ORDER ON MOTION TO AMEND COMPLAINT, MOTION TO DISMISS, AND MOTION FOR TRIAL OF FACTS
Nancy Mills, Justice, Superior Court.
Before the court are the following motions: (1) plaintiff's motion to amend the complaint; (2) defendant's motion to dismiss plaintiff's complaint; and (3) plaintiff's motion for a trial of the facts.
Plaintiff alleges the following in the amended complaint. She began working for the Town of New Gloucester in 1988. (Am. Compl. ¶ 7.) Most recently, plaintiff served as the Deputy Treasurer/Bookkeeper for ten years until she resigned on November 25, 2013. (Am. Compl. ¶ 8.) The events leading up to and following plaintiff's resignation are the subject of this suit.
On November 4, 2013, the Selectmen for the Town of New Gloucester held a scheduled meeting at which the Selectmen decided to make plaintiff's position a part-time job at 24 hours per week and eliminate plaintiff's benefits. (Am. Compl. ¶ 13.) Plaintiff was not notified that the Selectmen would be discussing her position at the November 4 meeting. (Am. Compl. ¶ 17.) The Selectmen entered " executive session, " in which they decided to create an interim finance director position that would perform some of the duties plaintiff had been performing. (Am. Compl. ¶ 13.) The Selectmen planned to appoint the Town Manger, Sumner Field, who was due to retire on January 2, 2014, to the finance director position. (Am. Compl. ¶ 14.)
The day after the Selectmen meeting, the Town Manger informed plaintiff of the decision to reduce her hours and eliminate her benefits. (Am. Compl. ¶ 16.) On hearing the news, plaintiff became upset and distressed about her finances, health care coverage, and retirement expectations. (Am. Compl. ¶ 18.) Plaintiff became increasingly anxious during the next week and decided to seek medical advice. (Am. Compl. ¶ 19.) Plaintiff's doctor wrote a note on her behalf excusing her from work based on work-related stress and plaintiff was allowed FMLA leave from November 11 through November 24, 2013. (Am. Compl. ¶ 19.) During plaintiff's medical leave, the Town Manager wrote a memo describing plaintiff's poor job performance and stated any future examples of poor performance or negative attitude would result in her termination. (Am. Compl. ¶ 20.)
When plaintiff returned from leave on November 25, the Town Manager approached her with the memo he drafted and informed plaintiff that she was on " probation" for performance-related issues. (Am. Compl. ¶ ¶ 20, 22.) Plaintiff mistakenly believed that she was being suspended without pay. (Am. Compl. ¶ 24.) She became upset and left work. (Am. Compl. ¶ 24.) Later that day, plaintiff sent an email to the Town Manager and tendered her resignation. (Am. Compl. ¶ 25.) The Town Manager accepted her resignation on the same day. (Am. Compl. ¶ 26.)
On December 2, 2013, the Selectmen held a meeting at which they unanimously decided to reverse their November 4 decision to reduce the hours and benefits for the bookkeeper position. (Am. Compl. ¶ 27.) Selectman McHenry requested formal confirmation that the reversal of the November 4 decision brought " everything back to before the November 4 meeting." (Am. Compl. ¶ 28.) Plaintiff was not informed of the decision to restore the bookkeeper position to full time. (Am. Compl. ¶ 29.) Soon after December 2, the Town of New Gloucester posted the job opening for the bookkeeper position on its website. (Am. Compl. ¶ 30.) The deadline for applications was advertised as December 26, 2013 but no time deadline was specified. (Am. Compl. ¶ 30.)
On December 26, the Selectmen held a special meeting to discuss budget issues, including whether to provide plaintiff with a severance package. (Am. Compl. ¶ 31.) Plaintiff attended the meeting and asked the Selectmen to reinstate her to the bookkeeper position. (Am. Compl. ¶ 32.) The Selectmen informed plaintiff that only the Town Manager could reinstate her to her position. (Am. Compl. ¶ 32.) Later on December 26, plaintiff wrote to the Town Manger to request reinstatement. (Am. Compl. ¶ 33.) Plaintiff sent an email to the Town Manager on January 2, 2014, and requested a response to her letter. (Am. Compl. ¶ 34.) The Town Manager wrote a letter to plaintiff dated January 6, 2014 and stated plaintiff's application for the bookkeeper position was received after the deadline and her application would not be considered for the position. (Am. Compl. ¶ 35.) Plaintiff received this letter on January 7, 2014. (Am. Compl. ¶ 35.)
On January 13, counsel for plaintiff sent a letter to the Town Manger and sought clarification regarding the finality of the January 6 decision not to rehire plaintiff. (Am. Compl. ¶ 36.) On January 21 and 23r counsel for the town informed plaintiff's counsel that there was no further right of municipal review of the Town Manager's decision not to consider plaintiff for reinstatement or rehire and extended to plaintiff an offer of settlement. (Am. Compl. ¶ 37.) Plaintiff rejected the settlement offer on January 23, 2014.
Plaintiff filed her complaint for Rule 80B review and independent causes of action on February 7, 2014. On March 13, 2014, the court granted plaintiff's unopposed motion to join the independent claims with the Rule 80B action and issued an order specifying the future course of proceedings. On March 20, 2014, the court issued a scheduling order. Defendant filed a motion to dismiss the complaint on March 20, 2014. Plaintiff's opposition was filed April 15, 2014. On the same day, plaintiff filed a motion to amend her complaint. Defendant's opposition was filed May 5, 2014. On April 22, 2014, plaintiff filed a motion for a trial of the facts. M.R. Civ. P. 80B(d). Defendant's response was filed May 12, 2014.
1. MOTION TO AMEND COMPLAINT
Under M.R. Civ. P. 15(a), " [a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served." If a responsive pleading is not permitted, a party may amend a complaint as a matter of course " at any time within 20 days after it is served."
Id. Otherwise, the party may amend only with leave of the court or by written consent of the adverse party.
It is unclear whether a responsive pleading is permitted or required in this case because the Rule 80B claim has been joined with independent claims. No responsive pleading is required to the Rule 80B complaint. M.R. Civ. P. 80B(a). Rule 80B(i) is silent on the issue of a responsive pleading. Neither the order specifying the future course of proceedings nor the scheduling order required a responsive pleading.
If a responsive pleading is permitted, plaintiff is entitled to amend her complaint.
See Kasu Corp. v. Blake, Hall & Sprague, Inc., 540 A.2d 1112, 1113 (Me. 1988). If a responsive pleading is not permitted, " leave shall be freely ...