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 ...