Cianchette v. Tucker Chevrolet, Inc.

STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss. CIVIL ACTION
Docket No. AUGSC-CV-2021-94

)
MICHAEL J. CIANCHETTE, )
)
Plaintiff, )
)
v. )
) DECISION AND ORDER
TUCKER CHEVROLET, INC., )
JACK STEERUM, LLC, )
TUCKERJ. CIANCHETTE, )
KELLY, REMMEL, & ZIMMERMAN, )
and TIMOTHY NORTON, )
)
Defendants. )
)

INTRODUCTION

On June 7, 2019, Defendant Tucker Cianchette ("Tucker") submitted a bar
complaint against Plaintiff with the Maine Board of Bar Overseers ("the Board"). In
response to the allegations in that bar complaint, Plaintiff initiated the present action
against Tucker, Jack Steerum, LLC, and Tucker Chevrolet, Inc. as well as Tucker's
attorneys, Kelly, Remmel, & Zimmerman and Timothy Norton (collectively "the Attorney
Defendants"). In the motions pending before the court, all Defendants seek to dismiss
Plaintiff's complaint under M.R. Civ. P. 3. Additionally, Defendants Tucker, Jack Steerum,
LLC, and Tucker Chevrolet separately move for dismissal pursuant to Maine's Anti­
SLAPP statute and M.R. Civ. P. 12(b)(6). All motions have been fully briefed, and a
decision is in order.

FACTS/BACKGROUND

By way of some background, Plaintiff and Tucker are half-brothers. Many of the
allegations in the bar complaint center around Plaintiff's representation of PET LLC

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("PET"), an entity owned by three members of the Cianchette family. Those three family
members are: Tucker, Eric Cianchette (the father of Plaintiff and Tucker), and Peggy
Cianchette (Plaintiff's mother and Tucker's stepmother). For additional context regarding
the interfamilial dispute that preceded this action, see Cianchette v. Cianchette, 2019 ME
87,209 A.3d 745.

Plaintiffs Complaint. Plaintiff filed the complaint in this matter on June 3, 2021.
He alleges that Tucker made certain statements within the bar complaint and during the
Board proceedings that were false and defamatory and/or unsupported. Specifically,
Plaintiff asserts that:
• Tucker accused Plaintiff of absconding with his mail as well as "engag[ing] and/or
aid[ing] directly in fraud, forgery, perjury, misrepresentations, dishonesty, deceit,
unauthorized taking, and self-serving among other things." Tucker made these
allegations notwithstanding the fact that Plaintiff has never been formally accused
or convicted of a crime.
• With respect to a Merrill Lynch bank account Plaintiff opened on PET's behalf,
Tucker stated that the opening balance of the account was $750,000 when it was
actually $600,000.
• Tucker claimed that Peggy requested to pick up the check providing for the opening
balance ofthe Merrill Lynch account, when in fact it was Tucker who delivered the
check to Plaintiff.
• Tucker requested that the board investigate certain deeds executed by Plaintiff
without citing any legal authority.
Moreover, Plaintiff alleges that Tucker told third parties about the bar complaint
and its content. The complaint also names Tucker's attorneys, the firm Kelly, Remmel, and
Zimmerman as well as Attorney Timothy Norton, and accuses them of providing material
assistance with respect to the bar complaint. According to Plaintiff, responding to the bar
complaint was time consuming and necessitated the hiring of experts and counsel, which
required plaintiff to expend funds. Plaintiff requests damages, including punitive damages,
as well as an order enjoining Defendants from filing complaints against Plaintiff without
prior leave of the court.
Plaintiff pursues relief in four counts. Counts 1-111 pertain to the conduct of Tucker,
Jack Steerum, LLC, and Tucker Chevrolet, Inc., asserting claims of Defamation/False

2
Light (Count I), Wrongful Use of Civil Proceedings/Malicious Prosecution (Count II), and
Tortious Interference with an Advantageous Relationship (Count III). Count IV,
meanwhile, brings a claim of Civil Conspiracy/Aiding and Abetting against Attorney
Defendants.
Service/Defendants' Rule 3 Motions. After filing the complaint in this matter,
Plaintiff submitted three motions seeking additional time to serve process on the
Defendants- the first filed on September 1, 2021, the second on December 28, 2021, and
the third on March 2, 2022. The first motion was granted, but the second and third were
denied. On April 11, 2022, the court issued a form notice indicating that the action would
be dismissed pursuant to M.R. Civ. P. 3 unless Plaintiff filed a timely motion to remain on
the docket. Plaintiff filed such a motion, which the court granted. The Defendants were
thereafter served, with Plaintiff filing the returns of service on July 11, 2022. All
Defendants have moved for dismissal pursuant to M.R. Civ. P. 3. The facts relevant to the
Rule 3 motions are set forth in greater detail below.
Special Motion to Dismiss. In August 2022, Tucker filed a special motion to dismiss
pursuant to Maine's anti-SLAPP statute, asserting that all claims against him are based on
his constitutionally protected petitioning activity- specifically, his filing of the bar
complaint with the Board. 1 Additionally, Tucker, Jack Steerum, LLC, and Tucker
Chevrolet, Inc. have moved for dismissal on Rule 12(b)(6) grounds. In support, Tucker has
submitted his own affidavit and various accompanying documents, including a copy of the
bar complaint itself. A brief summary of the allegations in the bar complaint is in order.
In the bar complaint, Tucker accused Plaintiff of multiple violations of the rules of
professional conduct, and- as Plaintiff asserts in his complaint- "engag[ing] and/or
aid[ing] directly in fraud, forgery, perjury, misrepresentations, dishonesty, deceit,
unauthorized taking, and self-serving among other things." To support these allegations,
Tucker provided a multi-page narrative, in which he cited to deposition testimony and
various exhibits. In that narrative, Tucker asserted, among other things, that:

1
Attorney Defendants have not pursued dismissal on anti-SLAPP or Rule 12(b)(6) grounds.
• Plaintiff helped orchestrate the opening of a Merrill Lynch bank account where
hundreds of thousands of dollars of PET money was deposited.
• Plaintiff forged Tucker's signature on several documents needed to open the Merrill
Lynch account.
• Plaintiff facilitated a $375,000 "no interest or repayment schedule loan" from PET
funds held in the Merrill Lynch account to a corporate entity in which Plaintiff held
a beneficial interest. Plaintiff, however, failed to disclose his interest to Tucker.
• Plaintiff perjured himself in a separate proceeding. Specifically, Plaintiff falsely
testified that Tucker signed the Merrill Lynch documents when Plaintiff collected a
check from Tucker on September 15, 2014. 2
• Plaintiff engaged in unethical behavior with respect to Tucker's proposed buyout of
Peggy and Eric's interests in PET.
• After Tucker involved authorities regarding some mail that went missing, it was
discovered that "[Plaintiff] did have knowledge of [Tucker's] absconded mail." This
created unnecessary work for the investigating authorities and made "an outright
mockery of the US Postal Service."
Along with the bar complaint, Tucker's motion papers also included a copy of the
Board's decision dated March 3, 2022. In that decision, a three-member panel unanimously
found violations with respect to three of the four counts alleged. Specifically, the Board
determined that Plaintiff (1) violated M.R. Prof. C. 4.1 by "intentionally" signing the
Merrill Lynch documents without Tucker's authorization; (2) violated M.R. Prof. C. 1.8(a)
by failing to obtain informed consent prior to facilitating a loan to an entity in which
Plaintiff held a financial interest, and; (3) violated M.R. Prof. C. l.13(f) by failing to
disclose his representation of Peggy and Eric during the proposed buyout of PET and by
failing to obtain Tucker's consent.

In opposition to the motion, Plaintiff has submitted his own affidavit. Plaintiffs
affidavit notes that he has never been arrested, charged, or convicted of a crime. He further
characterizes Tucker's claim that Peggy requested to pick up the check as false.

2 To support his claim that Plaintiffs version of events was untrue, Tucker stated, inter alia, that

he had no memory of signing the documents; that he was out oftown from September 14-16, 2014;
that the person signing the documents made a mistake when transcribing Tucker's address; and
that Peggy had requested to pick up the check herself.

4
Additionally, Plaintiff provided his account of the circumstances surrounding
Tucker's missing mail. Plaintiff explained that mail addressed to Tucker's business, Tucker
Chevrolet, had been delivered to a property that Plaintiff managed. A tenant of that
property contacted Plaintiff, and Plaintiff retrieved the mail. Plaintiff then provided the
mail to his attorney with a request that the mail be delivered to Tucker's counsel. In a
separate affidavit, Plaintiffs attorney confirmed that Plaintiff had given him the mail, after
which it was hand-delivered to Tucker's attorneys.

With respect to his injuries, Plaintiff states that "[a]fter the Bar Complaint was filed
[he] expended funds to retain and obtain the assistance of counsel from the firm of
Rudman Winchell." Moreover, "[a]fter the Board's investigation was complete, [he]
expended funds to retain and obtain the assistance of counsel from the firm of Richardson,
Whitman, Large, and Badger. [H]e further expended funds for expert witness testimony
with the firm of Thompson Bowie, and Hatch."

While Tucker provided the court with a copy of the Board's decision and the bar
complaint, Plaintiff has not produced copies of any of the documents filed in connection
with the underlying proceedings before the Board.

DISCUSSION

I. Special Motion to Dismiss {anti-SLAPP)

A Strategic Lawsuit Against Public Participation ("SLAPP") is a lawsuit filed with
the goal of stopping "'citizens from exercising their political rights or to punish them for
having done so."' Thurlow v. Nelson, 2021 ME 58, ~ 8,263 A.3d 494. To avoid a chilling
effect on the right to petition, many states have passed anti-SLAPP statutes. Id. Maine's
is found at 14 M.R.S. § 556:
When a moving party asserts that the civil claims . . . against the moving
party are based on the moving party's exercise of the moving party's right of
petition under the Constitution of the United States or the Constitution of
Maine, the moving party may bring a special motion to dismiss .... The court
shall grant the special motion, unless the party against whom the special
motion is made shows that the moving party's exercise of its right of petition

("
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was devoid of any reasonable factual support or any arguable basis in law
and that the moving party's acts caused actual injury to the responding
party. In making its determination, the court shall consider the pleading and
supporting and opposing affidavits stating the facts upon which the liability
or defense is based.
14 M.R.S. § 556.
This statutory framework has given rise to a two-step analysis that was adopted by
the Law Court in Morse Bros. v. Webster, 2001 ME 70, 1 19, 772 A.2d 842, refined
in Nader v. Me. Democratic Party, 2012 ME 57, 1131-33, 41 A.3d 551, and refashioned
in Thurlow, 2021 ME 58, ,r 19, 263 A.3d 494.
The first step, a question of law, decides whether the anti-SLAPP statute applies.
Nader, 2012 ME 57, ,r 15, 41 A.3d 55 (hereinafter Nader I). At this step, the party seeking
special dismissal (the moving party) carries the burden of demonstrating that '"the claims
against the moving party are based on the moving party's exercise of the right to petition
pursuant to the federal or state constitutions."' Thurlow, 2021 ME 58, ,r 12, 263 A.3d
494. If the moving party establishes that the anti-SLAPP statute applies, the burden shifts
to the non-moving party (typically the plaintiff) to satisfy the second step of the procedure.
Nader v. Me. Democratic Party, 2013 ME 51, ,r 13, 66 A.3d 571 (hereinafter Nader II).
At the second step, "the court must dismiss the non-moving party's claims unless
the non-moving party demonstrates, through the pleadings and affidavits, that the moving
party's petitioning activity does not fall within the protection of the anti-SLAPP
statute." Id. ,r 14. "This requires prima facie evidence that at least one of the moving party's
petitioning activities was 'devoid of any reasonable factual support or any arguable basis
in law and ... caused actual injury to the [non-moving party].'" Id.; see also Thurlow, 2021
ME 58, ,r 19,263 A.3d 494.
The court considers Tucker's special motion to dismiss in light of this two-step
analysis.
A. Step 1 oftlte anti-SLAPP analysis

The first step requires the court to determine whether the complaint alleges any
conduct that may be characterized as an "exercise of the right of petition." If so, the court

6
then must decide the extent to which the plaintiffs claims are "based on" those petitioning
activities. These questions are addressed separately below.

1. Petitioning Activities

The anti-SLAPP statute defines the type ofconduct that is subject to its protections.
Specifically, the statute defines "a party's exercise of its right of petition" to include:
any written or oral statement made before or submitted to a legislative,
executive or judicial body, or any other governmental proceeding; any
written or oral statement made in connection with an issue under
consideration or review by a legislative, executive or judicial body, or any
other governmental proceeding; any statement reasonably likely to
encourage consideration or review of an issue by a legislative, executive or
judicial body, or any other governmental proceeding; any statement
reasonably likely to enlist public participation in an effort to effect such
consideration; or any other statement falling within constitutional protection
of the right to petition government.
14 M.R.S. § 556.
Here, Plaintiffs complaint appears to take issue with two categories of Tucker's
statements: (1) statements made in the bar complaint and during the proceedings before the
Board and (2) statements to third parties regarding the bar complaint and its substance. The
court has no doubt that the first category of statements qualifies as an exercise of the right
to petition. Indeed, the Board "is a quasi-judicial agent of the [Supreme Judicial] Court."
M. Bar R. 12. Thus, by filing the bar complaint and participating in the grievance process,
Tucker was expressing his concerns to a "judicial body" or other governmental entity about
a licensed Maine attorney's professional conduct.
The second category of statements- communications to third parties regarding the
existence and content of the bar complaint-presents a closer call. With respect to this
category, Tucker observes that 14 M.R.S. § 556's definition of petitioning activity includes
"any written or oral statement made in connection with an issue under consideration or
review" by a governmental entity. Such a definition, Tucker argues, is broad enough to
capture the third-party statements at issue here. The critical question before the court, then,
is whether the statements were made "in connection with" the Board's consideration ofthe
bar complaint, such that they constitute petitioning activity under the anti-SLAPP statute.
Finding no Law Court decisions on point, both Plaintiff and Tucker point the court
to Massachusetts case law interpreting the scope of Massachusetts's nearly identically
worded anti-SLAPP statute. The court agrees that Massachusetts decisions provide useful
guidance. See Gaudette v. Mainely Media, LLC, 2017 ME 87, 115, 160 A.3d 539 ("The
Massachusetts court's interpretation of its anti-SLAPP statute provides useful guidance for
interpreting Maine's statute"). Notably, the Supreme Judicial Court of Massachusetts has
held that "[t]o fall under the 'in connection with' definition of petitioning under the anti­
SLAPP statute, a communication must be 'made to influence, inform, or at the very least,
reach governmental bodies - either directly or indirectly.'" Blanchard v. Steward Carney
Hosp., 75 N.E.3d 21, 30 (Mass. 2017). "The key requirement of this definition of
petitioning is the establishment of a plausible nexus between the statement and the
governmental proceeding." Id.
In Blanchard, for instance, the court addressed a hospital's statements regarding the
termination of several nurses made while a governmental investigation into patient abuse
allegations was pending. Id. at 30-33. Two types of communications were at issue:
statements made in an internal staff email and statements made to the Boston Globe. See
id. While the court concluded that the Boston Globe statements were protected, the
statements in the staff email were outside the anti-SLAPP statute's scope. Id. Unlike the
Boston Globe statements, the staff email was a "private statement to a select group of
people" without "any audience for the message other than hospital employees." Id. at 32.
Absent any evidence that the communication was reasonably likely to reach a
governmental official or entity, it did not fall under the "in connection with" definition of
petitioning activity. Id. at 30-33.
Similarly here, Tucker's private conversations with third-parties regarding the bar
complaint do not qualify for protection under the anti-SLAPP statute. The court reaches
this conclusion notwithstanding Tucker's affidavit, which asserts that the third-party
conversations were limited to confirming the bar complaint's existence and describing

8
some of its allegations. While these assertions may ultimately give rise to a colorable truth
defense to Plaintiffs defamation claim, they do not convince the court that Tucker's private
communications constitute petitioning activity. Indeed, there is no indication that his
communications- even if only mere reiterations of the bar complaint- were made to
influence, inform, or otherwise reach a governmental body. Id. at 30. 3 Thus, while Tucker's
statements in the bar complaint were protected petitioning activity, his statements to the
third-party individuals were not.
2. Whether Plaintiff's claims are "based on" petitioning activity.

The anti-SLAPP statute is silent with regard to how a moving party must show that
a claim is "based on" the right of petition. Town ofMadawaska v. Cayer, 2014 ME 121, 1
12, 103 A.3d 547. The Law Court, however, has accepted the Massachusetts approach as
articulated in Duracraft Corp. v. Holmes Prods. Corp., 691 N.E.2d 935 (Mass. 1998):
"[T]he moving party must show that the claims at issue are 'based on the petitioning
activities alone and have no substantial basis other than or in addition to the petitioning
activities."' Cayer, 2014 ME 121,112, 103 A.3d 547; Nader I, 2012 ME 57,122, n.9, 41
A.3d 551. Further, the Law Court has explained that "discrete claims within a single action
may be individually dismissed pursuant to a special motion to dismiss, and only the claims
specifically based on the moving party's petitioning activity are properly considered for
dismissal." Pollackv. Fournier, 2020 ME 93,114,237 A.3d 149. Thus, the court examines
each claim alleged in the complaint to determine whether the claim is based on petitioning
activity and subject to dismissal under the anti-SLAPP statute
Here, Plaintiff asserts three claims against Tucker: Defamation/False Light (Count
I), Wrongful Use of Civil Proceedings/Malicious Prosecution (Count II), and Tortious
Interference with an Advantageous Relationship (Count III). Plaintiff concedes that Count

3
Tucker likens the statements in this case to those involved in Wynne v. Creigle, in which the
court found petitioning activity where the statements at issue "were essentially mirror images" of
those made during a governmental investigation. 825 N.E.2d 559,566 (Mass. App. Ct. 2005).
The court finds Wynne distinguishable because the statements in that case were made to a
newspaper; thus, they were reasonably likely to reach a governmental body.

9
II is based solely on Tucker's petitioning activity. Moreover, Plaintiffs' Tortious
Interference count specifically alleges that Tucker "interfered with Plaintiffs economic
relationship by filing fraudulent claims with the Board." Thus, the court finds that the
Tortious Interference count, as pleaded in the complaint, is based solely on Tucker's
protected petitioning conduct before the Board.
Plaintiffs single Defamation claim is broad and appears to encompass Tucker's
statements to the Board- which qualify as protected petitioning activity- as well as
Tucker's statements to third-parties- which are unprotected. Thus, to the limited extent
that Plaintiffs Defamation claim is based on Tucker's unprotected statements to third­
parties, the special motion to dismiss is denied. Tucker, however, has met his burden under
Step 1 with respect to Wrongful Use of Civil Proceedings/Malicious Prosecution (Count
II), Tortious Interference (Count III), and to the portion of the Defamation claim (Count I)
that is based on Tucker's protected statements before the Board.
B. Step 2 oftlte anti-SLAPP analysis

Having detennined that the anti-SLAPP statute applies to the extent described
above, the burden now shifts to Plaintiffto present the court with prima facie evidence that
the petitioning activities were devoid of factual or legal support. Thurlow, 2021 ME 58, ~
19, 263 A.3d 494. In deciding whether this burden has been satisfied, the focus "is on
whether the facts as presented by [the plaintiff], if believed, would prove that the [moving
party's] allegations are devoid of any reasonable factual support or have no arguable basis
in the law." Id.~ 26. "[T]he plaintiff need[s] only to meet this burden as to any one of the
petitioning activities at issue." Id. (emphasis original).
Plaintiffs burden at Step 2 also requires prima facie evidence that the challenged
"petitioning activit[y] ... caused actual injury" to him. Id. ~ 19 (quotation marks omitted).
The Law Court has interpreted "actual injury" to mean "'a reasonably certain monetary
valuation of the injury suffered by the plaintiff."' Weinstein v. Old Orchard Beach Family
Dentistry, LLC, 2022 ME 16, ~ 7, 271 A.3d 758. Additionally, "[t]he existence of actual
injury may be considered in this analysis only to the extent that the asserted injury was

10
both alleged in the complaint and established on a prima facie basis in opposition to the
special motion to dismiss." Id. , 8.
Here, Plaintiff falls short of meeting his burden. At the outset, the court notes that
Plaintiff failed to present documents germane to the court's inquiry under Step 2. Nader II,
2013 ME 51, ,, 20, 22. 66 A.3d 571. For instance, Tucker cited to deposition testimony
and various exhibits in his bar complaint, relying on these sources to support his
allegations. Tucker's bar complaint was also the subject of a multi-day hearing before the
Board. Yet, Plaintiff has not produced a transcript ofthe hearing or copies ofthe documents
relied upon in the bar complaint. In Nader II, the plaintiffs failure to introduce relevant
documents of this nature was important to the Law Court in determining that the plaintiff
failed to meet his burden. See id. Similarly here, the court has been left to speculate about
the substance of documents and proceedings that are critical to assessing the factual and
legal basis for Tucker's claims.
More fundamentally, the court is unable to conclude that Plaintiff satisfied his
burden where the Board found validity in many of Tucker's core allegations and ultimately
determined that Plaintiff violated multiple rules of professional conduct. For example,
consistent with the allegations in the bar complaint, the Board found that Plaintiff signed
certain documents in Tucker's name without Tucker's authorization and that Plaintiff's
"conduct was intentional." The Board also found that Plaintiff facilitated a business
transaction from which he could have financially benefited without disclosing his interest.
Plaintiff offers no evidence challenging the factual and legal basis for most of Tucker's
primary allegations.
Instead, Plaintiff narrowly focuses on several isolated statements in the bar
complaint. 4 In doing so, Plaintiff emphasizes the Law Court's holding that "the plaintiff

4
Plaintiff devotes special attention to Tucker's allegation that Plaintiff "engaged and/or aided
directly in fraud, forgery, perjury, misrepresentations, dishonesty, deceit, unauthorized taking, and
self-serving among other things." But Plaintiffs affidavit- which merely asserts that Plaintiff has
never been the subject of a formal criminal complaint, charge, or conviction- fails to provide
prima facie evidence that Tucker's allegation was devoid of any basis in fact or law. Moreover,
the court again emphasizes the Board's unchallenged finding that Plaintiff intentionally signed

i1
need only[] meet [his] burden as to any one ofthe petitioning activities at issue." Thurlow,
2021 ME 58, ~ 26, 263 A.3d 494 (emphasis original). Plaintiff and Tucker differ in their
interpretation of this language and how "petitioning activit[y ]" should be measured in this
context. According to Tucker, "petitioning activity" should be measured broadly, and as
such, Plaintiff succeeds in satisfying his burden only if he demonstrates that the bar
complaint as a whole was devoid of any factual and legal basis. Plaintiff, on the other hand,
suggests that "petitioning activity" should be measured at the individual statement level,
and he need only show that a single sentence within the bar complaint was devoid of a
basis in fact or law.
The court is skeptical of Plaintiffs interpretation. See Nader II, 2013 ME 51, ~ 17,
66 A.3d 571 (individual grounds set forth in a complaint challenging the plaintiffs
inclusion on the ballot "[we ]re not themselves discrete petitioning activities because they
[we ]re part of a single request for relief'). But in any event, Plaintiff fails to carry his
burden even assuming he is correct in this regard. The court thinks that if a plaintiff chooses
to challenge a single statement within a complaint as factually and legally devoid, his
showing of actual injury must be based on the same. In other words, a plaintiff cannot meet
his burden by showing that a single statement within a multi-allegation complaint is
factually and legally devoid, but that the complaint as a whole caused actual injury; the
single statement must be the cause of actual injury. See Thurlow, 2021 ME 58, ~ 19,263
AJd 494 (requiring prima facie evidence that at least one "petitioning activit[y] was
devoid of any reasonable factual support or any arguable basis in law and . .. caused actual
injury to the [nonmoving party]" (emphasis added) (quotation marks omitted)).
As noted, Plaintiffs affidavit targets the factual and legal basis of certain select
statements made in the bar complaint, leaving much of the bar complaint unchallenged.
Even assuming these selected statements were devoid of any basis in fact or law, Plaintiffs
affidavit does not describe how the statements caused him to suffer any actual injury.

Tucker's signature to documents without authorization to do so and submitted those documents to
Merrill Lynch. Such conduct could be characterized as "fraud," a "misrepresentation," "forgery,"
etc., at least as those terms are used in their non-technical sense.

12
Rather, it merely explains that the bar complaint and resultant Board investigation caused
him to incur attorney fees and expert expenses- generalized losses incurred defending
against the bar complaint in its entirety. For all these reasons, Plaintiff has failed to satisfy
his burden.
On a final note, the court is mindful of the purpose of the anti-SLAPP statute:
barring lawsuits brought to punish or deter petitioning parties from exercising their
constitutional right to petition the government. Thurlow, 2021 ME 58, ,i 8, 263 AJd 494;
Town ofMadawaska v. Cayer, 2014 ME 121, ,i 2, 103 A.3d 547. It strikes the court that
the claims in this action are precisely of the sort that the statute was designed to preclude.
Accordingly, Tucker is entitled to dismissal of Counts II and III in their entirety as well as
the portion of Count I based on statements in the bar complaint and before the Board.
II. Motion to Dismiss (M.R. Civ. P. 12(b)(6))

Defendants Tucker Chevrolet, Inc., Jack Steerum, LLC, and Tucker Cianchette have
also moved to dismiss the complaint for failure to state a claim upon which relief may be
granted pursuant to M.R. Civ. P. 12(b)(6). Because matters outside the pleadings were
presented to and not excluded by the court, the 12(b)( 6) motion will be treated as one for
summary judgment in accordance with Rule 56. After careful consideration, summary
judgment will be granted to Defendants Tucker Chevrolet, Inc. and Jack Steerum, LLC.
A motion to dismiss for failure to state a claim calls for a review of the legal
sufficiency of the complaint, which is examined in the light most favorable to the plaintiff
"'to determine whether it sets forth elements of a cause of action or alleges facts that would
entitle the plaintiff to relief pursuant to some legal theory."' Meridian Med. Sys., LLC v.
Epix Therapeutics, Inc., 2021 ME 24, ,i 2, 250 A.3d 122; see also Nadeau v. Frydrych,
2014 ME 154, ,i 5, 108 A.3d 1254. As the Law Court has explained, "this standard is
forgiving," but it still must "'give fair notice of the cause of action by providing a short
and plain statement of the claim showing that the pleader is entitled to relief."' Meridian
2021 ME 24, ii 3, 250 AJd 122; Howe v. MMG Ins. Co., 2014 ME 78, ii 9, 95 A.3d 79.
The court is not bound to accept bare legal conclusions, nor is the mere recital of the

~. 13
elements of a claim enough to survive a Rule 12(b)(6) motion to dismiss. America v.
Sunspray Condo Ass'n., 2013 ME 19, ,r 13, 61 A.3d 1249; Seacoast Hangar Condo. II
Ass 'n. v. Martel, 2001 ME 112, ~ 16, 775 A.2d 1166.
The rules provide that if, on a Rule 12(b)(6) motion to dismiss, matters outside of
the pleadings are presented to and not excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided in Rule 56. See M.R. Civ. P. 12(b).
Here, matters outside the pleadings, including affidavits and exhibits, have been presented
to and not excluded by the court. The complaint alleges that Tucker Chevrolet, Inc., Jack
Steerum, LLC and Tucker Cianchette "collectively filed a Complaint against Plaintiff with
the Maine Board of Bar Overseers." See Complaint at, 9. Based on the summary
judgment record, however, there is no genuine issue of material fact that it was Tucker
Cianchette, and only Tucker Cianchette, who filed the bar complaint against the Plaintiff.
There is no evidence generating a disputed issue of fact that Tucker Chevrolet, Inc. or Jack
Steerum, LLC, had anything to do with the filing of that bar complaint. Accordingly,
Defendants Tucker Chevrolet, Inc. and Jack Steerum, LLC are entitled to judgment as a
matter of law. 5
III. Motion to Dismiss (M.R. Civ. P. 3)

All Defendants have moved to dismiss the complaint pursuant to M.R. Civ. P. 3
because the returns of service were not filed with the court "within 90 days after the filing
of the complaint." The procedural history of this case on this issue requires some
explanation.
Plaintiff is an attorney licensed to practice law in Maine. He is representing himself
in this action. On June 3, 2021, the Plaintiff filed the complaint in this matter. On
September 1, 2021, he filed the first Motion to Enlarge Time to Serve Process. That motion

5 Tucker also argues that he is entitled to dismissal pursuant to Rule 12(b)(6) because all claims

against him are subject to Maine's litigation privilege. The disposition ofthe claims on anti-SLAPP
grounds renders it unnecessary to reach this argument. To the extent Plaintiffs claim survives the
anti-SLAPP motion, it survives only with respect to Plaintiffs allegations regarding Tucker's
statements to third-parties. Statements to third parties made outside the Board proceedings are not
protected.

--,:
14
was granted by the court (Stokes, J.) the following day, September 2, 2021. The Order
signed by the court, which was drafted by the Plaintiff, purported to enlarge the time "to
serve process on the Defendants to December 31, 2021."
On December 28, 2021 , the Plaintiff filed his second Motion to Enlarge Time to
Serve Process until March 31, 2022. That motion was denied by the court (Stokes, J.) on
January 25, 2022. The Plaintiff has stated that he did not receive a copy of that Order.
On March 2, 2022, the Plaintiff filed his third Motion to Enlarge Time to Serve
Process to May 31, 2022. This motion was denied by the court (Stokes, J.) on April 11,
2022. Also issued on April 11, 2022, was a form "DISMISSAL UNDER RULE 3," which
stated:
If no motion to remain on the docket is filed within fourteen days of the date
of this Order, the following cases [Cianchette v. Tucker Chevrolet, Inc., et al
CV-2021-94] are dismissed without prejudice and without further notice
under M.R. Civ. P. 3 due to no return of service having been filed.

On April 22, 2022, the Plaintiff filed a Motion to Remain on the Docket. The court
(Stokes, J.) granted that motion and signed an order drafted by Plaintiff that stated that
within 60 days of the order:
Plaintiff shall deliver the Complaint to an authorized person for service upon
the Defendants, or otherwise serve said Complaint on the Defendants. In the
event Plaintiff fails to serve the Complaint in accordance with this Order, the
matter shall be dismissed without prejudice.

The Plaintiff filed the returns of service on July 11, 2022. All of the Defendants
filed timely answers to the complaint on July 20, 2022. On August 18, 2022, Defendants
Kelly, Remmel and Zimmerman and Timothy Norton, Esq., moved to dismiss the
complaint pursuant to Rule 3. On August 29, 2022, Defendants Tucker Chevrolet, Jack
Steerum, LLC, and Tucker Cianchette also moved to dismiss under Rule 3.
M.R. Civ. P. 3 provides for two methods of commencing a civil action. The first is
by serving the complaint and summons upon the defendant. If this method is used, the
complaint must be filed with the court within twenty days of the completion of service.
The second method, which is the one the Plaintiff used in this case, is by filing the

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complaint with the court. If this method is used, "the return of service shall be filed with
the court within 90 days after the filing of the complaint." Under either method, "[i]f the
complaint or the return ofservice is not timely filed, the action may be dismissed on motion
and notice ...." In this case, it is undisputed and the court can take judicial notice of its
own records, that the complaint was filed on June 3, 2021, but the returns of service were
not filed until July 11, 2022, more than 13 months later.
The court acknowledges that it lacked familiarity with the history of litigation
involving the parties here when the Plaintiff filed the complaint in June 2021, and later
when he repeatedly moved to "extend the time to serve process." The court did not
understand the context of what was going on or what the Plaintiff was trying to achieve by
filing the complaint with the court but not serving the Defendants as required under Rule
3.
In considering the motion to dismiss under Rule 3, the court notes that at no time
did the Plaintiff file a motion to enlarge the time within which to file the returns of service.
Rather, he filed three motions to enlarge the time within which to serve process. Although
the first motion was granted, the last two were denied. Because the time within which to
file the returns of service had expired, the provisions of Rule 6(b )(2) apply, namely, the
Plaintiff must show that his failure to timely file the returns of service was the result of
excusable neglect.
For his part, the Plaintiff heavily relies upon the court's Order granting his motion
to remain on the docket dated May 2, 2022 (Docket Order). That Docket Order, however,
did not purport to find "excusable neglect" for the failure to timely file the returns of
service, nor did it purport to pre-determine how a motion to dismiss under Rule 3 would
be decided. Indeed, Rule 3 itself contemplates that dismissal of an action for failure to file
the return of service in a timely manner will be made "on motion and notice ...." No
motion to dismiss under Rule 3 could have been made in May 2022 for the obvious reason
that the Defendants were unaware that the complaint had been filed. The Docket Order
allowed the matter to remain on the docket, but it did not preclude the Defendants from
arguing that Rule 3 was not followed and moving for dismissal.

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Moreover, the Plaintiffs claim that he has met the excusable neglect showing
because he did not receive a copy ofthe court's January 25, 2022 Order denying his second
motion to extend the time to serve process is unavailing. The court accepts the Plaintiffs
representation that he did not receive a copy of that Order. Nevertheless, as noted above,
the Plaintiff never filed a motion to extend the time within which to file the returns of
service. On the contrary, he filed multiple motions to extend the time to serve process, a
procedural device that does not appear to be recognized by Rule 3. In any event, the source
of the confusion in this case is the Plaintiffs own actions and his decision to proceed in
the manner he did, namely, filing the complaint with the court but wishing to keep the
Defendants ignorant of its existence. The Plaintiffs rationale for this is not a mistake or
excusable neglect, but a deliberate decision to keep the Defendants in the dark until the bar
complaint was resolved.
In the exercise of its discretion, the court concludes that dismissal of the complaint
without prejudice as to all Defendants is warranted pursuant to Rule 3. See Dalot v. Smith,
551 A.2d 448 (Me. 1988)
CONCLUSION
The entry is:
The special motion to dismiss pursuant to 14 M.R.S. § 556, filed by Defendant
Tucker Cianchette, is GRANTED, except as to that portion of the Complaint alleging that
Tucker Cianchette made statements to third parties about the bar complaint and its
substance.
The motion to dismiss for failure to state a claim upon which relief may be granted
pursuant to M.R. Civ. P. 12(b)(6), filed by Defendants Tucker Chevrolet, Inc. and Jack
Steerum, LLC, is GRANTED.
The motion to dismiss without prejudice pursuant to M.R. Civ. P. 3, filed by all
Defendants, is GRANTED.

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The Clerk is directed to incorporate this Order into the docket of this case by

reference in accordance with M.R. Civ. P. 79(a).

Date: January 6, 2023

Justice

F.ntered on thedocket 1/ Le l a3

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