United States District Court, D. Maine
ROBERT D. SPICKLER, Plaintiff,
THE GARDEN; DRUMMOND WOODSUM & MACMAHON; EXPERIAN INFORMATION SOLUTIONS, INC.; AND THE THOMAS AGENCY, Defendant.
ORDER ON MOTIONS TO DISMISS
D. BROCK HORNBY, District Judge.
This case removed from the Maine Superior Court (Sagadahoc County) threatens to sink into a procedural morass. No case was ever filed there. Upon this Court's request, the State Court forwarded the papers it had collected from the parties, stating that it had never opened an actual case because the plaintiff never filed a complaint. From those documents and from the documents that the removing defendant filed, the following appears.
The pro se plaintiff Robert D. Spickler initially began serving process on four defendants for a lawsuit in the Maine District Court. When he learned that he could not get a jury trial in state district court, he instructed that the district court summons be ignored because he elected to proceed in the Maine Superior Court instead. (ECF Nos. 16-33, 16-34). Accordingly, he never filed a complaint in the Maine District Court. Nevertheless, one of the defendants"Drummond Woodsum & MacMahon"filed a motion to dismiss for failure to state a claim in the Maine District Court. Since no district court lawsuit has been removed to this court, no action is necessary by this court on that motion.
Next Spickler served process on the same four defendants for a Maine Superior Court lawsuit. Before he filed the complaint in Superior Court (Maine Rule of Civil Procedure 3 allows a plaintiff to serve process first, then file a complaint in court later, so long as it is within 20 days after completion of service), the defendant Drummond Woodsum moved to dismiss for failure to state a claim in Maine Superior Court. Then, a second defendant"Experian Information Solutions, Inc.-removed the case to this court based on federal question jurisdiction, before Spickler filed his complaint in the Maine Superior Court. (A defendant cannot wait for state court filing, because the federal removal statute requires a notice of removal to be filed within 30 days of service of process. 28 U.S.C. § 1446(b)(1).) According to the notice of removal, all defendants joined in removal, a requirement of 28 U.S.C. § 1446(b)(2)(A). After removal, the three defendants other than Drummond Woodsum each filed in this court its own motion to dismiss for failure to state a claim and for other reasons.
Under Maine law, a state court lawsuit is subject to dismissal where process is served and a complaint is not filed with the Court within 20 days thereafter. M. R. Civ. P. 3. Among the papers the Superior Court sent to this Court is a May 29, 2014, letter from Spickler to the Superior Court Clerk stating his belief that he could not file his complaint in state court until all four defendants were served and stating his confusion over how a case could be removed that had not even be filed. (ECF No. 16-38). Whether or not Spickler's belief about when to file is correct, now all four defendants have been served and Spickler still has not filed a complaint with the Superior Court. (Perhaps he is confused where to file it in light of the removal.)
Under the federal removal statute, the defendants are able to remove a state court lawsuit even before the complaint is filed in state court where, as under Maine Rule of Civil Procedure 3, the lawsuit is commenced upon service of process. 28 U.S.C. § 1446. Indeed, as I stated above, they cannot wait for a complaint to be filed in state court because the 30-day limit on removal begins to run with the service of process. Nevertheless, for there to be an actual state court lawsuit, "[a]lthough the action is commenced upon service, the plaintiff is in court' [only] upon filing the complaint. The court must have a pending matter on the docket in order to act, " Charles Harvey, Maine Practice Series § 3:1 at 130, and "the complaint must be filed and docketed in court in order to enable the court to define its jurisdiction and to act on the issues before it." Id. at 132. In this case, that state court filing and docketing of the complaint never occurred. Therefore, even though the removal was appropriate, without a timely filing of the complaint in state court thereafter, the state lawsuit became subject to dismissal under Maine Rule of Civil Procedure 3: "If the complaint or the return of service is not timely filed, the action may be dismissed on motion and notice." Three of the four defendants (all but Drummond Woodsum) argue for just such a dismissal and I conclude that they are entitled to dismissal because of the Rule 3 failure. Because I dismiss the lawsuit against those three defendants on this threshold ground, I do not reach the other grounds they assert such as failure to state a claim. Two of these defendants also request fees under Maine Rule of Civil Procedure 3. They rely on Rule 3's language that if the court dismisses for lack of timely filing, "in such case the court may, in its discretion, if it shall be of the opinion that the action was vexatiously commenced, tax a reasonable attorney's fee as costs in favor of the defendant, to be recovered of the plaintiff or the plaintiff's attorney." M. R. Civ. P. 3. In that respect, these defendants assert facts in their moving papers about background controversies and litigation with Spickler in state court. In the exercise of judicial discretion and considering this federal court's role, I determine that I do not have enough admissible information to decide whether fees are justified and therefore I deny the request.
The defendant Drummond Woodsum has not relied on Maine Rule of Civil Procedure 3, but instead has moved to dismiss for failure to state a claim under substantive law. Drummond Woodsum & MacMahon Mot. to Dismiss (ECF No. 6). Under the pleading standards of Ashcroft v. Iqbal , 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombley , 550 U.S. 544 (2007), I conclude that its motion must be GRANTED. The plaintiff has failed to allege any facts that would show liability on the part of the law firm. Drummond Woodsum's request for fees is DENIED.
In summary, Drummond Woodsum's motion to dismiss for failure to state a claim in the lawsuit removed from the Maine Superior Court (Sagadahoc Count) is GRANTED, and no action is taken on its motion to dismiss the putative state district court lawsuit because Spickler's state district court complaint was never removed here and was never docketed in the Maine District Court. Letter from Sagadahoc County Superior Court Clerk dated July 15, 2014 (ECF No. 16). The other three defendants' motions to dismiss are GRANTED under Maine Rule of Civil Procedure 3 for failure to file the complaint and service of process in a timely manner. All fee requests are DENIED.
Finally, I REJECT The Thomas Agency's request that I enjoin Spickler from further filings. He has made no filings in this court; it is the defendant Experian who has removed the matter to this Court. It is up to the state courts to ...