BANGOR — Consider the case on specific claims related to the fire that destroyed Cap’n Nemo’s restaurant, and not unrelated allegations, the attorneys for Tremont firefighters argued in a Feb. 27 response to Robert and Judy Cousins’ objection to a federal judge’s recommended decision regarding their lawsuit.
After filing their original complaint against the firefighters in December 2014, the couple has attempted to add to their claims “every grievance they have had with the local government and local paper serving the residents of Tremont,” attorneys Robert Bower and Devin Deane wrote. Bower and Deane stated that this “mission creep” continues in the couple’s objection to U.S. Magistrate Judge John Nivison’s January recommended decision that some of the couple’s claims be dismissed along with several named defendants.
The Cousinses’ “continued attempts to ‘move the target’ on the court and defendants should not be countenanced,” they argued.
The couple has claimed that their due process rights were violated when the town’s code enforcement officer issued a stop-work order alleging a concrete slab poured in their effort to rebuild did not conform to setback requirements. They continue this claim in their objection to Nivison’s recommended decision to dismiss this count. Bower and Deane argued otherwise, writing that the Cousinses have stated no allegation that the firefighters were involved in the process of obtaining a building permit.
The Cousinses also have attempted to introduce evidence that they were retaliated against by town officials in a dispute about parking on the Flat Iron Road near the former restaurant and for speaking out on issues in the town. Those issues include the contamination of wells from the closed town landfill, posting a Ron Paul for president sign and displaying disabled veteran license plates on their vehicle, they have said.
Nivison recommended that the free speech retaliation claim be dismissed because the couple failed to “allege any facts” to support their allegation. Again, Bower and Deane cited the fact that the firefighters had no involvement in the couple’s dispute with the town. The “parking issues have nothing to do with the firefighter defendants or [the Cousinses’] substantive claims against the firefighter defendants and the town arising out of the fire,” they argued.
Finally, the Cousinses, who represent themselves, objected to Nivison’s recommendation to dismiss their claim of defamation.
Bower and Deane noted that “other than the unsupported assertion” that the Islander printed misleading stories regarding issues involving the couple, they do not object to Nivison’s recommended dismissal of the defamation claim. Instead, the attorneys wrote, the couple for the first time attempted “to shift the focus of their defamation claim from the media defendants to defendant Keith and Heath Higgins.” Keith Higgins is chief of the Tremont Volunteer Fire Department. His brother, Heath, is a member of the department.
The court should agree with Nivison’s recommendation to dismiss this claim because the couple’s amended complaint does not assert a defamation claim against the Higgins brothers.
If the court agrees with Nivison’s recommendations, six counts of the couple’s lawsuit would remain. These six claims are directly related to the December 2013 fire that destroyed the restaurant, claims that Deane has said he and Bower are eager to defend.