United States District Court, D. New Hampshire
Heather Rodger, et al.
United States of America Opinion No. 2017 DNH 055
F. Dugan, Esq.
B. Haines, Esq.
J. Rabuck, Esq.
K. Johnstone United States Magistrate Judge.
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")- 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.
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.
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
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)).
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.
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.
the factual allegations set forth in the plaintiffs'
complaint as true, the relevant facts are as follows.
Heather Rodger ("Heather") first came under the
care of Ammonoosuc 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. ...