GROSS v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 43

ORDER AFFIRMING RECOMMENDED DECISION OF THE MAGISTRATE JUDGE - adopting Report and Recommended Decision re 29 Report and Recommendations for 25 Motion to Dismiss filed by JACQUELINE FIORENTINO AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF ROBERT FIORENTINO. By JUDGE D. BROCK HORNBY. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ROBERT GROSS,
PLAINTIFF
v.
JOHN GRIFFIN,

ET AL.,

DEFENDANTS

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CIVIL NO. 1:10CV328-DBH

ORDER AFFIRMING RECOMMENDED DECISION
OF THE MAGISTRATE JUDGE
On May 9, 2011, the United States Magistrate Judge filed with the court,
with copies to counsel, her Recommended Decision on Motion to Dismiss of
Estate of Robert Fiorentino. On May 26, 2011, the defendant Estate filed a
limited objection and the plaintiff filed an objection to the Recommended
Decision.
I have reviewed and considered the Recommended Decision, together
with the entire record; I have made a de novo determination of all matters
adjudicated

by

the

Recommended

Decision;

and

I

concur

with

the

recommendations of the United States Magistrate Judge for the reasons set
forth in the Recommended Decision, and determine that no further proceeding
is necessary.
I add that the Supreme Court in Tulsa Professional Collection Services,
Inc. v. Pope, 485 U.S. 478, 490 (1988), addresses when actual notice is

required (known or reasonably ascertainable claimants) and when publication
is sufficient (claimants who are not reasonable ascertainable), for the statute of
limitations to run.

This case fits the latter standard.

Moreover, when the

statute of limitations acts automatically, without court intervention, as it does
here when the longer period from date of death is measured, notice is not
required. That too applies here. See Estate of Kruzynski, 744 A.2d 1054, 1057
(Me. 2000).
Finally, I observe that 28 C.F.R. § 50.15(c) appears to apply only to
employees of the Department of Justice, not the case here. However, that does
not alter the conclusion that the liability insurance exemption for the Maine
Probate Code’s statute of limitations, 18-A M.R.S.A. § 3-803(c)(2), does not
apply.
It is therefore ORDERED that the Recommended Decision of the Magistrate
Judge is hereby ADOPTED.

Because the Maine Probate Code has “forever

barred” the plaintiff’s action against the Estate of Robert Fiorentino by
operation of a limitation on the survivability of claims not timely presented, the
Estate’s motion to dismiss is granted. The claims against the Estate and the
Personal Representative are DISMISSED WITH PREJUDICE.
SO ORDERED.
DATED THIS 6TH DAY OF JULY, 2011
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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