United States District Court, D. New Hampshire
Nimco Real Estate Associates, LLC, et al.
Gregory G. Nadeau, as Administrator of the Federal Highway Administration, et al. Opinion No. 2017 DNH 056
Joseph Bedrick, Esq.
A. Bolton, Esq.
S. Bourbeau, Esq.
Matthew T. Broadhead, Esq.
Stephen G. LaBonte, Esq.
K. Leonard, Esq.
L. Ollila, Esq.
DiClerico, Jr. United States District Judge.
Real Estate Associates, LLC; Ultima Nashua Equipment
Corporation; and Anoosh Irvan Kiamanesh, who is manager of
Nimco and president of Ultima, brought suit against Gregory
G. Nadeau, the administrator of the Federal Highway
Administration (“FHWA”), the City of Nashua, and
the New Hampshire Department of Transportation
(“NHDOT”), alleging claims that arose from the
acquisition of the plaintiffs' property by eminent domain
for a highway project. The plaintiffs move to strike a
declaration filed in support of Nadeau's motion to
dismiss, and Nadeau objects.
moved, pursuant to Federal Rule of Civil Procedure
12(b)(1), to dismiss the claims brought against the
Federal Department of Transportation on the ground that the
court lacks subject matter jurisdiction. In support,
Nadeau submitted the declaration of Mark Hasselmann, the
Right of Way Program manager at the FHWA. The plaintiffs move
to strike the declaration, arguing that in considering a
motion under Rule 12 the court cannot consider matters
outside the pleadings, that the motion should not be
converted to a motion for summary judgment, and that the
declaration is defective.
Scope of Motion under Rule 12(b)(1)
considering a motion under Rule 12(b)(1), the court credits a
plaintiff's properly pleaded allegations and draws all
reasonable inferences in the plaintiff's favor. Reddy
v. Foster, 845 F.3d 493, 497 (1st Cir. 2017). The court
also considers other materials and evidence in the record
“whether or not the facts therein are consistent with
those alleged in the complaint.” Id.; see also
Torres-Negron v. J&N Records, LLC, 504 F.3d 151,
163 (1st Cir. 2007). Therefore, an affidavit or declaration
that would not be considered for purposes of a motion to
dismiss under Rule 12(b)(6) is properly considered for
purposes of a motion under Rule 12(b)(1). See Mehic v.
Dana-Farber Cancer Inst., Inc., 2017 WL 637681, at *3
(D. Mass. Feb. 16, 2017); Conservation Law Found. v.
Cont'l Paving, Inc., 2016 WL 7116019, at *2
(D.N.H. Dec. 6, 2016).
properly submitted a declaration in support of the motion to
dismiss for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1). As a result, the court need not consider
whether to convert ...