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Katz v. Turesky

Superior Court of Maine, Cumberland

February 14, 2019

ROBYN KATZ, Individually and as Beneficiary of the Reuben Katz Testamentary Trust, and WAYNE LAWSON, Plaintiffs
v.
DAVID TURESKY, Defendant

          ORDER ON PLAINTIFFS' MOTIONS FOR RECONSIDERATION

          Nancy Mills, Justice

          Before the court are plaintiffs Robyn Katz and Wayne Lawson's motions for reconsideration filed December 20, 2018 and January 7, 2019. For the following reasons, plaintiffs' motion filed December 20, 2018 is granted in part and denied in part. Plaintiffs' motion filed January 7, 2019 is denied.

         I. Procedural Background

         Plaintiffs filed a complaint on June 4, 2018. On June 28, 2018, plaintiffs filed a first amended complaint. On August 13, 2018, defendant (1) answered the first amended complaint, (2) filed two separate counterclaim documents that were later dismissed without prejudice (November 30, 2018 Order), (3) moved to disqualify plaintiff's counsel, (4) moved to strike, (5) moved to dismiss counts from the complaint, and (6) requested a hearing. On August 31, 2018, plaintiffs filed an opposition to defendant's motions to dismiss and disqualify counsel, On September 7, 2018, defendant (1) filed replies to plaintiffs' oppositions to defendant's motions to disqualify and dismiss and (2) moved for an entry of default judgment on his counterclaims, On September 10, 2018, plaintiffs (1) answered defendant's counterclaim documents, (2) filed an opposition to defendant's motion to strike, (3) moved to reply nunc pro tunc to defendant's counterclaims, (4) moved to dismiss defendant's counterclaims, and (5) moved to strike. On September 25, 2018, defendants filed an opposition to plaintiffs' motions to reply nunc pro tunc, dismiss, and strike. On October 1, 2018, plaintiffs replied to defendants' opposition to their motions to reply nunc pro tunc, dismiss, and strike.

         On November 30, 2018 the court issued an order on all pending motions except for the motion to disqualify plaintiffs' counsel. Additionally, on November 30, 2018, both parties submitted simultaneous affidavits in regards to the motion to disqualify. On December 18, 2018, the court issued an on the motion to disqualify. On December 27, 2018, the court issued an order regarding plaintiffs' representation.

         In this proceeding to date, seven motions have been filed. In addition, plaintiffs have now filed two motions for reconsideration.

         Plaintiffs filed a motion for reconsideration pursuant to Maine Rules of Civil Procedure Rule 7(b)(5) on December 20, 2018. In the motion, they seek to vacate the court's dismissal of plaintiffs' claim for wrongful use of civil proceedings. (November 30, 2018 Order.) Defendant filed an opposition to plaintiffs' motion on January 9, 2019. Plaintiffs filed a reply to defendant's opposition on January 14, 2019.

         Plaintiffs filed a second motion for reconsideration pursuant to Rule 7(b)(5) on January 7, 2019. In this motion, they seek to vacate the court's order disqualifying attorney Jeffrey Bennett, Esq. from representing plaintiffs in this case. (December 18, 2018 Order.) Defendant filed an opposition to plaintiffs' motion on January 25, 2019. Plaintiffs filed a reply to defendant's opposition on January 30, 2019.

          II. Standard of Review

         A motion for reconsideration "shall not be filed unless required to bring to the court's attention an error, omission or new material that could not previously have been presented." M.R. Civ. P. 7(b)(5). "Rule 7(b)(5) is intended to deter disappointed litigants from seeking to reargue points that were or could have been presented to the court on the underlying motion." Shaw v. Shaw. 2003 ME 153, ¶ 8, 839 A.2d 714 (quotation marks omitted).

         III. Discussion

         a. Plaintiffs' First Motion for Reconsideration

         Plaintiffs argue that the court erred in dismissing their claim because in plaintiffs' first amended complaint, they pleaded the necessary elements for wrongful use of civil proceedings and the court must accept the facts in the complaint as true. Specifically, plaintiffs point to their complaint, in which they alleged that the first and third forcible entry and detainer actions brought against them by defendant terminated in their favor. Defendant argues that the court did not err, because the court properly considered the FED orders, which were "official public documents" and "documents that are central to the plaintiff's claim" pursuant to Moody v. State Liquor & Lottery Comm'n. and that the FED orders contradict plaintiffs' claim that they received favorable termination in the previous civil actions. Moody. 2004 ME 20, ¶ 10, 843 A.2d 43.

         The court clarifies the November 30, 2018 order. Plaintiffs' claim of wrongful use of civil proceedings in count VIII is dismissed with regard to the second and third FED actions that did not terminate in plaintiff Katz's favor. The first FED action initiated against plaintiff Lawson only is not dismissed as defendant did not seek a dismissal of that claim in his motion to dismiss. (See Def.'s Reply Mot. Dismiss 3 ("Plaintiffs state that Plaintiff Lawson succeeded on the first FED action and that ...


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