Ground Breaking Excavation v. Fletcher

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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. CV-14-252

GROUND BREAKING EXCAVATION, ~vvv-cwn-Of-~l-llf Plaintiff

V. ORDER STATE OF r~NE Cumberland, :t~, Clerk's Office JUSTIN FLETCHER, et al, AUG 2 7 2014 Defendants RECEIVED Before the court is a request by defendant Justin Fletcher for the entry of default against

plaintiff Ground Breaking Excavation for not filing an timely reply to the counterclaims.

For its part, Ground Breaking Excavation has filed a response to the request for a default and a belated and cursory answer to the counterclaims.

There are two problems with the request for a default. The first is that the request for a default has been made by defendant Justin Fletcher but the counterclaims were filed on behalf of Justin Fletcher Inc.

The second is that entering a default on the counterclaims would result in a finding that Ground Breaking Excavation breached rts contractual obligations, while Ground Breaking Excavation is alleging in its complaint - on which no default can be entered - that it was the defendants who breached their contractual obligations. The court cannot reconcile the survival of Ground Breaking Excavations' contract claims with a default on the counterclaims. The Law Court has suggested that, when a party has appeared and is prepared to litigate the issues, only "serious instances of noncompliance with pretrial procedures" should lead to a default. Design

Build of Maine v. Paul, 601 A.2d 1089, 1091 (Me. 1992). This does not involve a serious instance of noncompliance.

At the same time Ground Breaking Excavation's two-sentence response to the counterclaims does not qualify as a reply to the counterclaims under the pleading rules. Ground Breaking Excavation shall therefore serve file a paragraph-by-paragraph response to the counterclaims and shall assert any affirmative defenses to the counterclaims on or before September 15,2014. See M.R.Civ.P. 8(b).

The entry shall be:

Defendant Justin Fletcher's request for entry of default is denied. Procedural order entered. The clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a). Dated: August 2.]20 14

~---------------- Thomas D. Warren Justice, Superior Court

CLERK OF COURTS Cumberland County 205 Newbury Street, Ground Floor Portland, ME 04101

CHARLES TRAINOR ESQ DEsMoND & RAND PA Al-1-oc 0<2 1 ~ ~~0du_ry~ ~ 55 STROUDWATER STREET WESTBROOK ME 04092

~------ --~-- - ---·------- ---·-.

CLERK OF COURTS · Cumberland County 205 Newbury Street, Ground Floor Portland, ME 04101

THADDEUS DAY ESQ . D - \ ' . LAW OFFICE OF THADDEUS DAY (=\\~0\f\Qy ~ V'IC).,\fl-\\~ PO BOX 11 / CUMBERLAND CENTER ME 04021