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STATE OF MAINE PENOBSCOT, ss

!MeLOWELL GARDNER Plaintiff,

SUPERIOR COURT CIVIL ACTION DOCKET N9: CV~tT.;f3f

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RICHARD THOMAS Defendant.

DECISION ON MOTION TO DISMISS Under date of October 29, 2012, Defendant filed a Motion to Dismiss for failure to state a claim upon which relief can be granted. M.R. Civ. P. 12(b)(6). The memoranda filed in support and opposition to this Motion have been considered by the Court. Plaintiff filed a complaint alleging multiple theories of recovery. The thrust of the complaint is that Plaintiff alleged that the Defendant defamed him causing severe emotional distress. It was alleged that the Defendant and Plaintiff were co-employees and that the defamation happened at work. Defendant argues that the Maine Tort Claims Act (hereinafter MTCA) governs the claims since the employer of both Plaintiff and Defendant was a governmental agency. The complaint contains no claims against the governmental agency. Discussion A Motion to Dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. Dexter v. Town of Norway, 1998 ME 195 ~ 7, 715 A.2d 169. The material allegations of the claim/pleading are taken as admitted and the complaint is examined 11 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

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the plaintiff to relief pursuant to some legal theory. A dismissal is appropriate only 'when it appears beyond doubt that a plaintiff is entitled to no relief under an set of facts that he might prove in support of his claim'" Id. The purpose of the complaint is to provide fair notice of the claim against the defendant. Bowen v. Eastman, 645 A.2d 5, 7 (Me. 1994). Defendant does not take issue with the counts of the complaint as stating the elements of the legal theories alleged. See Sanders v. Tisher, 2006 ME 94, ~ 8, 830 A.2d 830. Defendant takes issue with the failure of the Plaintiff, having identified that Plaintiff and Defendant were co-employees of a governmental entity, to allege that under the Maine Tort Claims Act (14 M.R.S.

Download PENcv-12-133.pdf

Maine Law