ROBYN KATZ, Individually and as Beneficiary of the Reuben Katz Testamentary Trust, and WAYNE LAWSON, Plaintiffs
DAVID TURESKY, Defendant
ORDER ON PLAINTIFFS' MOTIONS FOR
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
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.
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.
proceeding to date, seven motions have been filed. In
addition, plaintiffs have now filed two motions for
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.
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.
Standard of Review
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
Plaintiffs' First Motion for Reconsideration
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.
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 ...