TINKHAM et al v. PERRY et al
Filing
262
ORDER ON PENDING MOTIONS & ORDER TO SHOW CAUSE denying 249 Motion for Summary Judgment; granting in part and denying in part 260 Motion for Clarification By JUDGE GEORGE Z. SINGAL. (lrc)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
PETER TINKHAM & JULIET
ALEXANDER,
Plaintiffs/Counterclaim Defendants,
v.
LAURA A. PERRY,
Defendant/Counterclaim Plaintiff.
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) Docket no. 1:12-cv-229-GZS
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ORDER ON PENDING MOTIONS & ORDER TO SHOW CAUSE
Before the Court are two motions by pro se Counterclaim Defendants Peter Tinkham &
Juliet Alexander (together, “Counterclaims Defendants”): (1) the Motion for Summary Judgment
(ECF No. 249) and (2) the Motion for Clarification (ECF No. 260). For reasons explained herein,
the Court DENIES the Motion for Summary Judgment and GRANTS IN PART AND DENIES
IN PART the Motion for Clarification.
I.
STANDARD OF REVIEW
Generally, a party is entitled to summary judgment if, on the record before the Court, it
appears “that there is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). “[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). An issue is “genuine” if “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. A “material
fact” is one that has “the potential to affect the outcome of the suit under the applicable law.”
Nereida–Gonzalez v. Tirado–Delgado, 990 F.2d 701, 703 (1st Cir. 1993) (citing Anderson, 477
U.S. at 248) (additional citation omitted).
The party moving for summary judgment must demonstrate an absence of evidence to
support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In
determining whether this burden is met, the Court must view the record in the light most favorable
to the nonmoving party and give that party the benefit of all reasonable inferences in its favor.
Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004).
Once the moving party has made this preliminary showing, the nonmoving party must
“produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy
issue.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (citation and
internal punctuation omitted); see also Fed. R. Civ. P. 56(e). “Mere allegations, or conjecture
unsupported in the record, are insufficient.” Barros-Villahermosa v. United States, 642 F.3d 56,
58 (1st Cir. 2011) (quoting Rivera–Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37
(1st Cir. 1993)); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir. 2011) (“A properly
supported summary judgment motion cannot be defeated by conclusory allegations, improbable
inferences, periphrastic circumlocutions, or rank speculation.” (citations omitted)). “As to any
essential factual element of its claim on which the nonmovant would bear the burden of proof at
trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants
summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (quoting In
re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir. 1993)).
In this District, Local Rule 56 provides an explicit procedure for queuing up the factual
record in connection with a motion for summary judgment. Pro se parties are not as a rule excused
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from complying with District of Maine Local Rule 56. See Ruiz Rivera v. Riley, 209 F.3d 24, 27–
28 & n. 2 (1st Cir. 2000) (noting that the First Circuit has “held consistently that pro se status does
not free a litigant in a civil case of the obligation to comply with” a district court's procedural
rules); see also Lacadie v. Milford, Civ. No. 07–101–BW, 2008 WL 1930410, at *6 n. 8 (D. Me.
May 1, 2008) (“Courts are not required or even expected to independently sift through the record
in search of evidence that might salvage a pro se plaintiff[']s case.”) (citation omitted).
Nevertheless, in certain cases, the Court has approached summary judgment disputes involving a
pro se party with some leniency. See, e.g., Clarke v. Blais, 473 F. Supp. 2d 124, 128–30 (D. Me.
2007); Demmons v. Tritch, 484 F. Supp. 2d 177, 183–84 (D. Me. 2007). In the context of this
case, where the outcome remains the same regardless, the Court has accorded Counterclaim
Defendants’ pro se filing the significant latitude in the following recitation of undisputed material
facts.1
II.
FACTUAL BACKGROUND
To be clear, almost all of the material facts in this case are disputed. The parties agree that
at the center of their dispute is a cottage located on Lake Webb in Weld, Maine (hereinafter the
“Weld Cottage”). Counterclaim Plaintiff Laura Perry purchased the Weld Cottage in the 1980s.
Juliet Alexander is one of Laura Perry’s children. Alan Perry, an attorney, is another child of
Laura Perry and brother to Juliet Alexander. Alan Perry served as trustee of the Perry Family
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To be clear, Counterclaim Defendants failed to comply with Local Rule 56(f) in any way. While they did submit a
separate “concise statement of uncontested material” consisting of thirty numbered paragraphs (ECF No. 250 at Page
ID # 1215-1220). followed by a “Rule 37 concise statement of uncontested facts” consisting of thirty numbered
paragraphs (ECF No. 250 at Page ID # 1222-1228), none of these numbered paragraphs contain any citation that
would assist the Court in its review of the more than 100 pages of “record” that is attached at ECF Nos. 250-1 – 2508.) This failure alone would serve as an independent basis to deny the pending Motion for Summary Judgment. See
D. Me. L.R. 56(f) (“The court may disregard any statement of fact not supported by a specific citation to record
material properly considered on summary judgment.”).
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Trust, which held title to the Weld Cottage after it was purchased by Laura Perry. All of Laura
Perry’s children were named as beneficiaries of the Perry Family Trust. The parties dispute how
much each of the Perry children and their respective families used the Weld Cottage when it was
held by the Perry Family Trust.
Viewing the facts in the light most favorable to the non-moving party, here Counterclaim
Plaintiff Laura Perry, it appears that Laura Perry in fact has trialworthy evidence that she agreed
to sell the Weld Cottage to her daughter, Juliet Alexander, for $90,000 in late 1995. Thereafter,
Alan Perry, based on the directions he received from his mother, drafted a deed, promissory note
and mortgage. At the core of this dispute is whether Juliet Alexander in fact executed these
documents in some form and purchased the Weld Cottage. In the filings made in connection with
the pending motion, Juliet Alexander and Peter Tinkham, her husband and Co-Counterclaim
Defendant, assert the signatures on these documents were forged and that the documents are
otherwise legally insufficient to form a contract for the purchase of the Weld Cottage for $90,000.
The Court notes that a copy of the $90,0000 Promissory Note, dated December 7, 1995, that was
allegedly executed by both Counterclaim Defendants is attached as Exhibit A to Laura Perry’s
Counterclaim (ECF No. 36-1 or ECF No. 250-7). A copy of the mortgage (ECF No. 250-6), which
contains only the signature of Juliet Alexander, was also submitted in connection with the pending
motion.
III.
DISCUSSION
Counterclaim Plaintiff Laura Perry has two claims presently pending in this case: (1)
Breach of Promissory Note and (2) Breach of Contract. Both claims seek to recover monies
allegedly owed in connection with the purchase of the Weld Cottage by Alexander and Tinkham.
The pending motion suggests these claims must fail for a variety of reasons including lack of
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consideration, lack of a bargained exchange, no intent to be bound, no acceptance, no performance,
no certainty of terms, no good faith or fair dealing and the alleged contracts are void as a matter of
public policy.
On the record now before the Court, there is simply no basis for this Court to grant
summary judgment to the Counterclaim Defendants on any of these asserted bases. Rather, the
Court finds that there is ample trialworthy evidence regarding both of Laura Perry’s claims. In
short, the vastly different versions of the facts presented by the opposing parties would require any
fact finder to assess the credibility of the family members involved in this dispute. Therefore, the
Motion for Summary Judgment must be denied.
Turning to the Motion for Clarification, it appears that the Counterclaim Defendants are
understandably confused by the fact that the claims that Laura Perry continues to press in this case
are also simultaneously being pressed in a case titled, Alan Perry et al. v. Juliet Alexander & Peter
Tinkham, D. Me. Docket No. 1:14-cv-445. In that case, the same claims for breach of contract and
breach of promissory note are pressed by Alan Perry as well as Laura Perry. (See Am. Compl.
(ECF No. 3-2 in D. Me. Docket No. 1:14-cv-445) ¶¶ 47-57.) Additionally, acting as plaintiffs,
Laura Perry, Alan Perry and Nina Perry press claims for defamation, malicious prosecution,
fraudulent transfer and foreclosure of the Weld Cottage. These seven claims were filed as an
amended complaint, dated May 23, 2014, but apparently filed in Maine Superior Court in August
2014. Juliet Alexander and Peter Tinkham removed this 2014 complaint to this Court on
November 3, 2014. Alan Perry, Laura Perry and Nina Perry then filed a motion to remand the case
back to state court on November 14, 2014. (See generally Mot. to Remand (ECF No. 5 in D. Me.
Docket No. 1:14-cv-445).) This motion to remand was granted and the case of Alan Perry et al.
v. Juliet Alexander & Peter Tinkham, D. Me Docket No. 1:14-cv-445, was remanded to Oxford
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County Superior Court no later than March 19, 2015. The Court notes that this remand occurred
after the briefing on the summary judgment motion in this case was complete.
Despite a response deadline of April 22, 2015, Laura Perry filed no response to the Motion
for Clarification, which Tinkham and Alexander filed on April 1, 2015 in both this case and the
remanded case. Perry’s silence leaves this Court with no information as to the status of the
remanded state case or any explanation as to how or why Laura Perry intends to simultaneously
press the counterclaims pending here as well as Count VI and VII of her amended complaint now
before Maine Superior Court. However, it appears that Count VI & VII state claims that are
identical to the two pending counterclaims albeit with Alan Perry added as an additional plaintiff.
Therefore, the Court hereby ORDERS Counterclaim Plaintiff Laura Perry to show good
cause why her two pending counterclaims should not be dismissed without prejudice pursuant to
Federal Rule of Civil Procedure 41(a)(2). So long as Counterclaim Plaintiff Laura Perry can
pursue the relief sought via the two pending counterclaims in the remanded state case, it would
appear that a dismissal without prejudice of the remaining counterclaims here would conserve the
resources of the courts and the parties while ensuring that the parties do not end up with
inconsistent judgments. Counterclaim Plaintiff Laura Perry shall file her response to this Order to
Show Cause within 14 days of this Order. If Counterclaim Plaintiff does not consent to the Court’s
proposed dismissal without prejudice, she shall indicate what other deadlines need to be set in
order to bring this case to a swift resolution. Counterclaim Defendants need not reply but the
Court will consider any reply that is mailed within 14 days of the filing of the response required
by this Order.
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IV.
CONCLUSION
For reasons just given, the Court hereby DENIES the Counterclaim Defendant’s Motion
for Summary Judgment and GRANTS IN PART and DENIES IN PART the Motion for
Clarification.
The Court will await the parties’ responses to the Order to Show Cause included herein
before setting any further deadlines or placing this matter on a trial list.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 5th day of May, 2015.
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