ROBYN KATZ, Individually and as Beneficiary of the Reuben Katz Testamentary Trust, and WAYNE LAWSON, Plaintiffs
DAVID TURESKY, Defendant
ORDER ON MOTIONS
Defendant's Motion to Dismiss Counts VI, VII, and
VIII of Plaintiffs' Complaint
have stated a cause of action for fraud, deceit, and
misrepresentation in count VI. See Brawn v. Oral Surgery
Assocs., 2003 ME 11, ¶ ¶ 21-22, 819 A.2d 1014
("When a special relationship exists, that is a
fiduciary relationship, omission by silence may constitute
the supplying of false information. . . in such a
relationship, where the defendant knows particular facts and
does not disclose them causing the plaintiff to rely on those
facts, an inference of fraud is appropriate.");
(Pis.' Compl. ¶¶ 51-59, 110-17.)
have stated a cause of action for defamation in count VII.
See Morgan v. Kooistra. 2008 ME 26, ¶ 26, 941
A.2d 447; (Pis.' Compl. ¶¶ 118-23.)
Plaintiffs' failure to specifically allege date of
defamatory publication is not necessarily fatal. Vahlsing
Christina Corp. v. Stanley. 487 A.2d 264, 267 (Me.
1985). Plaintiffs are not required to disprove
defendant's affirmative defenses. See Cunningham v.
Haza. 538 A.2d 265, 267 (Me. 1988).
count VIII, in order to survive a motion to dismiss a claim
of malicious prosecution and wrongful civil proceedings,
plaintiffs must allege that the defendant "(1) 
initiates, continues, or procures civil proceedings without
probable cause, (2) with a primary purpose other than that of
securing the proper adjudication of the claim upon which the
proceedings are based, and (3) the proceedings have
terminated in favor of the person against whom they are
brought." Pepperell Trust Co. v. Mountain Heir Fin.
Corp., 1998 ME 46. ¶ 17, 708 A.2d 651.
regard to the third element, the Law Court has concluded that
a favorable termination must be on the merits. Palmer
Dev. Corp. v. Gordon. 1999 ME 22, ¶ 10, 723 A.2d
881 ("[T]here is a requirement in the malicious
prosecution action that the proceeding has terminated
favorably to the plaintiff, and that the favorable
termination be on the merits, or at least reflect on the
merits, of the action."). The Law Court has emphasized
that the alleged wrongful proceeding must be final and cannot
be an ongoing proceeding no matter the likelihood of success
for the plaintiff alleging malicious prosecution.
Pepperell Trust Co., 1998 ME 46, ¶ 20, 708 A.2d
651 ("[T]here can be no allegation that the proceedings
have terminated in the claimant's favor until the
possibility of change in the outcome of the offending action
has been eliminated through the exhaustion of post-trial or
appellate remedies."). The Maine District Court,
applying Maine law, held that a settlement is not a favorable
termination of a prior lawsuit as a matter of law. Simon
v. Navon. 951 F.Supp. 279, 283 (D. Me. 1997). "A
successful statute of limitations defense does not reflect on
the merits of an action." Palmer. 1999 ME 22,
¶ 11, 723 A.2d 881. A dismissal for lack of standing is
not a favorable termination. Morse Bros, v. Webster.
2001 ME 70, ¶¶ 29-30, 772 A.2d 842. Plaintiffs'
exhibit I, attached to the amended complaint, makes clear
that the outcomes of the FED actions are not considered
favorable to plaintiffs in the context of a malicious
motion to dismiss is denied as to counts VI and VII and
granted as to count VIII. Count VIII of plaintiffs'
amended complaint is dismissed.
Plaintiffs' Motion to Dismiss Counterclaims
counterclaims were not contained in a recognized pleading
under M.R. Civ. P. Rule 7(a). The Law Court has adhered
strictly to Rule 7(a) and limited what pleadings are
authorized in Maine civil cases. See S. H. Nevers Corp.
v. Husky Hydraulics. Inc., 408 A.2d 676, 679 (Me. 1979)
("[U]nder the Maine rule a plaintiff may not assert his
claim against a third-party defendant by a new and separate
pleading; we reach this conclusion because Rule 7(a)
enumerating the pleadings which may be filed in a civil
action does not enumerate any pleading that could be used to
assert the plaintiffs claim."). The pleadings recognized
under Rule 7(a) are a complaint, an answer, a reply to a
counterclaim, an answer to a cross-claim, a third-party
complaint, and a third-party answer; "[n]o other
pleading shall be allowed." M.R. Civ. P. 7(a); see
also Lee v. Maier, 1999 ME 62, ¶ 14, 728 A.2d 154
("Rule 7(a) addresses the various forms of pleadings by
referring to the complaint, answer, reply to a counterclaim,
answer to a cross-claim, third-party complaint, and
third-party answer.") Counterclaims are not a separate
pleading and must be contained in one of the pleadings
enumerated in Rule 7(a).
motion to dismiss counterclaims is granted. Defendant's
counterclaims are dismissed without prejudice. M.R. Civ. P.
Plaintiffs' Motion for Leave to File Reply to
Counterclaims Based on the above discussion,
plaintiffs' motion is moot.
Defendant/Counterclaim Plaintiff's Request for Entry
of Default against Plaintiffs/Counterclaim Defendants on
Counterclaim for Declaratory Judgment
on the above discussion, defendant/counterclaim
plaintiff's motion is denied.
Defendant/Counterclaim Plaintiffs Request
for Entry of Default against