ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS OF
DEFENDANTS SCARCELLI, STANFORD, ACADIA AND
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.
court elects to decide the motion without oral argument.
See M.R. Civ. P. 7(b)(7).
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.
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.
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.
court's rulings are as follows:
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.
IV, V, VI, X and XVIII
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.
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
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