MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2016	ME	167	
Docket:	   Lin-15-274	
Argued:	   March	3,	2016	
Decided:	  November	17,	2016	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                                        JAMES	N.	LEVIS	
                                               	
                                              v.	
                                               	
                                     GUSTAV	KONITZKY	et	al.	
	
	
HUMPHREY,	J.	

        [¶1]	 	 James	 N.	 Levis	 appeals	 from	 a	 summary	judgment	 entered	 in	 the	

District	 Court	 (Wiscasset,	 Billings,	 J.)	 in	 favor	 of	 Gustav	 Konitzky	 in	 this	

adverse	 possession	 and	 quiet	 title	 action.	 	 Levis	 asserts	 several	 errors	 and	

abuses	of	discretion	by	the	trial	court	over	the	course	of	the	six	years	that	this	

litigation	 was	 pending,	 including,	 inter	 alia,	 that	 the	 court	 abused	 its	

discretion	 in	 vacating	 a	 default	 judgment	 entered	 against	 unknown	

defendants1	 and	 erred	 in	 granting	 summary	 judgment	 to	 Konitzky.2	 	 We	

conclude	 that	 none	 of	 the	 court’s	 rulings	 constitutes	 abuse	 of	 discretion	 or	

legal	error.		Accordingly,	we	affirm	the	judgment.	

    1		Alleged	heirs	of	the	deceased	owner	of	record	of	the	property	in	question	were	identified	as	

the	litigation	progressed.	
   	
   2	 	 Konitzky	 was	 first	 named	 a	 party	 in	 interest	 but	 became	 a	 defendant	 after	 heirs	 of	 the	

deceased	owner	of	record	conveyed	their	interest	in	the	property	to	him.	
2	 	

                                            I.		BACKGROUND	

	       [¶2]	 	 On	 April	 27,	 2009,	 James	 Levis	 filed	 a	 complaint	 for	 declaratory	

judgment	and	quiet	title	in	the	District	Court	(Wiscasset),	claiming	title	to	an	

approximately	125-foot	by	100-foot	section	of	mudflat	on	the	southern	side	of	

McCaffrey’s	 Brook	 in	 Bristol	 by	 adverse	 possession	 and	 by	 deed	 from	 his	

ex-wife.3		Levis	named	“J.	Henry	Cartland,	his	heirs	and	assigns”	(the	Cartland	

heirs)	 as	 defendants	 and	 Gustav	 Konitzky,	 an	 abutting	 neighbor	 and	

boat-builder,	as	a	party	in	interest.4			

	       [¶3]		Cartland,	who	acquired	title	to	the	mudflat	and	an	adjoining	lot	on	

January	1,	1890,	was	the	last	known	owner	of	record.		The	Cartland	heirs	were	

served	 by	 publication,	 and,	 on	 October	 16,	 2009,	 Levis	 filed	 a	 motion	 for	 a	

default	 and	 default	 judgment	 as	 to	 the	 Cartland	 heirs	 because	 none	 had	

appeared	in	the	case.		The	court	(Worth,	J.)	entered	a	default	judgment	against	




    3		In	2008,	Levis’s	ex-wife,	Sheila	Howard,	pursuant	to	their	divorce,	gave	Levis	a	quitclaim	deed	

conveying	any	interest	she	had	in	the	shores	and	flats	of	McCaffrey’s	Creek,	as	they	were	described	
in	 the	 deed	 to	 J.	 Henry	 Cartland,	 who	 had	 acquired	 title	 to	 the	 mudflat	 in	 the	 late	 1800s.	 Levis	
admits,	however,	that	there	were	no	record	conveyances	of	the	mudflat	from	J.	Henry	Cartland	to	
Howard	or	to	anyone	else.			
    	
    4		Levis	named	Konitzky	as	a	party	in	interest	because	Konitzky	had	been	granted	permission	to	

repair	and	reactivate	a	marine	railway	by	order	of	the	Department	of	Environmental	Protection	in	
1983,	which,	Levis	noted	in	his	complaint,	may	or	may	not	affect	the	disputed	parcel	of	land.		Levis’s	
primary	motivation	for	filing	the	action	appears	to	be	his	desire	to	prevent	Konitzky	from	using	the	
portion	of	the	mudflat	in	front	of	Levis’s	summer	residence.		
    	                                                                                    3	

the	 heirs	 on	 October	28,	 2009.	 	 The	 order	 specifically	 stated	 that	 it	 did	 not	

affect	Konitzky’s	rights.	

	       [¶4]	 	 For	 the	 next	 several	 years,	 Levis	 and	 Konitzky	 engaged	 in	 a	

procedural	 entanglement	 of	 dueling	 motions,	 with	 Levis	 attempting	 to	

establish	that	Konitzky	had	no	cognizable	interest	in	the	mudflat	and	Konitzky	

attempting	 to	 defeat	 Levis’s	 quiet	 title	 and	 adverse	 possession	 claims.		

Relevant	to	this	appeal,	in	December	2010,	Konitzky	filed	a	motion	to	set	aside	

the	default	judgment	against	the	Cartland	heirs,	alleging	that	he	had	located	a	

Cartland	heir	who	had	transferred	her	interest	in	the	property	to	Konitzky.		In	

February	2011,	 the	 court	 (Tucker,	 J.)	 held	 a	 hearing	 and	 denied	 the	 motion	

because	 it	 was	 not	 filed	 within	 the	 one-year	 deadline	 specified	 in	 M.R.	

Civ.	P.	60(b)(2)	and	because	Konitzky	had	“not	presented	evidence	of	reasons	

that	Rule	60(b)(6)	should	apply.”			

	       [¶5]	 	 Pursuant	 to	 M.R.	 Civ.	 P.	 59(e),	 Konitzky	 filed	 a	 motion	 for	

reconsideration	of	the	denial	of	his	motion	to	set	aside	the	default	judgment,	

contending	that	he	had	not	received	notice	of	the	hearing	and	that	because	the	

default	judgment	was	not	final—it	had	not	settled	the	matter	as	to	him—the	

court’s	application	of	M.R.	Civ.	P.	60(b)	was	in	error.	
4	 	

	      [¶6]	 	 The	 court	 granted	 Konitzky’s	 motion	 and,	 in	 June	 2011,	 held	 an	

evidentiary	 hearing	 at	 which	 Konitzky	 presented	 a	 2010	 release	 deed	 from	

Margaret	 Sue	 Tennant	 Jones,	 an	 alleged	 heir	 of	 Cartland,	 conveying	 any	

interest	she	had	in	the	property	to	him.		The	court	entered	an	order	vacating	

the	 default	 judgment,	 opining	 that	 Konitzky’s	 discovery	 of	 an	 heir	 and	 the	

subsequent	 assignment	 could	 make	 him	 an	 assignee,	 not	 just	 a	 party	 in	

interest.	 	 The	 court	 concluded	 that	 the	 default	 judgment	 was	 not	 a	 final	

judgment	 because	 the	 entire	 case	 had	 not	 been	 resolved,	 see	 M.R.	

Civ.	P.	54(b)(1);	 thus,	 Rule	 60(b)(2)	 and	 its	 one-year	 deadline	 for	 newly	

discovered	evidence	did	not	apply.		See	M.R.	Civ.	P.	55(c).			

	      [¶7]		Citing	the	quiet	title	statute,	14	M.R.S.	§§	6651-6663	(2015),	Levis	

filed	 a	 motion	 to	 modify	 the	 order	 vacating	 the	 default	 judgment.	 	 The	 court	

denied	 the	 motion	 but	 noted	 that	 none	 of	 the	 Cartland	 heirs	 had	 filed	 an	

answer	or	otherwise	appeared	in	the	action,	and	Konitzky	had	not	entered	an	

appearance	pursuant	to	14	M.R.S.	§	6653	as	an	assignee	of	a	named	defendant,	

and	 it	 extended	 the	 time	 for	 formally	 answering	 the	 original	 complaint	 until	

September	2,	2011.		See	14	M.R.S.	§§	6654,	6656.		By	a	subsequent	order	dated	

August	31,	2011,	the	court	extended	the	deadline	“for	a	thirty-day	period.”	
    	                                                                                    5	

	       [¶8]	 	 On	 September	 29,	 2011,	 Konitzky	 entered	 an	 appearance,	

pursuant	 to	 14	 M.R.S.	 §	 6653,	 as	 a	 defendant	 to	 the	 original	 action	 based	 on	

the	conveyance	from	Tennant	as	well	as	conveyances	from	additional	alleged	

heirs.		In	November	2011,	Levis	filed	several	motions,	including	a	motion	for	

default	against	Konitzky	as	a	party	in	interest	and	defendant,	contending	that	

Konitzky	 failed	 to	 comply	 with	 several	 rules	 of	 civil	 procedure	 and	 abide	 by	

court	timelines.		The	court	held	a	hearing	on	Levis’s	motions	and	denied	them	

all.	

	       [¶9]		Discovery	continued	between	the	parties,	and	in	December	2013,	

Konitzky	 filed	 a	 request	 for	 leave	 to	 file	 a	 motion	 for	 summary	 judgment	

pursuant	to	M.R.	Civ.	P.	56(b).		The	court	(Billings,	J.)	granted	the	request	three	

days	later.		Levis	filed	a	motion	for	reconsideration,	arguing	that	(1)	Konitzky	

had	 waived	 any	 right	 to	 argue	 that	 summary	 judgment	 in	 his	 favor	 was	

warranted,	 (2)	 the	 court	 had	 granted	 Konitzky’s	 request	 four	 days	 before	

Levis	had	received	a	copy	of	it,	and	(3)	a	motion	for	summary	judgment	would	

delay	 trial.	 	 The	 court	 did	 not	 address	 Levis’s	 motion.	 	 Two	 weeks	 later,	

Konitzky	 filed	 a	 motion	 for	 summary	 judgment,	 which	 Levis	 opposed	 with	

both	argument	and	opposing	statements	of	material	fact.		After	considering	all	

of	the	filings	on	the	motion	for	summary	judgment,	the	court	determined	that	
6	 	

none	 of	 the	 facts	 disputed	 by	 the	 parties	 was	 material	 to	 the	 legal	 issue	

presented	by	Levis’s	complaint	and	granted	the	motion	in	an	order	entered	on	

March	12,	2014.			

	      [¶10]	 	 Levis	 both	 appealed	 to	 us	 and	 filed	 motions	 for	 findings	 of	 fact	

and	 for	 reconsideration	 in	 the	 trial	 court.	 	 We	 dismissed	 the	 appeal	 as	

interlocutory,	 concluding	 that	 the	 order	 was	 not	 a	 final	 judgment,	 see	 M.R.	

Civ.	P.	54(b)(1),	because	it	did	not	adjudicate	Levis’s	pending	claim	against	the	

Cartland	heirs.		On	January	22,	2015,	Levis	filed,	among	other	things,	his	third	

motion	for	default	judgment	against	all	heirs,	assigns,	or	grantees	of	Cartland	

“who	have	failed	to	file	an	appearance	and	Answer	in	this	action,”	contending	

that,	other	than	Konitzky	identifying	himself	as	a	defendant,	no	other	heir	or	

assign	had	ever	filed	an	answer	or	entered	an	appearance.	

	      [¶11]	 	 In	 May	 2015,	 the	 court	 denied	 Levis’s	 motion,	 stating	 that	

because	 the	 Cartland	 heirs	 “did	 appear	 and	 defend	 in	 the	 case	 through	

Konitzky”	 as	 an	 assignee	 of	 Cartland’s	 interest,	 default	 judgment	 was	 not	

warranted;	 and	 because	 all	 claims	 had	 been	 adjudicated,	 the	 summary	

judgment	 was	 a	 final	 judgment.	 	 The	 court	 also	 stated	 that	 the	 summary	

judgment	in	Konitzky’s	favor	did	not	establish	title	to	the	mudflat—it	simply	

established	that,	in	light	of	uncontroverted	facts	relating	to	Konitzky’s	regular	
    	                                                                                      7	

use	 of	 the	 mudflat,	 Levis	 could	 not	 meet	 the	 prima	 facie	 elements	 of	 his	

adverse	possession	or	quiet	title	actions.		Levis	timely	appealed.	

                                     II.		DISCUSSION	

	       [¶12]	 	 Levis	 presents	 five	 issues	 for	 our	 review.	 	 He	 contends	 that	 the	

court	erred	or	abused	its	discretion	by	(1)	setting	aside	the	default	judgment	

entered	against	the	Cartland	heirs	in	October	2009;	(2)	denying	his	November	

2011	 motion	 for	 default	 against	 Konitzky	 after	 Konitzky	 allegedly	 failed	 to	

comply	with	a	court	order	and	the	rules	of	civil	procedure;	(3)	granting	leave	

for	 Konitzky	 to	 file	 a	 motion	 for	 summary	 judgment	 in	 December	 2013;	

(4)	granting	 summary	 judgment	 in	 favor	 of	 Konitzky	 in	 March	 2014;	 and	

(5)	denying	 his	 motion	 for	 default	 in	 May	2015.	 	 Finding	 no	 abuse	 of	

discretion	 in	 the	 court’s	 actions	 in	 setting	 aside	 the	 default	 judgment	 or	

denying	Levis’s	motion	for	default,	we	do	not	discuss	those	issues	further.		We	

address	 in	 turn	 the	 court’s	 actions	 in	 allowing	 Konitzky	 to	 file	 a	 motion	 for	

summary	judgment	in	December	2013,	granting	summary	judgment	in	favor	

of	 Konitzky	 in	 March	 2014,	 and	 denying	 Levis’s	 motion	 for	 default	 in	

May	2015.	
8	 	

A.	    Leave	to	File	Motion	for	Summary	Judgment	

	      [¶13]		Levis	argues	that	the	court	abused	its	discretion	when	it	granted	

Koniztky	 leave	 to	 file	 a	 motion	 for	 summary	 judgment,	 where	 Konitzky’s	

request	 was	 made	 years	 after	 the	 deadline	 stated	 in	 the	 initial	 scheduling	

order	 and	 where	 the	 court	 granted	 the	 request	 before	 Levis	 had	 an	

opportunity	to	respond.		He	argues	that	pursuant	to	M.R.	Civ.	P.	6(b),	the	court	

could	 not	 grant	 Konitzky’s	 request	 absent	 a	 showing	 of	 excusable	 neglect.		

Because	the	trial	court	was	“best	positioned	to	evaluate	the	circumstances	of	

the	case,”	Johnson	v.	Carleton,	2001	ME	12,	¶	10,	765	A.2d	571,	we	review	its	

decision	to	allow	Konitzky	to	file	his	summary	judgment	motion	for	an	abuse	

of	discretion,	id.;	see	Dalton	v.	Quinn,	2010	ME	120,	¶	6,	8	A.3d	670.	

	      [¶14]		Maine	Rule	of	Civil	Procedure	6(b)	provides,	in	pertinent	part:	

       When	by	these	rules	or	by	a	notice	given	thereunder	or	by	order	
       of	 court	 an	 act	 is	 required	 or	 allowed	 to	 be	 done	 at	 or	 within	 a	
       specified	 time,	 the	 court	 for	 cause	 shown	 may	 at	 any	 time	 in	 its	
       discretion	 .	 .	 .	 (2)	 upon	 motion	 made	 after	 the	 expiration	 of	 the	
       specified	period	permit	the	act	to	be	done	where	the	failure	to	act	
       was	the	result	of	excusable	neglect	.	.	.	.	
	
We	have	applied	Rule	6(b)’s	“excusable	neglect”	standard	in	a	number	of	cases	

in	 which	 we	 examined	 a	 trial	 court’s	 decision	 to	 grant	 or	 deny	 a	 party’s	

request	 to	 file	 a	 motion	 or	 pleading	 after	 the	 deadline	 for	 such	 filing	 had	
    	                                                                                                                9	

passed.	 	 None	 of	 these	 cases	 involved	 a	 motion	 for	 leave	 to	 file	 a	 dispositive	

motion	such	as	a	motion	for	summary	judgment.5	


   5	 	 Several	 involved	 untimely	 expert	 witness	 designations.	 	 See,	 e.g.,	 Hutz	 v.	 Alden,	 2011	 ME	 27,	

¶¶	19-22,	12	A.3d	1174	(holding	that	the	trial	court	did	not	abuse	its	discretion	when	it	denied	a	
motion	 to	 enlarge	 the	 time	 to	 designate	 an	 expert	 witness	 after	 the	 deadline	 had	 passed,	 because	
the	moving	party	had	not	demonstrated	excusable	neglect	pursuant	to	M.R.	Civ.	P.	6(b));	Dalton	v.	
Quinn,	2010	ME	120,	¶¶	6-8,	8	A.3d	670	(same);	Johnson	v.	Carleton,	2001	ME	12,	¶¶	7-10,	765	A.2d	
571	(same);	but	see	Estate	of	O’Brien-Hamel,	2014	ME	75,	¶¶	22-24,	93	A.3d	689	(holding	that	even	
absent	 a	 showing	 of	 excusable	 neglect,	 the	 trial	 court	 did	 not	 abuse	 its	 discretion	 in	 allowing	 a	
late-designated	expert	witness	to	testify	where	the	opposing	party	was	not	“unfairly	surprised”	by	
the	expert’s	testimony	(quotation	marks	omitted)).	
    	
	         In	 other	 cases,	 a	 party	 moved	 for	 leave	 to	 file	 a	 late	 answer	 or	 counterclaim.	 	 See	 Dyer	
Goodall	 &	 Federle,	 LLC	 v.	 Proctor,	 2007	 ME	 145,	 ¶¶	 17-22,	 935	 A.2d	 1123	 (holding	 that	 the	 trial	
court	 did	 not	 abuse	 its	 discretion	 when	 it	 denied	 a	 motion	 to	 enlarge	 the	 time	 to	 answer	 a	
complaint	 after	 the	 deadline	 had	 passed,	 because	 the	 moving	 party	 had	 not	 shown	 excusable	
neglect	 pursuant	 to	 M.R.	 Civ.	 P.	 6(b));	 Solomon’s	 Rock	 Trust	 v.	 Davis,	 675	 A.2d	 506,	 508-09	
(Me.	1996)	 (holding	 that	 the	 trial	 court	 did	 not	 abuse	 its	 discretion	 in	 granting	 a	 motion	 for	
enlargement	of	time	to	file	an	answer	and	noting	that	“M.R.	Civ.	P.	6(b)	should	be	liberally	applied	
to	work	substantial	justice”);	Rodriguez	v.	Tomes,	610	A.2d	262,	264-65	(Me.	1992)	(same);	but	see	
Estate	of	Leavitt,	1999	ME	102,	¶¶	3-7,	733	A.2d	348	(vacating	the	trial	court’s	grant	of	a	motion	for	
extended	 time	 to	 file	 an	 answer	 and	 counterclaim	 because	 the	 counterclaim	 was	 time-barred	
pursuant	to	the	Probate	Code).	
    	
	         We	 have	 also	 applied	 the	 standard	 to	 motions	 to	 file	 various	 other	 late	 nondispositive	
filings,	including	pleadings	filed	in	opposition	to	motions	for	summary	judgment.		See,	e.g.,	Gregory	
v.	City	of	Calais,	2001	ME	82,	¶¶	5-11,	771	A.2d	383	(motion	for	leave	to	file	late	motion	for	award	
of	attorney	fees);	Mancini	v.	Scott,	2000	ME	19,	¶¶	7-8,	744	A.2d	1057	(motion	for	leave	to	file	a	late	
motion	to	substitute	parties);	Sevigny	v.	City	of	Biddeford,	344	A.2d	34,	38	(Me.	1975)	(motion	for	
enlargement	 of	 time	 within	 which	 to	 file	 a	 Rule	 80B	 complaint).	 	 In	 Camden	 National	 Bank	 v.	
Peterson,	the	trial	court	granted	a	late-filed	motion	to	enlarge	time	to	oppose	a	motion	for	summary	
judgment.		2008	ME	85,	¶¶	15,	17,	948	A.2d	1251.		The	moving	party	gave	no	reason	for	its	delay,	
the	court	did	not	make	findings	regarding	excusable	neglect,	and	the	nonmoving	party	did	not	ask	
for	such	findings.		Id.	¶	18.		We	noted	that	Rule	6(b)’s	excusable	neglect	standard	applied,	that	the	
delay	caused	by	the	motion	was	brief,	and	that	the	court	had	already	granted	several	motions	for	
enlargements	 by	 the	 nonmoving	 party.	 	 Id.	 ¶¶	 16,	 18.	 	 We	 concluded	 that	 “[i]n	 the	 absence	 of	 a	
record	demonstrating	any	other	facts	that	formed	the	basis	of	the	court’s	ruling,	we	assume	that	the	
court	acted	within	its	discretion	in	granting	the	motion	to	enlarge.”		Id.	¶	19.	
    	
	         Several	 federal	 courts,	 on	 the	 other	 hand,	 have	 applied	 the	 excusable	 neglect	 standard	 to	
late-filed	summary	judgment	motions.		The	Federal	Rules	of	Civil	Procedure	provide	that	“[w]hen	
an	 act	 may	 or	 must	 be	 done	 within	 a	 specified	 time,	 the	 court	 may,	 for	 good	 cause,	 extend	 the	
time	.	.	.	 on	 motion	 made	 after	 the	 time	 has	 expired	 if	 the	 party	 failed	 to	 act	 because	 of	 excusable	
neglect.”	 	 Fed.	 R.	 Civ.	 P.	 6(b).	 	 According	 to	 the	 United	 States	 Supreme	 Court,	 Fed.	 R.	 Civ.	 P.	 6(b)	
10	 	

	       [¶15]		The	Maine	Rules	of	Civil	Procedure	“shall	be	construed	to	secure	

the	just,	speedy	and	inexpensive	determination	of	every	action.”		M.R.	Civ.	P.	1;	

see	 Merrifield	 v.	 Hadlock,	 2009	 ME	 1,	 ¶	 6,	 961	 A.2d	 1107	 (“[T]he	 overall	

purpose	 of	 the	 Rules	 of	 Civil	 Procedure	 .	 .	 .	 is	 to	 ensure	 the	 speedy	 and	

inexpensive	 resolution	 of	 a	 case.”).	 	 Consistent	 with	 these	 purposes,	 the	

summary	 judgment	 process	 is	 a	 procedural	 mechanism	 for	 determining	

authorizes	 a	 trial	 court	 to	 exercise	 its	 discretion	 to	 permit	 a	 late-filed	 motion	 “only	
where[,	inter	alia,]	 the	 failure	 to	 meet	 the	 deadline	 was	 the	 result	 of	 excusable	 neglect.”	 	 Lujan	 v.	
Nat’l	Wildlife	Fed’n,	497	U.S.	871,	895-97	(1990)	(quotation	marks	omitted).		In	Lujan,	the	Supreme	
Court	upheld	the	trial	court’s	decision	to	reject	affidavits	supporting	an	opposition	to	a	motion	for	
summary	judgment	where	the	affidavits	were	filed	after	the	court	held	the	hearing	on	the	motion	
for	summary	judgment.		Id.	at	894-95.	
	
	         Since	 Lujan	 was	 decided,	 federal	 trial	 and	 appellate	 courts	 have	 expressly	 applied	 Fed.	 R.	
Civ.	 P.	 6(b)’s	 excusable	 neglect	 standard	 to	 requests	 to	 file	 late	 motions	 for	 summary	 judgment.		
See	Drippe	v.	Tobelinski,	604	F.3d	778,	784-85	(3d	Cir.	2010)	(considering	an	untimely	motion	for	
summary	 judgment,	 made	 orally	 on	 the	 eve	 of	 trial	 eight	 months	 after	 the	 court’s	 deadline	 for	
summary	judgment	motions	had	passed,	and	holding,	based	on	Lujan	and	Fed.	R.	Civ.	P.	6(b),	that	
“the	 district	 court	 must	 make	 a	 finding	 of	 excusable	 neglect	 .	 .	 .	 before	 permitting	 an	 untimely	
motion”);	Yeoman	v.	Ikea	U.S.A.	W.,	Inc.,	No.	11cv701-WQH	(BGS),	2014	U.S.	Dist.	LEXIS	37749	,	at	
*8-22	(S.D.	Ca.	Mar.	20,	2014)	(denying	a	late	motion	to	amend	the	court’s	scheduling	order	in	order	
to	 file	 a	 motion	 for	 summary	 judgment,	 on	 the	 ground	 that	 the	 movant	 did	 not	 meet	
Fed.	R.	Civ.	P.	6(b)’s	 excusable	 neglect	 standard);	 Walker	 v.	 Durham,	 No.	 5:12-CT-3186-BO,	
2014	U.S.	 Dist.	 LEXIS	 133484,	 at	 *10-11	 (E.D.N.C.	 Sept.	 22,	 2014)	 (allowing	 a	 late-filed	 motion	 for	
summary	judgment	on	the	ground	that	the	movant	had	met	Fed.	R.	Civ.	P.	6(b)’s	excusable	neglect	
standard);	Sewell	v.	Lincoln	Life	&	Annuity	Co.,	No.	11	Civ.	4236	(ALC),	2013	U.S.	Dist.	LEXIS	40538,	
at	*3-8	(S.D.N.Y.	Mar.	22,	2013)	(upholding	a	magistrate	judge’s	decision	to	allow	a	late-filed	motion	
for	 summary	 judgment	 on	 the	 ground	 that	 the	 movant	 had	 met	 Fed.	 R.	 Civ.	 P.	 6(b)’s	 excusable	
neglect	standard).	
	
	         These	 decisions,	 however,	 are	 grounded	 in	 the	 language	 of	 Fed.	 R.	 Civ.	 P.	 56(b):	 “Unless	 a	
different	time	is	set	by	local	rule	or	the	court	orders	otherwise,	a	party	may	file	a	motion	for	summary	
judgment	at	any	time	until	30	days	after	the	close	of	all	discovery.”		(Emphasis	added.)		By	issuing	a	
scheduling	order,	the	court	has	“order[ed]	otherwise,”	and	so	Fed	R.	Civ.	P.	6(b)’s	requirements—
including	 the	 excusable	 neglect	 requirement,	 see	 Lujan,	 497	 U.S.	 at	 896—apply	 when	 a	 party	 has	
missed	 the	 deadline	 stated	 in	 the	 scheduling	 order.	 	 Maine’s	 Rule	 56	 does	 not	 contain	 the	 same	
language.		Rather,	it	provides:	“A	party	against	whom	a	claim	.	.	.	is	asserted	.	.	.	may,	at	any	time,	but	
within	such	time	as	not	to	delay	the	trial,	move	with	or	without	supporting	affidavits	for	a	summary	
judgment	in	the	party’s	favor	as	to	all	or	any	part	thereof.”		M.R.	Civ.	P.	56(b)	(emphasis	added).	
    	                                                                                  11	

whether	 a	 trial	 is	 needed,	 and	 can	 obviate	 the	 need	 for	 the	 parties	 and	 the	

court	to	proceed	to	trial.		See	M.R.	Civ.	P.	56(c);	Curtis	v.	Porter,	2001	ME	158,	

¶	 7,	 784	 A.2d	 18;	 Rancourt	 v.	 Waterville	 Osteopathic	 Hosp.,	 526	 A.2d	 1385,	

1387-88	 (Me.	 1987);	 see	 also	 Guardianship	 of	 Jo	 Ann	 L.,	 2004	 ME	 68,	 ¶	 11,	

847	A.2d	 415	 (“Summary	 judgment	 procedure	 is	 an	 appropriate	 practice	

encouraged	 in	 most	 litigated	 cases	 in	 order	 to	 effectuate	 policies	 of	 judicial	

economy.”).	

	       [¶16]		Although	Rule	6(b)	provides	the	general	rule	for	nondispositive	

pleadings	and	motions,	the	rule	specific	to	summary	judgment	itself	provides	

as	follows:	

       A	 party	 against	 whom	 a	 claim,	 counterclaim,	 or	 cross-claim	 is	
       asserted	or	a	declaratory	judgment	is	sought	may,	at	any	time,	but	
       within	 such	 time	 as	 not	 to	 delay	 the	 trial,	 move	 with	 or	 without	
       supporting	affidavits	for	a	summary	judgment	in	the	party’s	favor	
       as	to	all	or	any	part	thereof.	
       	
M.R.	 Civ.	 P.	 56(b)	 (emphasis	 added).	 	 “The	 primary	 purpose	 of	 [Rule	 56’s]	

outermost	time	limit	is	to	prevent	delaying	tactics.”		3	Harvey	&	Merritt,	Maine	

Civil	 Practice	 §	 56:4	 at	 231	 (3d	 ed.	 2015-2016).	 	 Where	 a	 scheduling	 order	

imposes	a	deadline,	“better	practice	suggests	filing	a	motion	for	leave	to	file	a	

late	 motion	 for	 summary	 judgment	 if	 new	 grounds	 develop	 late	 in	 the	 case	

justifying	 the	 motion.”	 	 Maine	 State	 Bar	 Association,	 The	 Maine	 Rules	 of	 Civil	
12	 	

Procedure	 with	 Advisory	 Committee	 Notes	 and	 Practice	 Commentary	

§	56	(2008).	 	 A	 trial	 court’s	 decision	 on	 whether	 to	 grant	 leave	 to	 file	 a	 late	

motion,	i.e.,	whether	to	grant	a	motion	for	an	enlargement	of	time,	“is	entitled	

to	 considerable	 deference	 because	 of	 [the	 court’s]	 superior	 position	 to	

evaluate	 the	 credibility	 and	 good	 faith	 of	 the	 parties	 before	 it.”	 	 Dalton,	

2010	ME	120,	¶	6,	8	A.3d	670	(quotation	marks	omitted).	

	       [¶17]		We	now	clarify	that,	contrary	to	Levis’s	contention,	the	trial	court	

has	discretion	to	allow	a	late-filed	motion	for	summary	judgment,	even	absent	

a	showing	of	excusable	neglect,	if	the	request	is	made	“within	such	time	as	not	

to	 delay	 the	 trial,”	 M.R.	 Civ.	 P.	 56(b).	 	 See	 Carter	 v.	 Bangor	 Hydro-Elec.	 Co.,	

598	A.2d	739,	741	(Me.	1991);	Rancourt,	526	A.2d	at	1387-88.		The	trial	court	

should	 consider	 whether	 the	 motion	 is	 interposed	 for	 the	 purpose	 of	 delay,	

and	 whether	 granting	 leave	 to	 file	 the	 motion	 will	 promote	 effective	 case	

management	 or	 result	 in	 undue	 costs	 to	 the	 parties	 or	 prejudice	 to	 the	

nonmoving	party.	

	       [¶18]	 	 In	 this	 case,	 the	 initial	 scheduling	 order,	 generated	 in	

October	2009,	 provided	 for	 a	 discovery	 deadline	 of	 mid-January	 2010	 and	 a	

deadline	 for	 summary	 judgment	 motions	 of	 mid-February	 2010.	 	 Konitzky	

filed	 his	 motion	 for	 leave	 to	 file	 a	 summary	 judgment	 motion	 in	 late	
    	                                                                                  13	

December	2013.	 	 During	 the	 years	 in	 between,	 both	 parties	 engaged	 in	 a	

convoluted	 procedural	 entanglement	 involving,	 inter	 alia,	 the	 following:	 in	

February	2011—after	the	deadline	for	filing	motions	had	passed—Levis	filed	

a	motion	for	summary	judgment,	which	was	later	denied;	in	August	2011,	the	

court	extended	the	deadline	for	defendants	to	answer	the	original	complaint	

until	September	2011,	and	then	again	extended	that	deadline	for	thirty	more	

days;	in	September	2011,	Konitzky	entered	a	first	appearance	as	a	defendant	

in	 the	 case;	 in	 November	 2011,	 Levis	 filed	 a	 motion	 for	 default	 against	

Konitzky;	 and	 in	 2012,	 the	 parties	 finally	 engaged	 in	 discovery	 in	 earnest,	

designating	 expert	 witnesses	 and	 serving	 interrogatories.	 	 When	 Konitzky	

filed	 his	 request	 for	 leave	 to	 file	 a	 motion	 for	 summary	 judgment	 in	

December	2013,	 the	 case	 had	 been	 placed	 on	 a	 trailing	 trial	 list	 for	

January	16,	2014,	but	it	was	not	reached	on	that	date	and	was	rescheduled	for	

April	11,	2014.		The	court	granted	Konitzky’s	motion	for	summary	judgment	

by	order	entered	March	12,	2014.		

	       [¶19]	 	 This	 much	 is	 clear:	 throughout	 the	 proceedings,	 neither	 the	

parties	 nor	 the	 court	 adhered	 to	 the	 scheduling	 order.	 	 Levis	 himself	 filed	 a	

motion	for	summary	judgment	after	the	motion	deadline.		Although	it	would	

have	 been	 better	 practice	 for	 the	 court	 to	 issue	 a	 new	 scheduling	 order	
14	 	

reflecting	the	actual	progress	of	the	action,	and	to	grant	Levis	an	opportunity	

to	 respond	 to	 Konitzky’s	 request,	 on	 this	 record,	 the	 court’s	 actions	 did	 not	

exceed	the	bounds	of	its	discretion.		With	discovery	extending	two	years	past	

the	 original	 deadline,	 the	 potential	 for	 late-filed	 dispositive	 motions	 was	

obvious.	 	 Had	 the	 court	 determined	 that	 the	 timing	 of	 Konitzky’s	 motion	 for	

summary	 judgment	 would	 delay	 trial,	 add	 unnecessary	 costs,	 or	 prejudice	

Levis	 in	 some	 way,	 it	 had	 the	 discretion	 to	 deny	 the	 motion.	 	 However,	 the	

summary	 judgment	 process	 did	 not	 delay	 trial,	 and	 Levis	 does	 not	

demonstrate	 how	 he	 was	 prejudiced	 by	 the	 court’s	 decision	 to	 allow	 the	

motion.		To	the	contrary,	the	record	reflects	that	the	court	had	before	it	Levis’s	

timely-filed	 opposition	 to	 Konitzky’s	 motion	 for	 summary	 judgment	 when,	

viewing	 the	 evidence	 in	 the	 light	 most	 favorable	 to	 Levis	 as	 required,	 see	

Nader	v.	Me.	Democratic	Party,	2012	ME	57,	¶	30,	41	A.3d	551,	it	determined	

that	 Konitzky	 was	 entitled	 to	 a	 judgment	 as	 a	 matter	 of	 law.	 	 Under	 these	

circumstances,	we	cannot	conclude	that	the	court	exceeded	the	bounds	of	its	

discretion	 when	 it	 decided,	 in	 December	 2013,	 to	 allow	 Konitzky	 to	 file	 his	

motion	for	summary	judgment.		
      	                                                                                15	

B.	       Grant	of	Summary	Judgment	to	Konitzky	

	         [¶20]		Levis	next	argues	that	the	court	erred	when	it	entered	a	summary	

judgment	in	favor	of	Konitzky	on	Levis’s	claim	of	title	to	the	disputed	area	of	

the	 mudflat.	 	 “We	 review	 the	 grant	 of	 a	 motion	 for	 summary	 judgment	 de	

novo,	and	consider	both	the	evidence	and	any	reasonable	inferences	that	the	

evidence	produces	in	the	light	most	favorable	to	the	party	against	whom	the	

summary	 judgment	 has	 been	 granted	 in	 order	 to	 determine	 if	 there	 is	 a	

genuine	 issue	 of	 material	 fact.”	 	 Budge	 v.	 Town	 of	 Millinocket,	 2012	 ME	 122,	

¶	12,	 55	 A.3d	 484	 (quotation	 marks	 omitted).	 	 “When	 the	 defendant	 is	 the	

moving	 party,	 he	 must	 establish	 that	 there	 is	 no	 genuine	 dispute	 of	 fact	 and	

that	 the	 undisputed	 facts	 would	 entitle	 him	 to	 judgment	 as	 a	 matter	 of	 law.”		

Estate	of	Cabatit	v.	Canders,	2014	ME	133,	¶	8,	105	A.3d	439.		“It	then	becomes	

the	plaintiff’s	burden	to	make	out	the	prima	facie	case	and	demonstrate	that	

there	are	disputed	facts”	regarding	issues	material	to	the	applicable	law.		Id.;	

see	also	Corey	v.	Norman,	Hanson	&	DeTroy,	1999	ME	196,	¶	9,	742	A.2d	933.	

	         1.	   Adverse	Possession	

	         [¶21]	 	 On	 Konitzky’s	 motion	 for	 summary	 judgment,	 Levis	 had	 the	

burden	 to	 make	 out	 a	 prima	 facie	 case	 for	 adverse	 possession.	 	 To	 establish	

title	 through	 adverse	 possession,	 a	 party	 must	 prove	 by	 a	 preponderance	 of	
16	 	

the	evidence	that	the	party’s	use	and	possession	of	the	subject	property	was	

(1)	 actual,	 (2)	 open,	 (3)	 visible,	 (4)	notorious,	 (5)	hostile,	 (6)	under	 claim	 of	

right,	 (7)	continuous,	 (8)	exclusive,	 and	 (9)	 of	 a	 duration	 of	 at	 least	 twenty	

years.		Dombkowski	v.	Ferland,	2006	ME	24,	¶	10,	893	A.2d	599.			

	       [¶22]	 	 At	 the	 outset,	 we	recognize	the	 long-standing	 doctrine	in	Maine	

that	the	intertidal	zone,	or	wet	sand	area,	is	subject	to	a	public	easement	for	

fishing,	fowling,	and	navigation.		See	Bell	v.	Town	of	Wells,	557	A.2d	168,	173	

(Me.	 1989).	 	 Despite	 this	 recognized	 public	 easement,	 Levis	 nonetheless	

argues	 that,	 by	 “using”	 the	 mudflats	 in	 front	 of	 his	 upland	 property	 for	

clamming	and	tying	boats,	he	has	acquired	title	through	adverse	possession	to	

the	 intertidal	 zone.	 	 As	 a	 matter	 of	 law,	 this	 use—even	 if	 it	 had	 not	 been	

interrupted	by	Konizky’s	use	of	the	same	area	for	clamming	and	boating—is	

not	sufficient	to	establish	title	through	adverse	possession.	

	       2.	   Claim	of	Title	Under	Deed	

	       [¶23]		Levis	also	claims	that	he	acquired	title	to	the	mudflat	through	a	

2008	quitclaim	deed	from	his	ex-wife.		Although	the	ex-wife’s	quitclaim	deed	

purports	to	convey	the	mudflat	by	listing	its	metes	and	bounds,	Levis	admits	

that	there	were	no	record	conveyances	to	his	ex-wife	from	the	last	owner	of	

record,	 Cartland.	 	 Levis	 asserts	 that	 his	 ex-wife	 acquired	 title	 by	 adverse	
    	                                                                                    17	

possession	 herself;	 however,	 he	 did	 not	 provide	 sufficient	 documentation	 or	

evidence,	 or	 any	 specific	 allegations,	 to	 support	 this	 contention,	 such	 as	 a	

record	 title	 in	 the	 registry	 of	 deeds	 or	 some	 indicia	 that	 she	 sought	 to	 quiet	

title	through	the	courts.		In	addition,	his	ex-wife’s	theoretical	claim	of	adverse	

possession	 suffers	 from	 the	 same	 infirmity	 as	 his:	 the	 asserted	 use	 of	 the	

intertidal	 zone	 is	 insufficient	 to	 meet	 the	 necessary	 elements	 for	 adverse	

possession.	 	 Therefore,	 Levis	 did	 not	 set	 forth	 specific	 facts	 establishing	 a	

genuine	issue	for	trial	that	he	is	the	owner	of	the	mudflat	by	virtue	of	deed.		Cf.	

Dionne	v.	LeClerc,	2006	ME	34,	¶	11,	896	A.2d	923	(concluding	that	a	break	in	

chain	of	title,	which	had	been	transferred	to	the	town	by	operation	of	law	due	

to	unpaid	taxes,	was	cured	by	a	subsequent	quitclaim	deed	from	the	town	to	

the	plaintiff).			

	       3.	   Quiet	Title	

	       [¶24]		Levis	also	contends	that	the	court	erred	by	entering	a	summary	

judgment	in	Konitzky’s	favor	on	his	quiet	title	action	because	he	has	alleged	a	

prima	facie	claim	of	title	to	the	disputed	mudflat	against	the	true	owners.		The	

quiet	title	statue	provides	that	a	person	may	bring	a	quiet	title	action	if	he	or	

she	 has	 been	 in	 uninterrupted,	 i.e.	 continuous	 and	 exclusive,	 possession	 for	

the	four	years	preceding	the	commencement	of	the	action.		14	M.R.S.	§	6651;	
18	 	

see	 Chickering	 v.	 Yates,	 420	A.2d	1219,	 1223	 (Me.	 1980).	 	 Levis	 filed	 his	

complaint	 in	 2009.	 	 He	 admitted	 in	 his	 statement	 of	 material	 facts	 that	

Konitzky	 had	 made	 use	 of	 the	 mudflat	 since	 2002.	 	 Because	 Levis	 admitted	

that	his	possession	was	not	exclusive	for	more	than	four	years	preceding	the	

action,	he	did	not	make	a	prima	facie	showing	that	he	is	entitled	to	quiet	title	

relief.		To	be	clear,	relief	pursuant	to	the	quiet	title	statute	is	only	available	if	

the	plaintiff	in	such	an	action	provides	the	legal	basis	for	that	title.		The	statute	

does	not	provide	an	independent	basis	for	a	claim	of	title.		

	       [¶25]		Viewing	the	facts	and	all	reasonable	inferences	in	the	light	most	

favorable	to	Levis,	the	record	establishes	that	he	cannot	succeed	in	his	claims	

of	 adverse	 possession	 or	 title	 under	 deed	 or	 in	 his	 quiet	 title	 action.	 	 We	

therefore	 conclude	 that	 the	 District	 Court	 did	 not	 err	 when	 it	 entered	

summary	judgments	in	Konitzky’s	favor	on	those	claims.	

C.	     2015	Order	Denying	Levis’s	Third	Motion	for	Default	Judgment	

        [¶26]	 	 Finally,	 Levis	 argues	 that	 the	 court	 abused	 its	 discretion	 by	

denying	 his	 motion	 for	 a	 default	 judgment	 in	 May	 2015.	 	 He	 contends	 that	

(1)	the	 court	 could	 not	 declare	 Konitzky	 an	 assignee	 of	 J.	Henry	 Cartland	

because	 Konitzky	 had	 not	 made	 a	 timely	 appearance	 to	 make	 an	 affirmative	

claim	 to	 the	 land,	 and	 (2)	 the	 court	 incorrectly	 declared	 that	 all	 of	 Levis’s	
    	                                                                                 19	

claims	 against	 all	 parties	 had	 been	 adjudicated.	 	 We	 review	 the	 denial	 of	 a	

motion	for	a	default	judgment	for	an	abuse	of	discretion.		See	Millett	v.	Dumais,	

365	A.2d	1038,	1040	(Me.	1976).			

	       [¶27]	 	 Title	 14	 M.R.S.	 §	 6653	 provides	 that	 “[t]he	 grantee	 of	 any	

defendant	named	or	described	in	the	complaint,	or	any	person	claiming	under	

such	 grantee,	 may	 voluntarily	 appear	 and	 become	 a	 party	 [to	 a	 quiet	 title	

action].	.	.	.	If	any	person	who	becomes	such	grantee	by	conveyance	recorded	

after	the	filing	of	the	[court	clerk’s]	certificate	[in	the	registry	of	deeds]	does	

not	voluntarily	appear,	no	such	conveyance	by	the	defendant	shall	be	given	in	

evidence	.	.	.	and	the	issue	shall	be	determined	as	though	no	such	conveyance	

were	made.”		Levis	contends	that	because	Konitzky	failed	to	file	his	answer	by	

the	 deadline	 set	 by	 the	 court	 of	 September	 2,	 2011,	 the	 conveyance	 to	 him	

should	not	be	recognized.		Contrary	to	his	contention,	however,	based	on	the	

court’s	 subsequent	 order	 extending	 scheduling	 deadlines	 for	 thirty	 days,	

Konitzky’s	“voluntary	appearance”	was	timely.		The	court	accepted	Konitzky’s	

status	 as	 a	 defendant	 in	 an	 order	 dated	 January	 25,	 2012,	 and	 stated	 in	 its	

May	2015	order	that	“Konitzky,	as	assignee	of	Cartland’s	interest,	was	the	only	

defendant	to	appear	and	defend	in	the	case.”		Also,	as	the	court	made	clear	in	

its	 order	 denying	 Levis’s	 motion	 for	 a	 default	 judgment,	 its	 entry	 of	 a	
20	 	

summary	 judgment	 in	 Konitzky’s	 favor	 did	 not	 signify	 that	 Konitzky,	 or	

anyone	else,	had	title	to	the	disputed	mudflat;	it	decided	only	that	Levis	had	

not	proved	his	claim	of	title.	

	       [¶28]	 	 Levis’s	 argument	 that	 the	 court	 erred	 in	 determining	 that	 all	

claims	 against	 all	 parties	 had	 been	 adjudicated	 because	 Cartland’s	 unknown	

heirs	and	assigns	had	not	appeared	is	also	unavailing.		Through	his	quiet	title	

action,	 Levis	 sought	 a	 declaration	 that	 he	 has	 title	 to	 the	 mudflat.	 	 The	 court	

entered	a	summary	judgment	in	Konitzky’s	favor	because	Levis	was	unable,	as	

a	matter	of	law,	to	make	out	that	claim.		See	McGrath	v.	Hills,	662	A.2d	215,	217	

(Me.	1995)	(“Showing	no	title	in	themselves,	the	plaintiffs	cannot	prevail	even	

if	it	turned	out	that	the	defendants	had	no	title.”	(quotation	marks	omitted)).		

As	the	court	stated,	“What	is	fully	resolved	is	that	Levis	does	not	have	title	to	

the	disputed	mudflats	by	virtue	of	adverse	possession	and	Levis	is	not	entitled	

to	 quiet	 title	 relief.”	 	 Entry	 of	 a	 default	 judgment	 against	 the	 Cartland	 heirs	

would	be	inconsistent	with	the	court’s	adjudication	of	Levis’s	claim	of	title	to	

the	 same	 property.	 	 The	 court	 therefore	 did	 not	 exceed	 the	 bounds	 of	 its	

discretion	in	declining	to	enter	a	default	judgment	against	the	Cartland	heirs.			

        The	entry	is:	

                     Judgment	affirmed.	
    	                                                                         21	

	     	     	     	      	       	
	
On	the	briefs:	
	
      Jason	 Dionne,	 Esq.,	 and	 Juliana	 McKittrick,	 Esq.,	 Isaacson	 &	
      Raymond,	P.A.,	Lewiston,	for	appellant	James	N.	Levis	
      	
      Thomas	 B.	 Federle,	 Esq.,	 Federle	 Law,	 LLC,	 Augusta,	 for	
      appellee	Gustav	Konitzky	
	
	
At	oral	argument:	
      	
      Jason	Dionne,	Esq.,	for	appellant	James	N.	Levis	
      	
      Thomas	B.	Federle,	Esq.,	for	appellee	Gustav	Konitzky	
	
	
	
Wiscasset	District	Court	docket	number	RE-2009-59	
FOR	CLERK	REFERENCE	ONLY	
	
