Gelband v. Cunniff
| Decision Date | 30 September 2011 |
| Docket Number | Civil Action CV-10-642 |
| Court | Maine Superior Court |
| Parties | JOSEPH GELBAND, JR., Plaintiff v. MICHAEL CUNNIFF, ESQ. & DANIEL HONDO, Defendants |
Pending before this court are several motions in this state action that arise out of a deposition given in connection with a federal court action that Joseph Gelband filed in the United States District Court against Police Officer Daniel Hondo and others.[1]Joseph Gelband ("Gelband") alleges in the complaint in the pending state court action that Attorney Cunniff ("Cunniff') and Police Officer Hondo ("PO Hondo") intentionally[2]and/or negligently[3] inflicted severe emotional distress upon Gelband during a deposition of PO Hondo that was conducted on December 21, 2009 in connection with Gelband's federal court action. Complaint ¶¶ 6, 7, 38, 39. Cunniff served as counsel to PO Hondo in his defense of the federal suit, which alleged that PO Hondo and another officer arrested lacked probable cause when they arrested Gelband on November 27, 2007 for aggravated assault. Complaint ¶¶ 8, 9. The United States District Court dismissed Gelband's federal court action, finding that the officers, including P.O. Hondo, had probable cause to arrest Gelband on November 27, 2007. Gelband v. Hondo, 2010 U.S.Dist. LEXIS 136695 (D.Me., April 23, 2010).[4]
Gelband alleges in his state court complaint that his emotional distress damages are due to Hondo's testimony in response to a question asked by Cunniff at the deposition Gelband had "confessed" and that the "confession" had been a factor in determining probable cause for Gelband's arrest. Complaint ¶¶ 23, 25, 28-31, 38-44. Gelband alleges that this testimony of Hondo was inconsistent with his previous written and oral statements, and inconsistent with Cunniff s previous representations and arguments in the federal case. Complaint ¶¶ 10-12, 15-18, 25. Finally, Gelband alleges that Hondo's testimony at the deposition regarding the confession was false and that Cunniff instigated Hondo's perjury in the deposition. Complaint ¶¶ 15-24, 26-27, 33-37.
In the proposed amended complaint, Gelband adds a 42 U.S.C. § 1983 cause of action to his state law tort claims. Gelband alleges that the defendants were acting under the color of law. Amended Complaint ¶¶ 4, 5. He further alleges that the defendants' conduct violated plaintiff's Fourteenth Amendment Right to Due Process of Law. Amended Complaint ¶¶ 31-34.
Defendants filed a motion to dismiss the complaint on January 26, 2011 instead of filing an answer. Plaintiff did not file an opposition to that motion but filed on February 16, 2011 a motion for leave to file amended complaint and for enlargement of time to respond to the motion to dismiss. Defendants filed on March 10, 2011 their objection to plaintiffs motion to amend complaint along with their motion for enlargement of time to answer plaintiffs first amended complaint. Plaintiff filed on March 23, 2011 a "reply for leave to file amended complaint."
Defendants seeks a dismissal of the complaint and the proposed amended complaint on the ground that plaintiff has failed to state a claim upon which relief may be granted. Defendants contend that they have an absolute privilege for relevant communications and testimony made preliminary to and in the course of litigation. The defendants argue that, even if they do not have such a privilege, the complaint fails to state a claim for either intentional or negligent infliction of emotional distress. As to the proposed amended complaint, the defendants argue that allowing plaintiff to amend the complaint would be futile. Plaintiff counters (1) this is a case of first impression that presents unique circumstances, and (2) the policy consideration underlying case law cited by defendants regarding immunity does not apply. Plaintiff asks the court to grant his motion to amend and permit him to file a complete memorandum in reply to defendants' motion to dismiss, a. 12(b)(6) Standard
Dismissal is warranted when it appears beyond doubt that the plaintiff is not entitled to relief under any set of facts that might be proved to support the claim. Johanson v. Dunnington, 2001 ME 169, ¶ 5, 785 A.2d 1244, 1246. The court must take the material allegations of the complaint as admitted. Moody v. State Liquor & Lottery Comm 'n, 2004 ME 20, ¶ 7, 843 A.2d 43, 47. In deciding a motion to dismiss, the court must view the complaint "in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." Napieralski v. United Church of Greater Portland, 2002 ME 108, ¶4, 802 A.2d 291, 392.
b. Rule 15(a) Standard
A party may amend its pleading once as a matter of course before a responsive pleading is filed. M.R.Civ.P. 15(a). The Maine Law Court has not yet ruled whether a motion to dismiss is considered a responsive pleading for the purposes of Rule 15. See Jones v. Suhre, 345 A.2d 515, 517 n.4 (Me. 1975)(The court suggested no opinion on "whether defendant's three-pronged Motion to Dismiss is in any part a responsive pleading" because this issue was not argued).[5] The court does not need to reach this issue if the court decides to amend complaint would be futile. Glynn v. City of So. Portland, 640 A.2d 1065, 1067 (Me. 1994). Futility means that the complaint, as amended, would fail to state a claim upon which relief could be granted. Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996). The standard then in this instance is same as that applied when determining a Rule 12(b)(6) motion, that is, whether the proposed amended complaint containing essentially the same factual allegations of the original complaint fails to state a claim under 42 U.S.C. § 1983.
The court intends to address the motion to dismiss the complaint and the proposed amended complaint before requiring defendants to answer either pleading. However, before so ruling, the court grants plaintiff leave to file an opposition to the motion to dismiss not later than July 8, 2011. Plaintiffs opposition shall comply with M.R.Civ.P. 7(c). Defendants thereafter shall file any reply July 15, 2011 in accordance with M.R.Civ.P. 7(d). The court will then take the motion to dismiss under advisement.
The entry is:
1. Plaintiff to file opposition to motion to dismiss by July 8, 2011.
2. Defendants to file a reply by July 15, 2011.
This case comes before the court on the defendants' motion to dismiss the plaintiffs complaint and the plaintiff's subsequent motion to amend the complaint. The defendants have also filed a motion to extend the time for reply to the plaintiff's opposition to the defendant's motion to dismiss.
The motions pending before this court arose out of a deposition given in connection with a federal court action that Joseph Gelband ("Gelband" or "Plaintiff) filed in the United States District Court against Police Officer Daniel Hondo and others.[1]
The complaint in the pending state court action alleges that Attorney Cunniff ("Cunniff') and Police Officer Hondo ("PO Hondo") (collectively "Defendants") intentionally, Compl. ¶¶ 13-31, and/or negligently, Compl. ¶¶ 32-37, inflicted severe emotional distress upon Gelband during a deposition of PO Hondo that was conducted on December 21, 2009 in connection with Gelband's federal court action. Compl. ¶¶ 6, 7, 38, 39. Cunniff acted as counsel to PO Hondo in his defense of the federal suit, which alleged that PO Hondo and another officer arrested Gelband for aggravated assault without probable cause on November 27, 2007. Compl. ¶¶ 8, 9. The United States District Court dismissed Gelband's federal court action, finding that the officers, including PO Hondo, had probable cause to arrest Gelband. Gelband v. Hondo, 2010 U.S. Dist. LEXIS 136695 (D. Me. April 23, 2010).[2]
Gelband alleges in his state court complaint that his emotional distress damages[3]are due to PO Hondo's response to a question asked by Cunniff at the deposition and the circumstances surrounding that question and response. Cunniff asked whether Gelband had "confessed" and whether the "confession" had been a factor in determining probable cause for Gelband's arrest. Compl. ¶¶ 23, 25, 28-31, 38-44. PO Hondo testified, in response to this question, that Gelband had confessed. Compl. ¶ 23. Gelband alleges that this testimony was inconsistent with PO Hondo's previous written and oral statements and inconsistent with Cunniff s previous representations and arguments in the federal case. Compl. ¶¶ 10-12, 15-18, 25. Finally, Gelband alleges that PO Hondo's testimony at the deposition regarding the confession was false and that Cunniff suborned PO Hondo's perjury in the deposition. Compl. ¶¶ 15-24, 26-27, 33-37.
In the proposed amended complaint, Gelband adds a federal civil rights claim, brought under 42 U.S.C. § 1983, to his state law tort claims. Gelband alleges that the Defendants were acting under the color of law. Am. Compl. ¶¶ 4, 5. He further alleges that Cunniff admitted suborning perjury, Am. Compl. ¶¶ 31-34, and that the conduct alleged violated Gelband's Fourteenth Amendment right to due process of law. Am. Compl. ¶ 34.
Instead of filing an answer, the Defendants filed a motion to dismiss the complaint on January 26, 2011. On February 26, 2011 instead of filing an opposition to that motion, the Plaintiff filed a motion for leave to file an amended complaint and for enlargement of time to respond to the Defendants' motion to dismiss. Defendants objected to the Plaintiffs motion to amend...
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