PERRY et al v. ALEXANDER et al

Filing 168

ORDER ON DEFENDANT PETER TINKHAM'S MOTION IN LIMINE FOR ADJUDICATION OF DEFAMATION CLAIM re: 143 Motion in Limine By MAGISTRATE JUDGE JOHN C. NIVISON. (mjlt)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ALAN J PERRY, et al.,

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Plaintiffs
v.
JULIET ALEXANDER, et al.,
Defendants

PETER TINKHAM, et al.,
Plaintiffs
v.
LAURA PERRY, et al.,
Defendants

2:15-cv-00310-JCN

ORDER ON DEFENDANT PETER TINKHAM’S MOTION IN LIMINE
FOR ADJUDICATION OF DEFAMATION CLAIM
This mater is before the Court on Defendant Peter Tinkham’s motion to prosecute
at trial a claim of defamation. (Motion, ECF No. 143.) Defendant Tinkham contends that
in his counterclaim, he alleged sufficient facts to inform Plaintiffs of his defamation claim.
The Court denies the motion.
Discussion
In response to Plaintiffs’ complaint, Defendant Tinkham filed an answer and a twocount counterclaim. (ECF No. 14-12.)

Defendant Tinkham entitled count I of the

counterclaim “legal malpractice,” and count II “racketeering by law firm.” In his final

pretrial memorandum, Defendant Tinkham acknowledged that the answer to the complaint
included two counterclaims, one for legal malpractice and one for racketeering by a law
firm. (Pretrial Memorandum at 4, ECF No. 97.) In the pretrial memorandum, Defendants
also wrote: “Defendants will file a motion to expand their counter-claims to conform their
pleadings to the evidence and to include consistent claims with the additional claim for
defamation…” (Id. at 6.)
Following the final pretrial conference, the Court noted in the final pretrial order:
Defendant Peter Tinkham asserts two Counterclaims against Alan Perry,
Nina Perry and Laura Perry: Legal Malpractice (Count I) and Racketeering
(Count II).
In their pretrial memorandum Defendants contend additional counterclaims are warranted based on the procedural history and the evidence
generated to date. To the extent Defendants believe they should be entitled
to pursue additional claims, Defendants may file an appropriate motion,
which the Court will assess upon the filing of Plaintiffs’ response to the
motion.
(Order, ECF No. 99.) Defendant Tinkham did not object to the pretrial order.
Subsequently, Defendants moved to amend their answer to assert an eight-count
counterclaim, which included a claim for defamation. (Motion, ECF No. 128.) The Court
denied the motion. (Order, ECF No. 155.)
Although Defendant Tinkham specifically identified his claims in his counterclaim
and in his final pretrial memorandum as “legal malpractice” and “racketeering by law
firm,” Defendant Tinkham maintains that in a paragraph within the racketeering count of
the counterclaim, he asserted a claim for defamation. Specifically, Defendant Tinkham
cites paragraph 11 of count II of the counterclaim, which reads:

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Peter Tinkham alleges that the racketeering counter-claim Defendants, in
order to defend against Tinkham’s claims of legal malpractice by his former
lawyers, maliciously defamed and slandered him as a “conspiracy-soaked”
theorist and “serial pro se litigant” whose sole purpose was to ruin the fine
professional reputations of two ethical lawyers and to rob their legal secretary
of her chief means of sustenance.
(Counterclaim at 17, ECF No. 14-12.)
Under different circumstances, Defendant Tinkham’s assertions in paragraph 11
might require the Court to assess whether the allegations satisfy the pleading requirements
articulated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007) (inquiry is whether a pleading includes “enough facts to state a claim to relief that
is plausible on its face”). Here, however, such an analysis is not necessary given the history
of the proceedings, including Defendant Tinkham’s pleadings.
An objective review of the record reveals that defamation has not been among the
claims prosecuted as part of Defendant Tinkham’s counterclaim. First, in the counterclaim,
Defendant Tinkham did not identify a count as a claim for defamation. In addition, in his
final pretrial memorandum, he reiterated his two-count counterclaim consisted of claims
for legal malpractice and racketeering. Furthermore, Defendant Tinkham recently moved
to amend the counterclaim to include a claim for defamation, which filing is consistent
with the conclusion the claim was not already included in the counterclaim.1

In Defendants’ motion to amend, Defendants assert “Tinkham included two counterclaims against Alan
Perry, Nina Perry, and Laura Perry, including legal malpractice and racketeering by law firm” (Motion at
3, ECF No. 128), and “Tinkham has already asserted counterclaims in this action sounding in legal
malpractice and racketeering” (Motion at 7.) Defendants make no mention in the motion of a pending
defamation claim, other than the defamation claim asserted by Plaintiffs Alan and Nina Perry.
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Finally, defamation was not identified as a claim for trial in the Court’s final pretrial
order. Instead, consistent with Defendant Tinkham’s final pretrial memorandum, the
Court’s final pretrial order identified Defendant Tinkham’s claims as “legal malpractice”
and “racketeering by law firm.” The final pretrial order “is intended to control the
subsequent course of the action, and can be modified only to prevent manifest injustice.”
Rodriquez-Garcia v. Miranda-Martin, 610 F.3d 756, 774 (1st Cir. 2010) (citations and
internal quotations omitted). “[I]ssues not included in the final pretrial order are generally
waived.” Id.
Through this motion, Defendant Tinkham in essence seeks to adjudicate a claim that
was not included among the issues for trial, and a claim he has not otherwise prosecuted to
this point. To permit Defendant Tinkham to prosecute the claim under the circumstances
would be inconsistent with the purpose of the pretrial process, including the final pretrial
order.
Conclusion
Based on the foregoing analysis, the Court denies Defendant Tinkham’s motion to
prosecute at trial a claim of defamation. (ECF No. 143.)
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 7th day of July, 2017.

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