Nemo’s owners object to proposed dismissal

BANGOR — The couple who filed a lawsuit against members of the Tremont Volunteer Fire Department and others are objecting to a federal judge’s recommendation that some of their claims and several named defendants be dismissed.

U.S. Magistrate Judge John Nivison made the recommendation in a Jan. 30 filing in U.S. District Court. Earlier this week, the plaintiffs, Robert and Judy Cousins, filed their objection to Nivison’s recommendation.

The Cousinses filed their lawsuit in December 2014, alleging the firefighters and others conspired to allow their restaurant, Cap’n Nemo’s, to burn to the ground in December 2013.

In objecting to Nivison’s recommendation, the couple, who represent themselves, argue that three of the counts should not be dismissed. In addition, they claim Tremont Town Manager Dana Reed and former Code Enforcement Officer Debbi Nickerson should again be included as defendants.

Reed and Nickerson were not named in the original lawsuit. Reed didn’t begin working for the town until June 2014, six months after the lawsuit was filed and 18 months after the fire. They were named as defendants in an amended filing because, according to the Cousinses, of their alleged role in preventing the couple from rebuilding because of a notice of violation Nickerson issued regarding their concrete slab not meeting setback requirements.

Nivison recommended Reed and Nickerson be dismissed as defendants, stating the Cousinses’ “claim regarding the setback requirement is a straightforward zoning issue that should appropriately be decided in the state district court, the judicial venue where zoning-related issued are customarily heard.”

In objecting, the couple also argues Reed also should be a defendant for withholding public information.

“Through the act of withholding minutes to a fire meeting from plaintiffs [Reed] has become a pivotal character in the case itself,” the couple claim. “He has taken our dedicated parking and made untrue statements to the media that resulted in violence against our property.”

In their lawsuit, the Cousinses allege they were retaliated against for speaking out about issues in the town such as well contamination from the closed town landfill, posting a Ron Paul for president sign and displaying disabled veteran license plates on their vehicle.

Nivison said this count should be dismissed because the couple failed to “allege any facts” to support their claim.

The couple objects to this conclusion, arguing that speaking out made them a “target for retaliation” that led to the notice of violation and being cited for a parking violation.

The couple essentially makes the same claims in another count alleging due-process retaliation. Nivison recommends this count be dismissed because the couple have not alleged any facts to support that the firefighter defendants “are involved in the permitting process” regarding their attempt to rebuild.

The Cousinses also dispute Nivison’s conclusion that their allegation of defamation be dismissed. The couple alleges that certain members of the fire department made false statements about them and their business.

The Cousinses’ objections will be considered by the court in making a final determination about Nivison’s recommendations, which were in response to a motion to dismiss filed in November by the firefighters’ attorneys, Devin Deane and Robert Bower.

Earlier this month, Deane said he was happy with Nivison’s recommendations, pointing out that if they are accepted by the court, six counts in the lawsuit would remain. These six claims are directly related to the actions of firefighters, Deane said.

“The focus now is on the claims related to the fire,” he said at the time.

One of the first tasks will be to depose the Cousinses and others to get on record under oath what actually took place at the fire scene.

“We look forward to defending the firefighters,” Deane said.

Mark Good

Mark Good

Reporter at Mount Desert Islander
Mark Good

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