Bedard v. Tardif

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
Docket No. CV-2021-322
)
PATIENCE BEDARD, )
)
Plaintiff, )
)
v. ) ORDER ON DEFENDANT JONES'S
) MOTION TO DISMISS
DYLAN TARDIF, BARBIE WILSON, )
CLIFFORD WELCH, 7-ELEVEN, )
INC., and STEPHEN JONES d/b/a )
7-ELEVEN )
)
Defendants. )

Before the Court is Defendant Stephen Jones d/b/ a 7-Eleven's ("Jones") Motion

to Dismiss Plaintiff Patience Bedard's ("Bedard") Amended Complaint. For the

following reasons, the Court grants Jones's Motion to Dismiss.

I. Background

This action arises from a motor vehicle accident that occurred in Kennebunk, York

County, Maine, on October 24, 2019. The following facts are drawn from the allegations

in the Amended Complaint, which must be accepted as true for the purpose of evaluating

this Motion to Dismiss.

In the afternoon and evening of October 23, 2019, Bedard and Defendant Dylan

Tardif ("Tardif") spent time together at various locations. (Am. Compl. '1[ 25.) At some

point that afternoon or evening, Tardif asked Defendant Clifford v'Telch ("Welch") to

purchase alcohol for him. (Am. Comp 1. '1[ 26.) Tardif was seventeen years old and Welch

was sixteen years old at the time. (Am. Comp!. '1['1[ 12, 27).

Jones operates a 7-Eleven convenience store in York County ("the Convenience

Store"). (Am. Compl. '1['1[ 5, 6.) At about 11:00 p.m. on October 23, 2019, Tardif drove a

pickup truck owned by and registered to his mother, Defendant Barbie Wilson, to the
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Convenience Store and met Welch there. (Am. Compl. 'l[ 3, 24, 28.) Welch purchased

several alcoholic beverages from the Convenience Store, which he later provided to

Tardif. (Am. Compl. 'l[ 29.)

In the late evening of October 23, 2019, and/or the early morning of October 24,

2019, Tardif consumed some of the alcoholic beverages. (Am. Compl. 'l[ 30.) After

consuming the alcoholic beverages, Tardif suggested that he drive Bedard and her cousin

around Kennebunk and the surrounding area. (Am. Compl. 'lI 32.) At approximately IA J;, t
LuU, i v1(X:IJC-LY "
3:10 a.m. on October 24, 2019, while driving with Bedard and her cousin, Tardif cau~ed a

motor vehicle accident on Alewive Road in Kennebunk. (Am. Compl. 'l[ 33.) Bedard

sustained life-threatening injuries in the accident. (Am. Comp!. 'l[ 36.)

Bedard brought a ten-count Amended Complaint, which includes two counts

against Jones: Count IX, in which Bedard alleges a negligence claim against Jones arising

from his employee's service of alcohol to a minor, and Count X, in which Bedard alleges

a claim under the Maine Liquor Liability Act ("the MLLA"), 28-A M.R.S. § 2506 (2021).

Jones moved to dismiss Counts IX and Count X of the Amended Complaint, pursuant to

M.R. Civ. P. 12(b)(6).

II. Motion to Dismiss Standard

A motion to dismiss pursuant to M.R. Civ. P. 12(b )(6) "tests the legal sufficiency of

the allegations in the complaint, not the sufficiency of the evidence the plaintiffs are able

to present." Barnes v. McGough, 623 A.2d 144, 145 (Me. 1993) (internal citation

omitted). The court shall "consider the facts in the complaint as if they were

admitted." Bonney v. Stephens Mem'l Hosp., 2011 ME 46, 'l[ 16, 17 A.3d 123. The court

views the complaint "in the light most favorable to the plaintiff to determine whether it

sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to

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relief pursuant to some legal theory." Id. (quoting Saunders v. Tisher, 2006 ME 94, 'I[ 8, 902

A.2d 830). "Dismissal is warranted when it appears beyond a doubt that the plaintiff is

not entitled to relief under any set of facts that he might prove in support of his

claim." Id. (quoting Saunders, 2006 ME 94, 'I[ 8, 902 A.2d 830).

III. Discussion

Jones argues that Count IX should be dismissed because it asserts a claim for which

the MLLA provides the exclusive remedy. Additionally, Jones argues that Count X

should be dismissed because Bedard's Amended Complaint does not allege facts that

would entitle her to relief under the MLLA.

A. Count IX

In Count IX, Bedard asserts a common law negligence claim against Jones arising

from his employee's sale of alcohol to Welch. Specifically, Bedard alleges that (1) Jones

failed to adequately train his employees not to sell alcohol to minors, (2) an employee

negligently served alcohol to a minor (Welch), (3) Welch, in turn, provided the alcohol to

another minor (Tardif), and (4) Tardif's intoxication proximately caused Bedard's injury.

Jones argues that MLLA provides the exclusive remedy for Bedard's claim because it is

brought against a server of alcohol and arises out of the service of alcohol.

The exclusivity provision of the MLLA provides: "This Act is the exclusive remedy

against servers who may be made defendants under section 2505, for claims by those

suffering damages based on the servers' service of liquor." 28-A M.R.S. § 2511 (2021).

Interpreting the MLLA, the Law Court noted that "there is no question that the

Legislature intended that the MLLA greatly restrict negligence claims regarding the

actual service of alcoholic beverages." Thibodeau v. Slaney, 2000 ME 116, 'I[ 18, 755 A.2d

1051; see also Peters v. Saft, 597 A.2d 50, 54 (Me. 1991) (noting that the MLLA makes the

"liability of the server predictable"). "In order to obtain relief from the exclusivity
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provision in section 2511, [a plaintiff] must show some relationship between himself and

these defendants-separate from the relationship created by their furnishing of alcohol­

that would support a claim of negligence." Davis v. Dionne, 2011 ME 90, '[ 7, 26 A.3d 801.

Count IX is a claim arising out of the service of alcohol, brought against a server

of alcohol. Bedard has not pied the existence of any relationship between Bedard and

Jones other than the attenuated relationship based on Jones's service of alcohol to Welch.

Accordingly, the MLLA provides the exclusive remedy for Bedard's claim against Jones

and Count IX must be dismissed.

B.CountX

In Count X, Bedard asserts a claim under the MLLA, 28-A M.R.S. § 2506(1). Section

2506(1) provides: "A server who negligently serves liquor to a minor is liable for damages

proximately caused by that minor's consumption of the liquor." Bedard's claim against

Jones does not fall within the scope of § 2506(1) because Bedard's injuries were

proximately caused by Tardif's consumption of the liquor sold to Welch, not Welch's

consumption of the liquor. Thus, Bedard has not pied facts entitling her to relief under

the MLLA. 1

Circuitously, Bedard argues that if the Court finds that she has failed to plead facts

entitling her to relief under the MLLA, then she should be able to bring her common law

negligence claim. As support for this argument, Bedard points to the following language

in the exclusivity provision: "This Act is the exclusive remedy against servers who may be

made defendants under section 2505, for claims by those suffering damages based on the

servers' service of liquor." 28-A M.R.S. § 2511 (emphasis added). If Bedard cannot

1 Bedard argues that a strict reading of§ 2506(1) is contrary to stated purposes of the MLLA outlined in§

2502(1), (2). This argument is unavailing because the plain meaning of§ 2506(1) is clear. Moreover, the
Law Court, interpreting the MLLA, has stated that at least one purpose of the MLLA was to clearly define
and restrict the scope of server liability. Thibodeau, 2000 ME 116, 'II 18, 755 A.2d 1051; Peters, 597 A.2d at 54.

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recover from Jones under the MLLA, then, she argues, her claim is exempted from the

exclusivity provision.

However, to relieve plaintiffs whose service-related claims do not fall within the

parameters of the MLLA from the MLLA's exclusivity provision would be contrary to

the MLLA' s purpose of restricting the scope of servers' liability. Cf Swan v. Sohio Oil Co.,

618 A.2d 214, 219-20 (Me. 1992) (exclusivity provision barred common law claim by

consumer of alcohol against server despite inability to recover under the MLLA).

Moreover,§ 2505(1) provides: "Any server who is a licensee or employee or agent of a

licensee who commits an act giving rise to liability, as provided in sections 2506 and 2507,

may be made a defendant to a claim under this Act." Although Jones is not liable to

Bedard under the MLLA, Jones's service of alcohol to Welch did constitute an act giving

rise to liability if Welch's consumption of the alcohol caused injury.

While Bedard's claim against Jones may only be brought under the MLLA, she has

failed to plead facts entitling her to relief under the MLLA. Accordingly, the Court must

dismiss both counts of the Amended Complaint against Jones.

IV. Conclusion

For the foregoing reasons, the Court dismisses Counts IX and X of Bedard's

Amended Complaint.

The entry is:

Defendant Jones' s Motion to Dismiss is GRANTED.

The Clerk is directed to incorporate this Order into the docket by reference

pursuant to Maine Rule of Civil Procedure 79(a).

Dated: ----1--l/;-1----Llt-'-.L/'-"'b'-'-""Q'""""c)""---,),_
I I ay Kennedy, Justice
Superior Court
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
Docket No. CV-2021-322

PATIENCE BEDARD,

Plaintiff,

V. ORDER ON DEFENDANT
WELCH'S MOTION TO TRANSFER
DYLAN TARDIP, BARBIE WILSON, VENUE
CLIFFORD WELCH, 7-ELEVEN,
INC., and STEPHEN JONES d /b / a
7-ELEVEN REC'D CUMB CLERKS ore
1-.,..J -., 1 '2i -"'11' ',:;
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..,L. Hi'l
,,., • .JL.,_il
Defendants.

Before the Court is Defendant Clifford Welch's Motion to Transfer Venue. For the

following reasons, the Court denies Defendant Welch's Motion.

I. Background

This action arises from a motor vehicle accident that occurred in Kennebunk, York

County, Maine, on October 24, 2019. Plaintiff Patience Bedard was a passenger in the

vehicle involved in the crash. Plaintiff is a resident of York County. (Am. Comp!. '![ 1.)

Defendant Barbie Wilson, Defendant Dylan Tardif, and Defendant Welch are also

residents of York County. (Am. Comp!. '!['![ 2-4.) Defendant Stephen Jones d /b / a 7­

Eleven resides in York County and operates a store in York County. (Am. Comp!. '!['l] 5,

6.) Defendant 7-Eleven participates in the operation of stores in multiple counties in

Maine including York County and Cumberland County. (Arn. Comp!.'![ 5.)

On November 13, 2019, Plaintiff filed a Verified Petition for Discovery Before

Action pursuant to M.R. Civ. P. 27 in York County Superior Court. York County Superior

Court granted the Verified Petition. Plaintiff later filed the Complaint in this matter in

Cumberland County.

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In his Motion to Transfer Venue, Defendant Welch asks that the Court transfer this

matter from Cumberland County to York County. Plaintiff opposes the Motion.

II. Motion to Transfer Venue Standard

Pursuant to 14 M.R.S. § 501 (2021 ), venue is proper in personal and transitory

actions "in the county where any plaintiff or defendant lives." As to corporate

defendants, 14 M.R.S. § 505 (2021) provides that, generally, "corporations may sue and

be sued in the county in which they have an established place of business."

In accordance with 14 M.R.S. § 508 (2021), "a presiding Justice of the Superior

Court may, in the interests of justice and to secure the speedy trial of an action, or for

other good cause, transfer any civil action or proceeding from the Superior Court in one

county to another county." A similar analysis under the doctrine of forum non

conveniens requires the court to weigh the "advantages and obstacles to a fair trial" in

the selected forum, but "unless the balance is strongly in favor of the defendant, plaintiff's

choice of forum should rarely be disturbed." Macleod v. MacLeod, 383 A.2d 39, 42 (Me.

1978) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501,508 (1947)).

III. Discussion

Venue is proper in Cumberland County under 14 M.R.S. §§ 501, 505 because

Defendant 7-Eleven has locations in Cumberland County. Venue would also be proper

in York County.

Defendant Welch argues that York County would be a more convenient forum in

which to resolve this matter because the majority of parties and wih1esses reside in York

County. Defendant Welch, however, has not shown that the interests of justice may be

impacted or that obstacles to trial may be raised by proceeding in Cumberland County.

While it certainly may be more convenient for most, if not all, involved to try the case in

York County, Plaintiff is entitled to her choice of forum unless the balance is strongly in
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favor of transfer. Because Defendant Welch has not shown that the balance is strongly in

favor of transferring this matter to York County, the Court declines to do so. 1

IV. Conclusion

For the foregoing reasons, the Court declines to transfer venue to York County.

The entry is:

Defendant Welch's Motion to Transfer Venue is DENIED.

The Clerk is directed to incorporate this Ordet into the docket by reference

pursuant to Maine Rule of Civil Procedure 79(a).

Mary ay Kennedy, Justi
Ma/!
.......
· Superior Court
....,,.,.
__ ,,,.,

1 Defendant Welch also argues in his Reply in Support of Motion to Transfer Venue that this action was

initiated in York County when Plaintiff filed her Verified Petition pursuant to Rule 27 in York County, and
that, therefore, Plaintiff's eventual filing of the Complaint in Cumberland County was improper. The
language of Rule 27, however, makes clear that a Rule 27 petition does not initiate the anticipated action.
Furthermore, nothing in Rule 27 requires that a complaint be filed in the same venue as a Rule 27 petition.

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