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Tobin v. Cuddy

United States District Court, District of Maine

July 1, 2014

PHILIP C. TOBIN, Plaintiff
KEVIN CUDDY, Defendant

Plaintiff PHILIP C TOBIN represented by PHILIP C TOBIN

Defendant KEVIN N CUDDY represented by PAUL STERN


John C. Nivison U.S. Magistrate Judge

On April 24, 2014, this Court issued its Report and Recommended Decision on Plaintiff Philip Tobin’s Motion for Default Judgment and Defendant Kevin Cuddy’s Motion to Dismiss. Plaintiff now requests reconsideration of the Recommended Decision and leave to file an amended complaint.

After consideration of the parties’ arguments and following review of Plaintiff’s Proposed Amended Complaint, the Court denies Plaintiff’s Motion for Reconsideration and denies Plaintiff’s Motion to Amend.[1]

Procedural History

In this action, which Plaintiff initiated on January 13, 2014, Plaintiff alleges that Defendant, a Maine Superior Court Justice, violated due process and equal protection when he entered judgment as a matter of law, pursuant to Rule 50 of the Maine Rules of Civil Procedure, on Plaintiff’s breach of contract claim. Defendant entered judgment after the jury had returned a verdict in Plaintiff’s favor. Defendant accepted service on January 22, 2014, and filed a Motion to Dismiss on February 6, 2014, in which motion Defendant asserted judicial immunity.

On March 6, 2014, Plaintiff filed an amended complaint, but did not include with the amended complaint a motion to amend. On April 21, 2014, Plaintiff opposed Defendant’s Motion to Dismiss and filed a Motion for Default Judgment on April 23, 2014. In support of the Motion for Default Judgment, Plaintiff asserted that Defendant failed to answer timely the amended complaint.

On April 24, 2014, a Recommended Decision on the then pending motions was issued, in which decision the recommendation was (1) that the Court dismiss Plaintiff’s complaint because the doctrine of judicial immunity bars Plaintiff’s claim under 42 U.S.C. § 1983, and (2) that the Court deny Plaintiff’s Motion for Default Judgment.[2] (Recommended Decision, ECF No. 12.)

On May 5, 2014, Plaintiff filed the Motion for Reconsideration (ECF No. 13) and the Motion to Amend (ECF No. 14) that are presently before the Court. Defendant opposes the motions.

Factual Background

Plaintiff’s action is premised on the fact that Defendant, a Superior Court Justice, while presiding over a state court action brought by Plaintiff, improperly granted judgment as a matter of law in favor of Plaintiff’s opponent after the jury returned a verdict in Plaintiff’s favor.[3] As explained in the Recommended Decision, because Plaintiff’s allegations do not offer a legitimate factual basis upon which a fact finder could determine that Defendant acted in a capacity other than as a Superior Court justice, or that Defendant acted in an absence of jurisdiction, judicial immunity bars Plaintiff’s claim. (Recommended Decision at 4, citing Mireles v. Waco, 502 U.S. 9, 11 (1991), and Butz v. Economou, 438 U.S. 478, 511 (1978)).[4]

In the motion for reconsideration and the motion to amend, Plaintiff attempts to overcome judicial immunity by alleging that Defendant acted outside of his judicial capacity or in the absence of jurisdiction. More particularly, Plaintiff contends that Defendant assumed the role of advocate for Plaintiff’s opponent in the state court litigation and, thereby, effectively ceased acting as a judge.[5] Plaintiff cites several cases standing for the proposition that a judge must not take on the role of advocate for any party. (Motion for Reconsideration at 2-4, ECF No. 13; Proposed Amended Complaint at 2-4, ECF No. 14-1; Reply re. Motion to Amend at 1-3, ECF No. 18; Reply re. Motion for Reconsideration at 1-2, ECF No. 19.)[6]


A. Motion for Reconsideration

“Ordinarily, a motion for reconsideration is appropriate only if a moving party presents newly discovered evidence, if there has been an intervening change in the law, or if the moving party can demonstrate that the original decision was based on a manifest error of law or was clearly unjust.” In re Hannaford Bros. Co. Customer Data Sec. Breach Litig., 660 F.Supp.2d 94, 97 (D. Me. 2009). Here, Plaintiff does not identify newly discovered evidence, [7] a change in the law, a manifest error of law, [8] or some other basis to conclude that the Recommended Decision would result in injustice.[9] Instead, Plaintiff simply reformulates his allegation that Defendant acted as an advocate in violation of standards governing judicial conduct.

While “a trial judge may not assume the role of an advocate, ” State v. Curit, 462 A.2d 1188, 1189 (Me. 1983), the consequence of a judge assuming the role of an advocate is not an abrogation of judicial immunity.[10] Instead, the legal consequence might be the vacation of a court order or judgment. See, e.g., Baker v. Peterson, 67 Fed. App’x 308 (6th Cir. 2003) (per curiam). Nothing in Plaintiff’s complaint (nor in his proposed amended complaint) plausibly suggests that Defendant acted in the absence of jurisdiction or other than in his judicial capacity.[11] The Motion for Reconsideration, therefore, is denied.

B. Motion to Amend

Rule 15(a)(1) of the Federal Rules of Civil Procedure permits a litigant to amend a pleading “as a matter of course” subject to certain time constraints. When a party seeks to amend a complaint more than 21 days after the filing of a responsive pleading, an amendment is permitted with the opposing party’s consent or with leave of court. Fed.R.Civ.P. 15(a)(2). In such a case, the court is to grant leave “freely” when “justice so requires.” Id. Leave to amend, however, is appropriately withheld when the proposed amendment would prove futile as a matter of law. Foman v. Davis, 371 U.S. 178, 182 (1962).

Plaintiff’s attempt to characterize Defendant’s conduct as “advocacy” does not alter the fact that Defendant’s resolution of the Rule 50 motion was a judicial function for which Defendant is not subject to civil liability. Plaintiff’s proposed amended complaint, therefore, does not differ fundamentally from the original complaint. Accordingly, Plaintiff’s amended complaint would be futile.


Based on the foregoing analysis, the Court denies Plaintiff’s Motion to Amend (ECF No.14), and denies Plaintiff’s Motion for Reconsideration (ECF No. 13). Given the denial of the Plaintiff’s Motion for Reconsideration, the recommendation remains that the Court deny Plaintiff’s Request for Default Judgment, grant Defendant’s Motion to Dismiss, and dismiss Plaintiff’s Complaint.


Any objections to the Order denying the motion for reconsideration and the motion to amend shall be filed in accordance with Fed.R.Civ.P. 72.

So Ordered.

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