Tirey v. Oxendine

• Court: Superior Court of Maine
• Decided: October 4, 2022
• Docket: CUMbcd-cv-22-36
• Status: Unpublished

Opinion

STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss. DOCKET NO. BCD-CV-2022-00036

SONYA MELISSA TIREY AS PR OF ) THE ESTATE OF TONYA TIREY ) CIANCHETTE, ) ) Plaintiff, ) ORDER DENYING WITHOUT ) PREJUDICE DEFENDANTS’ MOTION v. ) FOR SUMMARY JUDGMENT ) CHARLES OXENDINE, ET AL., ) ) Defendants. ) )

This matter comes before the Court on Defendants’ Motion for Summary Judgment.

However, the case has followed an unusual procedural path. Defendants first filed a Motion to

Dismiss, and then filed a Motion for Summary Judgment without waiting for the Court to decide

their Motion to Dismiss. The Court has not yet even been able to issue a scheduling order in this

case and discovery has not closed. Defendants’ Motion for Summary Judgment is based on a solo

affidavit that does not comply with M.R. Civ. P. 56(e). See Bahre v. Liberty Group, Inc., 2000 ME

75, ¶ 12, 750 A.2d 558. Even if it did so comply, it does not technically support multiple Statements

of Material Fact. See Flannery v. Lajoie, No. BCD-CV-11-34, 2012 Me. Bus. & Consumer LEXIS

20, at *2. Plaintiff opposes the Motion for Summary Judgment on several grounds, one of which

is that the Motion is premature because it has been filed before the end of discovery. The Court

agrees that the Motion is premature. M.R. Civ. P. 56(f) provides that a party opposing summary

judgment must be allowed adequate opportunity to conduct discovery or otherwise develop

evidence in opposition to the summary judgment motion. Angell v. Hallee, 2012 ME 10, ¶ 13, 36

A.3d 922. In this case, it appears that Plaintiff has conducted some discovery, but Plaintiff has a

1 plausible basis for requesting time to complete discovery. See Bay View Bank, NA. v. Highland

Golf Mortgagees Realty Tr., 2002 ME 178, ,r 22, 814 A.2d 449 (reviewing factors helpful in

evaluating a Rule 56(f) request).

Accordingly, for the aforementioned reasons, the Court denies without prejudice

Defendants' Motion for Summary Judgment. The Court will convene a telephonic conference for

the purpose of discussing and issuing a scheduling order. Defendants can re-file for summary

judgment after the close of discovery, provided the parties have first participated in a M.R. Civ. P.

134(b) conference, all in compliance with the soon to be issued scheduling order.

So Ordered.

Pursuant to M.R. Civ. P. 79(a), the Clerk is instructed to incorporate this Order by reference

on the docket for this case.

Dated: 10/04/2022 Michael A. Duddy Judge, Business and Consumer Court

Entered on the docket: 10/04/2022

2 BCD-CIV-2022-00036

SONYA MELISSA TIEREY, AS P.R. OF ESTATE OF TONYA TIERY CIANCHETTE

Plaintiff(s)

v.

CHARLES OXENDINE, ET AL

Defendant(s)

Party Name: Attorney Name:

Plaintiff: Sonya Melissa Tierey, as P.R. Steven Sillin, Esq of Estate of Tonya Tiery Cianchette Berman Simmons PA 129 Lisbon Street PO Box 961 Lewiston, ME 04243-0961

Defendants: Frederick H. Hart, III Seth Holbrook, Esq Seafari Charters, LLC Holbrook & Murphy 238 Lewis Wharf Boston, MA 02110

Charles Oxendine Elizabeth Stouder PS Dive Shop, LLC Richardson Whitman Large Badger PO Box 9545 Portland, ME 04112-9545