Randy Slager v. Lori L. Bell

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 52
Docket: 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
2

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.
3

[¶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.
4

[¶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.
5

[¶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.”).
6

[¶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
7

(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.”).
8

[¶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)).
9

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