and Procedure: Turisdiction and Related Matters 2d, fj4433 at 78-79 and cases cited at n . U 9 As discussed above, all of the claiins in Count I were either actually litigated by

Nadeau and his law firm in CV-03-267 or could have been litigated in that case. Indeed, >

and rather strilungly, the allegations in paragraphs 8(b)(l)-(8),8(e), and 8(f) of the amended complaint in this action simply repeat with minor modifications the allegations set forth in paragraphs 2(a), 3(b) and 4 of a September 14, 2005 offer of proof

filed by defendants in CV-03-267. See Defendants' Specification of Claims of Defamation in CV-03-267, dated September 13, 2005 and filed September 14,2005 in CV-

03-267. At no point did the McGarry defendants object to litigating any of Nadeau's defamation or invasion of privacy claims in CV-03-267 even though most if not all of those claims involved conduct that postdated the initial complaint in that case.''

The remaining question is whetl~erit makes any difference that in this case Count I is asserted against the McGarry defendants only on behalf of Nadeau's minor children. Notably, Count I does not allege that the McGarry defendants defamed the children or invaded the children's privacy. Instead, it specifically alleges that the

res judicata applies more broadly than collateral estoppel, the court will not separately discuss collateral estoppel except to note that most if not all of plail-itiffs' claims were actually litigated in CV-03-267 and would therefore be barred by collateral estoppel '1s well.

Indeed, i f a case is dismissed based on res ji~diciito,M.R.Civ.P. 60(b)(5) would specifically allow relief from that dismissal if the prior judgment on which rrs judicnto is based is later "reversed or otherwise vacated." Accordingly, if the judgment in CV-03-267 is later reversed on appeal, plaintiffs could then seek relief in this action. l o By way of example, the alleged defamation a t Iditchfield's Restaurant, the dispute over Nadeau's request to seal the pleadings, and I-Iolmes's judicial conduct complaint all post-dated the complaint and were litigated without objection.

McGarry defendants "have engaged i n invasions of privacy and defamation of the Plaintiff, Nadeau, and the Plaintiff Firm that have had reasonably foreseeable, previousIy unaddressed significant financial and emotional consequences . . . upon the minor plaintiffs." Amended Complaii~t1[7.

Where parties such as 1Vadeau1sminor children bring actions for losses resulting from persona! injury to another person - claims that are derivative rather than individual - such claims are barred bj7 res jl~dicntn. The Restatement is clear on this

subject:

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When a person with a family relationship to one suffering personal injury has a claim for loss to himself resulting from the injury, the determination of issues in an action by the injured person to recover for his injuries is preclusive against the family member, unless the judgment was based on a defense that is unavailable against the family member in the second action.

Restatement (Second) of Judgments 5 48(2). The only exception to this rule under Maine laLv involves claims for loss nf consortiumi and those claims are treated differently because the statute governing consortium claims expressly provides for a separate and independent right of recovery. See, e.g, Parent v. Eastern Maine Medical Center, 2005 ME 112 9114, 884 A.2d 93, 96. There is no comparable statutory basis to exempt claims made by minor children based on alleged defamation against their father from Section 48 of the Restatement.

In sum, Count 1 of the Amended Complaint is barred as against the McGarry defendants by res jz~dicnta.

2. Count I - Standing Count I of the Amended Complaint is also barred as against the McGarry defendants because is Nadeau's minor children do not have standing to assert claims for defamation or invasion of privacy where they were not the persons allegedly

defamed or the persons whose privacy 1 ~ ~allegedly as invaded. Plaintiffs have cited no

authorit< and the court is aware of none, that would permit defamation or invasion of privacy claims to be asserted derivatively by Nadeau's minor children. Instead, as noted In Prosser and Keith, Torts 4 11 i at 778 at n.48 (5'" ed. i984j, an action for defamatio~l"is personal to the plaintiff and cannot be founded on defamation of another." l1 Indeed, one of the requisites of an action for defamation is that the defamatory statement be "of and concerning the plaintiff." Lester v. Powers, 596 A.2d T

65, 69 (Me. 1991) (emphasis added and internal quotes omitted).

Similarly, Nadeau's children do not have standing to bring an invasion of privacy claim when the only invasion of privacy that has been alleged is the copying of information from their father's divorce and bar defense files. See Atnended Complaint ¶ 9. Accordingly, Count 1 of the amended complaint is also dismissed as against the PAcGarry defendants on the ~!ter:zati~.rcg r o ~ n dthat Nadeau's children do not have standing to pursue that claim.

3. Count I - Failure to State Claim The foregoing discussion establishes that, with the possible exception of

~ a r a g r a ~8(d), h all of the allegations contained in count I of the amended complaint

were actually litigated i r i CV-03-267 and also establishes that the allegations in paragraph 8(d) could have been litigated in CV-03-267. The allegations in paragraph 8(d) are subject to dismissal for another reason as well. In its November 1, 2005 order

" In this connection, the Law Court ruled in one case that parents cannot sue for alleged infliction of emotional distress based 011 allegedly defamatory state~nentsmade about their son. Beniamin v. Aroostook Medical Center, 1996 Me. LEXIS 229 (1996). Although originally published in the advance sheets, this opinion was thereafter withdrawn from publication, apparently because i t had either been intended as a me~norandumdecision or was subsequently converted to a me~norandumdecision. See 685 A.2d 765.

the court directed plaintiffs to identify the statements that form the basis for their

defamation claim.12 This follows from the principle that a defendant is entitled to -

sufficient notice of the content and circumstances of an allegedly defamatory statement

to be able to determine whether defenses such as truth and privilege should be raised.

See Lester v. Powers, 536 A.2d at 68 n.4; Picard v. Brennan, 307 A.2d 833, 834-35 (Me. - 1973). Paragraph 8(d) of the amendcd complaint fails to meet this requirement.

Instead, it consists of a list of persons to whom, through statements, "facial gestures," and other actions, Hunt and the hlcGarrj7 defendants allegedly publicized false and- reckless views about Nadeau's integrity, fairness, and competence. The allegedly false and reckless views that were allegedly publicized are ui~specified.

In the first place, a defamation claim cannot be based on "facial gestures."

Second, under Maine law as demonstrated by such cases as Picard v. Brennan and under the court's November 1,2005 order, defendants were entitled to know the precise statements that were alleged to have hean defamatory, See Nnvember 1: 2005 Order at 1. In entering its November 1 order, the court was influenced by its experience in CV- 03-267, where Nadeau and h s law firm spent considerable effort on what can only be described as a fishing expedition to find out whether defamatory or disparaging statements had ever been made.

In opposing the McGarry defendants' motion to dismiss, plaintiffs cite to M.R.Civ.P. 27, the provision in the civil rules governing pre-action discovery, and they admit that some of the conduct of which they complain is "still unknown but certainly discoverable." See Plaintiffs' Reply to Defendants McGarry, Holmes, and McGarry &

l2 At that time, as noted above, the defamation clclimwas solely asserted against Hunt.

Holmes LLC's Reply Brief, dated December 22, 2004, at 2 (emphasis added).'"~~ the court's view, this evinces a misunderstanding of M.R.Civ.P. 27 and the litigation process.

Plaintiffs' reliance of M.R.Civ.P. 27 is entirely misplaced in light of the Law Court's ruling that Rule 27 is a method of perpetuating testimony and "is not a discovery device to assist plaintiffs to discover facts and frame a complaint." In re Petition of Sen, 1999 ME 83 11 5, 730 A.2d 680, 682. Similarly, plaintiffs are not entitled to file a lawsuit alleging unspecified instances of defamation and then undertake- discovery in the hope that they can find some evidence to substantiate their apparent suspicion that the defendants must have said something derogatory about Nadeau to someone.

4. Count I11 - Emotional Distress Claim Like Count I, Count III of thc amended complaint is brought against the McGarry defendants only on behalf of Nadeau's minor children. On this count, the analysis tracks the previous discussion. First, no additional factual allegations are made in Count 111, and Count SII therefore stands on the previous allegations set forth in Counts I and IS. Amended Complaint ¶S[ 7-13, 15. The only specific allegations of misconduct by defendants are set forth in paragraphs 8 and 9 and have been discussed above. Once again, these claims would be barred by res jl.idicntrr if asserted by Nadeau and his firm against the McGarry defendants and once again, under the principle set

forth in Restatement (Second) of Judgments § 48(2), the minor children's claims are also

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precluded.

''Plaintiffs also relied on the existence of JZule 27 in their original opposition papers, see Plaintiffs' Combined Objectio~lsto Defendants' Motio~lto Ilisiiiiss, dated November 30,2005 and filed December 1, 2005, at 3 n.2, and they even cited Rule 27 in Y[ 6 of the amended complaint.

Separate and apart from the yes jlidicnfu issue, Nadeau's minor children also do not have standing to assert claims for intentional infliction of emotional distress based on damiijge to their father's reputation."' Finally, although the October 31, 2005 order directed plaintiffs to identify "the actioix taken by each defendant that constitutes the basis for each cause of action asserted against that defendant," nothing in the amended complaint alleges any conduct by thc ?.4cG~rrydefendants that was related to or directed at Nadeau's minor children. Count I11 must be dismissed as against the McGarry defendants. --

5. Count IV - Claims of Unfair or Deceptive Acts or Practices Count IV is apparently brought against the McGarry defendants by Nadeau and his lasv firrn on their own behalf as well as by Nadeau on behalf of his minor children.15 In light of the foregoing discussion, the flaws in this cause of action can be summarily enumerated.

First, although the court rnade clear in its October 31 order that merely alleging unspecified violations of bar rules was not sufficient to give fair notice to defendant of the grounds on svhich monetary damages were being sought against them, see Novernber 1, 2005 Order at 2-3, plaintiffs have offered nothing more than a litany of bar rules in Count IV of the amended conlplaint. U17specified violations of various bar rules do not state cognizable claims unclcr the Unfair Trade Practices Act. On that basis alone, Count IV can be dismissed against the McGarry defendants.

l 4 If Nadeau's minor children could bring such claims, so could his parents or siblings or even close friends w h o n ~ i g h allege t they have suffered eini~tionaldistress because Nadeau's reputation has been harmed. The court is aware of no authority for a n emotional distress claiin based on harm to others. In far more compelling circumstances, such claims have been rejected. See Cameron v. Pepin, 610 A.2d 279 (Me. 1992). 15 But see n. 2 sllprn.

Second, to the extent that plaintiffs are again relying on the same fach~al allegations set forth in paragraphs 8 and 9 of the complaint, none of those allegations states a -claim under the Unfair Trade Practices Act because none of those claims remotely involve the purcl~aseor lease of goods, services, or property for personal, family, or household purposes. See 5 M.R.S.A. 5 213 (I).

Third, to the extent that plaintiffs are relying on unspecified conduct not alleged in paragraphs 8 and 9, Count IV is insufficient as a matter of law because plaintiffs have not identified the unspecified conduct and have not alleged that the unspecified conduct involved the purchase or lease of goods, services, or property for personal, family, or household purposes.

Fourth, to the extent that plaintiffs are basing their unfair trade practice claims on conduct that was or could have been litigated in CV-03-267, Count IV is barred as against the McGarry defendants by res jlldici~ta. In this respect, i t bears emphasis that 72s jlidicnfl: applies nct o d y to the daims th3t were actua!ly litigated in a pricr action but also applies to any other claims based on the same conduct that could have been litigated in the prior action. See Dumont 2000 ME 197 ¶¶ 6-7, 760 A.2d 1049, 1052; Camps Newfound/ 0watont:a Corp. v. Town of Harrison, 1998 ME 20 2 11- 12, 705 A.2d at 1113-14; Currier v. Cyr, 570 A.2d at 1208. Even if a new legal theory is advanced in the second case, res jtidicntlr applies. Id.

Fifth, to the extent that Unfair Trade Practice claims are advanced on behalf of Nadeau's children based on claims that were or could have been litigated in CV-03-267, the children's' derivative claims are barred by res jl~dicntlr to the same extent as their father's claims.

Sixth, although plaintiffs contend that the ccurt declined to permit consideration of any bar proceedings in CV-03-267 bccsuse those issues arose after the termination of the ernploymel~t issue that was the focus of CV-03-267,'"that is not the court's recollection. The court was aware that Nadeau had filed various bar complaints but believed, that whether bar violabons had occurred (on the part of Nadeau or the McGarry defendants) was a separate issue from the contract and tort claims that were before the court in CV-03-267. Alleged bar violations are also a matter for the Grievance Committee, as opposed to the Superior Court,. to consider However, to the extent that any conduct that was the subject of bar complaints

also gave rise to alleged tort or contract claims, the court did not preclude Nadeau and ..

his firm from litigating those claims in CV-03-267. As noted above, a large number of

the claims raised by Nadeau and his firm in CV-03-267 involved conduct that occurred after the complaint in that action had been filed.17 Furthermore, it is the court's understanding, although it is not familiar with the substance of the bar complaints that Nadeau has filed, that some of those complaints involve the same alleged conduct that formed the basis fnr c l a i m that were litigated i11 CV-03-267, including the failure to seal the pleadings and the copying of information from Nadeau's divorce file.

Seventh, to the extent that Count IV is asserted on behalf of Nadeau's minor children, the children do not have standing to pursue claims based on alleged unfair trade practices committed against their father.

Eighth, as far as Nadeatl's minor children are concerned, there are also no allegations that they suffered any loss of money or property - allegations which are a prerequisite for relief under the Unfair Trade Practices Act. See 5 M.R.S.A. 5 213(1).

l 6 See Plaintiffs' Combined Objections to Defendants' Motion to Dismiss a n d blotion to Enlarge scheduling Order, dated November 30,2005 anci filed December 1,2005, at 6. l7 ~ e n.10 e supra.

6. Count V - Punitive Damages As against the McGarry defendai~ts,Count V seeks punitive damages only on behalf of-Nadeau's children. Since punitive darnages can only be awarded if there is an award of compensatory damages, e.~,Jolowitz v. Alfa Romeo Distributors, 2000 ME 174 911, 760 A.2d 625, 629, the dislnissai of the Nadeau children's claims for compensatory damages against the h4cGarr-y defendants necessitates the dismissal of their punitive damages claim as well

-

7. McGarry Defendants' Request for A ttorneys Fees

Accompanying the McGarry defendants' motion to dismiss is a request that they be awarded their attorneys fees in defending this action. Under the circumstances of this case, where there is no stah~toryprovision for attorneys fees, an award of attorneys fees can only be made upon a determination by the court that the assertion of claims against the FV$cC;arrydefendants in this actier, constituted the kind of egregious conduct and abuse of the litigation process that would justify a departure from the "American Rule" that losing parties are not responsible for their opponent's legal fees. See Linscott v. Foy, 1998 ME 206 qlql 16-17, 716 A.2d 1017, 1021. See generally Chambers v. Nasco,

Inc.,501 U.S. 32, 45-46 (1991) (court has inherent power to assess attorneys fees when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons). Under

Linscott, fees may not be awarded in thc absence of significant bad faith on the part of a litigant. 1998 ME 206 17,716 A.2d at 1021.

Fees may also be awarded in appropriate circumstances for violations of M.R.Civ.P. ll(a), which provides that the signing of a pleading constitutes a representation that, to the best of the signer's knowledge, information, and belief, "there is good ground to support it." Rulc 11 provides for the imposition of sanctions, including attorneys fees, when a pleading is signed "with intent to defeat the purpose of this rule." In this case, the use of Rule 11 may be complicated to some extent because the operative pleading here - the amended cornplaint - was not signed by Nadeau but by "Kellie Cameron for Robert M.A. Nadeau, Esq." Nevertheless; the rule provides that sanctions may be imposed upon a represented party as well as on counsel.

In the court's view, there are groi~ndsfor finding that - as against the McGarry defendants1' - the initiation and continued prosecutioi~ of this case constitutes an egregious abuse of the litigation process and a violation of Rule 11:

Attorney Nadeau is an able and experienced attorney who is .

obviously familiar with the doctrine of res judicnta. His decision to pursue Counts I, 111, and V only on behalf of his minor children is tantamount to an admission that res judic~tflwould apply to those claims if they were asserted on his own behalf and on behalf of his law firm.

The joinder of Nadeau's minor children as plaintiffs in this action - when the claims involve alleged defamation of Nadeau and alleged invasion of Nadeau's privacy - is a transparent attempt to circumvent YPS jzrdicntn.

Nadeau filed the complaint in this action on behalf of h s minor children in July 2005 even though it is the court's recollection that he testified at the trial in September 2005 that he had not communicated with his minor children in some time, that his children were refusing to communicate with him, and that he was no longer going to iet them interfere with h s happiness.

Nadeau's animus against the McGarry defendants has become increasingly evident during the course of CV-03-267 and the prosecution of this case. In CV-03-267 this was epitomized by personal ntiacks that were contained in the summary judgment papers Nadeau filed. Calling one's adversaries "desperate, grcedy attorneys," stating that they

''The court expresses no views as to the merits of plaintiffs' claims against the other defendant, Jack Hunt. If plaintiffs have a viable cause of action against Hunt for defamation or any other tortious act, they will be entitled to proceed against I-lunt. M'liat they are not entitled to d o is to relitigate claims against the'McGarry defendants that have already been resolved in CV-03-267.

The court is aware that defendant E 1 ~ ~hasn t filed a motion for sulnmary judgment which the court has received from the clerk's office, but the court has not yet reviewed that motion or plaintiffs' opposition to that motion.

are "conveniently, greedily, and hatefully" depicting cvents, and opining that they are "outright lying and discredited, if ' ~ evidence, to say the least, not also completely i g n ~ r a n t " is of a lack of detachment sl~ownby Nadeau toward the McGarry defendants.

Attorney Nadeau's conduct in conducting the deposition of dcfendant McGarry in CV-03-267 was f o m d to have been out of line in certain respects and to have crossed the lil-ie into badgering. Ordcr dated June 28 and filed Tune 30, 2004 in CV-03-267 at 2-4. In that order at 3 n.3, the court made an observation that remains pertinent:

"-Whiie it may be understandable that [Nadeau] would have strong feelings about this case as a litigant, h s obligation as a lawyer is to remain professional and if he cannot do that, he should retain someone to represent him."

In his summary judgment papers in CV-03-267 Nadeau recited that as of that time he had filed 16 bar complaints against the McGarry defendants and Hunt. The sheer number of those complaints, together with the attempt to relitigate Nadeau's claims against the McGarry defendants in this action, is a significant basis for concern that Nadeau's dispute with the McGarry defendants has become a vendetta.

It has not escaped the court's attention that since Nadeau is representing himself in all these proceedings while the McGarry defendants have retained counsel, even unsuccessful litigation against the McGarry defendants has the effect of punishi~lgthem by imposing costs on them.

iu'adeau has continued to pursue this l a w s ~ ~ i-t even bringing additional claims against the McGarry defendantsz0 - without giving any heeti to the factual and legal rulings against him in CV-03-267, the entry of final judgment in CV-

03-267, the fact that the court found the testimony of the McGarry defendants in that action to be credible, and the fact that in so doing, it n e ~ ~ s s a r ifound ly certain of Nadeau's own testimony not to be credible.

The above factors constitute a basis to find that the initiation and continued

prosecution of this case against the McGarry defendants constitutes an abuse of the 19 See o r d e r dated July 29,2005 and hled A U ~ L1,2005 I S ~ In CV-03-267 a t 5 a t n 5 and citations to leadings contained therein. E, As noted above, Count I of the orlglnal compl,lll~twas asserted solely against defenddnt Hunt.

litigation process under Linscott and that the amended complaint constih~tesa violation of Rule 11. However, because any award of attorneys' fees requires a finding of "significant bad faith," plaintiffs deserve to be heard 011 that issue. In addition, some further inquiry is necessary as to whether the amended complaint was signed with intent to defeat Rule 11 and whether lvadeau is responsible for that pleading even though he did not sign it. Accordinglyj the court will hold a further hearing with respect to whether the McGarrv defendants are entitled to attorneys fees, One other point should be made. The court is aware that an appeal is pending

from the judgment in CV-03-267. If the court committed errors in that case or if there is

I

any other basis to overturn or alter that judgment, Nadeau and his law firm have every right to pursue those issues before the Law Court. If they are successful, the judgment in CV-03-267 will be reversed in whole or in part or that case retried. However, whether Nadeau is ultimately successful or unsuccessful on appeal and in any retnal of CV-03-26? daes not affect the court's view as tc? the claims against the McGarry defendants in this case. Whether he should win or lose 011 the issues he is raising on appeal from the judgment in CV-03-267, there is no basis for Nadeau to harass the McGarry defendants by rclitigating the same claims and issues against them in a subsequent lawsuit.

T11e entry shall be:

The motion to dismiss by defendants Amy McGarry, Pamela Holines, and McGarry & IIolllres LLC is granted and the amended complaint is dismissed with prejudice against defendants McGarry, Holmes, and McGarry & Holmes ],LC. A separate hearing will be held for the parties to offer evidence oil the issues of whether plaintiffs have engaged in bad faith and whether Rule 11 has been violated. If Attorney Nadeau does not accept full responsibility for the amended complaint even though he did not sign it, Kcilie Cameron shall attend the hearing.

cr The clerk is directed to incorporate this order in the docket by reference pursuant to Ruie 79(a).

Dated: March 32006

R o b e r t M. A. Nadeau, Esq. - PLS W e n d e l l L a r g e , E s q . - DEF. JACK BUlJT S u s a n D r i s c o l l , E s q . - DEFS. APZ B . MCGARRY, PAMELA S. HOLMES, MCGARRY & HOLMES LL

STATE OF MAINE SUPERIOR COURT YOP&, ss. CIVIL ACTION Docket No. CV-05-221

ROBERT M A . NiZDEAU, indiviclvaily and as parent and guardian of IAN ROBERT NADEAU and ERIN ROLAhTD NADGAU, et al., ,d Plain tiffs, AblEI\TDED ORDER

v.

JACK HUNT, et al., Defendants.

Bcfore the court is a motion to dismiss filed by defendants Amy McGarry, I'amela Holmes, and McGarry & H o l m ~ sl,T,C (hereafter, the "McGarry defendants"). The McGarry defendants' motion is directed to the amended complaint filed on November 14, 2005 by plaintiffs Robcrt M.A. Nadeau, the law firm of Nadeau & Associates, and two of Nadeau's minor children in response to this court's order granting the McGarry defendants' initial motion for a more definite statement.

At the outset, although the amended complaint is not a model of clarity 011 this issue, plaintilfs have represented in their opposition to the McGarry defendants' motion

that Count I ("Invasion of P r i v a c y / D e f a ~ ~ ~ ~ t iCount ( - ~ i i ~I11

~ )("Emotiunal

, Distress"), and

Count V ("Punitive Damages") are o i ~ l yasserted against the McGarry defendants on

behalf of plaintiff Robert Nadeau's minor children and that C o u i ~I1 t ("Interference 147ith

Advantageous Re1 atioi~s")is not asserted against the h/lcGarry defendants at all.' As a result, the issue to be decided on this motion is whether Nadeau's cl~ildrencan proceed against the VlcCarry defendants on Cou:~tsI, 111, and V and whether Nadeau, his law

' See Plaintiffs' Combined Object~onsto Defendants' Motion to Dismiss a n d Motion to Enlarge Scheduling Order, dated November 30, 2005 a n d filed D e c e ~ ~ i b 1,7005, er a t 3,4,5, 7.

firm, aid liis minor dii!dreii can procetxl against the McGarry defendants on Col~ntTV ("Unfair Trade Practices").'

As to all of these claims, the McC~irrydefendants have h . ~ basic ~ o arguments. The

first is that these claims were already litigated between Nadeau, his law firm and the ?vIcGarry defendants in Docket No. C'v-33-20 aiid that, as a result, further !iti;lga:ic;i1 Is barred by the doctrines of res jlidicntn and coilateral estoppel. The second argument is that Nadeau's minor chldren do not have standing to complaili about torts that were- allegedly committed, not against them, but against their father.

Two procedural issues should bc addressed at the outset. First, ill considering the issues of res ji~clicntnand collateral estoppel, the McGarry defendants have attached copies of the court's November 1, 2005 judgnlent aiid order in Docket No. CV-03-267 and have also attached copies of the October 28, 2005 transcript in which the court orally set forth its findings of fact a i d conclusions of law on the record in CV-03-267. Plaintiffs l ~ a v enot raised any objection to the submission of those materials, and it is ~vellsettled that a court can take judiaal notice of its own records. See, e.g, Currier v.

Cvr, 570 A.2d 1205, 1207-08 (Me. 1990); IYarren v. Waterville Urban Renewal Autliority, 290 A.2d 362, 367 (Me. 1972). Indeed, ill resolving the res ji~clicntnand collateral estoppel

issues raised by the h4cGarry defendaiitq, the court will take judicial notice of the entire record in CV-03-267.

Secoiid, after plaint~ffsfiled their opposition to tlie McGarry defendants' motioii and after the McCarry defendants filecl <I I-cplybrief, plaintiffs kiled a reply of their own - in effect, n surreply brief not con tcmpla ted under tlie rules. Altliougl~the filing in

S y ~ n p t o m a t i cof the lack of clarity that su~.l.ountlztlie claims asserted in [he a m e l ~ d e dco~nplaint, paragraph 22 of that document s ~ l g g e s t sthat recovery on C o u n t IV is s o u g h t against the McCarry defendants solely on behalf ot Nadeau's minor clitldren. However, in their papers opposing the motion to dismiss, plaintiffs argue that all plaintiffs are p i ~ r s u i n gthis count against the h4cCarry defendants.

question has not been objectcd to by th(\ h/lcGarry defendants, plaintiffs neither sought nor were granted leave from the court lo file the submission in question. As a result, the surreply should be disregarded. Motion practice is not a free-for-all in ~vluch parties are entitled to file surreplies or rejoinders whenever they feel like it.

In addikion, eve11 if the C G U T ~;irere to consider plaintiffs' sarreply submission, there is nothing in that docurnent that would affect the court's ruling on the motion."

1. Count I - Invasion of Privacy and Defamation Claims - Res Tz~dicnfn In the original complaint, plaint-ilfs appeared to be bringing Count I as a defamation claim solely against defendant Hunt4 but the amended complaint now asserts invasion of privacy and defamation claims against the McGarry defendants on behalf of Nadeau's children. The origii~alcomplaint was also singularly deficient in specifics. In response to the court's order granting the McGarry defendants' motion for a more definite statement, plaintiffs' amended complaint now lists various alleged defamatory statements and one alleged invasion of privacy. These are set forth in paragraphs 8 and 9 of the amended complaint.

3 At one point in that document, plaintiffs state tliat the McCarry defendants are not entitled to s u m m a r y judgment because they have not presented any ~ ~ ~ ~ i i i sfacts. p ~ ~ I'laintiiis'

ted Reply to Defendants McCarry, Holines, a n d McGarry & 1-lolmes LLC's Reply Brief, dated December 22, 2005 a n d filed December 27, 2005, a t 3 (last full paragraph). 'l'ht~rourt agrees that 110 motion for sulnmary judgment has heen filed and that disputed factl~alissues cannot be r ~ a c l i e don a motion to dismiss. plaintiffs have not argued, however, that the court-cannot determine, based on its o ~ ~records, r i w h a t issues were litigated a n d decided in C'J-03-26?, S f e Carrier v. Cvr, 570 A.2d at 1208 (court can take judicial notice of the entire record ill another proceeding before the court a~?c!t!iere ‘ire n o factaal issues to be resolved in determining the effect of the prior decision). If plnintitfs wished to raise such a n argument, they were required to d o s o in their original opposition r a t h c ~than . in a n unauthorized surreply. I n any event, as Currier v C y r dernonstrates, the record i n CV-03-26? is determinative of what w a s litigated in that case, a n d the effect of the prior decision upon the prese~rtactionis a q ~ i e s l i o nof law. 570 A.2d at 1207-08. As a result, res j~riiiu~trzissues can be resolved a t this staj;? wi[llout any 11eed to file cl m o t i o ~ for l summary

judgment. "l'he original complaiiit also was not a model of clarity, but the "Wherefore" clause in C o u n t I w a s directed solely against H u n t .

However, most if not all nf the i~~cidents referred to in paragraphs 8 and 9 of the

amended complaint, to the extent that they relate to the McGarry defendants, have

already been litigated at l e i ~ g t land ~ decided as part of the counterclaim brought by

Nadeau and h s law firm against the McCarry defendants in CV-03-267:

Thus, paragraph 8(b) of the aini-i-~dt-cicoillplaint alleges that tllie PvlcGarrji defendants defamed Nadeau in a meeting with Lynnann Frydrych at Litchfield's Restaurant in November 2003. See Amcnded Complaint 'i[l[ 8 (b)(l)-(10).This was the-

subject of considerable testimony at thc trial in CV-03-267 and resulted in express

findings that no defamation occurred and that no damage to Nadeau resulted. & October 28, 2005 Transcript in CR-03-267 (hereafter "October 28, 2005 'Tr.") 38-41."

Similarly, paragraph 8(c) of the amended complaint alleges that Holmes made defamatory statements about Nadeau to Kristie Cote. Those allegations were also part of the trial in CV-03-267 and also resulted ill a finding against Nadeau and his law firm.

October 28, 2005 Tr. 37-38.6 Paragraph 8(d) of the amended complaint alleges that the McGarry defendants, through statements, "facial gestures," and other actions, publicized false and reckless views about Nadeau to a variety of pc>c.l?le. One of the persons listed as the alleged recipient of a defamatory communicatiol~(Karen Frink Wolf) was called as a witness at

trial in CV-03-267. Three otl~erswert. ,~~bpoenaed for trial but were not called as

witnesses (Neil Jamieson, Dana Prescott, and Lise Wagner). At least one of the remaining individuals (Donna Bailey) was deposed in CV-03-267 to discover if she had

been the recipie~ltof defalndtory or clispc~rat;i~~g communications. Nadeau also S O L L ~ ~ I ~

lo tlrpose one of 1 1 1 ~remCiinitlgindiviclc ~rllslisted (Pvlrrrdith Richardson) in CV-03-267,

In the transcript Frydrych's name appears a s " F r ~ c d r i c k .

6 In the October 28,2005 transcript, Cotc's name nilpears as "Coty".

but the court ruled that any conversati:ms between the McGarry defendants and Ms. Richardson were privileged. Order dattd August 11, 2004 and filed August 12, 2004 in CV-03-267. If Nadeau had evidence that any of individuals listed in paragraph 8(d) had been the recipients of nonprivileged defamatory statements made by the h'lcGarry

defendants, hc c ~ u l dhave offered that :>~~idencc ~ ?the

t trial ir, CV-03-257. The court's

findings against Nadeau on all his defamation claims in CV-03-267 reflected the failure by Nadeau and hs law firm to substantiate any of those claims at trial.

Paragraph 8(e) of the amended coinplaint in this case does not allege any cognizable claim of defamation or invasion of privacy. That paragraph, moreover, involves allegations that were litigated at some length in CV-03-267 and were the subject of findings by the court. & October 28, 2005 'I'r. 41-45. On those issues the court found that when McGarry and I-lolmes left Litchfield's Restaurant, they had been told that Ms. Frydrych did not object to the matters that had been placed in the

pleadings in CV-03-267 so long as her name was not mentioned. Id. The court also found that Ms. Frydrych's counsel thereafter expressed the view that Ms. Frydrych's

confidentiality had not been adequately protected. The court did not find that McGarry or Holmes had lied with respect to any of these issues.

The court does, lio~vever,disagree with the h,lcGarry defendants that i t found [lie McCarry defendants to be "above reproach" in connection with tlie information contained in their pleadings in CV-03-267. See McGarry defendants' motion to dismiss a t 10. '!'lie relevant portion of the October 28, 2005 transcript states a s follows:

It does 11121 mean, however, that I'm going to say that, a n d maybe I have already m a d e this clear b c ~ tI cva;;t to b e crystal clear c:r; it, that 1 ;!vrou!d find thc plaintiffs t o be above reproach in connection here.

October 28, 2005 Tr. 45 (emphasis a d d e d ) . 7'he c o ~ ~ r tattempt 's to be clear appears to have been less than s u c c e s s f ~ ~ lb,u t the court Jvas attempting to ~ i i ~ kthrce e points. First, statements in pleadings are absolutely privileged s o long a s they are reli.\,ant, and all the statements m a d e in the hlcGarry defendants' pleadings in CV-03-267 were relevant to the issues in that proceeding. Second, the blcCarry defendants' statements that Nadeau liad a n affair with a person w h o at the time of tlie affair w a s a client were i n fact true. See October 28, 2005 Tr. 28-29, 30-31.T'hird, although this did no1 affect [he o u t c o ~ n eof any claims in CV-03-267, the court w a s not sure that all oi tile h c t s with respect to Nadeau's attair with a client needed to be set forth in the initial papers t!int were filed.

The claim that defendant Holmcq filrd a frivolous judicial conduct complaint against Nadeau, see Amended Complaint 8(f)(l),was also litigated in CV-03-267 and resulted in a ruling against Nadeau in that case. October 28, 2005 Tr. 45-46. Likewise, the facts with respect to Holly Henderson's retraction of an affidavit and Holmes's attitude tovcard Nadcax's rcquest to sc;? the pleadings, see Amended Comp!aint qq 8(f)(2)and (3), were fully explored at tile trial in CV-03-267. If Nadeau thought those facts had given rise to some kind of independent claim against Holmes (as opposed to merely bearing on her motivation), he could have asserted that claim in CV-03-267.

Finally, plaintiffs' claim in this action that Nadeau was subjected to an invasion of privacy, see Amended Complaint If9, was fully litigated in CV-03-267 and was upheld ill part and rejected in part. October 28, 2005 Tr. 60-70. This is the one claim on which Nadeau partially prevailed in C\7-03-267. However, res judicata bars relitigation of claims on which a party has prevailed as well as claims on which a party was unsuccessful. Restatement (Second) of Tudgments 55 18(1), 21(1).

The above facts amply demonstrate that i f Nadeau and his law firm were asserting the claims set forth in Count 1 of the amended complaint against the McGarry defendants, those claims would be barred by res jr~dicatn, collateral estoppel, or both. Indeed, this is virtually acknowledged I,y plaintiffs because, as against the McGarry defendants, Count I is brought only 011 bc-half of Nadeau's minor children.

The doctrine of res j~ldicata (also ccllled "claim preclusion") bars reli tigation of a claim if (1) the same parties or their privies are involved with both actions; (2) a valid final judgment was entered in the prior ,lction; and (3) the matters present for decision notv tvere, or miglit have been, litigated in the prior action. Camps Newfound/Owatolui~aCorp. v. Town 01 Harrison, 1998 ME 20 41 11, 705 A.2d 1109, 1113; Currier v. Cvr, 570 A.2d at 1208.' 111 this case, Nadeau and Nadeau & Associates brought soui~terclaimsagainst Amy McGarry, Pamela Holmes, and McGarry & Holmes LLC in CV-03-267, and those clairns have been resolved by a valid final judgment.

Although an appeal has been taken from the judgment in CV-03-267, that does not deprive the jt~dgrnent~f finality for p:lrpi:ses of 1.2s j;:dZcata. Set Restatement (Second)

of Judgments 5 13, comment f; 18A it'rigi~t, Miller & Cooper, Federal Practice and Procedure: Turisdiction and Related Matlcrs 2d, § 4433 at 78-79 and cases cited at n.KL9 As discussed above, all of the claims in Count I were either actually litigated by Nadeau and his law firm in CV-03-267 or could have been litigated in that case. Indeed, and rather strilungly, the allegations in paragraphs 8(b)(l)-(8),8(e), and 8(f) of the amended complaint in this action simply repeat with minor modifications the allegations set forth in paragraphs 2(a), 2(b) and 4 of a September 14, 2005 offer of proof filed by defendants in CV-03-267. 5% Defendants' Specification of Claims of Defamation in CV-03-267, dated September 13, 2005 and filed September 14, 2005 in CV- 03-267. At no point did the McGarry defendants object to litigating any of Nadeau's defamation or invasion of privacy claim5 in CV-03-267 even though 1110st if not all of those claims involved conduct that postdated the initial complaint in that case."

8 -I'he doctrine of collateral estoppel (also called "issue preclusion") prevents relitigation of specific factual issues already decided if the identical issue was determined by a prior final judgment and the party estopped had a fair opportunity and incentive to litigate the i s s t ~ ein a prior proceeding. Cline v Maine Coast Nordic, 1999 ME 72 9,728 A.2d 686,688; liestatement (Second) of Judgments 27. Since res j~ldicatnapplies more broadly than collatcra! estoppel, thc court will no: separately discuss collateral estoppel except to note that most i f not all ot plai!?t~ffs'claims were actually !i!igated i!? C?/-03-267 and would therefore be barred by collateral estoppel a s well. ' Indeed, ~f a case is dismissed based on res j~idic(rtn,M.R.Civ.P. 6O(b)(5) would specifically allow relief from that dis~iiissalif the prior judg~nenton rvhicl; r ~ jrrdicatn ~ s is based is later "reversed or otlier~vise vacated." Accordingly, if the judgment in CV-03-267 is later reversed on appeal, plaintiffs could then seek relief in this action. 'O By way of example, the alleged defamation a t I .i Lchfield's R c s t a ~ ~ r a nthe t , dispute over Nadcau's request to seal the pieadings, and Holmes's judicial concluct colliplaint all post-dated the complaint and were litigated without objection.

The remaining question is wrhetlier it makes any difference that in this case Count I is asserted against the McGarry defendants only on behalf of Nadeau's minor children. Notably, Count I does not allege that the McGarry defendants defamed the children or invaded the children's privacy. Instead, it specifically alleges that the McGarry defeildants "have engaged ii; invasions of privacy a:d defamatio:: of the Plaintiff, Nadeau, and the Plaintiff Firm that have had reasonably foreseeable, previously unaddressed significant financial and emotioi~alconsequences . . . upon the minor plaintiffs." Amended Complaiilt '1 7.

Where parties such as Nadeau's minor children bring actions for losses resulting from personal injury to another person - claims that are derivative rather than individual - such claims are barred by yes jz~clicata. The Restatement is clear on this subject:

When a person with a family relationship to one suffering personal injury has a claim for loss to himself resulting from the injury, the determination of issues in an action by the i n j ~ ~ r person

ed to recover for his injuries is preclusive against the family mernber, unless the judgment was based on a defense that is unavailable against the family member in the second action.

Restatement (Second) of Judgments 5 48(2). The only exception to this rule under Maine law involves claims for loss of consortium, and those claims are treated

differently because the statute governing consortiun~~ claims expressly provides for a

separate and independent right of recovery. See, e . G Parent v. Eastern Maine Medical

Center, 2005 ME 112 q14, 884 A.2d 93, 96. There is no cornparable statutory basis to exempt claims made by minor cliildren Lased on alleged defamation against their father

from Section 38 of the Restatement.

I11 sum, Count I of the Aniended Coinplaint is barred as against the McCarry defendants by yes juclicafn.

2. Count I - Standing Count I of the Amended Complaint is also barred as against the McGarry defendants because is Nadeau's minor children do not have standing to assert claims for defarnatior~or i1;vasion of privacj. xherc they were not the persons allegedly defamed or the persons whose privacy as allegedly invaded. Plaintiffs have cited no authority, and the court is aware of none, that would permit defamation or invasion of

privacy claims to be asserted derivatively by Nadeau's minor children. Instead, as -

noted in Prosser and Keith, Torts 111 at 778 at n.48 (5'" ed. 1984), an action for

defamation "is personal to the plaintiff and cannot be founded on defamation of another." " Indeed, one of the requisites of an action for defamation is that the defa~natorystatement be "of and concerning the plaintiff." Lester v. Powers, 596 A.2d 65, 69 (Me. 1991) (emphasis added and internal quotes omitted).

Similarly, Nadeau's children do not have standing to bring an invasion of privacy claiin when the only invasion of privacy that has been alleged is the copping of information from their father's divorce and bar defense files. & Amended Coinplaint

T 9. Accordingly, Count I of the amended complaint is also dismissed as against the McGarry defendants on the alternative ground that Nadeau's children do not have

standing to pursue that claim.

- - - -

" In this connection, the Law Court ruled in one case that parents cannot sue for alleged infliction of emotional distress based on allegedly defa~natorystatements made a b o ~ their ~ t son. Benjamin v . Aroostook 1996 Me. LEXTS 229 (1'196). Although originally published in the advance sheets, this opinion was thereafter withdrawn fro171publication, apparently because it had either been intended as a m e l n o r a n d ~ ~decision m or was subsequently converted to a m e m o r a n d ~ ~decision.

m See

685 A.2d 765.

10

3. Count I - Failure to State Claim The foregoing discussion establishes tl~at, with the possible exception of p r a g r a p h 8(d), all of the allegations contained in count I of the amended complaint were ack~ally litigated in CV-03-267 and also establishes that the allegations in 8(d) could have been litigated in CV-03-267. 'The allegab'oiis in paragraph 8(d) are subject to dismissal for another reason as well. In its November 1, 2005 order the court directed plaintiffs to identify the statements that form the basis for their defamation claim.'' This follows from the principle that a defendant is entitled to- sufficient notice of the content and circu~nstancesof an allegedly defamatory statement to be able to determine whether defenses such as truth and privilege sl-tould be raised. See Lester v. Powers, 596 A.2d at 68 n.4; Picard v. Brennan, 307 A.2d 833, 834-35 (Me. 1973). Paragraph 8(d) of the amended complaint fails to meet this requirement. Instead, it consists of a list of persons to whom, through statements, "facial gestures," and other actions, Hunt and the IvlcGarr~defendants allegedly publicized false and reckless views about Nadeau's integrity, fairness, and competence. The allegedly false and reckless views that were allegedly publicized are unspecified.

In the first place, a defamation claim cannot be based on "facial gesh~res."

Second, under Maine law as demonstrated by such cases as Picard v. Brennan and under the court's Novenlber 1, 2005 order, defendants were entitled to know the y recise statements that were alleged to have been defamatory. See November 1, 2005 Order at 1. In entering its November 1 order, the court was influenced by its experience in CV- 03-267, where Nadeau and lus law firm spent considerable effort on what can only be described* as a fishing expedition to find out whether defamatory or disparaging statements had ever been made. l2 At that time, as noted above, the defamat~onc l n ~ mwas solely asserted against IIunt.

In opposing the McGarry defendants' motion to dismiss, plaintiffs cite to W1.R.Civ.P. 27, the provision in the civil I-ules governing pre-action discovery, and they admit that some of the conduct of which they complain is "still unknown but certainly

discoverable." See Plaintiffsf Reply to Defendants McGarry, Holmes, and McGarry & Holmes LLC's Reply Brief, dated DeccmSer 22, 2004, at 2 (emphasis addcd).13 In the

court's view, this evinces a misunderstanding of 1vl.R.Civ.P. 27 and the litigation process.

Plaintiffs' reliance of M.R.Civ.P. 27 is entirely misplaced in light of the Law.

Court's ruling that Rule 27 is a method of perpetuating testimony and "is not a discovery device to assist plaintiffs to discover facts and frame a complaint." In re Petition of Sen, 1999 ME 83 ql 5, 730 A.2d 680, 682. Similarly, plaintiffs are not entitled to file a lawsuit alleging ~lnsyecifiedinstances of defamation and then undertake discovery in the hope that they can find some evidence to substantiate their apparent suspicion that the defendants must have said something derogatory about Nadeau to someone.

4. Count 111 - Emotional Distress Claim Like Count I, Count I11 of the amended cornplaint is brought against the McGarry defendants only on behalf of PJadeau's rninor children. On this count, the analysis tracks the previous discussion. First, no additional factual allegations are made in Count 111, and Count I11 therefore stands on the previous allegations set forth in Counts 1 and 11. & Amended Complaint (jig 7-13, 15. l'he only specific allegations of misconduct by defendants are set forth in paragraphs 8 and 9 and have been discussed

'"'laintiffs also relied on the existence of Rule 27 in their original opposition papers, see Plaintiffs' Combined Objections to Defendants' Motion to U~smiss,dated November 30, 2005 and filed December 1, 2005, at 3 n.2, and they even cited Rule 27 in qj 8 of the amended complaint.

above. Once again, tlhese daims ~\iol--!ld!le barred by yes jlldimta if asserted by Nadeau and his firm against the McGarry defendants and once again, under the principle set forth in Restatement (Second) of Judgments § 48(2), the minor children's claims are also precluded.

Separate and apart from the res j!irlixtn issue, Nadcau's minor cluldren also do not have standing to assert claims for intentional infliction of emotional distress based on damage to their father's reputation.'" Finally, although the October 31, 2005 order

directed plaintiffs to identify "the actions taken by each defendant that constitutes the

e

basis for each cause of action asserted against that defendant," nolhing in the amended complaint alleges any conduct by the McGarry defendants that was related to or directed at Nadeau's minor children. Count I11 must be dismissed as against the McGarry defendants.

5. Count IV - Claims of Unfair or Deceptive Acts or Practices

Count IV is apparently brought c~gc~inst the McGarry defendants by Nadeau and

his law firm on their own behalf as well as by Nadeau on behalf of h s minor children.'" In light of the foregoing discussiol~,the flaws in this cause of action can be summarily enumerated.

First, although the court made clear in its October 31 order that merely alleging unspecified violations of bar rules was not sufficient to give fair notice to defendant of the grounds on which monetary damages were being sought against them, see

l 4 If Nadeau's minor children could bring sucll c!<lims,so could his parents or siblings or even close friends who might allege they have suffered eniotiol~aldistress because Nadeau's reputation has been harmed. The court is aware of no authority for an cmotionnl distress claim based on harm to others. In far more compelling circumstances, such claims havc been rejected. See Cameron v. Pepin, 61 0 A.2d 279 (Me. 19923. is But see n. 2 silpra.

November 1, 2005 Order at 2-3, plaintiff<have offered nothing more than a litany of bar rules in Count IV of the amended complaint. Unspecified violations of various bar rules do not state cognizable claims under the Unfair Trade Practices Act. On that basis alone, Count IV can be dismissed against the McGarry defendants.

Second, to the extent that plaintiffs are again relying 01; the same factual allegations set forth in paragraphs 8 and 9 of the complaint, none of those allegations states a claim under the Unfair Trade Practices Act because none of those claims remotely involve the purchase or lease of goods, services, or property for personal, family, or household purposes. See 5 M.R.S.A. 5 213 (1).

Third, to the extent that plaintiffs are relying on unspecified conduct not alleged in paragraphs 8 and 9, Count IV is insufficient as a matter of law because plaintiffs have not identified the unspecified conduct and have not alleged that the unspecified conduct involved the purchase or least of goods, services, or property for personal, family, or household purposes.

Fourth, to the extent that plaintiffs are basing their unfair trade practice claims on conduct that was or could have been litigated in CV-03-267, Count IV is barred as against the McGarry defendants by res iildicnta. In this respect, it bears emphasis that res jtldicntn appIies not only to the claims that were actually litigated in a prior action but also applies to any other claims based on the same conduct that could have been litigated in the prior action. See Dumorit v. Fleet Bank, 2000 ME 197 mq[ 6-7, 760 A.2d

~ ~ME 20 T 1 1 -

1049, 1052; Camps N e w f o u n d / O w a t o m 1998

12, 705 A.2d at 1113-14; Currier v. Cvr, 570 A.2d at 1208. Even if a new legal theory is

advanced in the second case, res jtldiratn zpplies. M.

-

Fifth, to the extent that Unfair Trade Practice claims are advanced on behalf of

Nadeau's children based on claims that ruere or could have been litigated In CV-03-267, the children's' derivative claims are barred by res jr,idicnta to the same extent as their father's claims.

Sixth, although plaintiffs contend that the court declined to permit consideration of any bar proceedings in CV-03-267 because those issues arose after the termination of

~ l employment e issue that was the i ~ c u sof CV-03-25?176&at is not the court's

recollection. The court was aware that Nadeau had filed various bar complaints but believed that whether bar violations llad occurred (on the part of Nadeau or the McGarry defendants) was a separate issue from the contract and tort claims that were before the court in CV-03-267. Alleged bdr violations are also a matter for the Grievance Committee, as opposed to the Superior Court, to consider.

However, to the extent that any conduct that was the subject of bar complaints also gave rise to alleged tort or contract claims, the court did not preclude Nadeau and his firm from litigating those claims in CV-03-267. As noted above, a large number of the claims raised by Nadeau and his firm in CV-03-267 involved conduct that occurred after the complaint in that action had been filed.l7 Furthermore, it is the court's understanding, although it is not familix with the substance of the bar complaints that Nadeau has filed, that some of those complaints involve the same alleged conduct that formed the basis for claims that were litjgated in CV-03-267, including the failure to seal the pleadings and the copying of information from Nadeau's divorce file.

Seventh, to the extent that Coullt IV is asserted on behalf of Nadeau's minor children, the children do not have standing to pursue claims based on alleged unfair trade practices committed against their t,i ther.

l 6 See Plaintiffs' Combined Objections to D e f e n d a ~ ~ tMotion s' to Dismiss and Motion to Enlarge ~ c h e d u l i nOrder, ~ dated November 30,2005 anci fiirci Deceln'uer 1, 2005, al- 6.

17 n.10 slipm.

Eighth, as far as Nadeau's minor children are concerned, there are also no allegations that they suffered any loss of money or property - allegations which are a prerequisite for relief under the Unfair Trade Practices Act. See 5 M.R.S.A. § 213(1).

6. Count V - Pun-

As against the McGarry defendants, Count V seeks punitive damages only on behalf of Nadeau's children. Since punilive damages can only be awarded if there is an award of compensatory damages, Tolowitz v. Alfa Romeo Distributors, 2000 ME 174 ¶11, 760 A.2d 625, 629, the dismissal of the Nadeau children's claims for- compensatory damages against the McGarry defendants necessitates the dismissal of their punitive damages claim as well.

7. McGarry Defendants' Request for Attorneys Fees Accompanying the McGarry defendants' motion to dismiss is a request that they be awarded their attorneys fees in defending this action. Under the circumstances of this case, where there is no statutory provision for attorneys fees, an award of attorneys fees can only be made upon a determination by the court that the assertion of claims against the McGarry defendants in this action constituted the kind of egregious conduct and abuse of the litigation process that lvould justify a departure from the "American Rule" that losing parties are not responsible for their opponent's legal fees. See Linscott v. Foy, 1998 ME 206 q[q[ 16-17, 716 A.2d 1017, 1021. See generallv Chambers v. Nasco,

Inc.,501 U.S. 32, 45-46 (1991j (court has ~nherentpower to assess attorneys ices when a party has acted in bad faith, vexatiouslv, \vantorlly, or for oppressive reasons). Under

Linscott, fees may not be awarded in the absence of significant bad faith on the part of a litigant. 1998 ME 206 ¶ 17, 716 A.2d at 1021.

Fees may also be awarded in arpropriate circlimstanccs for violations of M.R.Civ.P. ll(a), which provides that the signing of a pleading constitutes a representation that, to the best of the sigi~er'sknowledge, information, and belief, "there is good ground to support it." Rule 11 provides for the imposition of sanctions, including attorneys fees, vvhm a pleadiiig is signed "with interit to defeat the purpose of this rule." In this case, the use of Rule 11 may be complicated to some extent because the operative pleading here - the amended complaint - was not signed by Nadeau but

by "Kellie Cameron for Robert M.A. Nadeau, Esq." Nevertheless; the rule provides that

7

sanctions may be imposed upon a represented party as well as on counsel.

In the court's view, there are grounds for finding that - as against the McGarry

defendants'" the initiation and continued prosecution of this case co~~stitutes an

egregious abuse of the litigation process and a violation of Rule 11:

Attorney Nadeau is an able and experienced attorney who is obviously familiar with the doctrine of yes judicata. His decision to pursue Counts I, 111, and V only on behalf of his minor children is tantamount to an admission that yes jzrdicata would apply to those claims if they were asserted on his own behalf and on behalf of his law firm.

The joinder of Nadeau's minor children as plaintiffs in this action - when the claims involve alleged defamation of Nadeau and alleged invasion of Nadeau's privacy - is a transparent attempt to circumvent yes jtldicofa.

Nadeau filed the complai~~t in this action on behalf of his minor children in July 2005 even though it is the court's recollection that he testificd at the trial in September 2005 that he had not communicated with his minor children ill some time, that his children were refusing to communicate

''l'he court expresses no views as to the merits of plaintiffs' claims against the other defendant, Jack Hunt. If plaintifls have a viable cause of action against I-lunt for defamation or any other tortious act, they will be-entitled to proceed against Hunt. What they are not entitled to d o is to relitigate claims against the McGarry defendants that have already been resolved in CV-03-267.

The court is aware that defendant Hunt has filed a motion for summary judgment which the court has received from the clerk's office, but the court has not yet reviewed that motion or plaintiffs' opposition to that motion.

with him, and that he ::'as no longer going to let them interfere withl h s happiness.

Nadeau's anjmus against the McGarry defendants has become increasingly evidcnt during the course of CV-03-267 - and the prosecution of this case. I11 CV-03-267 this was epitomized by personal attacks that were contained in the summarv judgment papers Nadeau filed. Calling one's advfrsaries "despera<e, grcedy attorneys," stilting that they are "conveniently, greedily, and hatefully" depicting events, and opining that they are "outright lying and discredited, if not also completely ignorant"19 is evidence, to say the least, of a lack of detachment shown by Nadeau toward the McGarry defendants.

Attorney Nadeau's conduct in conducting the deposition of defendant McGarry in CV-03-267 was found to have been out of line in certain respccts and to have crossed the line into badgering. Order dated June 28 and filed June 30, 2004 in CV-03-267 at 2-4. In that order at 3 n.3, the court made an observation that remains pertinent:

"While it may be understandable that [Nadeau] would have strong feelings about this case as a litigant, lus obligation as a lawyer is to remain professional and if he cannot do that, he should retain someone to represent him."

In his summary judgment papers in CV-03-267 Nadeau recited that as of that time he had filed 16 bar complaints against the McGarry defendants and Hunt. The sheer number of those complaints, together with the attempt to relitigate Nadeau's claims against the McGarry defendants in this action, is a significant basis for concern that Nadeau's dispute with the McGasry defendants has become a vendetta.

It has not escaped the co~~t-t's attention that since Nadeau is representing himself in all these proceedings while the McGarry defendants have retained counsel, even unsuccessful litigation ag?inst the McGarry defendants has the effect of punishing them by imposing costs on them.

Nadeau has continued l-ci pursue this lawsuit - even bringing additional claims against the McGarry defei~dants'~ - without giving any heed to the factual and legal rulings

19 See Order dated July 29,2005 and filed August 1,2005 in CV-03-267 at 5 a t n.5 and citations to leadings contained therein. fo As noted above, Count I of the original complaint 141as asserted solely against defendant Hunt.

against him in CV-03-267, the entry of final judgment in CV-

03-267, the fact that the a u r t found the testimony of the McGarry defendants in that action to be credible, and the fact that in so doing, it n e ~ ~ s s a r ifound ly certain of Nadeau's own testimony notto be credible:

n he above factors constitute a basis to fii-td that the initiation and continued prosecution of this case agaii-ist the PJcGarrj: defendants constitutcs an abuse of the

litigation process under Linscott anci thcli the amei-tded complaint constitutes a violation of Rule 11. However, because any award of attorneys' fees requires a finding of "significant bad faith," plaintiffs deserve to be heard on that issue. In addition, some

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further inquiry is necessary as to whether the amended complaint was signed with--

intent to defeat Rule 11 and whether Nadeau is responsible for that pleading even though he did not sign it. Accordingly, the court will hold a further hearing with respect to whether the McGarry defendants are entitled to attorneys fees.

One other point should be made. The court is aware that an appeal is pending from the iudgment in CV-03-267. If the court committed errors in that case or if there is any other basis to overturn or alter that judgment, Nadeau and his law firm have every right to pursue those issues before the Law Court. If they are successful, the judgment in CV-03-267 will be reversed in whole or in part or that case retried. However, whether Nadeau is ultimately successful or unsuccessful on appeal and in any retnal of CV-03-267 does not affect the court's view as to the claims against the McGarry defendants in this case. Whether he sl~ouldwin or lose on the issues he is raising on appeal from the judgment in CV-03-267, there is no basis for Nadeau to harass the McGarry defendants by relitigating Fhc s a n e claims and ~ssucsagainst them in a subsequent lawsuit.

Tile elllry sliali be:

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itc~lel~dants Amy A/lcCarrv, Pamela r'rc,:,-Llec A A ~.;~c~:~ Y/

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the parties io offer evidence 1111 the issues of whcther plailrkiffs ]lave e n-~ a-g e din bad faith ancl wlietl:i>;-T?~lle11 Iias been v i ~ l a l e d .If i'yttoi-ney dGes fit;: accepk full r.t.-;liijlisibi:iQ fui- the aii-~ei-,~i~d coilip71aii-it even tl-lough he did 1101 sign it, I.<c;;ii e ~ a r n e r o nshall ati-end the hearing.

F.7

I lic clerk is directetl lo i o:-c-:rp:,ra t-r 1-11is order in tile docket- by pursuanl- kc; ,Yule 79(a).

Dated: binrch ~ l &20i)i;

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R o b e r t M. A. N a d e a u , E s q . - P L S S u s a n B. D r i s c o l l , E s q . - DEFS. AMY B . MCGARRY, PAMELA S . HOLMES AND MCGARRY & HOLMES LLC W e n d e l l L a r g e , E s q . - DEF. JACK HUNT