Nemo’s motion rejected by judge

BOSTON — A federal appeals court judge didn’t waste words in rejecting Bob and Judy Cousins’ attempt to include exhibits that were not part of the district court lawsuit against Tremont firefighters in their appeal of the lower court decision.

The appeals court issued a one-sentence order Feb. 26 on a motion from the firefighter’s attorneys to strike the exhibits.

“With respect to appellees’ motion to strike, the exhibits attached to appellants’ reply brief which are neither part of the district court record nor subject to judicial notice will be disregarded,” the order reads.

The couple in 2014 filed a lawsuit in U.S. District Court in Bangor against the firefighters, whom they accuse of conspiring to allow their Tremont restaurant, Cap’n Nemo’s, to burn to the ground. After the district court dismissed in June 2015 their suit for failure to state a claim and rejected their motion for reconsideration, the couple filed an appeal of those decisions in the U.S. Court of Appeals for the 1st Circuit.

In January, the firefighters’ attorneys, Devin Deane and Robert Bower of Norman, Hanson and DeTroy LLC of Portland, filed a motion asking the court to uphold the lower court’s decision. The couple, who represents themselves, filed a response that included six exhibits not in the original lawsuit. These exhibits include photographs of the scene from before, during and after the December 2013 fire. Each photo has comments written in marker intended to provide more information about the fire according to the couple.

Deane and Bower addressed the new exhibits in their motion to strike them from the record.

“None of the exhibits were submitted to or considered by the district court and, therefore should not be considered by the court on appeal,” they argued.

The firefighters also question the authenticity of the Cousinses’ written comments, particularly in respect to the timing of events as depicted on photographs, the attorneys added.

The Cousinses responded to the motion to strike in a Feb. 23 filing with the court. The couple acknowledged that it “clearly was an error for us not to have submitted this evidence in the first instance” and argued that the exhibits did not contain new evidence but merely amplified claims made in their lawsuit.

A ruling on the initial appeal has yet to be made.

Mark Good

Mark Good

Reporter at Mount Desert Islander
Mark Good

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