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Moody v. Heirs of Rideout

Superior Court of Maine, Cumberland

November 5, 2018

WALTER SCOTT MOODY, Plaintiff
v.
HEIRS OF EDNA O. RIDEOUT and AMBER MASON, Defendants

          ORDER ON PENDING MOTIONS

          NANCY MILLS JUSTICE

         Before 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.

         I. Background

         The 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.

         On June 13, 2017, plaintiff moved for service by publication on the heirs.[1] 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.

         On June 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.

         Defendant 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.)

         Following 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.

         II. Defendant Mason's Motion to Set Aside Default of the Heirs of Edna O. Rideout.

         Defendant 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.

         Defendant 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. Cir. 1985).

         Rule 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).

         Rule 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.

         The 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 ...


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