MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2019	ME	21	
Docket:	      Yor-18-147	
Submitted	
  On	Briefs:	 November	28,	2018	
Decided:	     February	12,	2019	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                               MARCEL	DUBOIS	et	al.	
                                        	
                                       v.	
                                        	
                              TOWN	OF	ARUNDEL	et	al.	
	
	
JABAR,	J.	

       [¶1]		Marcel	Dubois	and	Sol	Fedder	appeal	from	an	order	of	the	Superior	

Court	(York	County,	O’Neil,	J.)	granting	the	Town	of	Arundel’s	motion	to	dismiss	

their	complaint	and	imposing	sanctions	on	Dubois	and	Fedder.		We	affirm	the	

order	 dismissing	 Dubois	 and	 Fedder’s	 complaint,	 but	 vacate	 the	 order	 of	

sanctions	and	remand	to	the	Superior	Court.	

                                    I.		BACKGROUND	

	      [¶2]		This	appeal	relates	to	the	Town	of	Arundel	Planning	Board’s	denial	

of	 an	 application	 to	 renew	 a	 conditional	 use	 permit	 submitted	 by	 Dubois	
2	

Livestock,	 Inc.1	 	 Dubois	 and	 Fedder	 were	 not	 listed	 as	 the	 applicants	 for	 the	

renewal	permit,	were	not	listed	as	the	property	owners,	and	were	not	listed	as	

the	authorized	agents	of	Dubois	Livestock.		Dubois	Livestock’s	application	was	

denied	by	the	Town	of	Arundel	Planning	Board	on	July	21,	2017,	during	a	public	

hearing	 that	 was	 not	 attended	 by	 any	 representative	 of	 Dubois	 Livestock.2		

Dubois	and	Fedder	did	not	participate	in	the	public	hearing	in	any	capacity.			

          [¶3]		On	September	18,	2017,	Dubois	and	Fedder	filed	a	complaint	against	

the	 Town	 of	 Arundel,	 individual	 members	 of	 the	 Planning	 Board,	 and	 the	

Arundel	 Town	 Planner.	 	 Dubois	 and	 Fedder’s	 complaint	 alleged	 that	 a	

memorandum	drafted	by	the	town	planner	and	distributed	to	the	members	of	

the	Planning	Board	led	to	an	illegal	executive	session	or	sessions.		Following	the	

submission	of	briefs	pursuant	to	a	Rule	80B	Notice	and	Briefing	Schedule,	the	

Town	of	Arundel	moved	to	dismiss	Dubois	and	Fedder’s	complaint	as	untimely	

filed,	for	lack	of	standing,	and	for	failure	to	state	a	claim.		On	February	1,	2018,	

the	Superior	Court	granted	the	motion	to	dismiss,	concluding:	

          [T]he	plaintiffs	lack	standing	to	bring	the	action,	no	subject	matter	
          jurisdiction	exists	for	the	court	to	properly	review	the	matter,	and	

     1		Dubois	Livestock	is	an	agricultural	composting	facility	located	in	Arundel,	Maine,	which	was	

granted	a	conditional	use	permit	pursuant	to	a	consent	decree	that	it	entered	into	with	the	Town	of	
Arundel	on	June	27,	2016.			
     2	 	 The	 application	 was	 denied	 because	 Dubois	 Livestock	 failed	 to	 demonstrate	 that	 it	 was	 in	

compliance	with	the	terms	of	the	consent	decree.			
                                                                                       3	

       plaintiffs	 fail	 to	 state	 a	 claim	 upon	 which	 relief	 can	 be	 granted	
       under	the	[Freedom	of	Access	Act].		Defendants’	motion	to	dismiss	
       is	 granted.	 	 Given	 the	 significant	 problems	 with	 the	 present	
       litigation,	the	court	also	awards	defendants	reasonable	attorney’s	
       fees	and	expenses	pursuant	to	Rule	11	of	the	Maine	Rules	of	Civil	
       Procedure	.	.	.	.	
       	
At	 the	 invitation	 of	 the	 Superior	 Court,	 the	 Town	 of	 Arundel	 subsequently	

submitted	an	affidavit	of	attorney	fees	and	costs,	seeking	$5,862.50	in	attorney	

fees	 and	 $231.75	 in	 costs,	 which	 the	 court	 then	 determined	 was	 reasonable.		

Dubois	 and	 Fedder	 moved	 for	 reconsideration	 and	 relief	 from	 the	 Superior	

Court’s	judgment,	but	both	motions	were	denied.		This	timely	appeal	followed.		

See	M.R.	Civ.	P.	80B(n);	M.R.	App.	P.	2B(c)(1)-(2)(D).			

                                   II.		DISCUSSION	

      [¶4]	 	 It	 is	 unclear	 from	 the	 face	 of	 the	 complaint	 whether	 Dubois	 and	

Fedder	rely	on	the	Freedom	of	Access	Act	(FOAA),	1	M.R.S.	§§	400-414	(2017),	

as	the	statutory	avenue	for	review	under	Maine	Rule	of	Civil	Procedure	80B,	or	

if	they	are	asserting	a	separate	cause	of	action	pursuant	to	FOAA.		Nevertheless,	

the	 present	 appeal	 fails	 in	 either	 event	 because	 Rule	 80B	 is	 not	 the	 proper	

mechanism	 to	 assert	 a	 FOAA	 claim,	 Dubois	 and	 Fedder	 lacked	 standing	 to	

pursue	 a	 Rule	 80B	 complaint,	 and	 the	 complaint	 failed	 to	 state	 a	 claim	 upon	

which	relief	can	be	granted	under	FOAA.			
4	

A.	    Rule	80B	Standing	

       [¶5]		The	court	concluded	that	Dubois	and	Fedder	did	not	have	standing	

to	bring	this	claim	pursuant	to	Rule	80B	and,	alternatively,	that	any	such	claim	

was	untimely.		We	have	held	that	Rule	80C	is	inapplicable	to	FOAA	claims.		See	

Dubois	 v.	 Office	 of	 the	 Attorney	 General,	 2018	 ME	 67,	 ¶	 7	 n.3,	 185	 A.3d	 734.		

Rule	80B	is	the	municipal	analogue	to	Rule	80C,	which	applies	to	appeals	from	

state	 administrative	 action,	 and	 thus	 the	 same	 principle	 applies	 here,	 in	 the	

context	of	appeals	from	municipal	action.		Accordingly,	to	the	extent	that	Dubois	

and	 Fedder	 seek	 to	 assert	 a	 FOAA	 claim	 through	 the	 process	 prescribed	 by	

Rule	80B,	 the	 court	 correctly	 dismissed	 the	 claim	 because	 Rule	80B	 is	

inapposite.		See	id.	

       [¶6]		Even	if	the	complaint	can	be	construed	as	a	Rule	80B	appeal	that	

seeks	 relief	 from	 municipal	 action	 other	 than	 a	 FOAA	 violation,	 the	 court	

correctly	concluded	that	neither	Dubois	nor	Fedder	has	standing.		We	review	

whether	a	party	has	standing	de	novo.		See	Bank	of	Am.,	N.A.	v.	Greenleaf,	2015	

ME	 127,	 ¶	 6,	 124	 A.3d	 1122.	 	 “Standing	 is	 a	 condition	 of	 justiciability	 that	 a	

plaintiff	must	satisfy	in	order	to	invoke	the	court’s	subject	matter	jurisdiction	

in	the	first	place.”		Id.	¶	7.		In	order	to	have	standing	to	file	a	Rule	80B	complaint,	

the	 complainant	 must	 show	 “(1)	that	 it	 was	 a	 party	 at	 the	 administrative	
                                                                                           5	

proceeding,	 and	 (2)	 that	 it	 suffered	 a	 particularized	 injury	 as	 a	 result	 of	 the	

agency’s	decision.”		See	Norris	Family	Assocs.,	LLC	v.	Town	of	Phippsburg,	2005	

ME	102,	¶	11,	879	A.2d	1007.				

       [¶7]		Here,	Dubois	and	Fedder	were	not	involved	in	the	 administrative	

proceedings	in	 any	 manner.		In	Dubois	 Livestock’s	application	for	renewal	of	

the	 conditional	 use	 permit,	 “Dubois	 Livestock”	 is	 listed	 as	 the	 applicant,	

“Randrick	Trust”	is	listed	as	the	property	owner,	and	“Ricky	Dubois	and	Randy	

Dubois”	 are	 listed	 as	 the	 authorized	 agents	 for	 Dubois	 Livestock.	 	 Neither	

Dubois	nor	Fedder	attended	the	administrative	hearing	on	July	21,	2017,	and	

neither	has	alleged	a	particularized	injury	as	a	result	of	the	Planning	Board’s	

denial	of	Dubois	Livestock’s	application	for	a	renewal	permit.		As	a	result,	the	

Superior	 Court	 did	 not	 err	 by	 dismissing	 Dubois	 and	 Fedder’s	 Rule	 80B	

complaint	for	lack	of	standing.		See	Friends	of	Lincoln	Lakes	v.	Town	of	Lincoln,	

2010	ME	78,	¶¶	12-17,	2	A.3d	284.	

B.	    Failure	to	State	a	Claim	Pursuant	to	FOAA	

       [¶8]	 	 Dubois	 and	 Fedder	 argue	 that	 a	 complaint	 brought	 pursuant	 to	

FOAA	is	not	subject	to	dismissal	under	M.R.	Civ.	P.	12(b)(6).		Dubois	and	Fedder	

further	assert	that,	even	if	a	claim	for	relief	based	on	FOAA	is	subject	to	a	motion	

to	 dismiss,	 the	 Superior	 Court	 erred	 because	 they	 pleaded	 sufficient	 facts	 to	
6	

entitle	them	to	relief	pursuant	to	FOAA.		We	review	the	grant	of	a	 motion	to	

dismiss	 de	 novo	 and	 examine	 the	 complaint	 in	 the	 light	 most	 favorable	 to	

Dubois	and	Fedder	to	determine	whether	their	complaint	sets	forth	elements	

of	a	cause	of	action	or	alleges	facts	that	would	entitle	them	to	relief	on	some	

legal	theory.		See	Paul	v.	Town	of	Liberty,	2016	ME	173,	¶¶	17,	19,	151	A.3d	924.	

      [¶9]		Pursuant	to	section	403	of	FOAA,	“all	public	proceedings	must	be	

open	 to	 the	 public	 and	 any	 person	 must	 be	 permitted	 to	 attend	 a	 public	

proceeding”	unless	an	exception	applies.		See	1	M.R.S.	§	403(1)	(2017);	see	also	

1	M.R.S.	§	405	(2017)	(listing	the	exceptions	to	1	M.R.S.	§	403(1)).		The	purpose	

of	 FOAA’s	 public	 meeting	 requirement	 is	 to	 ensure	 that	 the	 actions	 of	

government	 are	 taken	 openly.	 	 See	 Hughes	 Bros.,	 Inc.	 v.	 Town	 of	 Eddington,	

2016	ME	13,	¶	18,	130	A.3d	978.			

      [¶10]		Contrary	to	Dubois	and	Fedder’s	contentions,	the	Superior	Court	

did	not	err	in	dismissing	their	complaint	because	they	had	failed	to	state	a	claim	

that	 would	 entitle	 them	 to	 relief	 pursuant	 to	 FOAA.	 	 Specifically,	 Dubois	 and	

Fedder	failed	to	allege	that	any	action	was	taken	during	the	alleged	executive	

session	 or	 sessions	 which	 would	 entitle	 them	 to	 the	 relief	 provided	 for	 by	

1	M.R.S.	409(2)	(2017).		See	Lewiston	Daily	Sun	v.	Sch.	Admin.	Dist.	No.	43,	1999	

ME	143,	¶	11,	738	A.2d	1239.		Rather,	their	complaint	alleged	only	that	Planning	
                                                                                      7	

Board	 members	 received	 a	 memo	 from	 the	 town	 planner	 that	 led	 to	 an	

executive	session	or	sessions	and	that	the	Planning	Board	subsequently	held	a	

public	 hearing	 where	 the	 Planning	 Board	 denied	 Dubois	 Livestock’s	

application.		Additionally,	we	find	no	merit	to	Dubois	and	Fedder’s	argument	

that	a	motion	to	dismiss	is	not	permitted	or	authorized	in	the	context	of	a	FOAA	

complaint.		See	Wright	v.	Dep’t	of	Def.	&	Veterans	Servs.,	623	A.2d	1283,	1286	

(Me.	1993);	Great	N.	Paper,	Inc.	v.	Penobscot	Nation,	2001	ME	68,	¶¶	8,	10	n.4,	

770	A.2d	574.	

      [¶11]	 	 Because	 Dubois	 and	 Fedder	 failed	 to	 allege	 that	 any	 action	 was	

taken	 during	 the	 alleged	 executive	 session	 or	 sessions	 which	 would	 entitle	

them	to	any	relief,	the	Superior	Court	did	not	err	in	dismissing	their	complaint.	

C.	   Sanctions	

      [¶12]	 	 Finally,	 Dubois	 and	 Fedder	 argue	 that	 the	 Superior	 Court’s	

imposition	of	sanctions	pursuant	to	M.R.	Civ.	P.	11	was	an	abuse	of	discretion.		

Specifically,	 Dubois	 and	 Fedder	 contend	 that	 the	 order	 imposing	 sanctions	

lacked	a	sufficient	basis	and	was	imposed	without	notice	and	opportunity	to	be	

heard.		We	review	a	trial	court’s	imposition	of	sanctions	pursuant	to	Rule	11	for	

an	abuse	of	discretion.		See	Pepperell	Tr.	Co.	v.	Mountain	Heir	Fin.	Corp.,	1998	

ME	46,	¶	10,	708	A.2d	651.		“An	appellate	court	will	not	lightly	overrule	a	trial	
8	

court’s	 judgmental	 choice	 of	 an	 appropriate	 sanction	 .	 .	 .	 .”	 	 See	 Reeves	 v.	

Travelers	Ins.	Cos.,	421	A.2d	47,	50	(Me.	1980).	

        [¶13]	 	 “Maine’s	 trial	 courts	 may	 sanction	 parties	 for	 various	 types	 of	

pretrial	misconduct,”	see	Wells	Fargo	Bank,	N.A.	v.	Welch-Gallant,	2017	ME	105,	

¶	 7,	 162	 A.3d	 827	 (quotation	 marks	 omitted),	 and	 among	 the	 sanctions	 that	

courts	 are	 authorized	 to	 impose	 are	 reasonable	 attorney	 fees	 and	 expenses	

pursuant	to	Rule	11.		See	M.R.	Civ.	P.	11(a).		In	Green	Tree	Servicing,	LLC	v.	Cope,	

2017	ME	68,	158	A.3d	931,	we	outlined	the	procedural	steps	that	courts	should	

follow	when	determining	whether	to	impose	sanctions.		Id.	¶¶	 19-22.		 These	

steps	include	adequate	notice	to	the	opposing	party	and	an	opportunity	for	that	

party	to	be	heard	before	the	court	considers	the	imposition	of	sanctions.		Id.	

¶¶	20-21.		“The	opportunity	to	be	heard	may,	but	need	not	be,	a	full	evidentiary	

hearing.	 	 For	 example,	 a	 court	 may	 simply	 invite	 the	 plaintiff	 to	 submit	 an	

affidavit	.	.	.	.”		Id.	¶	21.		

        [¶14]		Although	in	Welch-Gallant	and	Cope	we	considered	the	sanction	of	

dismissal	 with	 prejudice	 in	 the	 context	 of	 a	 foreclosure	 case,	 due	 process	

requires	that	the	same	procedure	be	afforded	here	to	Dubois	and	Fedder.		See	

Bd.	 of	 Registration	 in	 Med.	 v.	 Fiorica,	 488	 A.2d	 1371,	 1375	 (Me.	 1985)	

(describing	 “the	 essence	 of	 due	 process	 as	 notice	 and	 an	 opportunity	 to	 be	
                                                                                    9	

heard.”);	Lamboy-Ortiz	v.	Ortiz-Velez,	630	F.3d	228,	246	(1st	Cir.	2010)	(noting	

“the	 general	 desirability	 and	 sometime	 necessity	 of	 affording	 notice	 and	 an	

opportunity	to	be	heard	when	monetary	sanctions	are	imposed	.	.	.	.”	(quotation	

marks	omitted)).		Here,	Dubois	and	Fedder	had	neither	notice	of	the	possible	

imposition	of	sanctions	nor	an	opportunity	to	be	heard,	and	thus	the	Superior	

Court	abused	its	discretion.		Accordingly,	we	vacate	the	Superior	Court’s	order	

imposing	 sanctions.	 	 We	 remand	 to	 the	 Superior	 Court	 for	 it	 to	 conduct	

proceedings	consistent	with	the	process	articulated	in	Cope,	which	will	afford	

Dubois	 and	 Fedder	 notice	 and	 an	 opportunity	 to	 be	 heard	 on	 the	 issue	 of	

sanctions.		

                                    III.	CONCLUSION	

	     [¶15]		We	affirm	the	court’s	order	granting	the	Town	of	Arundel’s	motion	

to	dismiss	Dubois	and	Fedder’s	complaint,	and	we	vacate	the	court’s	imposition	

of	 Rule	 11	 sanctions	 against	 Dubois	 and	 Fedder	 and	 remand	 for	 further	

proceedings	consistent	with	this	opinion.	

      The	entry	is:	

                   Judgment	 as	 to	 sanctions	 vacated.	 	 Judgment	
                   affirmed	 in	 all	 other	 respects.	 	 Remanded	 for	
                   further	proceedings	consistent	with	this	opinion.	
	
	     	        	   	      	     	
	                         	
10	

Marcel	Dubois,	appellant	pro	se	

Sol	Fedder,	appellant	pro	se	

Leah	 B.	 Rachin,	 Esq.,	 and	 Benjamin	 T.	 McCall,	 Esq.,	 Bergen	 &	 Parkinson,	 LLC,	
Kennebunk,	for	appellees	Town	of	Arundel	et	al.	
	
	
York	County	Superior	Court	docket	number	AP-2017-25	
FOR	CLERK	REFERENCE	ONLY	
