Cap’n Nemo’s restaurant was destroyed in a December 2013 fire. Judge John Nivison recently recommended the dismissal of another count in the lawsuit filed by restaurant owners Robert and Judy Cousins ISLANDER FILE PHOTO

Judge tosses Nemo’s count



BANGOR — After weighing responses from both the defendants and plaintiffs to his recommendation to dismiss claims in the lawsuit filed by Robert and Judy Cousins against Tremont firefighters and others, U.S. Magistrate Judge John Nivison has recommended that another count be dismissed.

In January, Nivison, responding to a motion to dismiss filed by the firefighter’s attorneys, recommended that 10 claims be dismissed. After considering an objection filed by the Cousinses and a response from Devin Deane and Robert Bower, who represent the firefighters, Nivison, in a March 10 decision, amended his initial recommendation to include dismissal of a claim where the Cousinses allege they were denied due process in an attempt to rebuild their restaurant, which was destroyed by fire in December 2013.

After gaining Planning Board approval to rebuild, the couple poured a concrete slab on the site of the former restaurant. The town’s code enforcement officer later issued a stop-work order after deeming a portion of the slab was in violation of setback requirements. The Cousinses claim they were denied due process in obtaining a “speedy resolution” to the issue.

Nivison is recommending this count of the lawsuit be dismissed because the couple has failed to allege any facts that the firefighters were in any way involved in the permitting process.

Nivison’s recommended decision next will be considered by another federal judge. According to Deane, it is rare when a recommended decision is overturned.

If the court agrees with Nivison’s recommendations, five counts of the couple’s lawsuit would remain. These 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.

The Cousinses, who represent themselves, filed their lawsuit in U.S. District Court in December 2014, alleging that firefighters and others conspired to allow Cap’n Nemo’s to burn. In June 2015, a judge dismissed the suit. The couple subsequently filed an appeal in the U.S. Court of Appeals for the First Circuit in Boston.

In September, the appeals court affirmed some of the lower court decisions but found that the couple’s claims that their rights to due process and equal protection had been violated were improperly dismissed. These claims were remanded to the lower court for reconsideration.

In October, the Cousinses, as allowed under the appeals court decision, filed an amended complaint. Deane and Bower subsequently moved to have the court dismiss many of those claims.

 

Mark Good

Mark Good

Reporter at Mount Desert Islander
Mark Good

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