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Gleichman v. Scarcelli

Superior Court of Maine, Cumberland

January 12, 2017

PAMELA GLEICHMAN and KARL NORBERG Plaintiffs
v.
ROSA SCARCELLI, STANFORD MANAGEMENT, LLC, ACADIA MAINTENANCE, LLC, PRESERVATION HOLDINGS, LLC and NORMAN, HANSON & DETROY, LLC Defendants

          ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS OF DEFENDANTS SCARCELLI, STANFORD, ACADIA AND PRESERVATION

         Defendants Rosa Scarcelli, Stanford Management, LLC ["Stanford"], Acadia Maintenance, LLC ["Acadia"] and Preservation Holdings, LLC ["Preservation"] have filed a motion for judgment on the pleadings. Plaintiffs Pamela Gleichman and Karl Norberg have opposed the motion, and the moving Defendants have filed a reply.

         The court elects to decide the motion without oral argument. See M.R. Civ. P. 7(b)(7).

         Background

         This case presents another chapter in the history of litigation between Plaintiffs Pamela Gleichman and Karl Norberg and Defendant Rosa Scarcelli, who is Plaintiff Gleichman's daughter and Plaintiff Norberg's step-daughter. In addition to naming the moving Defendants in this case, the Plaintiffs have named the Norman, Hanson & DeTroy, LLC law firm (NHD) as a defendant.

         The Plaintiffs' operative pleading is their Second Verified Amended Complaint [["the Amended Complaint'']], which is too long to summarize here. Defendants' motion contends that many of the twenty two counts of the Amended Complaint are legally insufficient.[1]

         The standard of review applicable to a motion for judgment on the pleadings under Rule 12(c) of the Maine Rules of Civil Procedure is similar to that on a Rule 12(b)(6) motion-whether the pleading to which the motion is directed, viewed in a light most favorable to the non-moving party, states a valid claim. See Town of Eddington v. University of Maine Foundation_2007 ME 74., §5, 926 A.2d 183, 184; Heber v. Lucerne-in-Me. Fill. Corp., 2000 ME 137, ¶ 7, 755 A.2d 1064, 1066.

         The court's rulings are as follows:

         Count I

         The disagreement between Defendants and Plaintiffs about the validity of Count I seems to focus on whether the references to the Defendants' alleged violation of statutes regarding registration of securities, auctioneer licensing and secured transactions are meant to assert private causes of action for violation of those statutes. On its face, count I is a declaratory judgment claim regarding the validity of the sale by auction to Preservation Holdings, LLC of the stock of General Holdings, Inc. Plaintiffs say that their references to the securities, auctioneer license and secured transaction statutes are not intended to state any causes of action based on those statutes. The court agrees with the Defendants that Plaintiffs likely do not have standing to assert causes of action under any of the statutes, but agrees with Plaintiffs that their Second Verified Amended Complaint states a cognizable declaratory judgment claim as to the validity of the disputed auction. If the references to the auctioneer and securities statutes are simply meant to bolster Plaintiffs' challenge to the sale, the court need not say at the pleadings stage whether evidence of any statutory violation might be admissible. Accordingly, based on Plaintiffs' assertion that Count I asserts a declaratory judgment claim only, the Defendants' motion for judgment on the pleadings will be denied as to Count I.

         Counts IV, V, VI, X and XVIII

         Defendants Scarcelli, Stanford, Acadia and Preservation move for partial judgment on the pleadings on Counts IV, V, VI and X of the Amended Complaint on grounds of res judicata/claim preclusion. Their motion plainly relies on material outside the pleadings, and in fact is accompanied by exhibits from the prior litigation that the motion contends preclude the claims in Counts IV, V, VI, X and XVIII. The exception to the rule that only the pleadings may be considered in a motion to dismiss or for judgment on the pleadings does not encompass all of the material on which the Defendants rely for their res judicata/claim preclusion argument. See Moody v. State Liquor & Lottery Comm'n, 2004 ME 20, ¶ 11, 843 A.2d 43. The Moody exception extends to documents central to the Plaintiffs' * claims, documents referred to in the complaint, or official public documents. The various documents from the prior litigation on which the moving Defendants rely do not appear to fall in any of these categories.

         On the present record, the court is unable to say that the Defendants are entitled to judgment on claim preclusion grounds and therefore denies their motion on these counts. These issues would better be raised in the summary judgment process.

         Count VIII

         Defendants moved for summary judgment on Count VIII (which is titled Count IIX in the Amended Complaint), which alleges that the Defendants converted stock of Gleichman & Co. (presumably referred ...


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