United States District Court, D. New Hampshire
DICLERICO, Jr., District Judge.
Outlets, LLC brought suit against Healthy Food Corporation,
d/b/a Frozurt, ("HFC") and Tai H. Pham after HFC
failed to pay rent due under a lease for commercial space in
Merrimack, New Hampshire, that is subject to a guaranty
signed by Pham. HFC brought a third-party complaint against
ThurKen III, LLC and ThurKen's manager, Richard E.
Landry, Jr., arising from the original lease agreement with
ThurKen. ThurKen and Landry move to dismiss the claims
response to the motion to dismiss, HFC has voluntarily
dismissed its claims for breach of contract and promissory
estoppel, Counts I and III of the Third Party Complaint. HFC
objects to the motion to dismiss the claim against ThurKen
and Landry for fraudulent misrepresentation, Count II.
considering a motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6), the court
assumes the truth of the properly pleaded facts and takes all
reasonable inferences from the facts that support the
plaintiff's claims. Mulero-Carrillo v.
Roman-Hernandez, 790 F.3d 99, 104 (1st Cir. 2015).
Conclusory statements in the complaint that merely provide
the elements of a claim or a legal standard are not credited
for purposes of a motion under Rule 12(b)(6). Lemelson v.
U.S. Bank Nat'l Assn., 721 F.3d 18, 21 (1st Cir.
2013). Based on the properly pleaded facts, the court
determines whether the plaintiff has stated "a claim to
relief that is plausible on its face." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
in October of 2011, HFC was in the business of selling frozen
yogurt products at retail outlets. In February of 2012, HFC
contacted Dustin Burke, Jr., president of American Commercial
Real Estate, LLC, about leasing a retail location for its
frozen yogurt business in Westford, Massachusetts. Burke
responded that the Westford location was not available.
contacted HFC in April of 2012 about leasing space at a
proposed strip mall that would be built by ThurKen in
Merrimack, New Hampshire. The financing for the mall required
ThurKen to have signed leases for all four spaces in the
mall. By early April, ThurKen had signed leases with
Starbucks, Qdoba Mexican Grill, and Digital Credit Union.
April 18, 2012, Burke, on behalf of ThurKen, sent a letter of
intent to HFC to rent space at the mall. The letter proposed
a "triple net lease" with an initial term of
fifteen years, base yearly rent of $80, 000 for the first
five years, and other charges. HFC responded that it could
not afford the space under the terms of the lease,
particularly the fifteen year term. Either Burke or Landry on
behalf of ThurKen told HFC that the bank required the fifteen
year lease term. Landry also told HFC that if HFC could not
pay the rent, the space easily could be leased to other
signed the lease on June 1, 2012. HFC agreed to the lease
terms "based on Landry's assurances that meant the
most it would lose if it defaulted on the lease would be the
cost to fit up the space to conduct its frozen yogurt
business." ThurKen bought the property to build the mall
on June 1, 2012.
sold the mall to 17 Outlets on April 17, 2014. In October of
2014, 17 Outlets served HFC with an eviction notice for
failure to pay rent. 17 Outlets also brought this action
against HFC to recover damages for breach of the lease.
fraud claim, HFC alleges that ThurKen and Landry falsely
represented to it that the fifteen-year lease term was
required to obtain bank financing and that HFC could
terminate the lease at any time "without any further
adverse economic consequence." HFC asserts that those
representations were false and that it relied on those
representations in signing the lease, which has resulted in
the action by 17 Outlets seeking damages from HFC. ThurKen
and Landry move to dismiss the fraud ...