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Temm v. LPL Financial LLC

Superior Court of Maine, Cumberland

April 29, 2016

WILLIAM TEMM and DALE TEMM, Plaintiffs
v.
LPL FINANCIAL LLC, TRSS WEALTH MANAGEMENT LLC, MICHAEL A. REED, BRUCE SAWYER, ANDREW C. STICKNEY and THOMAS M. BRUNELLE, Defendants

          ORDER ON MOTION TO DISMISS AND MOTION TO STRIKE OR IN THE ALTERNATIVE TO DISMISS PLAINTIFFS' AMENDED COMPLAINT

          A. M. HORTON JUSTICE.

         Defendants TRSS Wealth Management LLC, Michael Reed, Bruce Sawyer, Andrew Stickney and Thomas Brunelle [collectively "the TRSS Defendants"] have filed a Motion to Dismiss all counts of the Complaint filed by William and Dale Temm. Instead of responding to the Motion with an opposition, the Plaintiffs filed an Amended Complaint, but did not file a motion for leave to amend. Based on the absence of a motion to amend, the TRSS Defendants have filed a Motion to Strike or In the Alternative, to Dismiss Plaintiffs' Amended Complaint. Plaintiffs have filed a timely opposition to the latter motion, and the TRSS Defendants have filed a reply memorandum. The court elects to decide both the Motion to Dismiss and the Motion to Strike or In the Alternative, to Dismiss Plaintiffs' Amended Complaint without oral argument, see M.R. Civ. P. 7(b)(7).

         Motion to Strike

         The premise of the TRSS Defendants' Motion to Strike is that the Plaintiffs were required to file a motion for leave to amend their Complaint pursuant to Rule 15(a) of the Maine Rules of Civil Procedure, because the TRSS Defendants had responded to the Complaint with their Rule 12(b)(6) motion to dismiss. Rule 15(a), in pertinent part, provides that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served ... Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party . .."

         The question raised by the TRSS Defendants' Motion to Strike is whether their motion to dismiss is a "responsive pleading" for purposes of Rule 15(a). The Law Court has not addressed this issue. This court concludes that a motion is not a pleading for purposes of Rule 15(a) of the Maine civil rules. The Maine civil rules themselves differentiate between motions and pleadings. Rule 7(a) enumerates the pleadings allowed, without including any motions in the list. Separately, Rule 7(b) prescribes the form and procedure for motions. Rule 11(a) requires "every pleading and motion" of a represented party to be signed by an attorney of record, thereby confirming that motions are not pleadings. The counterpart federal rule to Rule 15(a) makes the distinction explicit by referring to both pleadings and Rule 12 motions. See Fed. R. Civ. P. 15(a).

         Because Plaintiffs have not previously amended their complaint, and because the TRSS Defendants have not filed a "responsive pleading" for purposes of Rule 15(a), Plaintiffs were entitled to amend their Complaint as a matter of course, and the TRSS Defendants' Motion to Strike must be denied. Moreover, because the Amended Complaint has superseded the original Complaint, the TRSS Defendants' Motion to Dismiss will be dismissed as moot.

         Motion to Dismiss Amended Complaint

         The TRSS Defendants' Motion to Dismiss Plaintiffs' Amended Complaint is brought under Rule 12(b)(6). It seeks dismissal of all counts of the Amended Complaint pertaining to them. On its face, the Amended Complaint asserts claims against one or all of the TRSS Defendants in Count II (breach of contract); Count IV (breach of fiduciary duty); Count VI (intentional infliction of emotional distress); Count VIII (interference with contractual or other advantageous economic relations); Count IX (invasion of privacy); Count X (misappropriation of trade secrets); Count XI (loss of consortium), and Count XII (breach of contract against Thomas Brunelle). The other counts assert claims against Defendant LPL Financial, LLC only and have been addressed in a separate order.

         The standard of review applicable to a Rule 12(b)(6) motion to dismiss calls for the court to determine whether the pleading to which the motion is directed, viewed in a light most favorable to the non-moving party, states any cognizable claim for relief. See Town of Eddington v. University of Maine FoundationJ2.001 ME 74, ¶ 5, 926 A.2d 183, 184; Heber v. Lucerne-in-Me. Fill. Corp., 2000 ME 137, ¶ 7, 755 A.2d 1064, 1066. Under this standard, most of the TRSS Defendants' arguments fail, because they assume a certain view of the facts and therefore would be better deferred to the summary judgment phase.

         The court's rulings on the motion, in terms of specific counts of the Amended Complaint is as follows:

         Count II (breach of contract): Plaintiff William Temm's breach of contract claim against all TRSS Defendants other than Thomas Brunelle asserts that those Defendants have breached their obligations under the Operating Agreement of TRSS Wealth Management, LLC attached as Exhibit 1 to the Amended Complaint.[1] Defendants respond by noting that the attached exhibit is unsigned and therefore assert a statute of frauds defense. To this defense, Plaintiffs respond that a signed original of the Operating Agreement exists and they will seek to obtain it in discovery. Plaintiffs have the better part of the argument for a variety of reasons:

• Plaintiffs are entitled to take discovery on the existence of a signed contract'
• part performance, which Plaintiffs are clearly alleging, is a well-recognized exception to the Statute of Frauds

         Defendants also go on to argue that Plaintiff does not allege any actual breach of contract, but this depends on their view of the underlying facts, namely that they made a ...


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