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Schneider v. Putnam
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 26
Docket: 	Pen-97-392
Submitted 
on Briefs:	January 16, 1998
Decided:	February 2, 1998

Panel:		WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ,
		and SAUFLEY, JJ.
TIMOTHY SCHNEIDER, et al. v. KENNETH PUTNAM, et al.

RUDMAN, J.

	[¶1]  Timothy Schneider and Jeanie Schneider appeal from the
judgment entered in the Superior Court (Penobscot County, Cole J.)
dismissing with prejudice their complaint against Kenneth Putnam{1} for
failure to prosecute.  The Schneiders contend that the court exceeded the
bounds of its discretion in denying their motion for a continuance.  We
disagree and affirm the judgment.
	[¶2]  The Schneiders instituted this action in December of 1994.  In
April of 1995, the court (Penobscot County, Alexander, J.) entered an order
dismissing the suit with prejudice unless the Schneiders filed a Pretrial
Scheduling Statement within ten days.  The Schneiders complied, and
discovery was ordered closed January 3, 1996.  In March of 1996, the court
(Penobscot County, Kravchuk, J.) entered an order dismissing the suit with
prejudice unless the Schneiders filed a Report of Conference of Counsel
within ten days and imposed sanctions in the amount of $75 against the
Schneiders' counsel.  Again, the Schneiders complied.
	[¶3]  In September of 1996, the Schneiders' counsel addressed a
letter to the clerk of courts to request that

when the above matter is ready to be scheduled for trial, it be
specially set.  The Plaintiffs are now residents of the state of
Minnesota, and it will require effort and planning for them to
return to Maine.  If a special setting is not possible, I would
request that as much notice as possible be given. 

On January 30, 1997, the parties were notified that the case had been
placed on the list of jury-waived back-up trials scheduled for the March 10-
April 11 trial session.  On February 12, 1997, the Schneiders filed a motion
requesting "[t]hat the case at bar be moved from the current list and
specially assigned to a later date."  (emphasis added).  The case was not
reached for trial during the period in question; the court did not rule on the
plaintiffs' motion.  On March 14, 1997, the parties were notified that the
case had been listed as a back-up trial for the May 6-June 13 trial session. 
Instead of reiterating their request for a special assignment to a specific
date, the Schneiders took no action upon their counsel's receipt of this
notice.  On June 3, 1997, the parties were notified by telephone that the
case was set as a jury-waived trial on June 12, 1997.  The Schneiders again
took no further action to seek a special assignment.  One week later, the
court met with counsel for the parties, and the record is void of any formal
motion made by the Schneiders seeking a continuance, nor have the
Schneiders provided us with a transcript of that conference.  When, on June
12, 1997, the case was reached for trial, the Schneiders were not present;
their counsel indicated that he could not go forward.
	[¶4]  We review the trial court's denial of a motion for a continuance
for an abuse of discretion.  See Ficek v. Coastal Harbors Inc., 658 A.2d 1055,
1056 (Me. 1995); Pelletier v. Pelletier, 597 A.2d 60, 61 (Me. 1991).  "The
moving party has the burden of proof on its motion to 'make known to the
presiding justice substantial reasons why the granting of the continuance
would serve to further justice.'"  Wellstone Partners v. J & M Constr. Co.,
581 A.2d 789, 792 (Me. 1990) (quoting Farrell v. Theriault, 464 A.2d 188,
192 (Me. 1983) (emphasis in original)).
	[¶5]  The record indicates that the Schneiders had notice that their
case would be vulnerable for trial during the period May 12-June 13, 1997,
and that on June 3, 1997, they had notice that the case would be set for trial
on June 12, 1997.  Pursuant to M.R. Civ. P. 40(b), "[a] motion for
continuance of an action shall be made not less than 4 days before the date
set for commencement of trial in the action . . . ."  They took no timely
action to seek a further continuance.  On the facts of this case, the trial
court acted well within the bounds of its discretion when on June 12, 1997,
it dismissed the plaintiff's action for failure to prosecute.	
	The entry is:
					Judgment affirmed. 
                  
Attorney for plainitffs: Schuyler G. Steele, Esq. P O Drawer F Newport, ME 04953 Attorney for defendant: Nathan Dane, III, Esq. 205 French Street, Suite One Bangor, ME 04401
FOOTNOTES******************************** {1} The original defendants were Putnam, F.S.B. Inc. d/b/a ERA of Maine, and Richard Trott. The Superior Court (Penobscot County, Mead, J.) granted F.S.B. Inc. a summary judgment in July of 1996. Trott moved for a summary judgment in April of 1997. According to the Schneiders, "Trott was granted Summary Judgment shortly prior to trial." This judgment is not reflected on the docket, however.