The lawsuit stemming from the aftermath of this fire at Cap’n Nemo’s has been sent back to U.S. District Court. ISLANDER FILE PHOTO

Nemo’s lawsuit returned to federal district court

BOSTON — A federal appeals court partially has found in favor of the owners of Cap’n Nemo’s restaurant in their lawsuit against the Tremont Fire Department and remanded the case to U.S. District Court to settle the issues in question.

The judgment was handed down in U.S. Court of Appeals for the 1st Circuit on Sept. 7.

The restaurant owners, Robert and Judy Cousins, first filed a complaint in federal 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 December of the previous year. In June 2015, a federal judge dismissed the lawsuit, saying that the Cousinses failed to state a claim. After the couple’s motion for reconsideration was turned down in August 2015, they filed their appeal in 1st Circuit court in Boston.

The 1st Circuit affirmed the lower court’s decision that certain firefighters who took a sign from the restaurant property that was critical of the department’s response were not “acting under the color of the law,” thereby making moot the couple’s claim that their First Amendment rights had been violated.

The 1st Circuit did find the district court improperly dismissed the Cousinses’ claims that their 14th Amendment rights to due process and equal protection had been violated. These are the claims the district court is to reconsider.

According to the 1st Circuit, the lower court erred in dismissing the Cousinses’ allegations that “personal malice” by firefighters against the couple kept them from properly fighting the fire and allowing the restaurant to burn. These allegations “suffice to allege a plausible substantive due process claim,” according to the court.

The 1st 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 remanding these two claims to the district court, the 1st Circuit acknowledged the lower court could allow the Cousinses to file a single amended complaint.

Although the judgment is a setback for firefighters and the town of Tremont, the setback is temporary, according to attorney Devin Deane, who, along with Robert Bower of Norman, Hanson and DeTroy LLC in Portland, represents the firefighters.

Deane said in an interview last week that he is “very confident” the firefighters ultimately will prevail.

Deane pointed out that the firefighters never responded to the Cousinses’ allegations in district court. Instead, he and Bower successfully moved for dismissal. Now, he said, the allegations of animus against the Cousinses by firefighters will be addressed.

In their complaint, the Cousinses, who represent themselves, state claims based on hearsay, Deane said.

“They don’t have a coherent complaint right now,” he said. “We think those allegations are unfounded, and they’re looking to put the blame on the fire department for their loss.”

Deane said he plans to depose the Cousinses and other parties under oath as part of his defense.

Mark Good

Mark Good

Reporter at Mount Desert Islander
Mark Good

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