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Rodger v. United States

United States District Court, D. New Hampshire

March 21, 2017

Heather Rodger, et al.
v.
United States of America Opinion No. 2017 DNH 055

          Kevin F. Dugan, Esq.

          Holly B. Haines, Esq.

          Robert J. Rabuck, Esq.

          ORDER

          Andrea K. Johnstone United States Magistrate Judge.

         The plaintiffs, Heather and Adam Rodger, bring this two-count medical malpractice claim against the United States of America (the "Government") under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b); 2671 et seq. See Compl. (doc. no. 1). In Count I, Heather Rodger alleges medical negligence on the part of Ammonoosuc Community Health Services, Inc. ("Ammonoosuc")-[1] In Count II, Adam Rodger seeks to recover for loss of consortium. The Government moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that the plaintiffs' action is barred by the FTCA's two-year limitations period. (Doc. no 7.) The plaintiffs object. (Doc. no. 9.) For the following reasons, the Government's motion is denied.

         Standard of Review

         The parties dispute the applicable standard of review. The Government moves to dismiss under Rule 12(b)(6). In their objection, the plaintiffs have provided certain affidavits that they contend the court should consider, and accordingly request that the court convert the Government's motion to one for summary judgment. In response, the Government argues that the court need not consider anything outside of the complaint in order to determine that dismissal is appropriate here as a matter of law.

         The scope of the court's analysis on a Rule 12(b)(6) motion is generally limited to "facts and documents that are part of or incorporated into the complaint . . . ." GE Mobile Water, Inc. v. Red Desert Reclamation, LLC, 6 F.Supp.3d 195, 199 (D.N.H. 2014) (quoting Rivera v. Centro Medico de Turabo, Inc., 575 F.3d, 10, 15 (1st Cir. 2009)); see also Fed.R.Civ.P. 12(d). The First Circuit has recognized a limited exception to this general rule for certain categories of documents, see GE Mobile Water, Inc., 6 F.Supp.3d at 199, but there is no question here that the affidavits submitted by the plaintiffs do not fall within one or more of these categories.

         Outside of this exception, "any consideration of documents not attached to the complaint, or not expressly incorporated therein, is forbidden, unless the proceeding is properly converted into one for summary judgment under [Rule] 56." Cooperativa de Ahorro y Credito Aguada v. Kidder, Peabody & Co., 993 F.2d 269, 272 (1st Cir. 1993) (internal quotation marks omitted) (citation omitted); see also Fed.R.Civ.P. 12(d) ("If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56."). When a court elects to convert a Rule 12(b)(6) motion into one for summary judgment, "[a]11 parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d). The decision to convert is "wholly" within the trial court's discretion. Buck v. Am. Airlines, Inc., 476 F.3d 29, 38 (1st Cir. 2007) (citing Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 17 (1st Cir. 1998)).[2]

         The court declines to convert the Government's motion into one for summary judgment here. The court agrees with the plaintiffs that additional evidence beyond the allegations in the complaint is necessary to determine whether the plaintiffs' action is barred by the limitations period. Indeed, as discussed below, this serves as the court's primary basis for denying the Government's motion. But the court does not believe that converting the Government's motion into a Rule 56 motion now, before any meaningful discovery has occurred, would serve the interests of this litigation. The court will accordingly analyze the Government's motion under the Rule 12(b)(6) standard.

         Under Rule 12(b)(6), the court must accept the factual allegations in the complaint as true, construe reasonable inferences in the plaintiffs' favor, and "determine whether the factual allegations . . . set forth a plausible claim upon which relief may be granted." Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014) (citation and quotation marks omitted). A claim is facially plausible "when the plaintiff[s] plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Analyzing plausibility is "a context-specific task" in which the court relies on its "judicial experience and common sense." Id. at 679.

         Background

         Accepting the factual allegations set forth in the plaintiffs' complaint as true, the relevant facts are as follows.

         Plaintiff Heather Rodger ("Heather") first came under the care of Ammonoosuc[3] in February of 2010, when she moved to New Hampshire from Vermont. In March of 2012, Heather learned that she was pregnant. On November 17, 2012, Heather gave birth to a baby girl at Littleton Regional Hospital ("LRH"). After delivery, Heather complained of "coccyx" pain in her tailbone. ...


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