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Harriman v. Kemen

United States District Court, D. New Hampshire

February 20, 2015

Stephen Harriman, Plaintiff,
Patti Kemen, Individually and on behalf of REMAX Legacy; Patti Kemen Enterprises, LLC; Vendor Resource Management, Inc.; and Federal Home Loan Mortgage Corp. (a/k/a Freddie Mac), Defendants. Opinion No. 2015 DNH 028


STEVEN J. McAULIFFE, District Judge.

Plaintiff, Stephen Harriman, was severely injured while attempting to remove an above-ground swimming pool for one or more of the named defendants. In the wake of that accident, he filed this action seeking damages for his injuries. In his complaint, Harriman advances the following state common law claims: negligence (count one); negligent training and supervision (count two); premises liability (count three); intentional infliction of emotional distress (count four); and negligent infliction of emotional distress (count five).

Pending before the court is defendant Vendor Resource Management, Inc.'s motion to dismiss all claims asserted against it. For the reasons discussed, that motion is granted.

Standard of Review

When ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must "accept as true all well-pleaded facts set out in the complaint and indulge all reasonable inferences in favor of the pleader." SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010). Although the complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), it must allege each of the essential elements of a viable cause of action and "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal punctuation omitted).

In other words, "a plaintiff's obligation to provide the grounds' of his entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Instead, the facts alleged in the complaint must, if credited as true, be sufficient to "nudge[] [plaintiff's] claims across the line from conceivable to plausible." Id. at 570. If, however, the "factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal." Tambone, 597 F.3d at 442.[1]


Accepting the factual allegations in Harriman's complaint as true, the relevant background is as follows. In September of 2010, Freddie Mac conducted a foreclosure sale of property located in Windham, New Hampshire, and took title to that property. Subsequently, it contracted with Patricia Kemen, owner of the Remax Legacy real estate agency in Dover, New Hampshire, to market and sell the property. Lisa Corbin Walker, a real estate agent in that office, was assigned to oversee clean-up at the property and its eventual sale.

Separately, Freddie Mac had previously contracted with Vendor Resource Management, Inc. ("VRM") to oversee the maintenance, marketing, and sale of many of the properties to which Freddie Mac had taken title by way of foreclosure deed. VRM is a Texas corporation, with an office in Pomona, California. Among other things, VRM was charged with reviewing and approving any expenses related to preservation, maintenance, and disposition of the numerous properties owned by Freddie Mac - including the property in Windham.

In early 2011, Walker asked Harriman if he was interested in doing the "trash out" for the Windham property. Harriman had been performing such work for Walker as an independent contractor since the end of 2010. "Trash out" apparently involves removing debris from the property and, in general, preparing it for sale. According to Harriman, in an e-mail dated February 16, 2011, he provided Walker with an estimate for his "trash out" services at the Windham property so she might submit it to VRM for approval. That estimate did not, however, include a proposed price for removing an above-ground pool on the property. So, Walker asked Harriman to revise his estimate to include the pool removal, which he did. But, according to Harriman, he cautioned Walker that:

The estimate contains the removal of the above ground pool. I just want to be clear that this cannot be removed until all the snow and ice is melted. The pool liner, if it has one, is going to be filled with up to 4 feet of ice on it. I will not be able to get it out right now.

Complaint at para. 26. In response, Harriman says Walker admitted that she had "dropped the ball" on this property, should have obtained approval from VRM for Harriman's services long ago, and clean-up at the property was now "a rush." Id. at para. 27. Harriman responded, telling Walker that:

The pool could not be removed until the ice and snow were gone because even if the pool were removed, there would be a three to four thousand pound chunk of ice on top of the liner, which he would ...

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