Levesque v. Stevens

STATE OF MAINE BUSINESS & CONSUMER COURT
CUMBERLAND, ss. DOCKET NO. BCD-CV-2020-26

JOHN E. LEVESQUE, )
)
Plaintiff, )
v. )
) ORDER GRANTING PLAINTIFF’S
ROBERT N. STEVENS, JR., and DAVE’S ) MOTION TO AMEND COMPLAINT and
WORLD, INC., ) DENYING DAVE’S WORLD’S MOTION
) TO DISMISS COUNTS VII and IX
Defendants. )
)

On or about February 10, 2020, Plaintiff John E. Levesque (“Levesque”) brought a multi-

count Complaint against the Defendants. Two of the many counts were pled against Defendant

Dave’s World, Inc. (“Dave’s World”): Count VII, Tortious Interference; and Count IX,

Promissory Estoppel. In response, Dave’s World brought a Motion to Dismiss both counts,

pursuant to M.R. Civ. P. 12(b)(1) and 12(b)(6). Dave’s World argued that the clams in both counts

belong to R&J Electric, LLC (“R&J”), a dissolved Maine limited liability company, and thus

Levesque lacked standing to bring the claims. Dave’s World also argued that the two counts failed

to state a claim upon which relief could be granted.

In response to Dave’s World’s Motion to Dismiss, Levesque filed a Motion to Amend

Complaint, attaching a proposed First Amended Complaint. The First Amended Complaint alleges

that R&J assigned its claims to Levesque, thereby addressing the standing issue. The First

Amended Complaint also identifies the alleged fraudulent misrepresentation upon which the

tortious interference claim is based, and substitutes in its entirety a breach of contract claim for the

promissory estoppel claim. Levesque argues the First Amended Complaint thus rectifies all of the

deficiencies cited in the Motion to Dismiss.

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Dave’s World opposes Levesque’s Motion to Amend Complaint on the grounds that the

Motion is futile. Specifically, Dave’s World asserts that the assignment allegation is implausible,

based on the First Amended Complaint’s inconsistencies regarding R&J’s status, wind up and

dissolution. However, on a Motion to Dismiss, it is not for the Court to assess the plausibility of

the allegation that R&J assigned its claims to Levesque. See Nadeau v. Frydrych, 2014 ME 154,

¶ 8, 108 A.3d 1254 (on a Motion to Dismiss, the Court does not assess credibility or provability of

allegations contained in the Complaint). Dave’s World does not otherwise address the manner in

which the First Amended Complaint addresses the failure to state a claim issues, or the new breach

of contract claim. Accordingly, Levesque’s Motion to Amend Complaint is Granted, and Dave’s

World’s Motion to Dismiss is Denied.

The Clerk is instructed to enter this Order on the docket for this case by incorporating it

by reference. M.R. Civ. P. 79(a).

So Ordered.

Dated:_September 21, 2020_ ___________/s_______________
Michael A. Duddy
Judge, Business and Consumer Court

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BCD-CV-2020-26

JOHN E. LEVESQUE,

v.

ROBERT N. STEVENS, JR.,
and DAVE’S WORLD, INC.,

Party Name: Attorney Name:

John E. Levesque. Erik Black, Esq.
PO BOX 2339
Bangor, ME 04402-2339

Robert N. Stevens Kimberly Cavanaugh, Esq.
PO BOX 520
22 Winter Street
Dover Foxcroft, ME 04426

Dave’s World Daniel Nuzzi, Esq.
184 Main Street
PO Box 3070
Lewiston, ME 04243-3070