STA TE OF MAINE SUPERIOR COURT PISCATAQUIS, SS. CIVIL ACTION DOCKETNO.: CV-2019-7 BEYERLYA. NASON, * * Plaintiff * * v. * * NOTICE OF DISMISSAL LM GENERAL INSURANCE CO. * and * WALLACE G. SINCLAIR, * * Defendant *
Pursuant to the parties' stipulation, it is hereby ORDERED that this matter shall be
dismissed as to Defendant Wallace G. Sinclair, and as to Defendant Sinclair's counterclaim
against Plaintiff Beverly Nason. These claims shall be dismissed with prejudice and without
costs. The case shall continue as between Plaintiff Nason and Defendant LM General Ins. Co.
The Clerk is hereby directed to incorporate this order on the docket by reference.
Dated: JUSTICE, SUPERIOR COURT
1675127.doc STATE OF MAINE SUPERIOR COURT Piscataquis, ss Docket No. CV-19-007
Beverly A. Nason, Plaintiff, v. ORDER re: Defendant's Motion to Allow Late Answer LM General Insurance Co., and Wallace G . Sinclair, Defendants.
Before the Court is defendant Wallace G. Sinclair's motion to allow him to file a late answer
to plaintiff Beverly A. Nason's complaint. Ms. Nason opposes the motion on the grounds that Mr.
Sinclair has not established that his failure to file an answer within the allowed period was due to
excusable neglect.
I. Case History
Ms. Nason filed her complaint against Mr. Sinclair on August 15, 2019 alleging that Mr.
Sinclair is liable in negligence for a motor vehicle accident on November 8, 2016 that injured Ms.
Nason. The Piscataquis County Sheriffs Office served Mr. Sinclair with the complaint and
summons in hand on September 5, 2019 at 635 Pleasant River Road, Milo, Maine. Under Rule 12(a)
and Rule 6(a) of the Maine Rules of Civil Procedure, Mr. Sinclair's answer was due on September 25,
2019. Mr. Sinclair did not file an answer within that time. On October 2, 2019, Plaintiff filed a
request for entiy of default and default judgrnent against Mr. Sinclair. On October 10, 2019, Mr.
Sinclair filed his motion to allow a late answer along with an answer and counterclaims.
In the motion, Mr. Sinclair contends that his failure to answer Ms. Nason's complaint within
the allowed time period was the result of excusable neglect due to the following conditions: the
distance between his residence in Brownville, Maine and his attorney's office in Island Falls is
approximately 85 miles; he was unable to make a timely appointtnent to discuss his case; he is a
1 Vietnam war veteran and "is severely disabled for bipolar [sic], as a result of his military service;" the
sheriffs office failed to put the date of service on the sutntnons; and he is currently making a good
faith effort to determine if his insurer will defend hitn in this lawsuit. (Mot. to Allow Late Answer 1
2.) He further contends that he will be denied substantial justice if his motion is not granted. (Id.)
Attached to Mr. Sinclair's motion was a purported copy of the summons form he was served with.
The second page of this sutntnons form where the sheriffs office would normally write the date,
name of the party served, form of service, place of service, and the signature of the individual
effecting service is blank.
Along ,vith her opposition to Mr. Sinclair's motion, Ms. Nason submitted a signed
document entitled "Sheriffs Return of Service" from the Piscataquis Sheriffs Office which states
that on September 5, 2019 Mr. Nason was served by a sheriffs deputy ,vith a "notice regarding
electronic service." In addition, Ms. Nason submitted an acknowledgement of receipt of sutntnons
and complaint form that was executed by Mr. Sinclair and dated September 22, 2019. In addition,
the Court received a return of service on October 10, 2019 that states Mr. Sinclair was served in
hand ,vith the sutntnons and complaint on September 5, 2019.
A hearing was held on Mr. Sinclair's motion on December 2, 2019 where the parties were
given the opportunity to submit evidence and offer oral argument. Neither party opted to submit
evidence or offer oral argument. The clerk has not entered a default against the defendant under
M.R. Civ. P. 55(a) nor entered a default judgment under M.R. Civ. P. 55(b)(1).
II. Analysis
Rule 12(a) of the Maine Rules of Civil Procedure requires defendants to serve an answer to a
complaint within 20 days after the service of the sutntnons and complaint upon the defendant,
unless the Court directs otherwise. M.R. Civ. P. 12(a). The Court may enlarge the defendant's time
within which to file an answer in accordance ,vith Rule 6(b). M.R. Civ. P. 6(b). The Rule provides
2 different standards depending on whether the party seeking an enlargement of time is doing so
before or after the filing deadline has passed. Id. The defendant in this case is moving the Court to
allow a late answer after his filing deadline has passed. In this situation, Rule 6(b) provides that the
Court "for cause shown" may, upon motion, permit the party seeking to file the answer to do so if
the party is able to show that its failure to act within the deadline was the result of "excusable
neglect." M.R. Civ. P. 6(b)(2); Dyer Goodall & Federle, LLC v. Pivcto1; 2007 ME 145, iJ 17, 935 A.2d
1123; Solomon's Rnck Ti: v. Davis, 675 A.2d 506,509 (Me. 1996). "Excusable neglect" will only be
found "when there are extraordinary circumstances that work an injustice." Dyer, 2007 ME 145, iJ
17, 935 A.2d 1123. However, the Law Court has also held that "M.R. Civ. P. 6(b) should be liberally
applied to work substantial justice." Solomons Rnck Tr. v. Davis, 675 A.2d 506, 508-509 (Me. 1996).
In addition, Maine law has a strong preference in favor of deciding cases on the merits. Thomas v.
Thompson, 653 A.2d 417, 420 (Me. 1995).
In Solomon's Rnck Trust the Law Court affirmed a trial court's grant of a motion for
enlargement of time where the defendant's motion was filed just three days after the 20-day period
to file an answer had passed and the defendant established extenuating circumstances caused by the
recent death of her spouse and the need to find alternative counsel. Solomons Rnck Tr. v. Davis, 675
A.2d 506, 509 (Me. 1996). In Dyer Goodall & Federle, the Law Court held that a trial court did not
abuse its discretion when it denied a motion to enlarge the defendant's time to answer a complaint
after the deadline had passed where the defendant's justification for not answering the complaint in
a timely fashion was that "he was preparing to leave his home in order to resume a vacation at the
time he was served, and did not take his files ,vith him." Dyei; 2007 ME 145, ,i 20,935 A.2d 1123
The Law Court further noted that the defendant had presented no evidence of extraordinary
circumstances and that the defendant did not file an answer until over a month after the deadline
had passed. Id. ,i 21.
3 Through his attorney, Mr. Sinclair states in his motion that his failure to file an answer
within the deadline was due to (1) the fact that he is severely disabled due to his bipolar condition,
(2) the length of the trip between his home in Brownville, Maine and his attorney's law office, (3) he
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STA TE OF MAINE SUPERIOR COURT PISCATAQUIS, SS. CIVIL ACTION DOCKETNO.: CV-2019-7 BEYERLYA. NASON, * * Plaintiff * * v. * * NOTICE OF DISMISSAL LM GENERAL INSURANCE CO. * and * WALLACE G. SINCLAIR, * * Defendant *
Pursuant to the parties' stipulation, it is hereby ORDERED that this matter shall be
dismissed as to Defendant Wallace G. Sinclair, and as to Defendant Sinclair's counterclaim
against Plaintiff Beverly Nason. These claims shall be dismissed with prejudice and without
costs. The case shall continue as between Plaintiff Nason and Defendant LM General Ins. Co.
The Clerk is hereby directed to incorporate this order on the docket by reference.
Dated: JUSTICE, SUPERIOR COURT
1675127.doc STATE OF MAINE SUPERIOR COURT Piscataquis, ss Docket No. CV-19-007
Beverly A. Nason, Plaintiff, v. ORDER re: Defendant's Motion to Allow Late Answer LM General Insurance Co., and Wallace G . Sinclair, Defendants.
Before the Court is defendant Wallace G. Sinclair's motion to allow him to file a late answer
to plaintiff Beverly A. Nason's complaint. Ms. Nason opposes the motion on the grounds that Mr.
Sinclair has not established that his failure to file an answer within the allowed period was due to
excusable neglect.
I. Case History
Ms. Nason filed her complaint against Mr. Sinclair on August 15, 2019 alleging that Mr.
Sinclair is liable in negligence for a motor vehicle accident on November 8, 2016 that injured Ms.
Nason. The Piscataquis County Sheriffs Office served Mr. Sinclair with the complaint and
summons in hand on September 5, 2019 at 635 Pleasant River Road, Milo, Maine. Under Rule 12(a)
and Rule 6(a) of the Maine Rules of Civil Procedure, Mr. Sinclair's answer was due on September 25,
2019. Mr. Sinclair did not file an answer within that time. On October 2, 2019, Plaintiff filed a
request for entiy of default and default judgrnent against Mr. Sinclair. On October 10, 2019, Mr.
Sinclair filed his motion to allow a late answer along with an answer and counterclaims.
In the motion, Mr. Sinclair contends that his failure to answer Ms. Nason's complaint within
the allowed time period was the result of excusable neglect due to the following conditions: the
distance between his residence in Brownville, Maine and his attorney's office in Island Falls is
approximately 85 miles; he was unable to make a timely appointtnent to discuss his case; he is a
1 Vietnam war veteran and "is severely disabled for bipolar [sic], as a result of his military service;" the
sheriffs office failed to put the date of service on the sutntnons; and he is currently making a good
faith effort to determine if his insurer will defend hitn in this lawsuit. (Mot. to Allow Late Answer 1
2.) He further contends that he will be denied substantial justice if his motion is not granted. (Id.)
Attached to Mr. Sinclair's motion was a purported copy of the summons form he was served with.
The second page of this sutntnons form where the sheriffs office would normally write the date,
name of the party served, form of service, place of service, and the signature of the individual
effecting service is blank.
Along ,vith her opposition to Mr. Sinclair's motion, Ms. Nason submitted a signed
document entitled "Sheriffs Return of Service" from the Piscataquis Sheriffs Office which states
that on September 5, 2019 Mr. Nason was served by a sheriffs deputy ,vith a "notice regarding
electronic service." In addition, Ms. Nason submitted an acknowledgement of receipt of sutntnons
and complaint form that was executed by Mr. Sinclair and dated September 22, 2019. In addition,
the Court received a return of service on October 10, 2019 that states Mr. Sinclair was served in
hand ,vith the sutntnons and complaint on September 5, 2019.
A hearing was held on Mr. Sinclair's motion on December 2, 2019 where the parties were
given the opportunity to submit evidence and offer oral argument. Neither party opted to submit
evidence or offer oral argument. The clerk has not entered a default against the defendant under
M.R. Civ. P. 55(a) nor entered a default judgment under M.R. Civ. P. 55(b)(1).
II. Analysis
Rule 12(a) of the Maine Rules of Civil Procedure requires defendants to serve an answer to a
complaint within 20 days after the service of the sutntnons and complaint upon the defendant,
unless the Court directs otherwise. M.R. Civ. P. 12(a). The Court may enlarge the defendant's time
within which to file an answer in accordance ,vith Rule 6(b). M.R. Civ. P. 6(b). The Rule provides
2 different standards depending on whether the party seeking an enlargement of time is doing so
before or after the filing deadline has passed. Id. The defendant in this case is moving the Court to
allow a late answer after his filing deadline has passed. In this situation, Rule 6(b) provides that the
Court "for cause shown" may, upon motion, permit the party seeking to file the answer to do so if
the party is able to show that its failure to act within the deadline was the result of "excusable
neglect." M.R. Civ. P. 6(b)(2); Dyer Goodall & Federle, LLC v. Pivcto1; 2007 ME 145, iJ 17, 935 A.2d
1123; Solomon's Rnck Ti: v. Davis, 675 A.2d 506,509 (Me. 1996). "Excusable neglect" will only be
found "when there are extraordinary circumstances that work an injustice." Dyer, 2007 ME 145, iJ
17, 935 A.2d 1123. However, the Law Court has also held that "M.R. Civ. P. 6(b) should be liberally
applied to work substantial justice." Solomons Rnck Tr. v. Davis, 675 A.2d 506, 508-509 (Me. 1996).
In addition, Maine law has a strong preference in favor of deciding cases on the merits. Thomas v.
Thompson, 653 A.2d 417, 420 (Me. 1995).
In Solomon's Rnck Trust the Law Court affirmed a trial court's grant of a motion for
enlargement of time where the defendant's motion was filed just three days after the 20-day period
to file an answer had passed and the defendant established extenuating circumstances caused by the
recent death of her spouse and the need to find alternative counsel. Solomons Rnck Tr. v. Davis, 675
A.2d 506, 509 (Me. 1996). In Dyer Goodall & Federle, the Law Court held that a trial court did not
abuse its discretion when it denied a motion to enlarge the defendant's time to answer a complaint
after the deadline had passed where the defendant's justification for not answering the complaint in
a timely fashion was that "he was preparing to leave his home in order to resume a vacation at the
time he was served, and did not take his files ,vith him." Dyei; 2007 ME 145, ,i 20,935 A.2d 1123
The Law Court further noted that the defendant had presented no evidence of extraordinary
circumstances and that the defendant did not file an answer until over a month after the deadline
had passed. Id. ,i 21.
3 Through his attorney, Mr. Sinclair states in his motion that his failure to file an answer
within the deadline was due to (1) the fact that he is severely disabled due to his bipolar condition,
(2) the length of the trip between his home in Brownville, Maine and his attorney's law office, (3) he
was unable to make a timely appointment with his lawyer, and (4) that the Sheriffs office did not
put the date of service on the summons form he was given. As a preliminary matter, the Court finds
that the record establishes that Defendant was properly served in hand with the summons and
complaint on September 5, 2019. The Court also takes judicial notice of the fact that the distance
between Brownville, ME (where defendant states that he lives) and his attorney, Patrick Hunt's, law
office in Island Falls, ME is approximately 78 miles and that, if traveling by automobile, a trip from
Brownville to the law office would take approximately 1 1/z hours. Judicial notice is appropriate, as
these two facts are not subject to reasonable dispute by the parties. M.R. Evid. 201. 1 For purposes of
this motion, the Court also accepts that Defendant is severely disabled due to some mental health
condition and infers that Defendant is elderly. (Mot. Allow Late Answer ,r 4) (Sinclair se1ved in the
military in or around the time of the Vietnam war and is "severely disabled for bipolar [sic]").
Upon consideration of the record and the arguments offered by the parties, the Court
concludes that Defendant has shown that his failure to file a timely answer was the result of
"excusable neglect." Defendant's motion shows that Defendant is elderly and severely disabled due
to a mental health condition. The motion also indicates that Defendant likely made some attempt to
contact his attorney for legal assistance in this matter before the filing deadline had passed. In
addition, Defendant's answer was filed only 15 days after it was due and Plaintiff has not
demonstrated any substantial prejudice resulting from Defendant's delay. Given these
1 The rule provides that the court may take judicial notice of a fact that is not subject to reasonable dispute because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. lvI.R. Evid. 201 (b). The rule further states that the court may take judicial notice on its own and at any stage of the proceeding. M.R. Evid. 201(c)-(d).
4 circumstances and in light of Maine's strong policy in favor of deciding cases on the merits, it would
be unjust to not allow Defendant to file a late answer and litigate Plaintiffs claims against him.
Solomon's Rock Ti: v. Davis, 675 A.2d 506, 508-509 (Me. 1996). ("M.R. Civ. P. 6(b) should be liberally
applied to work substantial justice"). For these reasons, Defendant's motion to file a late answer is
granted.
Enny:
Defendant's Motion to File a Late Answer is granted.
. ;J !~ ~/;j__.~-· illiam Anderson, Justice Maine Superior Court