Randy Slager v. Lori L. Bell

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 52Docket: Yor-21-101
Argued: October 7, 2021
Decided: November 2, 2021
Panel: STANFILL, C.J., and MEAD, GORMAN, JABAR, HUMPHREY, and HORTON, JJ.
RANDY SLAGER
v.
LORI L. BELL et al.
HUMPHREY, J.
[¶1] Randy Slager appeals from a judgment of the Superior Court (York
County, Fritzsche, A.R.J.) dismissing with prejudice his complaint seeking
(1) judicial review of a decision of the Town of Kennebunkport’s code
enforcement officer (CEO) to lift the CEO’s previous suspension of building and
land use permits issued to Slager’s neighbors, Lori L. Bell and John W. Scannell,
and (2) a declaratory judgment that structures on Bell and Scannell’s property
violate municipal ordinances. Slager argues that the court should have
dismissed his complaint without prejudice because he filed a notice of
voluntary dismissal before any answer or motion for summary judgment was
served. See M.R. Civ. P. 41(a)(1). We conclude that Rule 41(a)(1) did not
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authorize dismissal with prejudice, and we remand for the court to dismiss the
complaint without prejudice.
I. BACKGROUND
[¶2] On March 27, 2020, Slager filed a complaint in the Superior Court
seeking judicial review of a decision by the CEO that lifted the CEO’s previous
order suspending building and land use permits issued to Bell and Scannell. In
his complaint, as amended on April 6, 2020, Slager sought both a judicial review
of governmental action pursuant to M.R. Civ. P. 80B and a declaratory judgment.
See M.R. Civ. P. 15(a). In the declaratory judgment action, Slager alleged that
the process for review of the CEO’s decision was inadequate and that he was
entitled to a declaratory judgment that structures on Bell and Scannell’s
property violated municipal ordinances.
[¶3] In May 2020, Bell, Scannell, and the Town (collectively, Bell)—the
defendants named in Slager’s complaint—filed written appearances. Slager
filed his proposed record of the Town’s proceedings, see M.R. Civ. P. 80B(e)(1),
on May 22, 2020, and applied, unsuccessfully, for transfer of the matter to the
Business and Consumer Docket. He also moved for a trial of the facts. In June
2020, Slager moved to supplement his complaint but later withdrew that
motion.
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[¶4] On August 11, 2020, Slager moved for leave to file a second amended
complaint that omitted the declaratory judgment claim. Bell opposed the
motion in part and objected to Slager’s proposed record, filing an alternative
proposed record with the court.
[¶5] On October 2, 2020, Slager filed a notice of voluntary dismissal of
the action pursuant to Rule 41(a)(1) of the Maine Rules of Civil Procedure,
which allows a voluntary dismissal without prejudice “at any time before
service by the adverse party of an answer or of a motion for summary judgment,
whichever first occurs.” M.R. Civ. P. 41(a)(1)(i). Bell then moved for the court
to dismiss the matter with prejudice, arguing that although no answer was
served because no answer is required for purposes of a Rule 80B appeal, the
function of the answer had been served by Bell’s appearance, and given the
parties’ active litigation of the matter, a dismissal without prejudice should not
be allowed. Bell included a request for costs and attorney fees as a sanction for
Slager’s alleged abuse of the litigation process.1
1 Rule 41 authorizes a defendant to move to dismiss only “[f]or failure of the plaintiff to prosecute
for 2 years or to comply with these rules or any order of court.” M.R. Civ. P. 41(b)(2). Thus, the rule
did not authorize Bell’s motion to dismiss the action with prejudice, which, in context, is more
appropriately characterized as an objection to Slager’s notice of dismissal and a motion for sanctions.
The court denied Bell’s motion for sanctions, and Bell does not appeal from that ruling.
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[¶6] The court dismissed the matter with prejudice, stating that the
provision in Rule 80B(b) dispensing with the need to file an answer but
requiring an appearance, “coupled with the number of motions and pleadings
and the associated costs,” justified a dismissal with prejudice. The court denied
Bell’s motion for sanctions.
[¶7] Slager moved for reconsideration, but the court denied his motion,
stating, “Given that this case had advanced well beyond the preliminary phase
dealt with in Rule 41[,] the appropriate dismissal was with prejudice.” Slager
timely appealed from the judgment.2 See 14 M.R.S. § 1851 (2021); M.R. Civ. P.
80B(n); M.R. App. P. 2B(c)(1).
II. DISCUSSION
[¶8] We review the interpretation of Rule 41 de novo, looking to the plain
language of the rule to determine its meaning. Doe v. Hills-Pettitt, 2020 ME 140,
¶ 5, 243 A.3d 461. The rule must be construed consistently and harmoniously
with all applicable rules of court. See Me. Sav. Bank v. DeCosta, 403 A.2d 1195,
1199 (Me. 1979).
2Although a complaint for judicial review of the CEO’s decision could not be commenced anew
because such an appeal must be commenced within thirty days after the challenged governmental
act or failure to act, see M.R. Civ. P. 80B(b), a new declaratory judgment action would not be
time-barred, see 14 M.R.S. §§ 752, 5953 (2021). Thus, this appeal seeking remand for a dismissal
without prejudice could provide real and effective relief and is not moot. See In re Involuntary
Treatment of K., 2020 ME 39, ¶ 9, 228 A.3d 445.
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[¶9] Rule 41(a)(1)(i) of the Maine Rules of Civil Procedure provides that
“an action may be dismissed by the plaintiff without order of court . . . by filing
a notice of dismissal at any time before service by the adverse party of an
answer or of a motion for summary judgment, whichever first occurs.” M.R.
Civ. P. 41(a)(1)(i). “Unless otherwise stated in the notice of dismissal . . . the
dismissal is without prejudice . . . .” M.R. Civ. P. 41(a)(1).
[¶10] For a Rule 80B complaint, an answer is not prohibited, but also not
required: “No responsive pleading need be filed unless required by statute or
by order of the court, but in any event any party named as a defendant shall file
a written appearance within the time for serving an answer under Rule 12(a).”
M.R. Civ. P. 80B(a); see also M.R. Civ. P. 12(a) (providing that, with certain
exceptions, an answer must be filed “within 20 days after the service of the
summons and complaint upon [the] defendant”). There is no prohibition
against filing a motion for summary judgment in a Rule 80B matter, including
as to an independent claim for declaratory judgment. See M.R. Civ. P. 56(b)
(“A party against whom a claim, counterclaim, or cross-claim is asserted or a
declaratory judgment is sought may, at any time, but within such time as not to
delay the trial, move with or without supporting affidavits for a summary
judgment in the party’s favor as to all or any part thereof.”).
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[¶11] According to the plain meaning of Rule 41(a)(1)(i), only “service
by the adverse party of an answer or of a motion for summary judgment” will
terminate the period during which a plaintiff may file a notice of voluntary
dismissal to terminate the action without prejudice. Although Rule 80B(a)
requires a written appearance to be filed “within the time for serving an
answer,” neither Rule 41 nor Rule 80B indicates that the written appearance is
an answer for purposes of Rule 41(a)(1)(i). Without such an express provision,
the plain meaning of Rule 41(a)(1)(i) must be given its effect.
[¶12] Abundant federal case law supports the strict, plain-language
interpretation of Fed. R. Civ. P. 41(a)(1)—the federal rule upon which Maine’s
Rule 41(a)(1) is based. See M.R. Civ. P. 41 Advisory Committee’s Notes 1989
(indicating the intention to adopt the language of Federal Rule 41(a)(1) “to
provide that the plaintiff may unilaterally dismiss an action only prior to the
filing of the answer or a motion for summary judgment, rather than at any time
prior to trial, as formerly”); Manze v. State Farm Ins. Co., 817 F.2d 1062, 1066
(3d Cir. 1987) (holding that only the service of an answer or a motion for
summary judgment extinguishes a plaintiff’s right to dismiss the complaint
without prejudice); Marex Titanic, Inc. v. Wrecked & Abandoned Vessel, 2 F.3d
544, 546-47 (4th Cir. 1993) (same); Aero-Colours, Inc. v. Propst, 833 F.2d 51, 52
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(5th Cir. 1987) (same); Winterland Concessions Co. v. Smith, 706 F.2d 793,
795-96 (7th Cir. 1983) (same). This interpretation has been applied even when
extensive court proceedings have taken place. See, e.g., Merit Ins. Co. v.
Leatherby Ins. Co., 581 F.2d 137, 142-43 (7th Cir. 1978) (allowing voluntary
dismissal despite proceedings on a motion to stay proceedings and to compel
arbitration).
[¶13] Federal courts, when construing the corresponding federal rule
based on its plain language, have also held that serving court documents other
than an answer or motion for summary judgment does not suffice to prevent a
plaintiff from voluntarily dismissing an action pursuant to Fed. R. Civ. P.
41(a)(1)(A)(i). See, e.g., Sachs v. Italia Societa Anonima Di Navigazione,
30 F. Supp. 442, 442-43 (S.D.N.Y. 1939) (appearance); Universidad Cent.
Del Caribe, Inc. v. Liaison Comm. on Med. Educ., 760 F.2d 14, 17 (1st Cir. 1985)
(Fed. R. Civ. P. 12(b)(6) motion to dismiss); Marex Titanic, Inc., 2 F.3d at 545-48(motion for injunction); see also 9 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2363 at 499-500 (2020) (“‘Answer’ . . . does
not mean appearance, and the mere fact that a defendant has appeared does
not preclude a voluntary dismissal when the defendant has not answered or
moved for summary judgment.”).
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[¶14] Federal courts have held that when a dismissal is effectuated
through a notice of dismissal under Rule 41(a)(1), the party dismisses as of
right, and a court may not direct that the dismissal be with prejudice, see
Winterland Concessions Co., 706 F.2d at 794-96; Manze, 817 F.2d at 1065-67,
even if the defendant has incurred significant expenses, see, e.g., Universidad
Cent. Del Caribe, Inc., 760 F.2d at 16-18.3 As one leading treatise states, “a
defendant is in no position to complain about the inconvenience flowing from
a voluntary dismissal, where the problem could have been averted by simply
answering the complaint or moving for summary judgment.” 8 James W. Moore
et al., Moore’s Federal Practice § 41.33(5)(c)(vii) (3d ed. 2007). Here, although
Bell was not required to serve and file an answer, she could have done so or
could have served a motion for summary judgment. See M.R. Civ. P. 56(b).
[¶15] Because we apply the rule as it is written, consistent with federal
precedent, see, e.g., Manze, 817 F.2d at 1066, and with our own rules for
3 Although the United States Court of Appeals for the Second Circuit in one case held that a
voluntary dismissal without prejudice was improper even though no answer or motion for summary
judgment had been served, it held so when an extensive hearing had been held at which the merits
of the controversy were raised. See Harvey Aluminum, Inc. v. Am. Cyanamid Co., 203 F.2d 105, 107-08
(2d Cir. 1953). Moreover, even the Second Circuit has acknowledged that Harvey Aluminum has been
discredited, see Thorp v. Scarne, 599 F.2d 1169, 1174-77 (2d Cir. 1979), and other jurisdictions have
not followed its reasoning. See, e.g., Winterland Concessions Co. v. Smith, 706 F.2d 793, 795 (7th Cir.
1983) (noting that Harvey Aluminum “has been repudiated in its own Circuit and elsewhere” (citation
omitted)).
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construing unambiguous rules of court, see Hills-Pettitt, 2020 ME 140, ¶¶ 5-7,
243 A.3d 461, we vacate the judgment and remand for a dismissal without
prejudice.
The entry is:
Judgment vacated. Remanded for dismissal of
the complaint without prejudice.
Alan R. Atkins, Esq., and Fulton S. Rice, Esq. (orally), Alan R. Atkins & Associates,
Portland; and Andrew W. Sparks, Esq., and William J. Kennedy, Esq., Drummond
& Drummond, LLP, Portland, for appellant Randy Slager
Daniel L. Rosenthal, Esq. (orally), Jennie L. Clegg, Esq., and Trey R. Milam, Esq.,
Marcus Clegg, Portland, for appellees Lori L. Bell and John W. Scannell
Amy K. Tchao, Esq., and Jeana M. McCormick, Esq. (orally), Drummond
Woodsum, Portland, for appellee Town of Kennebunkport
York County Superior Court docket number AP-2020-07
FOR CLERK REFERENCE ONLY