ORDER ON PENDING MOTIONS
the court are defendant Amber Mason's motion to set aside
default of the heirs of Edna Rideout and motion for leave to
amend answer and plaintiff Walter Scott Moody's motion
for default judgment and second motion for summary judgment.
For the following reasons defendant Mason's motions are
granted and plaintiff's motions are denied.
court incorporates by reference the factual background in the
order filed on June 13, 2018 on plaintiff and defendant
Mason's motions for summary judgment and includes the
following additional facts.
13, 2017, plaintiff moved for service by publication on the
heirs. This motion was supported by the affidavit
of Tarilyn Thorso, a paralegal from Preti Flaherty, stating
that the heirs could not be located after a diligent search.
Defendant Mason did not object to this motion. On June 27,
2017, the court granted the plaintiff's motion for
service by publication on the heirs. Plaintiff posted notice
in the Portland Press Herald for three consecutive
weeks, July 7, July 14, and July 21, 2017, satisfying the
service requirement. On August 31, 2017, plaintiff requested
an entry of default against the heirs. Defendant Mason did
not oppose this motion. Default was entered against the heirs
on October 2, 2017.
13, 2018, the court issued an order on both plaintiff and
defendant Mason's motions for summary judgment. In that
order the court found that: (1) defendant Mason did not own
title to the disputed intertidal land, and (2) genuine issues
of material facts existed as to whether plaintiff had
adversely possessed the intertidal ledge.
Mason has learned that there are heirs of Edna O. Rideout
living in Maine but not in Cumberland County. (Dunphy Aff.)
Several heirs have transferred any interest in the intertidal
zone conveyed to Edna O. Rideout to defendant Mason. (Dunphy
Aff., Exs B-K.)
the June 13, 2018, order on plaintiff and defendant
Mason's motions for summary judgment, the following
motions were filed: (1) July 20, 2018, defendant Mason filed
a motion to set aside default of the heirs, (2) July 27,
2018, defendant Mason filed a motion for leave to amend or
supplement answer, (3) August 8, 2018, plaintiff filed a
motion for default judgment of the heirs, and (4) August 8,
2018, plaintiff filed a second motion for summary judgment.
Defendant Mason's Motion to Set Aside Default of the
Heirs of Edna O. Rideout.
Mason argues: (1) there is good cause to set aside the
default pursuant to Rule 55(c) because the search for the
heirs was based on the incorrect conclusion that the heirs
were deceased and the surviving heirs never received personal
service, and (2) defendant Mason has a meritorious defense
because some of the heirs transferred their interest in the
land to her, which gives her standing to challenge
plaintiff's adverse possession and quiet title claims.
Plaintiff argues: (1) defendant Mason does not have standing
to assert the legal rights of the heirs, and (2) defendant
Mason's motion should be denied because it is untimely
and there is no good cause to set aside the default.
Mason may proceed pursuant to rule 25. M.R. Civ. P. 25(c).
Rule 25(c) allows for substitution of a party when there is a
transfer of interest. Id. "Rule 25(c)
substitution implements a discretionary determination by the
trial court to facilitate the conduct of the
litigation." Maysonet-Robles v. Cabero. 323
F.3d 43, 49 (1st Cir. 2003). The transferee is "brought
into court solely because it has come to own the property in
issue. The merits of the case and the disposition of the
property are still determined vis-a-vis the originally named
parties." Id. (quoting Minn. Mining &
Mfg. Co. v. Eco Chem. Inc.. 757 F.2d 1256, 1263 (Fed.
55(c) states that "for good cause shown the court may
set aside an entry of default and, if a judgment by default
has been entered, may likewise set it aside in accordance
with Rule 60(b)." M.R Civ. P. 55(c). To establish good
cause, "a party must show a good excuse for his or her
untimeliness and a meritorious defense." Levine v.
Keybank Nat'l Ass'n, 2004 ME 131, ¶ 20, 861
A.2d 678 (quoting Truman v. Browne, 2001 ME 182,
¶ 9, 788 A.2d 168. "The good excuse and the
meritorious defense requirements are two distinct components,
both of which must be satisfied in order to prevail on a Rule
55(c) motion." Levine, 2004 ME 131, ¶ 20,
861 A.2d 678 (quotation marks omitted).
4(g) allows for service to be completed by publication upon
"showing that service cannot with due diligence be made
by another prescribed method." M.R. Civ. P. 4(g).
Inaccuracies or errors in service ordinarily do not result in
treating "actual notice as a nullity." Philips
v. Johnson. 2003 ME 127, ¶ 28, 834 A.2d 938.
"Receipt of actual notice is not constitutionally
mandated, but an adequate attempt at actual notice is
required." Gaeth v. Deacon. 2009 ME 9, ¶
21, 964 A.2d 621. As noted by the Law Court, "the
adequacy of the notice is reviewed from the time that the
notice is given, and not after the fact." Id.
at ¶ 21 n.3. Service by publication is inadequate when
notice is published in a newspaper circulated in a county
with which defendant had no present or past connections.
Id. at ¶ 27.
service by publication in this case was based on
plaintiff's inaccurate submission to the court that the
heirs of Edna O. Rideout were deceased. Notice of this
lawsuit does not appear to have been received. See
Phillips. 2003 ME 127, ¶ 28, 834A.2d938. Under
these circumstances, plaintiff's objection that
defendant's action is untimely and that she has not
established good ...