Nimco Real Estate Associates, LLC v. Nadeau

          Jared Joseph Bedrick, Esq.

          Steven A. Bolton, Esq.

          Mark S. Bourbeau, Esq.

          Matthew T. Broadhead, Esq.

          Stephen G. LaBonte, Esq.

          Celia K. Leonard, Esq.

          Terry L. Ollila, Esq.

          ORDER

          Joseph DiClerico, Jr. United States District Judge.

         Nimco 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.

         Nadeau 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.^[1] 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.

         A. Scope of Motion under Rule 12(b)(1)

         In 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).

         Nadeau 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 ...