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Mechanics Savings Bank v. Town of Richmond

Superior Court of Maine, Sagadahoc

March 27, 2014

MECHANICS SAVINGS BANK Plaintiff
v.
TOWN OF RICHMOND and MALAMUTE INVESTMENT MANAGEMENT Defendants HOWARD HOFFMAN Party in interest

ORDER FOR SANCTIONS

A. M. Horton, Justice, Superior Court.

Before the court is Plaintiff Mechanic Saving Bank's Motion For Sanctions Pursuant To Rule 37. Plaintiff requests that the court impose sanctions against defendant Malamute Investment Management and party-in-interest Howard Hoffman, based on their failure to appear for deposition upon oral examination in violation of the discovery rules and an order of the court. Malamute and Mr. Hoffman have filed oppositions to the Bank's motion. The court elects to decide the Motion without oral argument. See M.R. Civ. P. 7(b)(7).

Background

Plaintiff Bank filed its complaint on October 26, 2012, seeking a declaratory judgment to the effect that it owns the property located at 19 Frog Lane, Richmond, Maine. The Town of Richmond filed its answer on November 16, 2012. On November 26, 2012, defendant Malamute Investment Management ("Malamute") filed an answer, a counterclaim, a motion for summary judgment, and an application to proceed without fees. The president and sole shareholder of Malamute, Howard Hoffman, signed all of the court filings for Malamute. Mr. Hoffman is not an attorney authorized to engage in the practice of law in the State of Maine.

The court denied the application to proceed without fees on November 29, 2012. On December 6, 2012, Malamute, again via Mr. Hoffman, filed a motion to withdraw its previous demand for a jury trial. Mr. Hoffman later moved to intervene individually as a party in interest in the case, and has been representing himself in that capacity.

On December 7, 2012, the Bank filed a motion to strike all of Malamute's court filings and requested default, and Malamute, again through Mr. Hoffman, filed an opposition. In an order dated January 8, 2013, the court granted the motion to strike all of the filings signed by Mr. Hoffman on behalf of Malamute, because Malamute has to be represented by an attorney authorized to practice in Maine, and Mr. Hoffman is not an attorney. However, the court afforded Malamute the opportunity to set aside the default by retaining an attorney to file a motion to set aside default by February 8, 2013. Attorney Elliot Teel entered an appearance on behalf of Malamute and filed a motion to set aside default on February 7, 2013. On March 5, 2013, the court granted the motion to set aside default and granted Hoffman's motion to intervene as a party-in-interest. Hoffman filed an answer on March 25, 2013. The court set the discovery deadline for September 5, 2013.

Plaintiff Bank's counsel attempted to schedule depositions upon oral examination of both Malamute and Mr. Hoffman for the end of August but Hoffman responded that he could not attend because he was moving. On September 4>, 2013, the Bank filed a motion to extend the discovery deadline, on the ground that Hoffman and Malamute[1]did not appear for their properly noticed depositions. The court extended the discovery deadline to November 3, 2013. The Bank's counsel noticed a deposition for October 15, 2013, but Hoffman once again stated that he could not attend in person. Malamute then filed a motion seeking an order for the depositions to be conducted remotely on October 10, 2013.

In an order dated November 5, 2013, the court denied Malamute's request for remote deposition and ordered Hoffman to provide opposing counsel with five dates on which he would be available for a deposition at plaintiffs counsel's office before January 15, 2014. The court specifically stated that it was "a discovery order for purposes of M.R. Civ. P. 37."

The court held a status conference on January 7, 2014, in which the Bank's and Malamute's counsel, but not Mr. Hoffman, participated, and as a result issued an order noting that Hoffman had failed to appear at a properly scheduled deposition pursuant to its November 5 order, and also noting that a motion under Rule 37 could be filed. Despite this clear warning, Mr. Hoffman still failed to make himself available for his and Malamute's depositions.

On January 27, 2014, plaintiff filed its Motion For Sanctions Pursuant To Rule 37, asking the court, among other sanctions, to preclude Malamute and Mr. Hoffman from opposing summary judgment in favor of the Bank. Both Malamute and Hoffman filed oppositions to the motion on February 18, 2014, and the Bank filed a reply memorandum February 24, 2014.

Discussion

1. Timeliness of Defendants' Oppositions

Plaintiff first argues that defendants Hoffman and Malamute filed late oppositions to plaintiffs motion for sanctions. Plaintiff states that its motion was filed on January 24, 2014, however, the date stamp shows that it was received on January 27, 2014. Defendants were required to file within 21 days of this date. M.R. Civ. P. 7(c)(2). Although the deadline would have been February 17, 2014, that date, President's Day, is a legal holiday. Under the rules, defendants were allowed to file the following day, ...


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