BANGOR — In their reply to a motion to dismiss their suit against Tremont firefighters, Robert and Judy Cousins argue that their amended complaint does not go beyond the scope of a federal appeals court decision that remanded several of the couple’s claims to U.S. District Court for reconsideration.
The Cousinses filed their Nov. 22 reply in response to a motion filed earlier that month by attorneys Devin Deane and Robert Bower, who represent the Tremont firefighters and others in a lawsuit filed by the couple alleging a conspiracy that resulted in their restaurant, Cap’n Nemo’s, burning to the ground in December 2013.
After a federal district court judge dismissed that lawsuit in June 2015, the Cousinses 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 sent to the lower court for reconsideration.
In October, the Cousinses, as allowed under the appeals court decision, filed an amended complaint. Deane and Bowers subsequently moved to have the court dismiss all but five of the 16 claims in the complaint.
The equal protection and due process claims, plus three counts claiming that, under state law, the Cousinses were the targets of “intentional infliction of emotional distress” and that the firefighters failed to carry out their duty in fighting the fire, are the only counts the court should consider, Deane and Bower maintain.
“The additional counts are either outside of the court’s subject matter jurisdiction, fail to state a claim, have already been dismissed and were not appealed/or were affirmed on appeal, or involve a separate case and controversy altogether,” the attorneys argue.
The amended complaint also names 17 defendants, many of whom were either dismissed by the district court or added in the couple’s amended complaint. These defendants should not be included in the complaint because they are unrelated to the claims against the firefighters, Deane and Bower wrote in their motion to dismiss.
The couple state in their reply that these claims and defendants should be included, arguing that the attempt to narrow their complaint ignores the Continuing Violations Doctrine. The doctrine usually is applied in cases involving employment discrimination.
“They are not separate issues but demonstrate the ongoing retaliation and slander and violence against [the couple] in the same case and controversy,” the Cousinses argue.
The couple also contends that their freedom of speech rights had been violated and that Tremont selectmen held an illegal executive session where they were discussed without notification.
This week, Deane said the Cousinses reply is another attempt to include claims that the appeals court found that the lower court properly dismissed.
“They didn’t really address the merits of the motion [to dismiss],” he said.
Deane said he expects the court to dismiss all but the counts the appeals court remanded to the district court.
Deane and Bower have until Dec. 7 to answer the Cousinses’ reply. After that, the court will make a decision on the motion to dismiss. Although there is no deadline for that decision, Deane said he expects the court will make a ruling a few weeks after they file their answer.
Editor’s Note: Mount Desert Islander owner Alan Baker, Editor Earl Brechlin, and Reporter Mark Good are among the individuals named in the court filings.