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Kanjinga v. Chevrolet-Cadillac

Superior Court of Maine, Cumberland

July 18, 2017

NANA KANJINGA, Plaintiff
v.
FRANK GALOS CHEVROLET-CADILLAC, Defendant

          ORDER ON DEFENDANT'S MOTION TO DISMISS COUNT II OF PLAINTIFF'S COMPLAINT

          Nancy Mills, Justice

         Before the court is defendant's motion to dismiss count II of plaintiff's complaint. For the following reasons, the motion is granted.

         I. Background

         According to plaintiff's complaint filed May 15, 2017, defendant mailed a flyer to plaintiff at her home in Westbrook, Maine. (Pl's Compl. 5 4.) In the flyer, defendant advised plaintiff she had won a prize and instructed her to call defendant for information. (Id. ¶ 5.) Plaintiff called defendant and was advised again she had won a prize and was required to report to defendant's car dealership to collect the prize. (Id. ¶¶ 3) 6.) Plaintiff agreed and arrived at defendant's dealership on March 17, 2017. (Id. ¶ 8.) After six hours of alleged high-pressure sales tactics, plaintiff signed paperwork that transferred to defendant her interest in her car and agreed to assume a loan to buy a new car from defendant. (Id. ¶¶ 9-23.) Plaintiff returned to defendant's dealership on March 18 and tried unsuccessfully to rescind the contract. (Id. ¶¶ 27-28.)

         In her complaint, plaintiff alleges unfair trade praetiee, count I, and home solicitation violation, count II. Defendant filed a motion to dismiss count II on May 25, 2017. Plaintiff responded on June 14, 2017. Defendant replied on June 19, 2017.

         II. Standard of Review

         On review of a motion to dismiss for failure to state a claim, the court accepts the facts alleged in the complaint as true. Saunders v. Tisher, 2006 ME 94, ¶ 8, 902 A.2d 830. The court "examine[s] the complaint in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." Doe v. Graham, 2009 ME 88, ¶ 2, 977 A.2d 391 (quoting Saunders, 2006 ME 94, ¶ 8, 902 A.2d 830). "For a court to properly dismiss a claim for failure to state a cause of action, it must appear 'beyond doubt that [the] plaintiff is entitled to no relief under any set of facts that might be proven in support of the claim.'" Dragomir v. Spring Harbor Hosp., 2009 ME 51, ¶ 15, 970 A.2d 310 (quoting Plimpton v. Gerrard, 668 A.2d 882, 885 (Me. 1995)).

         III. Discussion

         Section 3-501 provides, in part:

'Home Solicitation Sale' means a consumer credit sale of goods, other than farm equipment, or services in which the seller or a person acting for him engages in a personal solicitation of the sale at a residence of the buyer and the buyer's agreement or offer to purchase is there given to the seller or a person acting for him.

9-A M.R.S. § 3-501 (2017). Defendant argues that count II must be dismissed because plaintiff does not allege any representative of defendant visited plaintiff's home or that plaintiff's agreement to purchase the new car occurred at her residence.

         Plaintiff responds that defendant's sending the flyer to plaintiff's home and the resulting telephone call between the parties was a home solicitation. Plaintiff argues further that the purchase of the new car was "merely an extension of the very same agreement which the defendant had solicited and become bound-to at [plaintiff's] home." (Pl's Opp. 6.)

         Plaintiff relies on additional facts not pleaded in the complaint. In her opposition, plaintiff requests that "if the Court determines that Plaintiff has not adequately plead a cause of action under § 3-501 et seq., Plaintiff respectfully moves the Court to allow Plaintiff an opportunity to amend the complaint in accordance with the facts set forth in this Motion." (Id.)

         When both a motion to amend and a motion to dismiss are before the court, the court ordinarily addresses the motion to amend first. Sherbert v. Remmel, 2006 ME 116, ¶ 10, 908 A.2d 622. Plaintiff has not properly moved to amend her complaint. See M.R. Civ. P. 15(a) (after a responsive pleading has been filed, "a party may amend the party's pleading only by leave of court or by written consent of the adverse party"); see also M.R. Civ. P. 7(b)(1)(A) & (b)(3). When a ...


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