PERRY et al v. ALEXANDER et al

Filing 177

ORDER granting in part and denying in part 101 Motion in Limine to Preclude Consideration of Defendant's Counterclaims. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ALAN J PERRY, et al.,
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 PLAINTIFFS’ MOTION IN LIMINE TO PRECLUDE
CONSIDERATION OF DEFENDANT’S COUNTERCLAIMS
This matter is before the Court on Plaintiffs’ Motion in Limine to Preclude Any
Consideration of Defendant’s Counterclaims at Trial.1 (ECF No. 101.) Through the
motion, Plaintiffs contend that because the Court entered judgment against Defendant Peter
Tinkham on the claims he asserted against Plaintiffs in a previous matter (1:12-cv-229, the

1

This is a consolidation action. In one of the actions that was consolidated, Alan Perry, Nina Perry, and
Laura Perry were plaintiffs and in the other action Juliet Alexander and Peter Tinkham were plaintiffs. In
this consolidated action, the plaintiffs are Alan Perry, Nina Perry, and Laura Perry; Defendants are Juliet
Alexander and Peter Tinkham. In this Order, the Court will refer to Alan Perry, Nina Perry, and Laura
Perry as Plaintiffs and Juliet Alexander and Peter Tinkham as Defendants regardless of the preconsolidation action to which the Court refers.

Tinkham litigation), Defendant Tinkham is precluded from prosecuting his counterclaims
for legal malpractice and racketeering by law firm in this action.
After consideration of the parties’ arguments and a review of the record, the Court
grants in part and denies in part the motion.
Factual Background
In the Tinkham litigation, Defendants Peter Tinkham and Juliet Alexander asserted
claims, as plaintiffs, against Laura Perry, Alan Perry, Nina Perry, the plaintiffs in this
matter, and L. Clinton Boothby. Defendants Tinkham and Alexander asserted that in 1995,
Plaintiff Laura Perry conveyed to them an interest in a cottage in Weld, Maine, that the
transfer was deceptive because the property was transferred to a trust established by
Plaintiff Alan Perry, that the transfer was accomplished by the use of forged signatures,
and that the transaction included a forged mortgage with Defendant Alexander as
mortgagor and Plaintiff Laura Perry as mortgagee.
According to the pleadings, in or around 2011, Plaintiffs enlisted Mr. Boothby, an
attorney, to assist in the enforcement of the mortgage after Plaintiff Alexander declined to
execute documents re-conveying the property. Defendants Tinkham and Alexander then
initiated the Tinkham litigation, in which litigation they asserted fraud/deceit and
intentional infliction of emotional distress against the Plaintiffs, and a claim for breach of
fiduciary duty against Plaintiff Alan Perry. Plaintiff Laura Perry subsequently filed a
counterclaim for the collection of a promissory note and breach of contract.
On May 14, 2013, the Court dismissed from the Tinkham litigation Mr. Boothby
and Plaintiff Nina Perry. (Order, 1:12-cv-229, ECF No. 93.) On October 10, 2013, the
2

Court dismissed all remaining claims asserted by Defendants Tinkham and Alexander with
prejudice, pursuant to Federal Rules of Civil Procedure 16(f) and 41(a)(2)&(b), based on
Defendants’ failure to comply with certain court orders. As part of its dismissal order, the
Court directed the Clerk to enter final judgment. (Order of Dismissal, 1:12-cv-229, ECF
No. 128.) Judgment was entered on October 10, 2013. (Judgment, 1:12-cv-229, ECF No.
130.)
After an unsuccessful motion for reconsideration, Plaintiffs filed a notice of appeal.
(Notice, 1:12-cv-229, ECF No. 156.) The First Circuit docketed the appeal and ordered
Defendants to show cause as to why the appeal was within the court’s appellate jurisdiction,
given that the matter remained pending in this Court and that the appeal appeared to be
filed late. (Court of Appeals Docket # 14-1039, Order of March 6, 2014.) Defendants
failed to comply with the order to show cause and the First Circuit dismissed the appeal.
(Id., Order of April 8, 2014.) The Tinkham litigation continued in this Court on Plaintiff
Laura Perry’s counterclaims.
On May 15, 2014, Plaintiffs Alan Perry, Laura Perry, and Nina Perry filed an action
in Maine Superior Court against Defendants Alexander and Tinkham, in which action they
asserted claims of defamation, malicious prosecution, fraudulent transfer, foreclosure,
breach of contract, and for recovery on a promissory note.

Defendants Alexander and

Tinkham removed the action to this Court, which action was assigned case number 2:15cv-310. Although this Court remanded the matter to state court, upon Defendants’ appeal,
the First Circuit returned the matter to this Court in March 2016. (Judgment of USCA,
ECF No. 29.)
3

While the matter was in state court upon remand, Defendant Tinkham, proceeding
pro se, filed an answer and asserted counterclaims of legal malpractice and “racketeering
by law firm,” naming as counterclaim defendants Plaintiffs. (ECF No. 14-12.) Plaintiffs
moved in state court to dismiss or strike the counterclaim (ECF Nos. 14-8, 108-1), but the
motions were not decided.
On August 30, 2016, noting that the Tinkham litigation and this matter, under case
number 2:15-cv-310, involve “common questions of law and fact,” and that the only claims
pending in the Tinkham litigation were Plaintiff Laura Perry’s claims for breach of
promissory note and breach of contract, the Court terminated the Tinkham litigation and
ordered that Plaintiff Laura Perry could pursue in this action the claims that were pending
in the Tinkham litigation. (Order, ECF No. 46.)
Discussion
Through their motion in limine, Plaintiffs argue Defendant Tinkham’s counterclaim
is barred by this Court’s earlier dismissal of the claims asserted by Defendants in the
Tinkham litigation.2
A.

Res Judicata
“[F]ederal common law governs the claim-preclusive effect of a dismissal by a

federal court sitting in diversity.” Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S.
497, 508 (2001). “The appropriate rule under federal common law is ‘the law that would

2

Plaintiffs also contend Defendant Tinkham is foreclosed from pursuing the counterclaim because he
subsequently filed an amended answer that did not include the counterclaim. The record lacks any evidence
to suggest Defendant Tinkham affirmatively dismissed his counterclaim, and the case proceeded through
the final pretrial conference with Defendant Tinkham as a claimant. The Court thus is not persuaded
Defendant Tinkham is foreclosed on this basis.
4

be applied by state courts in the State in which the federal diversity court sits,’ unless that
rule would be ‘incompatible with federal interests.’” Medina-Padilla v. U.S. Aviation
Underwriters, Inc., 815 F.3d 83, 86 (1st Cir. 2016) (quoting Semtek Int’l, 531 U.S. at 508
– 509).
Res judicata, or claim preclusion, applies where (1) the same parties or their privies
were involved in a prior action, (2) a valid final judgment entered in the prior action, and
(3) the claims presented in the instant action were or might have been litigated in the prior
action. Camps Newfound/Owatonna v. Harrison, 1998 ME 20, ¶ 11, 705 A.2d 1109, 1113.
For purposes of the second requirement of res judicata, an interlocutory (non-final) order
does not constitute a final judgment. United States v. U. S. Smelting Ref. & Min. Co., 339
U.S. 186, 198 – 199 (1950); In re Isaiah B., 1999 ME 174, ¶ 8, 740 A.2d 988, 991
(“Interlocutory orders are not final judgments for the purpose of res judicata.” (citing
Society of Lloyd’s v. Baker, 673 A.2d 1336, 1341 n.6 (Me. 1996))).
Rule 54(b) provides:
(b) Judgment on Multiple Claims or Involving Multiple Parties. When
an action presents more than one claim for relief—whether as a claim,
counterclaim, crossclaim, or third-party claim—or when multiple parties are
involved, the court may direct entry of a final judgment as to one or more,
but fewer than all, claims or parties only if the court expressly determines
that there is no just reason for delay. Otherwise, any order or other decision,
however designated, that adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties does not end the action as to any
of the claims or parties and may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties’ rights and liabilities.

5

Fed. R. Civ. P. 54(b) (emphasis supplied). As the language of the Rule reflects, for a
judgment as to fewer than all the claims and parties to be a “final judgment,” the Court
must make certain express findings. As the Supreme Court explained:
[I]n deciding whether there are no just reasons to delay the appeal of
individual final judgments in setting such as this, a district court must take
into account judicial administrative interests as well as the equities involved.
Consideration of the former is necessary to assure that application of the Rule
effectively “preserves the historic federal policy against piecemeal appeals.”
[Sears, Roebuck & Co. v. Mackey, 351 U.S. 427], 438 [(1956)]. It was
therefore proper for the District Judge here to consider such factors as
whether the claims under review were separable from the others remaining
to be adjudicated and whether the nature of the claims already determined
was such that no appellate court would have to decide the same issues more
than once even if there were subsequent appeals.
Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8 (1980).
In this case, none of the parties asked the Court to make findings and enter an order
pursuant to Rule 54(b). The Court, therefore, did not enter a final order in accordance with
Rule 54(b). Because a final judgment was not entered in accordance with Rule 54(b), the
Court’s dismissal of Defendants’ counterclaims in the Tinkham litigation is not a final
judgment for purposes of res judicata.
B.

Claim Splitting
A litigant with multiple related claims must not separate, or split, the claims into

multiple, successive cases, but must include in the first action all of the claims that fall
within the Court’s jurisdiction. Kale v. Combined Ins. Co. of Am., 924 F.2d 1161, 1165
(1st Cir. 1991). Claim-splitting is similar to, but notably different from res judicata.
“While claim-splitting and res judicata both promote judicial economy and shield parties
from vexatious and duplicative litigation, ‘claim splitting is more concerned with the
6

district court’s comprehensive management of its docket, whereas res judicata focuses on
protecting finality of judgments.’” Vanover v. NCO Fin. Servs., Inc., 857 F.3d 833 (11th
Cir. 2017) (quoting Katz v. Gerardi, 655 F.3d 1212, 1218 (10th Cir. 2011)). In the claimsplitting analysis, the test “‘is whether the first suit, assuming it were final, would preclude
the second suit.’” Klane v. Mayhew, No. 1:12-cv-203-NT, 2013 WL 1245677, at *5 (D.
Me. March 26, 2013) (quoting Katz, 655 F.3d at 1218)). When claim splitting occurs, “a
court may ‘stay the second suit, dismiss it without prejudice, enjoin the parties from
proceeding with it, or consolidate the two actions.’” Coleman v. B.G. Sulzle, Inc., 402 F.
Supp. 2d 403, 421 (N.D.N.Y. 2005) (quoting Curtis v. Citibank, N.A., 226 F.3d 133, 136
(2d Cir. 2000)).
Here, at least some of the claims asserted by Defendant Tinkham in this matter arise
out of the same circumstances as the claims asserted in the Tinkham litigation. To permit
Defendant Tinkham to pursue in this case claims that were or could have been asserted in
the Tinkham litigation, which claims he asserted in this case after the Court dismissed his
claims in the Tinkham litigation, would in essence allow Defendant Tinkham to circumvent
the Court’s dismissal order in the Tinkham litigation.
Defendant Tinkham contends that because he did not initiate this action, but merely
asserted his claims as a counterclaim to Plaintiffs’ claims, the principles of claim splitting
are inapplicable. Defendant’s argument is unpersuasive. Claim splitting, as with res
judicata, concerns separate actions for the same claims regardless of whether the claims
are asserted as part of a counterclaim or a direct claim. The Court is aware of no authority

7

that permits a party to reassert by counterclaim a concluded claim that the party could not
assert as a direct claim.
Defendant Tinkham also argues that if he is foreclosed based on claim splitting
principles, Plaintiff Laura Perry is similarly foreclosed. Defendant’s argument is again
unconvincing. As explained above, when a party splits claims among multiple cases, a
court can consolidate the claims. After dismissing the Defendant’s counterclaim in the
Tinkham litigation, the Court consolidated Plaintiff Laura Perry’s claims in the Tinkham
litigation with the claims asserted in this action.
Although claim splitting principles would preclude Defendant Tinkham from
pursuing the claims that were asserted or could have been asserted in the Tinkham
litigation, in his counterclaim, Defendant Tinkham alleges conduct that occurred after the
October 10, 2013, dismissal of Defendant’s counterclaims in the Tinkham litigation. For
instance, as part of his legal malpractice claim, Defendant Tinkham cites conduct that
allegedly occurred in 2014 (Counterclaim Count I ¶ 14, ECF No. 14-12), December 2013
(Id. ¶ 15) and in 2015 (Id. ¶ 20).

Defendant Tinkham’s allegations regarding the

racketeering claim are to some degree ambiguous as to time the alleged conduct occurred.
Because on his legal malpractice claim, Defendant Tinkham has alleged conduct
that occurred after the dismissal of his claim in the Tinkham litigation, and because of the
ambiguity as to time of at least some of his allegations regarding his racketeering claim,3

In construing Defendant Tinkham’s counterclaim, the Court is mindful that at the time of the filing of the
counterclaim, Defendant was proceeding pro se, and that a pro se litigant’s pleadings are subject to “less
stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972).

3

8

without an evidentiary record, the Court cannot determine that Defendant Tinkham’s entire
counterclaim would be precluded based on claim splitting principles.4 On the current
record, therefore, the Court will not preclude Defendant Tinkham from pursuing his
counterclaim, provided the claims are not claims that were asserted or could have been
asserted in the Tinkham litigation.5
Conclusion
Based on the foregoing analysis, the Court grants in part and denies in part
Plaintiffs’ Motion in Limine to Preclude Any Consideration of Defendant’s Counterclaims
at Trial. To the extent Defendant Tinkham has asserted a claim that was asserted or could
have been asserted in the Tinkham litigation, the Court grants the motion. To the extent
Defendant Tinkham has asserted a claim based on conduct that occurred subsequent to, or
a claim that otherwise accrued after, the dismissal of his counterclaim in the Tinkham
litigation (1:12-cv-229-GZS), the Court denies the motion.
/s/ John C. Nivison
U. S. Magistrate Judge
Dated this 19th day of July, 2017.

The Court’s decision is based solely on the allegations in the counterclaim and should not be construed as
a determination that Defendant Tinkham can in fact establish an actionable claim that is distinguishable
from the claims that were asserted or could have been asserted in the Tinkham litigation. Whether
Defendant Tinkham has sufficient, admissible evidence to support such a claim will be determined at trial.
4

5

The Court recognizes that some of the evidence that Defendant Tinkham would have offered to support
any claims that were asserted or could have been asserted in the Tinkham litigation is evidence he might
seek to introduce as part of his defense to Plaintiffs’ allegations. This decision shall not be construed as a
determination that the evidence is inadmissible for all purposes. To the extent Defendant Tinkham intends
to seek the admission of the evidence for a purpose other than to support a precluded counterclaim, the
Court will determine the admissibility of the evidence at trial.
9