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Perry v. Alexander

United States District Court, D. Maine

July 19, 2017

ALAN J PERRY, et al., Plaintiffs
v.
JULIET ALEXANDER, et al., Defendants PETER TINKHAM, et al., Plaintiffs
v.
LAURA PERRY, et al., Defendants

          ORDER ON PLAINTIFFS' MOTION IN LIMINE TO PRECLUDE CONSIDERATION OF DEFENDANT'S COUNTERCLAIMS

          JOHN C. NIVISON, U.S. MAGISTRATE JUDGE

         This matter is before the Court on Plaintiffs' Motion in Limine to Preclude Any Consideration of Defendant's Counterclaims at Trial.[1] (ECF No. 101.) Through the motion, Plaintiffs contend that because the Court entered judgment against Defendant Peter Tinkham on the claims he asserted against Plaintiffs in a previous matter (1:12-cv-229, the Tinkham litigation), Defendant Tinkham is precluded from prosecuting his counterclaims for legal malpractice and racketeering by law firm in this action.

         After consideration of the parties' arguments and a review of the record, the Court grants in part and denies in part the motion.

         Factual Background

         In the Tinkham litigation, Defendants Peter Tinkham and Juliet Alexander asserted claims, as plaintiffs, against Laura Perry, Alan Perry, Nina Perry, the plaintiffs in this matter, and L. Clinton Boothby. Defendants Tinkham and Alexander asserted that in 1995, Plaintiff Laura Perry conveyed to them an interest in a cottage in Weld, Maine, that the transfer was deceptive because the property was transferred to a trust established by Plaintiff Alan Perry, that the transfer was accomplished by the use of forged signatures, and that the transaction included a forged mortgage with Defendant Alexander as mortgagor and Plaintiff Laura Perry as mortgagee.

         According to the pleadings, in or around 2011, Plaintiffs enlisted Mr. Boothby, an attorney, to assist in the enforcement of the mortgage after Plaintiff Alexander declined to execute documents re-conveying the property. Defendants Tinkham and Alexander then initiated the Tinkham litigation, in which litigation they asserted fraud/deceit and intentional infliction of emotional distress against the Plaintiffs, and a claim for breach of fiduciary duty against Plaintiff Alan Perry. Plaintiff Laura Perry subsequently filed a counterclaim for the collection of a promissory note and breach of contract.

         On May 14, 2013, the Court dismissed from the Tinkham litigation Mr. Boothby and Plaintiff Nina Perry. (Order, 1:12-cv-229, ECF No. 93.) On October 10, 2013, the Court dismissed all remaining claims asserted by Defendants Tinkham and Alexander with prejudice, pursuant to Federal Rules of Civil Procedure 16(f) and 41(a)(2)&(b), based on Defendants' failure to comply with certain court orders. As part of its dismissal order, the Court directed the Clerk to enter final judgment. (Order of Dismissal, 1:12-cv-229, ECF No. 128.) Judgment was entered on October 10, 2013. (Judgment, 1:12-cv-229, ECF No. 130.)

         After an unsuccessful motion for reconsideration, Plaintiffs filed a notice of appeal. (Notice, 1:12-cv-229, ECF No. 156.) The First Circuit docketed the appeal and ordered Defendants to show cause as to why the appeal was within the court's appellate jurisdiction, given that the matter remained pending in this Court and that the appeal appeared to be filed late. (Court of Appeals Docket # 14-1039, Order of March 6, 2014.) Defendants failed to comply with the order to show cause and the First Circuit dismissed the appeal. (Id., Order of April 8, 2014.) The Tinkham litigation continued in this Court on Plaintiff Laura Perry's counterclaims.

         On May 15, 2014, Plaintiffs Alan Perry, Laura Perry, and Nina Perry filed an action in Maine Superior Court against Defendants Alexander and Tinkham, in which action they asserted claims of defamation, malicious prosecution, fraudulent transfer, foreclosure, breach of contract, and for recovery on a promissory note. Defendants Alexander and Tinkham removed the action to this Court, which action was assigned case number 2:15-cv-310. Although this Court remanded the matter to state court, upon Defendants' appeal, the First Circuit returned the matter to this Court in March 2016. (Judgment of USCA, ECF No. 29.)

         While the matter was in state court upon remand, Defendant Tinkham, proceeding pro se, filed an answer and asserted counterclaims of legal malpractice and “racketeering by law firm, ” naming as counterclaim defendants Plaintiffs. (ECF No. 14-12.) Plaintiffs moved in state court to dismiss or strike the counterclaim (ECF Nos. 14-8, 108-1), but the motions were not decided.

         On August 30, 2016, noting that the Tinkham litigation and this matter, under case number 2:15-cv-310, involve “common questions of law and fact, ” and that the only claims pending in the Tinkham litigation were Plaintiff Laura Perry's claims for breach of promissory note and breach of contract, the Court terminated the Tinkham litigation and ordered that Plaintiff Laura Perry could pursue in this action the claims that were pending in the Tinkham litigation. (Order, ECF No. 46.)

         Discussion

         Through their motion in limine, Plaintiffs argue Defendant Tinkham's counterclaim is barred by this Court's earlier dismissal of the claims ...


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