DAVID EMIL, as Executor of the ESTATE OF ARTHUR D. EMIL, Plaintiff
JASON SNYDER, Defendant
Thomas D. Warren Justice, Superior Court
Before the court is a motion by defendant Jason Snyder to retain the case on the docket. The motion is opposed by plaintiff David Emil, as Executor of the Estate of Arthur Emil, and by two law firms who were named in a counterclaim filed by Snyder on July 17, 2012.
This case arises out of unsuccessful efforts to develop property in Westbrook. It was commenced by the Estate of Arthur Emil on May 18, 2012. On June 27, 2012 Snyder -appearing pro se - filed an answer to the complaint, and a scheduling order was issued (Wheeler, J.). On July 17 Snyder filed an amended answer asserting a counterclaim against the Estate and naming four other parties as additional parties on his counterclaim pursuant to M.R.Civ.P. 13(h).
The additional parties named in the counterclaim were (1) the law firm of Cohen Tauber Spievack & Wagner P.C., (2) the law firm of Sullivan & Worcester LLP, (3) Oded Aboodi as Trustee of the Arthur Emil 2006 Family Trust, and (4) David Emil in his individual capacity. None of the additional counterclaim parties were served until after a Rule 41(b) order was issued in this case on June 9, 2015, almost three years after Snyder filed his counterclaim.
On September 14, 2012 the Estate and Snyder, asserting that they were in settlement discussions, filed a joint motion to enlarge the ADR deadlines in the Scheduling Order by 30 days. That motion was granted by Justice Wheeler, as was a similar order a month later. In late November Justice Wheeler granted a motion by the Estate - consented to by Snyder - to enlarge all of the deadlines in the scheduling order by 120 days to allow settlement efforts to continue.
On March 5, 2013 the Estate and Snyder made a joint motion to stay "all remaining deadlines" for another 120 days - until July 2, 2013. That was granted by Justice Wheeler on April 1, 2013. That order was followed by 21 joint motions to continue the stays for periods of approximately 30 days each, all of which represented that the parties were making continuing efforts to resolve the case. These motions resulted in continuing the stay of all deadlines to March 25, 2015. On that date the Estate filed a further motion to stay all deadlines to April 30, 2015, stating that Snyder had represented that he needed to consult with others but anticipated that he would be able to implement a resolution of the case once he had done so. Snyder consented to that motion.
On April 30 the Estate made a final motion - again consented to by Snyder - to continue to stay all deadlines stating that Snyder had represented that he had made significant progress and was hopeful that he could implement the proposed resolution by May 31. After a telephone conference, the court (Horton, J.) granted a stay to June 6, 2015.
At a hearing on June 5, Justice Horton advised the parties that the case would be placed on a 41(b) list and if they chose to do so, they could move to retain the case on the docket. Counsel for the Estate stated that the Estate was seeking a dismissal with prejudice of all claims. Snyder stated that he would be consulting with family members to determine his course of action.
On June 9, 2015 Justice Horton issued an order under Rule 41(b) dismissing the case with prejudice unless a motion to retain the case on the docket was filed within 30 days.
On July 6, 2015 counsel appeared for Snyder and on his behalf filed the motion to retain the case on the docket that is now before the court. The Estate opposed that motion, and Snyder filed reply papers. At the same time he filed returns of service on Sullivan & Worcester LLP and on Cohen Tauber Spievack & Wagner P.C., served on July 22 and July 27, respectively.
Subsequently both Sullivan & Worcester and the Cohen Tauber firm appeared and filed memoranda opposing Snyder's motion to retain this case on the docket.
Applicability of Rule 41(b)
The text of Rule 41(b)(1) and the decisions of the Law Court provide that, absent a showing of good cause to the contrary, the court "shall" dismiss an action for want of prosecution any time more than two years after the last docket entry showing any action taken by the plaintiff other than a motion for a continuance. Worrey v. Fournier, 1999 ME 78\ 5, 729 A.2d 907 ("only a showing by the delinquent plaintiff of good cause to the contrary will ...