STATE OF MAINE SUPERIOR COURT PENOBSCOT, ss. CIVIL ACTION Docket No. CV-04-201
ROBERT NOWICKI, 1 ) Plaintiff )
v. OPINION: ORDER ON MOTIONS
LOCO INC., and / & Ei\jTERED 1 SUPERiOR C O U R T j JOHN LOMAN I a
i 1 [ SEP 2 2 2005 Defendants 1 I j / PENOBSCOT C O U N T Y / Pending before this Court is Plaintiff's Motion for Summary Judgment ("MSJ"), filed
and Defendants' Motion to File an Amended Answer and Late Counterclaim, filed on
December 16,2004.
A. Defendants' Motion to File an Amended Answer and Late Counterclaim
1. Amended Answer
Plaintiff served the Complaint and Summons upon the Defendants on September 11,
2004, and Plaintiff claims that while Defendants had 20 days in which to file an answer,
none was submitted. M.R. Civ. P. 12(a); (Pl.'s Opp'n to Def's Mot. Amended Ans. and
Late Countercl. Y 2.) Defendant, John Loman, did file an Answer on September 29,
2004, although his letter did not comply with the formatting requirements found in M.R.
Civ. P. 10. While leave to amend should be freely given when justice so requires, M.R.
Civ. P. 15(a), "[lleave to amend should not be automatic; leave to amend should be granted absent a showing of undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of the allowance of the amendment, futility of
amendment, etc." E.g., Doe v. Division of Youth and Family Services, 148 F. Supp. 2d
462,477 (D.N.J. 2001). Additionally, Rule 15's policy of favoring amendments to
pleadings is "applied even more liberally to pro se litigants, and strict time limits ought
not be insisted upon . . .." Eldridge v. Block, 832 F.2d 1 132 (1987).' This approach
allows pro se litigants to fix mistakes that are a virtual certainty without a law degree,
and allows cases to be decided on the merits rather than on procedure. Here, Defendants
filed a timely Answer, although the Answer met none of the formatting requirements.
Defendants blame the formatting errors on their pro se status, and wish to now submit a
properly drafted answer. While pro se litigants are indeed held to the same standards as
represented parties regarding the Maine Rules of Civil Procedure, allowing them to
amend their znsra!er would not prejudice the Plaintiff, nor were their mistakes a result cf
bad faith or dilatory motive. Uotinen v. Hall, 636 A.2d 991, 992 (Me. 1994). Motion to
file Amended Answer is granted.
2. Late Counterclaim
In general, a counterclaim shall be asserted in the responsive pleading thereto if one is
required. M.R. Civ. 12(b). Defendants did not assert a counterclaim in their Answer, as
required by M.R. Civ. P. 12(b). There are, however, some exceptions to Rule 12(b).
"A claim which either matured or was acquired by the pleader after serving a
pleading may, with the permission of the court, be presented as a counterclaim by
1 Defendants, pro se at the time the Answer was filed, are now represented by counsel. supplemental pleading." M.R. Civ. P. 13(e). Defendant, John Loman, is asserting in the
Counterclaim that, during the summer of 2004, Plaintiff assaulted the Defendant. This
alleged assault took place before the pleading was served, and, therefore, Defendant may
not file his counterclaim by supplemental pleading as allowed under M.R. Civ. P13(e).
According to M.R. Civ. P. 13(f), "[wlhen a pleader fails to set up a counterclaim
through oversight, inadvertence, or excusable neglect, or when justice requires, the
pleader may by leave of court set up the counterclaim by amendment." M.R. Civ. P.
13(f). Due to the fact that Defendant was originally a p r o se litigant, the failure to set up
a counterclaim may be seen as excusable neglect or oversight. However, the Law Court
has "repeatedly held that pro se parties are subject to the same standards as represented
parties. This is particularly true in areas so fundamental as the service of process and
statement of a claim." Uotinen v. Hall, 636 A.2d 991, 992 (Me. 1994) (citations
omitted). Motion to file a late counterclaim is denied.
B. Defendants' _Motionto Reconsider . -
Me. R. Civ. P. 7(c)(2)(3) requires that opposition to any motions must be filed within
21 days of the filing of the motion, or the opposition is deemed waived. On September
11,2004, Defendants were served with the Plaintiff's Motion for Approval of Attachment
and Trustee Process, along with a Proposed Order. No objection to this motion was filed
by Defendants, and the Court subsequently granted the Attachment and Trustee Process
on November 9,2004.
On November 15,2004, Defendants filed a motion requesting reconsideration of the
Court's Order Approving Attachment and Trustee Process. "Motions for reconsideration
of an order shall not be filed unless required to bring to the court's attention an error, omission, or new material that could not have previously been presented." M.R. Civ. P.
7(b)(5). There is no new material, nor has there been an error or omission, and, as such,
the motion requesting reconsideration is denied.
C. Plaintiff's Motion for Summary Judgment
A party is entitled to summary judgment when the record shows that there is no
genuine issue of material fact and the party is entitled to judgment as a matter of law.
M.R. Civ. P. 56(c); see also Darlings v. Ford Motor Co., 2003 ME 21, 9 14, 817 A.2d
877, 879. To survive a motion for a summary judgment, the opposing party must
produce evidence that, if produced at trial, would be sufficient to resist a motion for a
judgment as a matter of law. Rodrigue v. Rodrigue,-1997 ME 99, 8, 694 A.2d 924,926.
a' A f , , e ;- l l l u L L l I u ! .i{hLll:t lLl aoan cL LL L ~--c-..+:- 1L Y u L F ; ~ ~ L ~ cr, L ~ -CFmnc +C\ u !a l l F ; b L LII~ UULbUllII; ~f the siiit."' Prescott
v. State Tax Assessor, 1998 ME 250, g 5 , 7 2 1 A.2d 169, 172. Essentially the Court
determines whether there is a genuine issue of material fact by comparing the parties' A-. . - statement of material facts and corresponding record references. Corey v. Norman,
Hanson & DeTroy, 1999 ME 196, 9 8 , 7 4 2 A.2d 933,938. The court will view the
evidence in light most favorable to the non-moving party. See Steeves v. Bernstein, Shur,
Sawyer & Nelson, P.A., 1998 ME 210, Q11,718 A.2d 186.
Defendants, while represented by counsel, failed to file a timely opposition to
Plaintiff's Motion for Summary Judgment. Plaintiff filed his Motion for Summary
Judgment on November 12,2004, and the Defendants did not file an objection until
January 25,2005. (Def.'s Opp'n to Pl.'s Mot. Summ. J. at 1.) M.R. Civ. P. 7(c)(2)
demands that any party opposing a motion shall file a memorandum and any supporting
affidavits in opposition no later than 21 days after the filing of the motion, unless another time is set by the court. A party that fails to do so shall be deemed to have waived all
objections to the motion. M.R. Civ. P. 7(c)(3); M.R. Civ. P. 56(h)(4). According to
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STATE OF MAINE SUPERIOR COURT PENOBSCOT, ss. CIVIL ACTION Docket No. CV-04-201
ROBERT NOWICKI, 1 ) Plaintiff )
v. OPINION: ORDER ON MOTIONS
LOCO INC., and / & Ei\jTERED 1 SUPERiOR C O U R T j JOHN LOMAN I a
i 1 [ SEP 2 2 2005 Defendants 1 I j / PENOBSCOT C O U N T Y / Pending before this Court is Plaintiff's Motion for Summary Judgment ("MSJ"), filed
and Defendants' Motion to File an Amended Answer and Late Counterclaim, filed on
December 16,2004.
A. Defendants' Motion to File an Amended Answer and Late Counterclaim
1. Amended Answer
Plaintiff served the Complaint and Summons upon the Defendants on September 11,
2004, and Plaintiff claims that while Defendants had 20 days in which to file an answer,
none was submitted. M.R. Civ. P. 12(a); (Pl.'s Opp'n to Def's Mot. Amended Ans. and
Late Countercl. Y 2.) Defendant, John Loman, did file an Answer on September 29,
2004, although his letter did not comply with the formatting requirements found in M.R.
Civ. P. 10. While leave to amend should be freely given when justice so requires, M.R.
Civ. P. 15(a), "[lleave to amend should not be automatic; leave to amend should be granted absent a showing of undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of the allowance of the amendment, futility of
amendment, etc." E.g., Doe v. Division of Youth and Family Services, 148 F. Supp. 2d
462,477 (D.N.J. 2001). Additionally, Rule 15's policy of favoring amendments to
pleadings is "applied even more liberally to pro se litigants, and strict time limits ought
not be insisted upon . . .." Eldridge v. Block, 832 F.2d 1 132 (1987).' This approach
allows pro se litigants to fix mistakes that are a virtual certainty without a law degree,
and allows cases to be decided on the merits rather than on procedure. Here, Defendants
filed a timely Answer, although the Answer met none of the formatting requirements.
Defendants blame the formatting errors on their pro se status, and wish to now submit a
properly drafted answer. While pro se litigants are indeed held to the same standards as
represented parties regarding the Maine Rules of Civil Procedure, allowing them to
amend their znsra!er would not prejudice the Plaintiff, nor were their mistakes a result cf
bad faith or dilatory motive. Uotinen v. Hall, 636 A.2d 991, 992 (Me. 1994). Motion to
file Amended Answer is granted.
2. Late Counterclaim
In general, a counterclaim shall be asserted in the responsive pleading thereto if one is
required. M.R. Civ. 12(b). Defendants did not assert a counterclaim in their Answer, as
required by M.R. Civ. P. 12(b). There are, however, some exceptions to Rule 12(b).
"A claim which either matured or was acquired by the pleader after serving a
pleading may, with the permission of the court, be presented as a counterclaim by
1 Defendants, pro se at the time the Answer was filed, are now represented by counsel. supplemental pleading." M.R. Civ. P. 13(e). Defendant, John Loman, is asserting in the
Counterclaim that, during the summer of 2004, Plaintiff assaulted the Defendant. This
alleged assault took place before the pleading was served, and, therefore, Defendant may
not file his counterclaim by supplemental pleading as allowed under M.R. Civ. P13(e).
According to M.R. Civ. P. 13(f), "[wlhen a pleader fails to set up a counterclaim
through oversight, inadvertence, or excusable neglect, or when justice requires, the
pleader may by leave of court set up the counterclaim by amendment." M.R. Civ. P.
13(f). Due to the fact that Defendant was originally a p r o se litigant, the failure to set up
a counterclaim may be seen as excusable neglect or oversight. However, the Law Court
has "repeatedly held that pro se parties are subject to the same standards as represented
parties. This is particularly true in areas so fundamental as the service of process and
statement of a claim." Uotinen v. Hall, 636 A.2d 991, 992 (Me. 1994) (citations
omitted). Motion to file a late counterclaim is denied.
B. Defendants' _Motionto Reconsider . -
Me. R. Civ. P. 7(c)(2)(3) requires that opposition to any motions must be filed within
21 days of the filing of the motion, or the opposition is deemed waived. On September
11,2004, Defendants were served with the Plaintiff's Motion for Approval of Attachment
and Trustee Process, along with a Proposed Order. No objection to this motion was filed
by Defendants, and the Court subsequently granted the Attachment and Trustee Process
on November 9,2004.
On November 15,2004, Defendants filed a motion requesting reconsideration of the
Court's Order Approving Attachment and Trustee Process. "Motions for reconsideration
of an order shall not be filed unless required to bring to the court's attention an error, omission, or new material that could not have previously been presented." M.R. Civ. P.
7(b)(5). There is no new material, nor has there been an error or omission, and, as such,
the motion requesting reconsideration is denied.
C. Plaintiff's Motion for Summary Judgment
A party is entitled to summary judgment when the record shows that there is no
genuine issue of material fact and the party is entitled to judgment as a matter of law.
M.R. Civ. P. 56(c); see also Darlings v. Ford Motor Co., 2003 ME 21, 9 14, 817 A.2d
877, 879. To survive a motion for a summary judgment, the opposing party must
produce evidence that, if produced at trial, would be sufficient to resist a motion for a
judgment as a matter of law. Rodrigue v. Rodrigue,-1997 ME 99, 8, 694 A.2d 924,926.
a' A f , , e ;- l l l u L L l I u ! .i{hLll:t lLl aoan cL LL L ~--c-..+:- 1L Y u L F ; ~ ~ L ~ cr, L ~ -CFmnc +C\ u !a l l F ; b L LII~ UULbUllII; ~f the siiit."' Prescott
v. State Tax Assessor, 1998 ME 250, g 5 , 7 2 1 A.2d 169, 172. Essentially the Court
determines whether there is a genuine issue of material fact by comparing the parties' A-. . - statement of material facts and corresponding record references. Corey v. Norman,
Hanson & DeTroy, 1999 ME 196, 9 8 , 7 4 2 A.2d 933,938. The court will view the
evidence in light most favorable to the non-moving party. See Steeves v. Bernstein, Shur,
Sawyer & Nelson, P.A., 1998 ME 210, Q11,718 A.2d 186.
Defendants, while represented by counsel, failed to file a timely opposition to
Plaintiff's Motion for Summary Judgment. Plaintiff filed his Motion for Summary
Judgment on November 12,2004, and the Defendants did not file an objection until
January 25,2005. (Def.'s Opp'n to Pl.'s Mot. Summ. J. at 1.) M.R. Civ. P. 7(c)(2)
demands that any party opposing a motion shall file a memorandum and any supporting
affidavits in opposition no later than 21 days after the filing of the motion, unless another time is set by the court. A party that fails to do so shall be deemed to have waived all
objections to the motion. M.R. Civ. P. 7(c)(3); M.R. Civ. P. 56(h)(4). According to
Defendant John Loman's Affidavit however, he never received Plaintiff's Motion for
Summary Judgment. M.R. Civ. P. 5(a) states that ". . . every pleading. ..every written
motion.. .shall be served upon each of the parties. . . ." Under Rule 5(d), these papers,
which must be served upon the opposing party, do not require proof of service, but once
the papers are filed with the court, the moving party is representing that the opposing
party has been served. This court Orders the Plaintiff to produce further proof of service,
as the adverse party has raised an issue of notice. M.R. Civ. P. 5(d).
CONCLUSION
For the foregoing reasons, this Court grants the Defendants' leave to amend the
Answer, denies the Defendants' Motion to file a Counterclaim, denies the Defendants'
Motion to Reconsider, and Srders the Plaintiff to show proof of service regzrding the
Motion for Summary Judgment. Accordingly, the entry shall be:
Motion to file an Amended Answer is GRANTED. Motion to file a Late
Counterclaim is DENIED. Plaintiff ORDERED to show further proof of service
regarding the Motion for Summary Judgment. The Clerk may incorporate this Decision
and Order into the docket by reference.
Dated: ,2005
~ustfce,~ a i n Superior k Court 09/23/2005 MAINE J U D I C I A L INFORMATION SYSTEM ksmi t h PENOBSCOT COUNTY SUPERIOR COURT rn j x x i 0 4 8 CASE PARTY ADDRESS BOOK ROBERT NOWICKI VS LOCO I N C ET AL UTN:AOCSsr - 2 0 0 4 - 0 1 0 2 9 8 1 CASE #:BANSC-CV-2084-00201 ................................................................................ ROBERT NOWICKI PL ATTY BUDD, CHARLES F . T e l # (207) 9 4 7 - 4 5 0 1 ATTY ADDR:84 HARLOW S T PO BOX 1401 BANGOR ME 0 4 4 0 2 - 1 4 0 1
LOCO I N C DEF ATTY LOCKE , P A T R I C I A T e l # (207) 7 9 4 - 3 0 6 4 ATTY ADDR:54 M A I N STREET LINCOLN ME 0 4 4 5 7
JOHN W. LOMAN DEF ATTY LOCKE, P A T R I C I A T e l # (207) 7 9 4 - 3 0 6 4 ATTY ADDR:54 M A I N STREET LINCOLN ME 0 4 4 5 7
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