POWERS v. PLANNED PARENTHOOD
6/6/1996
tuation. M.R.Civ.P. 27(a)(1). If there is more than
(i) that the petitioner expects to be a party to an action
cognizable in a court of the state but is presently unable to
bring it or cause it to be brought, (ii) the subject matter of
the expected action and the petitioner's interest therein,
(iii) the facts which the petitioner desires to establish by
the proposed testimony . . . and the petitioner's reasons for
desiring to perpetuate . . . it, (iv) the names or a
description of the persons the petitioner expects will be
adverse parties and their addresses so far as known, and (v)
the names and addresses of the persons to be examined . . . and
the substance of the testimony . . . which the petitioner
expects to elicit. . . .
Id. Rule 27 also contains a notice requirement which provides, in relevant part:
The petitioner shall thereafter serve a notice upon each person
named in the petition as an expected adverse party, together
with a copy of the petition, stating that the petitioner will
apply to the court, at a time and place named therein, for the
order described in the petition. At least 20 days before the
date of hearing the notice shall be served either within or
without the state in the manner provided in Rule 4(d), (e), or
(j) for service of summons; but if such service cannot with due
diligence be made upon any expected adverse party named in the
petition, the court may make such order as is just for service.
M.R.Civ.P. 27(a)(2). Planned Parenthood raises several objections to Powers's petition to perpetuate her own testimony, all of which focus on her alleged failure to comply with the requirements of M.R.Civ.P. 27(a). The standard of review for orders granting or denying petitions to perpetuate testimony is an abuse of discretion. Shore v. Acands, Inc., 644 F.2d at 386 (discussing F.R.Civ.P. 27).
Powers's inability to bring an action
cognizable in court
Planned Parenthood contends that Powers's unsubstantiated statement in her petition that she "is presently unable to bring this action or cause it to be brought as she learned only Sunday that the Doctors give her a prognosis of having less than two months to live," is insufficient to satisfy the inability-to-bring-suit requirement of Rule 27(a)(1). We disagree.
Although a bare assertion that the moving party is gravely ill is generally insufficient to satisfy the inability prong of Rule 27(a)(1), cf. Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2072 (1994) (discussing F.R.Civ.P. 27), it was sufficient in this case. Before Powers could bring a This prelitigation screening procedure is mandatory, unless the parties agree to proceed directly with a lawsuit. See 24 M.R.S.A. § 2853(5). In the absence of and initiating discovery during the prelitigation screening process. The filing of a notice of a medical malpractice claim is not equivalent to the bringing of an action in court as that phrase is used in Rule 27.
County of filing
A petition to perpetuate testimony may be filed in the county of the residence of any expected adverse party. M.R.Civ.P. 27(a)(1). Powers should have filed her petition in Cumberland County, where Planned Parenthood resides, instead of Franklin County, where she resides. Recognizing that Powers filed her petition in a county in which no expected adverse party resides, Planned Parenthood contends that the Superior Court did not have jurisdiction over the petition.
The jurisdiction of a court to entertain a motion to perpetuate testimony is supported by the grounds of jurisdiction that will sup
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