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O'Shea v. O'Shea

Superior Court of Maine

April 22, 2015




I. Background

Plaintiff Kelley Ann O'Shea ("Kelley" or "the plaintiff) brings this action against Kathleen M. O'Shea, Brian Connor O'Shea, and John J. O'Shea in (collectively "the individual defendants"), as well as Killybegs, LLC, a foreign LLC organized under the laws of Texas. At issue, in part, is the O'Shea family vacation home at 168 Kings Highway, Kennebunkport, Maine ("the vacation property").

This is not the first lawsuit involving the parties. Kelley previously filed a suit in Texas state court against her late mother, Rita O'Shea ("Rita") alleging that she misused assets from a trust formed from the estate of John O'Shea Jr., who was Kelley's father and Rita's husband. The case went to trial and was affirmed by a panel of the Court of Appeals of Texas. Duncan v. O'Shea, 2012 Tex.App. LEXIS 6494, 23, 2012 WL 3192774 (Tex. App. Amarillo Aug. 7, 2012). Although the court addressed Rita's income from the vacation property, there was no substantive adjudication as to rights in the property. After the Texas litigation commenced, Rita formed Killybegs, LLC ("Killybegs") and conveyed the vacation property to Killybegs. (Compl.¶¶ 30-32.) The plaintiff alleges this transfer violated the trust and was made in an effort to shield assets from a potential judgment in the litigation. Rita died in 2013. The defendants are all named as Directors of Killybegs and have assumed control of managing the vacation property. (Compl. ¶¶ 53, 65, 68; Ex. H.) In this capacity, the defendants have entered contracts to maintain the property, paid bills, and visited Maine on several occasions. (PL's Ex. A-1.)

The plaintiffs complaint in this case brings nine counts related to the transfer of the vacation property and management of Killybegs, including multiple counts for breach of fiduciary duty, breach of contract, fraud, conversion, and a claim under the fraudulent transfers act, 14 M.R.S. § 3575. The complaint requests that the court impose a constructive trust and award punitive damages. Before the court are Killybegs's and the individual defendants' motions to dismiss for improper venue, lack of personal jurisdiction, and forum non conveniens. Killybegs also moves separately to dismiss Counts I, II, III, V, VI, VII, and LX. (Def. Killbegs Mot. Dismiss 8-10.)

II. Discussion

A. Venue

The general venue statute provides:
Personal and transitory actions . . . shall be brought, when the parties live in the State, in the county where any plaintiff or defendant lives; and when no plaintiff lives in the State, in the county where any defendant lives; or in either case any such action may be brought in the county where the cause of action took place.

14 M.R.S. § 501. The defendants argue that because none of the parties are Maine residents, venue is improper in this court. The plaintiffs respond that venue is appropriate under Section 501 "where the cause of action took place." There is, however, an added qualification: Section 501 requires either the plaintiff or the defendant reside in Maine. See Gaeth v. Deacon, 2009 ME 9, ¶ 17, 964 A.2d 621.

While "[t]he general venue statutes are silent as to the venue of personal transitory actions where neither the plaintiff nor the defendant is a resident of Maine, " this does not mean nonresidents have no available venue. 2 Harvey, Maine Civil Practice § 0:20 at 67 (3d ed. 2011). Rather, actions between nonresidents may be maintained in the county where the defendant can be found and served with process. Id. Foreign corporations and LLC's may be served at a "place of business of the corporation within the state." M.R. Civ. P. 4(d)(9)(a). Under another applicable venue statute, a corporation "may sue and be sued in the county in which they have an established place of business." 14 M.R.S. § 505. Because the LLC owns and the individual defendants operate the vacation property in Kennebunkport, venue is proper in York County.

Ultimately, the defendants object to personal jurisdiction and the convenience of litigating this matter in Maine. See Estate of Hoch v. Stifel, 2011 ME 24, ¶ 30, 16 A.3d 137 (setting aside defendant's venue challenge as a personal jurisdiction challenge and declining to address venue separately). The court considers personal jurisdiction and forum non conveniens in turn.

B. Personal Jurisdiction

Maine conducts a two-step analysis to determine whether exercise of personal jurisdiction over a defendant is proper. The court first applies the state long-arm statute, then determines whether exercising jurisdiction comports with due ...

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