Opinion
Civil Action RE-21-35
08-01-2022
PETER & KATHY MASUCCI et. al. Plaintiffs v. JUDY'S MOODY, LLC, et. al. Defendants v. AARON FREY, in his capacity as Attorney General of the State of Maine Party in Interest
Plaintiffs: Benjamin Ford, Esq./Sandra Guay, Esq./John Coon, Esq. Orlando Delogu Pro Se Plaintiff Defendants Judy's Moody LLC & OA 2012 Trust: David Silk, Esq. (local counsel) Paige Gillard, Esq. & Robert Thomas, Esq. Visiting Attorney Defendant Ocean 503: Joseph Talbot, Esq. Defendants Jeffrey &Margaret Parent, Edward & Christine Page, James Li, Kim Newby and Robin Hadlock Seeley - Gordon Smith, Esq. Party-in-Interest Aaron Frey: Lauren Parker, AAG & Scott Boak AAG
Plaintiffs: Benjamin Ford, Esq./Sandra Guay, Esq./John Coon, Esq.
Orlando Delogu Pro Se Plaintiff
Defendants Judy's Moody LLC & OA 2012 Trust: David Silk, Esq. (local counsel)
Paige Gillard, Esq. & Robert Thomas, Esq. Visiting Attorney
Defendant Ocean 503: Joseph Talbot, Esq.
Defendants Jeffrey &Margaret Parent, Edward & Christine Page, James Li, Kim Newby and Robin Hadlock Seeley - Gordon Smith, Esq.
Party-in-Interest Aaron Frey: Lauren Parker, AAG & Scott Boak AAG
COMBINED ORDER ON PENDING MOTIONS
JOHN O'NEIL JR. . JUSTICE
Before the Court are multiple pending motions, they are:
• Defendants Jeffrey and Margaret Parents' ("Parents") Motion to Dismiss brought pursuant to M.R. Civ. P. 12(b)(6)
• Defendants Judy's Moody LLC, OA 2012 Trust, and Ocean 503 LLC's ("Legal Entity . Defendants") Motions for More Definite Statements
• Defendants Edward and Christine Page, James Li, Kim Newbie and Robin Seeley's ("PLNS Defendants'") Motion for Attorney's Fees and Costs filed pursuant to the Anti-SLAPP Statute, 14 M.R.S. § 556 (2022)
• Legal Entity Defendants' Motion for Reconsideration
A complete list of Plaintiffs and Defendants participating in this action is provided in the Court's April 15th order. See Masucci et. al. v. Judy's Moody et. al., Order at 2, (April 15,2022). For ease of reference, the term "Plaintiffs," as used in this order, refers to all remaining Plaintiffs who have standing to bring suit. The Defendants are referred, to in the following three groups: Parents (Jeffrey and Margaret Parent), PLNS Defendants (Edward and Christine Page, James Li, Kim Newby, and Robin Seeley) and the Legal Entity Defendants (Judy's Moody, LLC, OA 2012 Trust, Ocean 503 LLC.)
Each of the pending motions are addressed below.
I. Parents' Motion to Dismiss
The effect of this Court's April 15th Order was as follows: The PLNS Defendants had all counts against them dismissed. The Legal Entity Defendants had all counts - except for Count IV - against them, dismissed. All Counts remained against the Parents.
Presumably having seen the success of their counterparts, the Parents brought the current 12(b)(6) motion, seeking to dismiss all counts, including Count IV, against them.
A. Legal Standard
"A motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) tests the legal sufficiency of the claim." Seacoast Hangar Condo, IIAss'n v. Martel, 2001 ME 112, ¶ 16, 775 A.2d 1166 (quoting New Orleans Tanker Corp, v. Dep't of Transp., 1999 ME 67, ¶ 3, 728 A.2d 673). When the court reviews a motion to dismiss, the complaint is examined "in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." Lalonde v. Cent. Me. Med. Ctr., 2017 ME 22, ¶ 11,155 A.3d 426. Allegations in the complaint are deemed true for the purposes of deciding a motion to dismiss. Id. "A dismissal should only occur when it appears beyond doubt that a plaintiff is entitled to no relief under any set of facts that he might prove in support of his claim." Moody v. State Liquor &Lottery Comm'n, 2004 ME 20, ¶ 7, 843 A.2d 43 (quoting McAfee v. Cole, 637 A.2d 463, 465 (Me. 1994)) (internal quotations omitted).
B. Factual Background
The Parents are named as Defendants in the complaint "as individuals residing in Waldoboro, Maine." The complaint makes two factual allegations against them: "(1) They wrongfully claim title to intertidal land that abuts their property in the same town; and (2) They have called law enforcement to remove people lawfully harvesting seaweed on land they wrongfully claim is theirs." (Compl. ¶¶ 27-28.)
These factual allegations are incorporated into the Plaintiffs' five counts. Count I notice pleads the form of equitable relief requested - a Declaratory Judgment. Counts II and III allege constitutional violations, Count IV seeks a declaratory judgment as to the scope of the public's rights of use in the intertidal zone, and Count V seeks to invalidate upland owners' title to the intertidal lands. The Parents seek to dismiss all counts against them.
C. Discussion
In this Court's prior order, it dismissed Counts II, III, and V against the Legal Entity Defendants for failure to state a claim. The Court also dismissed all counts against the PLNS Defendants pursuant to their special motion to dismiss filed under 14 M.R.S. § 556, Importantly, the PLNS Defendants and the Legal Entity Defendants, comprise two distinct groups. The Legal Entity Defendants were named in the lawsuit for their decision to restrict access to the intertidal zone to which they have title. The PLNS defendants were named because of their decision to call law enforcement to enforce their title to the intertidal zone. The factual allegations against the Parents are similar to those levied against the PLNS Defendants.
Because the PLNS Defendants were dismissed by operation of Maine's Anti-SLAPP . statute, the Court never reached the merits of their concurrently filed 12(b)(6) motion. Had the court reached that analysis with regard to those defendants, it likely would have reached the same conclusion, dismissing all counts except Count IV against them.
With regard to Counts II, III, and V, the analysis with respect to the Parents is the same.The Court concludes, for reasons set forth more fully in its April 15th order, that each of those counts, as alleged against the Parents, fail to state a claim upon which relief can be granted. Count II fails to state a claim because the Law Court has ruled that the equal footing doctrine cannot serve as a basis for vesting the State with title to the intertidal area; Count III fails to state a claim because the Law Court's intertidal jurisprudence is not improper judicial legislation that violates separation of powers principles; and Count V fails, on statute of limitations grounds, to state a quiet title claim.
In the April 15th order, in footnote six, the court noted it would not address Count I of the Complaint because Count I merely notice pleads the form of relief that the plaintiffs seek.
In its April 15th Order, the Court permitted Count IV to survive because the Plaintiffs had properly stated a claim for a declaratory judgment expanding the public's usage rights in the intertidal area. The Court held:
In this case, certain Plaintiffs claim that their access to the ocean's intertidal zone has been restricted by ether signage or verbal instruction to leave or refrain from entering the privately held intertidal zone. Plaintiffs Peter Masucci, Kathy Masucci, William Connerny, William Griffiths, Sheila Jones, Orlando Delogu, Judith Delogu, and Brian Beal all allege that their access to the intertidal zone is restricted either by signage or verbal warning and direction.
While it is not clear from the complaint itself what activities the Plaintiffs prefer to engage in, in the intertidal area, it is conceivable that the activity of the Massuccis, Connerny, Griffiths, Jones, and the Delogus includes walking, running, or some other form of movement. In Bean's case, he is an academic researcher who seeks to access the intertidal zone to further his marine research. Whether any movement or research related activity is permissible within the intertidal zone has not been specifically addressed by the Law Court. And, given the expansive and broad approach that the Law Court has taken with regard to defining these usage rights, it is conceivable that movement related, or research based activity, may be an acceptable use.Masucci et. al. v. Judy's Moody et. al., Order at 11, (April 15, 2022).
In its order, the Court was clear that under the Law Court's flexible, intertidal jurisprudence, it is conceivable that the declaratory relief the Plaintiffs seek is obtainable with regard to the Legal Entity Defendants. In footnote eleven of that order however, the Court also noted that with regard to those Plaintiffs who seek access to the intertidal zone to commercially harvest sea plants, they have little chance at success - especially considering the Law Court's decision in Ross v. Acadian Seaplants, Ltd.,2019 ME 45, 206 A.3d 283.
Thus, to the extent the Plaintiffs wish to obtain a declaratory judgment allowing commercial seaweed harvest in the intertidal, it is unlikely that they will succeed. However, on a 12(b)(6) motion to dismiss, an unlikelihood of success is not dispositive. The applicable standard is, whether, viewed in a light most favorable to them, the Plaintiffs complaint states a claim pursuant to any legal theory. The Court concludes, under the Law Court's flexible approach to determining allowed intertidal activity, that there is "some legal theory" that would allow the Plaintiffs to obtain a declaratory judgment allowing either certain recreational activities or different, non-Rockweed specific, commercial activity in the intertidal zone.
Accordingly, the Parents' 12(b)(6) Motion is granted with respect to Counts II, III, and V only.
The Court recognizes the discrepancy that exists between this outcome and the outcome of the prior order which dismissed all counts against the PLNS Defendants who were similarly situated to the Parents. However, to understand this discrepancy, the parties need look no further than the purposes which underlie the separate vehicles for dismissal utilized by the different subsets of Defendants Maine's Anti-SLAPP statute protects defendants from plaintiffs who attempt, through the courts, to infringe upon an individual's right to petition the government. See Thurlow v. Nelson, 2021 ME 58, ¶ 8, 263 A.3d 494. Thus, an Anti-SLAPP Motion requires the court to focus on the reason that suit has been brought. Under 12(b)(6), the question instead is whether the complaint, as filed, has states a legally cognizable claim - these are two different standards. The application of which, here, results in different outcomes for the similarly situated Parents and PLNS Defendants.
II. Defendants Judy's Moody LLC, OA 2012 Trust, and Ocean 503 LLC's Motions for More Definite Statements
After this Court's April 15th order permitting Count IV to survive against the Legal Entity Defendants, all three entities - Judy's Moody LLC, OA 2012 Trust, and Ocean 503 LLC - filed Motions for More Definite Statements pursuant to M.R. Civ. P. 12(e).
M.R. Civ. P. 12(e) provides;
If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before filing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.
M.R. Civ. P. 12(e).
In their respective Motions, the Legal Entity Defendants complain that Count IV fails to identify "(1) how the Plaintiffs are using, or intend to use, the portion of [the Legal Entity Defendants'] property located in the intertidal zone, [and] (2) how and when [the Legal Entity Defendants] prevented any of the Plaintiffs from engaging in those uses or intended uses on [the Legal Entity Defendants'] property." (Legal Entity Defs. Mot. More. Def. Statement 2.) In response, the Plaintiffs argue that the Defendants waived their right to file a motion for a more definite statement, and that, regardless, their complaint puts the Legal Entity Defendants on fair and adequate notice of their claims.
First, the Court addresses the Plaintiffs' threshold argument that the Legal Entity Defendants are precluded from making a Rule 12(e) motion by M.R. Civ. P. 12(g). That rule provides:
(g) Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated
M.R. Civ. P. 12(g) (emphasis added).
The Plaintiffs' threshold argument is defeated by the text of Rule 12(g) itself. Rule 12(g) requires that a party with an available defense or objection raise that defense or objection at the appropriate time. M.R. Civ. P. 12(e) does not provide a defense or an objection. Instead, it provides a procedural mechanism by which a litigant may request more information from a prosecuting party in order to fully respond to the allegations levied in a pleading. Thus, the service that Rule 12(e) provides to perplexed litigants does not constitute a "defense" or "objection" within the scope of Rule 12(g).
The Plaintiffs argue that M.R. Civ. P. 12(g) is "in the interest of judicial economy and meant to eliminate unnecessary postponement of litigation proceedings as applied to pre-answer motions." If anything, a motion for a more definite statement helps avoid later postponement of judicial proceedings by forcing a plaintiff to fully flush out their claims early on.
Second, the Court takes up the Legal Entity Defendant's claims that the Plaintiffs' complaint is "so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." M.R. Civ. P. 12(e). Here, under Maine's lax pleading standards, the Court sees no need for the Plaintiffs to file a more definite statement.
To be a proper pleading, M.R. Civ. P. 8(a) requires a Plaintiff to include "a short and plain statement of the claim showing that the pleader is entitled to relief," and "a demand for judgment for the relief which the pleader seeks." M.R. Civ. P. 8(a). As the Court concluded in its April 15th Order, Count IV of the Plaintiffs' complaint seeks the following: a declaratory judgment expanding the public's rights of use in the intertidal area to include certain recreational activities other than fishing, fowling, and navigation. .
The Court understands the Legal Entity Defendants desire for more information regarding how the Plaintiffs use the intertidal area and what the Legal Entity Defendants do to prevent that usage. However, under M.R. Civ. P. 8(a), that level of specificity is not required at the pleading stage. See Burns v. Architectural Doors &Windows, 2011 ME 61 ¶ 21, 19 A.3d 823 ("[A]n initial pleading may be presented in general terms . . . [but later] a plaintiff must be prepared to clearly identify the asserted cause or causes of action and the elements of each claim.") Count IV of the complaint, in its current form, contains sufficient allegations to which the remaining Defendants may respond. Accordingly, the Motions for a More Definite Statement are denied.
III. PLNS Defendants' Motion for Attorneys Fees Pursuant to Anti-SLAPP Statute 14 M.R.S. § 556
After obtaining a dismissal under Maine's Anti-SLAPP statute as part of this Court's April 15th order, the PLNS Defendants have returned to ask for attorney's fees and other reasonable costs associated with successfully litigating their Anti-SLAPP Motion. See 14 M.R.S. § 556 (2022) ("If the court grants a special motion to dismiss, the court may award the moving party costs and reasonable attorney's fees, including those incurred for the special motion and any related discovery matters.")
In support of their request, they assert that the Plaintiffs' claims lacked merit - especially in light of the 12(b)(6) dismissals of Counts II, III and V - and that the Plaintiffs' claims were clearly made in retaliation for the PLNS Defendants' lawful exercise of their first amendment rights. In opposition, the Plaintiffs claim that their suit was not meritless and that, given the Law Court jurisprudence on the issue, filing a claim against upland property owners exercising - what the Plaintiffs claim to be - their "unlawfully obtained intertidal rights," was their only available litigation strategy.
When assessing a request for Attorney's fees, the trial Court considers a number of factors:
(1) the time and labor required; (2) the novelty and difficulty of the questions presented; (3) the skill required to perform the legal services; (4) the preclusion of other employment by the attorneys due to acceptance of the case; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.Mancini v. Scott, 2000 ME 19, ¶ 10, 744 A.2d 1057. In an Anti-SLAPP case, the court may also consider the merits of the case, with a special consideration of the Anti-SLAPP statute's purposes. See Maietta Constr. Inc, v. Wainwright, 2004 ME 53 ¶ 6, 847 A.2d 1169 ("[The Anti-SLAPP Statute] was designed to combat litigation without merit filed to dissuade or punish the exercise of First Amendment rights of defendants.)
In this case, neither of the parties provide arguments with respect to the Mancini factors. Mindful of that coextensive failure, the Court does not blindly engage in such an analysis. Instead, the Court addresses the parties' arguments regarding whether the Plaintiffs' decision to name the PLNS Defendants in the lawsuit had merit.
At the outset, the Court notes that while it may be the case that the Court dismissed most of the Plaintiffs' claims on 12(b)(6) motions, that does not mean the claims were "without merit" for the purposes of awarding attorneys fees in the Anti-SLAPP context. In this case, the Plaintiffs were clearly frustrated by Law Court decisions which restricted their ability to enjoy the intertidal area for certain recreational and/or commercial purposes. Thus, they devised a litigation strategy which involved collecting Plaintiffs who have experienced personal or professional difficulty as a result of the Law Court's decisions. Those Plaintiffs then named, as Defendants, upland property owners who have effectuated the Law Court's holdings and caused their difficulties. Unfortunately for the Plaintiffs, to cause this difficulty, the PLNS Defendants either called law enforcement, or engaged in private and public advocacy in favor of Rockweed conservation, all of which are activities protected by 14 M.R.S. § 556's broad definition of the term "petitioning activity."
Although the decision to name the PLNS Defendants flowed from their petitioning activity, the motivation behind naming them was not to "punish" the PLNS Defendants for "exercising their First Amendment Rights." Maietta Constr. Inc, 2004 ME 53 ¶ 6, 847 A.2d 1169. The motivation was to challenge the PLNS Defendants' (and other shorefront owners') ability to restrict access to the intertidal area. The PLNS Defendants were merely identifiable conduits through which the Petitioners hoped to reach their desired result.
Accordingly, the Court determines that the Plaintiffs' suit was not filed with the malintent that the Anti-SLAPP was enacted to punish and dissuade. The Court therefore declines to exercise its discretion to award the PLNS Defendants attorney's fees pursuant to 14 M.R.S. § 556.
IV. Defendants Judy's Moody LLC, OA 2012 Trust, and Ocean 503 LLC's Motion for Reconsideration
In light of the Plaintiffs' opposition to the Legal Entity Defendants motion for a more definite statement, the Legal Entity Defendants then moved for reconsideration of this Court's decision allowing Count IV of the Plaintiffs complaint to survive dismissal. In support, the Legal Entity Defendants claim that the Plaintiffs opposition to the motion for a more definite statement forecloses the legal sufficiency of their claim because it clarifies that the Plaintiffs are requesting a declaratory judgment that all "public activity" be allowed in the intertidal area. (Pls.'Opp.'n Mot. More Definite Statement 5-6.) The Plaintiffs object to the Legal Entity Defendants' motion on the grounds that the Court cannot consider the Plaintiffs' opposition to the motion for a more definite statement in a Rule 7(b)(5) analysis. Party-in-Interest Frey also objects on similar' grounds.
A. Discussion
"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 previously have been presented." M.R. Civ. P. 7(b)(5). Rule 7(b)(5) is intended to deter disappointed litigants from seeking "to reargue points that were or could have been presented to the court on the underlying motion." Shaw v. Shaw, 2003 ME 153, ¶ 8, 839 A.2d 714. The Rule gives the court "more leeway" when responding to motions that are frequently brought to relitigate fully presented and decided issues. Ten Voters of City of Biddeford v. City of Biddeford, 2003 ME 59, ¶ 11, 822 A.2d 1196.
In this case, the Court agrees with the Plaintiffs and the Party-in-Interest. On the . underlying Rule 12(b)(6) motions which the Legal Entity Defendants have asked this Court to reconsider, the analysis was constrained to the legal sufficiency of the complaint. See Lalonde, 2017 ME 22, ¶ 11, 155 A.3d 426. An analysis the Court determined fell in favor of the Plaintiffs.
The Legal Entity Defendants cannot now, on reconsideration, ask this Court to examine a document outside the pleadings for the purposes of reexamining a 12(b)(6) order. Additionally, the Court is not persuaded by the Legal Entity Defendants' arguments that the information contained in the Plaintiffs opposition to the Motion contains new material. Instead, that opposition contains a summaiy of the allegations contained in Count IV of their complaint. As discussed supra 5, Count IV of the complaint - in its current form - does state a legally sufficient claim upon which relief may be granted.
The Court discerns no error in its prior conclusion and identifies no omission or new information which requires a different result. The Legal Entity Defendants' motion for reconsideration is denied.
Entry Is:
Defendants Jeffrey and Margaret Parent's Motion to Dismiss is Granted in Part •
The Legal Entity Defendants Motions for More Definite Statements are Denied •
The PLNS Defendants request for Attorney's Fees and Costs under the Anti-SLAPP Statute is Denied.
The Legal Entity Defendants' Motion for Reconsideration is Denied.
The Clerk is directed to incorporate this order into the docket by reference pursuant to M.R. Civ. P. 79(a).