Firefighters respond in Nemo’s appeal

BOSTON, Mass — The attorney for Tremont firefighters is asking a federal appeals court to uphold a lower court decision to dismiss the lawsuit filed by the owners of Cap’n Nemo’s restaurant, which was destroyed in a December 2013 fire.

Robert and Judy Cousins filed a complaint in U.S. District Court in Bangor in December 2014, accusing the firefighters and others of engaging in “terroristic arson” and conspiring to allow their restaurant to burn to the ground. In June, a federal judge dismissed the lawsuit, stating the Cousinses had failed to state a claim. After their motion for reconsideration was turned down in August, the couple filed an appeal with the U.S. Court of Appeals for the First Circuit.

Devin Deane and Robert Bower of Norman, Hanson and DeTroy LLC of Portland filed their response to the Cousinses’ appeal on Jan. 19.

Chief among the defense attorney’s arguments is that the couple, who represent themselves, have failed to support their contention that they were victims of discrimination because firefighters did not provide them with the same protection afforded others in the same class.

As proof, the couple offered evidence that firefighters in the nearby town of Southwest Harbor provided better fire protection when a restaurant called the Moorings was destroyed by fire. The restaurant was owned by Heath Higgins, a Tremont firefighter named in the suit and brother of another litigant, Keith Higgins, the town’s fire chief.

Even if that were to be the fact, which is not the case, the couple has not provided “sufficient facts for a plausible claim,” Deane said this week.

The class of one claim is one of several “kitchen sink” complaints filed by the Cousinses alleging their constitutional rights were violated in events associated with the fire.

“They’ve been grabbing at straws with these constitutional arguments,” Deane said.

The Cousinses claim the district court “erroneously applied a heightened pleading standard” and “that allegations of bad faith” eliminate the requirement that evidence be presented to show how they received different treatment from the fire department than others similarly situated, the attorneys write. Not only are these claims without merit, they continue, but recent opinions from the Boston appeals court and the U.S. Supreme Court have upheld that “discretionary decision-making of municipal firefighters cannot be the basis of a class-of-one equal protection claim,” Deane and Bower contend.

“Firefighting involves split-second decision-making,” Deane said. “Every fire is different.”

The Cousinses can file a response to the firefighters’ Jan. 19 filing and have 30 days from that date in which to do so, Deane said.

Mark Good

Mark Good

Reporter at Mount Desert Islander
Mark Good

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