Masucci v. Judy's Moody, LLC
| Decision Date | 15 April 2022 |
| Docket Number | Civil Action RE-21-0035 |
| Parties | PETER & KATHY MASUCCI et. al. Plaintiffs v. JUDY'S MOODY, LLC, et. al. Defendants v. AARON FREY, in his capacity as Attorney General of the State of Maine Party in Interest |
| Court | Maine Superior Court |
Before the Court are four pending motions. The first is a special motion to dismiss brought pursuant to 14 M.R.S. § 556. The next three are motions to dismiss filed pursuant to Maine Rule of Civil Procedure ("M.R. Civ. P.") 12(b)(6). For the reasons set forth herein, the special motion to dismiss filed by the PLNS Defendants is GRANTED. The motions to dismiss filed by the remaining defendants are GRANTED IN PART and DENIED IN PART.
Every motion pending before this court seeks dismissal of the Plaintiffs' complaint. However, each pending Motion is filed by a different group of Defendants. Thus, the general facts underlying this case are recited first and the motions requesting dismissal are addressed in turn.
In this case there are several Plaintiffs and Defendants. The named Plaintiffs are Peter Masucci, Kathy Masucci, Robert Morse George Seaver, Greg Tobey, Bonnie Tobey, Hale Miller, John Grotton, Leroy Gilbert, Jake Wilson, Dan Harrington, Orlando Delogu, Judith Delogu, William Connemy, William Griffiths, Sheila Jones, Susan Domizi, Brian Beal, Charles Radis, Sandra Radis, Amanda Moeser, Chad Coffin, Lori Howell and Tom Howell.
The named Defendants are Judy's Moody, LLC, OA 2012 Trust, Ocean 503, LLC, Edward Page, Christine Page, Jeffrey Parent, Margaret Parent, James Li, Kim Newby, and Robin Seeley. Aaron Frey has also been named as a Party in Interest, in his capacity as the Attorney General of the State of Maine.
This large number of named parties corresponds to a sizable number of attorneys who have entered appearances. For the plaintiffs, not including pro se Plaintiff, Orlando Delogu, the following attorneys are of record: Benjamin Ford, John Coon, and Sandra Guay of Archipelago Law, LLC.
The Defendants are not so uniformly represented. Defendants Jeffrey and Margaret Parent are proceeding pro se. Gordon Smith of Verrill, represents Defendants Edward Page, Christine Page, James Li, Kim Newby, and Robin Hadlock Seeley ("PLNS Defendants"). David Silk and Curtis Thaxter, LLC represent Defendants Judy's Moody LLC and OA 2012 Trust ("JM &OA Defendants"). Robert Thomas and Paige Gilliard of Pacific Legal have also been admitted pro hac vice as part of JM &OA Defendants' defense team. Joseph Talbot and Emily Arvizu of Perkins Thompson, represent Ocean 503, LLC ("Ocean 503").
Party in Interest Aaron Frey, in his capacity as Attorney General of the State of Maine, is represented by Assistant Attorney Generals Lauren Parker and Scott Boak.
This lawsuit is the latest battle in the war over the intertidal lands off Maine's coast. The intertidal zone encompasses the portion of the sea floor which lies between the mean high and low water marks of the tide. The intertidal zone has long been held to be property of the private landowners who live upland of the mean high water mark. Their ownership, however, is subject to certain public usage rights: fishing, fowling, navigation and any other uses reasonably incidental or related thereto. Bell v. Town of Wells, 557 A.2d 168,169 (Me. 1989).
In their complaint, plaintiffs raise five separate counts, and pray for relief in the form of four separate declaratory judgments: (1) That the State of Maine holds title to all intertidal land, in trust for the public, without limitation to fishing, fowling, and navigation and with the exception of land previously alienated pursuant to the Submerged Land Act and for the purposes of promoting commerce; (2) That Pursuant to the Maine Statehood Act, Maine entered the Union on an equal footing with all other states, and consequently holds title to its intertidal land, except for discrete parcels alienated to facilitate marine commerce; (3) That pursuant to the Maine Constitution, only the Maine legislature has the authority to alienate State intertidal land but has never done so with respect to intertidal lands not used in maritime commerce; (4) That the alienation of all intertidal land in Maine may not be accomplished through "judicial legislation" or by adherence to pre-statehood Massachusetts case law.
The responsive pleadings which have been filed in an effort to dismiss the complaint are addressed in turn below.
First the Court addresses whether the Plaintiffs have standing to bring the instant action. Next, it addresses PLNS Defendants' Special Motion to Dismiss, and finally, the Court addresses the various 12(b)(6) motions.
I. Standing
Since standing is a prerequisite to the jurisdiction of this Court, the Court addresses this argument, raised in the 12(b)(6) motions, first.
"Standing is a threshold issue bearing on the Court's power to adjudicate disputes." Lamson v. Cote, 2001 ME 109, ¶ 11, 775 A.2d 1134 (quoting Franklin Prop. Trust v. Foresite, Inc., 438 A.2d 218, 220 (Me. 1981). "In Maine, standing jurisprudence is prudential, rather than constitutional." Roop v. City of Belfast, 2007 ME 32, ¶ 7, 915 A.2d 966, 968. "While there is no set formula for determining standing, a court may limit access to the courts to those best suited to assert a particular claim." Id. "In addition, the question of whether a specific individual has standing is significantly affected by the unique context of the claim." Id.
For a plaintiff to have standing to raise an issue in a declaratory judgment action, the plaintiff must establish that they have '"a claim of right buttressed by a sufficiently substantial interest to warrant judicial intervention."' Annable v. Bd. of Envtl. Prot., 507 A.2d 592, 595 (Me. 1986). See also Chase v. Eastman, 563 A.2d 1099, 1103 n.6 (Me. 1989) ()
Here, this Court concludes that the following Plaintiffs have standing to maintain an action against the named defendants: Robert Morse, George Seaver, John Grotton, Hale Miller, Leroy Gilbert, Jake Wilson, Dan Harrington, Susan Domizi, Greg Tobey, Amanda Moeser, Chad Coffin, Lori Howell, Tom Howell, Peter Masucci, Kathy Masucci, William Connemy, William Griffiths, Sheila Jones, Orlando Delogu, Judith Delogu, and Brian Beal.[1]
The Plaintiffs who have standing in this action fit two general categories: (a) those who have had their access to the intertidal zone for recreational purposes significantly restricted as a result of intertidal jurisprudence (Massuccis, Connemy, Griffiths, Jones, Delogus, and Beal); and (b) those who operate in Maine's marine economy and have had their business interests affected by the same (Morse, Seaver, Grotton, Miller, Gilbert, Wilson, Harrington, Domizi, Greg Tobey, Moeser, and the Howells).
For each category of Plaintiff to have standing, they must have a claim of right buttressed by a sufficiently substantial interest to warrant judicial intervention. With respect to the first group of Plaintiffs - those who live near the water and wish to access the intertidal zone for purposes other than fishing, fowling, and navigation - they hold a claim of right to the intertidal zone via the public's easement. Additionally, these plaintiffs have a substantial interest in use and enjoyment of the intertidal zone for ocean related activities.
With respect to the second group - those who have business or commercial interests in the intertidal zone - they too have a claim of right. Their claim of right is the same as the first group. The interest which buttresses it, however, is different - it is economic in nature. As the complaint notes, were these Plaintiffs to have access to the intertidal zone to carry on their trade or business, their operations would be more profitable. Thus, they have a claim of right, buttressed by a substantial interest, which potentially warrants judicial intervention.
Accordingly, all but three Plaintiffs have sufficient standing to bring their claims to this Courthouse's door.
n. PLNS Defendants' 14 M.R.S. § 556 Special Motion to Dismiss
The Court next addresses the PLNS Defendants' special motion to dismiss filed pursuant to Maine's statute preventing strategic lawsuits against public participation ("anti-SLAPP statute").
The following facts are derived from a review of the complaint, the special motion to dismiss, the opposition, and the various accompanying affidavits.[2] See Nader v. Me. Democratic Party, 2013 ME 51, ¶ 2, 66 A.3d 571. The PLNS Defendants are the following individuals: Edward and Christina Page (collectively "Pages"), James Li, Kim Newby (collectively "Li &Newby"), and Robin Seeley.
The Pages own coastal property on an island located in Harpswell, Maine, including the intertidal zone adjacent to their upland property. This intertidal zone is covered with rockweed.
In September of 2018, Edward Page observed a rockweed harvester cutting rockweed from the intertidal zone without his, or his wife's permission. Believing that his deed gave him title to the adjacent intertidal area, he emailed Maine Marine Patrol to report what he observed. After reviewing the Pages deed to their property and speaking with a Cumberland Comity Assistant District Attorney, Maine Marine Patrol Officer Thompson confirmed their intertidal ownership and informed the Pages that, should they wish to prosecute the rockweed harvester the...
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