Nemo’s files amended suit



BANGOR — The attorney for Tremont firefighters said this week that he will move to have the federal court dismiss new claims brought forth by the owners of Cap’n Nemo’s in their lawsuit filed in connection with the 2013 fire that destroyed the restaurant.

Devin Deane of Norman Hanson DeTroy LLC of Portland said the 41-page amended complaint filed Oct. 20 by Robert and Judy Cousins in U.S. District Court in Bangor goes “beyond the scope of what claims can be filed” according to an appeals court decision. In September, the U.S. Court of Appeals for the First Circuit remanded the case, in part, to the district court for further review.

“They have asserted 15 counts that go above and beyond what the circuit court has allowed,” Deane said. “Clearly, they exceeded what they could file.”

The Cousinses first filed a complaint in the district court in December 2014, accusing the firefighters and others of conspiring to allow their restaurant to burn to the ground. In June 2015, a judge dismissed the lawsuit, stating the Cousinses failed to state a claim. After the couple’s motion for reconsideration was turned down that August, they filed an appeal in the First Circuit court in Boston.

While the First Circuit affirmed some of the lower court’s decisions, it did find the district court improperly dismissed the Cousinses’ claims that their 14th Amendment rights to due process and equal protection had been violated.

According to the First Circuit, the lower court erred in dismissing the Cousins’ allegations that “personal malice” by firefighters against the couple kept them from properly fighting the fire and allowing the restaurant to burn to the ground. These allegations “suffice to allege a plausible substantive due process claim,” according to the court.

The First Circuit also found the district court, in considering the Cousinses’ equal protection claim, relied heavily on one ruling in case law while ignoring another that concludes that “it is not possible to dismiss a complaint based on broad generalities” when a citizen complains of “maliciously motivated unequal treatment.

In their amended complaint, the Cousinses, who are representing themselves, allege that they were retaliated against for speaking out on issues such as the contamination of their well and others in the neighborhood by chemicals leaching from the nearby closed landfill. They claim they received different treatment from firefighters than others similarly situated and offer as evidence that a car fire at a neighboring home was quickly extinguished by the fire department.

Among the claims that Deane said go beyond the scope of the First Circuit decision is an allegation that an October 2015 stop-work order issued by then-Code Enforcement Officer Debbi Nickerson was “based upon intention to injure” the couple. The stop-work order, which Nickerson issued because her measurement showed a concrete slab poured to rebuild the restaurant was closer to the property line than approved by the Planning Board when considering the building permit.

The Cousinses allege “the stop-work order was further retaliation after the fire” that has cost the couple hundreds of thousands of dollars in lost revenue by keeping them from rebuilding. They further allege that Nickerson and Tremont Town Manager Dana Reed “have worked together” to make this happen for an “insubstantial and frivolous reason.”

Deane points out that the stop-work order was issued almost three years after the fire and has nothing to do with the issues the court is to consider.

“They’re obviously airing out every grievance they’ve had in recent memory,” Deane said.

Deane also noted that the couple has named new defendants in the case along with others whom the district court early on dismissed from the lawsuit and who were not named in the appeal. As a result, he said, they should not have been included in the amended complaint.

Deane said he will file a response to the amended complaint before the Nov. 4 deadline.

 

Editor’s Note: The Mount Desert Islander, Reporter Mark Good, Editor Earl Brechlin and owner-publisher Alan Baker were named in the suit.

 

Mark Good

Mark Good

Reporter at Mount Desert Islander
Mark Good

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