Goguen v. Waxman
Annotate this Case
Download PDF
ST ATE OF MAINE CUMBERLAND, ss SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-17-116 J ROBERT GOGUEN ORDER ON DEFENDANT'S MOTION TO DISMISS AND PLAINTIFF'S MOTION TO AMEND COMPLAINT V. MICHAEL WAXMAN, Defendant Before the court is defendant Michael Waxman's Motion to Dismiss, pursuant to M.R. Civ. 12(b)(6), and plaintiff's motion to amend complaint. For the following reasons, defendant's motion is denied and plaintiff's motion is denied. DISCUSSION For purposes of a motion to dismiss, the material allegations of the complaint must be taken as admitted. Ramsey v. Baxter Title Co., 2012 ME 113, ~ 2, 54A.3d 710. The complaint must be read in the light most favorable to the plaintiff to determine if it sets forth elements of a cause of action or alleges facts that would entitle plaintiff to relief pursuant to some legal theory. Bisson v. Hannaford Bros. Co .. Inc., 2006 ME 131, ~ 2, 909 A.2d 1010. Dismissal is appropriate only when it appears beyond doubt that the plaintiff is not entitled to relief under any set of facts that he might prove in support of his claim. Moody v. State Liquor & Lottery Commission, 2004 ME 20, ~ 7, 843 A.2d 43. The elements of legal malpractice are (1) breach of a duty by defendant attorney to conform to a certain standard of conduct, and (2) the plaintiff's damages were proximately caused by the defendant's breach. Niehoff v. Shankman & Assocs . Legal Ctr., P.A ., 2000 ME 214, ~ 7,763 A.2d 121. Rule 1.1 of the Maine Rules of Professional Conduct states that "[a] lawyer shall provide competent representation to a client." M.R. Prof. Conduct 1.1. Comment 5 to Rule 1.1 indicates I that competent representation requires an attorney to conduct "inquiry into and analysis of the factual and legal elements of the problem" and to adequately prepare for proceedings. Id. Cmt. (5). In his complaint filed on March 13, 2017, plaintiff asserts that defendant, attorney Waxman, failed properly to prepare, research legal questions, and conduct pretrial discovery. (Pl.'s Comp!.!! 11, 15, 16.) Further, plaintiff asserts that defendant's failure to conduct adequate discovery caused his case to be unsuccessful. (Pl.'s Comp!. !! 18-20.) Taking these facts as admitted, this court cannot say that it is beyond doubt that plaintiff is entitled to no relief.l See Moody, 2004 ME 20 !! 7-8, 843 A.2d 43 (citation omitted). Plaintiff's proposed amended complaint contains 227 paragraphs. The pleading does not contain "a short and plain statement of the claim showing that the pleader is entitled to relief." M.R. Civ. P . 8(a) . The entry is Defendant's Motion to Dismiss is DENIED. Plaintiff's Motion to Amend Complaint is D Date: February 16, 2018 p 1 Whether expert testimony will be offered at trial is not relevant to this motion to dismiss. 2
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
