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Colucci v. Colucci

Superior Court of Maine, Cumberland

February 14, 2019

SUSAN COLUCCI, Plaintiff
v.
STEPHEN COLUCCI, TRILLIUM PLACE BUILDERS, LLC, and TRILLIUM BUILDERS, INC. Defendants

          ORDER ON PLAINTIFF'S MOTION FOR RECONSIDERATION AND DEFENDANTS' MOTION TO STRIKE

          Nancy Mills, Justice

          Before the court are plaintiff Susan Colucci's motion for reconsideration of the court's order granting defendants' motion to dismiss and defendant's motion to strike. For the following reasons, plaintiffs motion is denied and the court will not consider plaintiffs affidavit and attachments filed on January 28, 2019.

         I. Procedural Background

         Plaintiff filed a motion for reconsideration on January 2, 2019. MR. Civ. P. 7(b)(5). Defendants filed an opposition to the motion on January 22, 2019. Plaintiff did not file a reply to defendants' opposition. Instead, plaintiff filed "plaintiffs affidavit in support of her objection to motion to dismiss, plaintiffs motion to amend complaint and offer of proof and preservation of the record" on January 28, 2019. Plaintiff asks the court to vacate the court's dismissal of plaintiffs complaint, to amend the complaint, for a stay of the lawsuit pending resolution of the divorce proceedings, or for a dismissal without prejudice. Defendant asks the court to strike plaintiffs affidavit and attachments filed January 28, 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. Motion for Reconsideration and to Amend

         Plaintiff requests to amend her complaint, to stay this lawsuit, or to dismiss the complaint without prejudice are brought before the court for the first time with this motion for reconsideration. These requests could have been presented in earlier submissions, including in her opposition to defendants' motion to dismiss.

         Plaintiff argues she had no opportunity to respond to the court's consideration of documents. (Pl.'s Mot. Reconsideration 1.) That issue was raised by defendants in their motion to dismiss. (Defs.' Mot. Dismiss 2 & n.1.)

         Plaintiff states that defendant Colucci is concealing marital assets in nonmarital assets. The two business entity defendants in this lawsuit are included in the divorce proceeding financial assets and neither is owned by third parties. (Defs.' Ex. Financial Stmt.)

         B. Plaintiffs Affidavit in Support of her Objection to Motion to Dismiss. Plaintiffs Motion to Amend Complaint and Offer of Proof and Preservation of the Record; Defendants' Motion to Strike Affidavit and Attachments

         Plaintiff's filings include her eighteen-page affidavit and 92 exhibits but no memorandum of law. Defendants filed a motion to strike the affidavit and attachments on February 6, 2019.

          Plaintiff's objection to defendants' motion to dismiss was due October 3, 2018. The court's order on the motion to ...


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