HomeMy WebLinkAbout955278CORDON NELSON dba NELSON
WATER WELL DRILLING AND
PUMP SERVICE,
vs.
RICHARD DORIAN,
Plaintiff,
Defendant.
1
CV- 2009 -306
IN THE DISTRICT COURT OF LINCOLN COUNTY AUG 2 5
THIRD JUDICIAL DISTRICT
KFNNIETH
?;LT
3r6 .iii, ,r .iJ!i. ?i'rac.;T
LINCOLN COUN FY, STATE OF VVYOVIING
RECEIVED 9/1/2010 at 9:49 AM
RECEIVING 955278
BOOK: 753 PAGE: 67
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND
PLAINTIFF'S MOTION FOR LEAVE TO AMEND HIS COMPLAINT
A 37
THIS MATTER came on before the Court on Defendant Richard Dorion's MOTION TO
DISMISS pursuant to W.R.C.P 12(b)(1) and 12(b)(6), supported by the affidavits of Richard
Dorion and Anabel Dorion, and on the Plaintiffs MOTION FOR LEAVE TO FILE AND
SERVE AN AMENDED COMPLAINT. The Plaintiff was represented by Anthony Martineau,
and the Defendant by Mark Sullivan. The Court, having considered the motions, opposition
thereto, arguments of counsel, and the record as a whole, and being thus advised in the premises,
FINDS that both motions are warranted, and therefore GRANTED.
Dismissal of Plaintiff's claim for lien foreclosure is appropriate here for the following
reasons. First, this Court lacks jurisdiction to hear the Complaint and it therefore must be
dismissed pursuant to Wyo. R. Civ. P. Rul.e 12 (b)(1). The Complaint includes only one cause
of action, which seeks to foreclose upon a mechanic's lien. This Court lacks jurisdiction because
the Complaint does not name Anabel Dorion, who, together with her husband defendant Richard
Dorion, owns the property in question as Tenants by the Entireties.
Second, the Complaint fails to state a claim upon which relief may be granted, and thus
must be dismissed pursuant to Wyo. R. Civ. P. Rule 12(b)(6) because of the Plaintiff failed to
comply with the provisions of the Wyoming lien law. In particular, the Complaint must be
dismissed for the following reasons:
a. The lien was not sworn as required by Wyoming Statutes 29- 2- 301(a).
b. Notice of the lien was not given to the Defendant "promptly after the lien
statement is filed" by certified mail as required by Wyoming Statutes 29-1
301(c).
Cordon Nelson v. Richard Dorian, CV 2009 306
Order Granting Defendant's Motion to Dismiss and Plaintiff's Motion for Leave to Amend Complaint
Third, during the hearing on this matter, counsel for the Plaintiff conceded that the lien
filing suffered from fatal defects, and that the lien foreclosure proceeding is properly dismissed.
However, in the interest of justice, and in the exercise its broad discretion under
W.R.C.P. 15, the Court will grant the Plaintiffs motion for leave to amend the complaint to state
a cause of action for breach of contract. The Plaintiff shall have 14 days from the date of this
Order to file and serve a First Amended Complaint raising his breach of contract cause of action.
THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:
(1) That Defendant's Motion To Dismiss be, and the same is, hereby granted, and the
Plaintiffs' lien foreclosure cause of action is dismissed with prejudice; and
(2) That the Plaintiff's lien dated November 16, 2009, recorded on November 20,
2009 with the Clerk for Lincoln County, Wyoming at Book 736 of Photos,
Pages 388 -89, is hereby declared null and void, and released; and
(3) That the Plaintiff's Lis Pendens, dated November 30, 2009, recorded on
December 28, 2009 with the Clerk for Lincoln County, Wyoming at Book 738
of Photos, Pages 872 -73, is hereby declared null and void, and released; and
(4) The Plaintiff is granted leave to amend his complaint to state a cause of action for
breach of contract against Richard Dorion and Anabel Dorion and directed to
file and serve an amended complaint within 14 days of the date of this Order.
DATED thi- day
2010.
BY THE CO
Honorab oVllNG s n
DISTRI i
2
LINCOLN
88.
I, Kenneth D. Roberts, Clerk of the Third
Judicial District Court within and foresaid
county and in the State of foresaid, do
hereby certify the foregoing to be a full,
true, and complete copy,
4.›.0
Cordon Nelson v. Richard Dorian, CV 2009 306
Order Granting Defendant's Motion to Dismiss and Plaintiff s Motion for Leave to Amend Complaint