Brown v. Wahlig

STATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss. CIVIL ACTION DOCKET NO. CV-15-156

JEFFREY BROWN and AMBER ) JUN 29 '17 AM9:05 BROWN ) ANDRO SUPERIOR GOU! Plaintiffs, ) V. ) ORDER ON DEFENDANT'S ) MOTION FOR INVOLUNTARY JOHN B. WAHLIG, JR., M.D. ) DISMISSAL ) Defendant. )

Pending before the court is a motion to dismiss by Defendant John B. Wahlig, Jr., M.D., pursuant to Maine Rule of Civil Procedure 41(b)(2), a complaint filed against him by Plaintiffs Jeffrey Brown and Amber Brown, for failure to comply with a court order. For the reasons below, this court grants Defendant's motion. I. Background

On October 20, 2014, Defendant John B. Wahlig, Jr., M.D. performed back surgery on Plaintiff Jeffery Brown. (Compl. cir 7.) One week later, Defendant performed a second surgery on Plaintiff Jeffery Brown. (Compl. cir 14.) On September 23, 2016, Plaintiffs filed a complaint against Defendant for: (I) alleged malpractice (negligence) during the week between the surgeries, and (II) loss of consortium allegedly experienced by Plaintiff Amber Brown as a result of the alleged injuries suffered by

Plaintiff Jeffery Brown. (Compl. 11 17, 23.) On September 28, 2016, Defendant answered, and a scheduling order was signed on September 29, 2016. On December 27,

2016, Plaintiffs' counsel moved for leave to withdraw. The court granted this motion on February 3, 2017, and ordered Plaintiffs within 20 days to secure the representation of another attorney or to state they would be representing themselves. On March 24, 2017, the court granted Plaintiffs' February 23, 2017 motion to extend their time to comply with this order until March 25, 2017. On April 6, 2017, Defendant filed this motion for involuntary dismissal. The 21-day window for Plaintiffs to oppose Defendant's motion expired on April 27, 2017. M.R. Civ. P. 7(c). II. Standard of Review

A defendant may move to dismiss a claim for the failure of a plaintiff to comply with a court order. M.R. Civ. P. 41(b )(2). The Law Court has held that the reviewing court should, in its discretion, evaluate the circumstances of the case as to whether there exists "good cause" to the contrary of the dismissal. West Point-Pepperell v. State Tax Assessor, 1997 ME 58, <JI 7, 691 A.2d 1211 ("the 'good cause' showing for keeping an action on the docket, explicit only in Rule 41(b)(l), is also applicable to 41(b)(2)".) Involuntary dismissal "should be exercised only with full appreciation and consideration of the plight of the plaintiff," and the trial courts should consider a lesser sanction than dismissal. Westbrook v. Wallace, 478 A.2d 687, 689-690 (Me. 1984). An involuntary dismissal operates as an adjudication upon the merits unless otherwise specified by the court. M.R. Civ. P. 41(b)(3). III. Discussion

Plaintiffs have provided no facts to the court to support a showing of good cause to the contrary for dismissing this complaint, other than a reference to the "voluminous" file sent to them by their first attorney. (Pl.s' Mot. to Extend Time 9I 1.) IV. Conclusions

For these reasons, this court grants Defendant's motio or involuntary dismissal with prejudice. Date: t/21jl7

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JEFFREY BROWN - PLAINTIFF SUPERIOR COURT 112 NEWBURY STREET APT 2 ANDROSCOGGIN, ss. AUBURN ME 04210 Docket No AUBSC-CV-2015-00156 AMBER BROWN - PLAINTIFF 112 NEWBURY STREET APT 2 AUBURN ME 04210 DOCKET RECORD

vs JOHN B WAHLIG MD - DEFENDANT

Attorney for: JOHN B WAHLIG MD DANIEL RAPAPORT - RETAINED 09/24/2015 PRETI FLAHERTY BELIVEAU PACHIOS LLP ONE CITY CENTER PO BOX 9546 PORTLAND ME 04112-9546

Filing Document: NOTICE OF CLAIM Minor Case Type: MEDICAL MALPRACTICE Filing Date: 09/24/2015

Docket Events: 09/24/2015 FILING DOCUMENT - NOTICE OF CLAIM FILED ON 09/24/2015

09/24/2015 Party(s): JEFFREY BROWN ATTORNEY - RETAINED ENTERED ON 09/24/2015

Party(s): AMBER BROWN ATTORNEY - RETAINED ENTERED ON 09/24/2015

09/24/2015 Party(s): JOHN B WAHLIG MD SUMMONS/SERVICE - ACCEPTANCE OF SERVICE SERVED ON 09/18/2015 THROUGH DANIEL RAPAPORT, ESQ.

09/24/2015 Party(s): JOHN B WAHLIG MD SUMMONS/SERVICE - ACCEPTANCE OF SERVICE FILED ON 09/24/2015

09/24/2015 Party(s): JOHN B WAHLIG MD ATTORNEY - RETAINED ENTERED ON 09/24/2015 Defendant's Attorney: DANIEL RAPAPORT

09/24/2015 CERTIFY/NOTIFICATION - NOTICE OF CLAIM SENT FOR REVIEW ON 09/24/2015 COPIES SCANNED TO HEIDI CARPENTER

11/03/2015 ORDER - PANEL CHAIR ENTERED ON 11/03/2015 ROLAND A COLE, JUSTICE ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO PARTIES/COUNSEL MARILYN ASHCROFT, ESQ. IS APPOINTED AS PANEL CHAIR

12/02/2015 ORDER - SCHEDULING ORDER ENTERED ON 12/02/2015 ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO PARTIES/COUNSEL PRELITITATION SCHEDULING ORDER (ASHCROFT, PANEL CHAIR)

08/30/2016 ORDER - PANEL FINDING ENTERED ON 08/26/2016 Page 1 of 3 Printed on: 06/29/2017

Footnotes

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