United States District Court, D. New Hampshire
McCafferty, United States District Judge.
suit arises out of plaintiffs' purchase and construction
of a log home kit. Plaintiffs bring this action against
United Wall Systems, LLC, d/b/a UWS Construction Group
(“UWS”), Leroy Page, and several other corporate
entities that were involved in either the sale of the log
home kit or its construction, asserting claims sounding in
contract and tort, and a violation of the New Hampshire
Consumer Protection Act. Before the court is defendant
UWS's motion to dismiss all claims against it under
Federal Rule of Civil Procedure 12(b)(6). Plaintiffs object
to this motion. For the following reasons, UWS's motion
Rule 12(b)(6), the court must accept the factual allegations
in the complaint as true, draw all reasonable inferences from
those facts in the plaintiff's favor, and
“determine whether the factual allegations in the
plaintiff's complaint set forth ‘a plausible claim
upon which relief may be granted.'” Foley v. Wells
Fargo Bank, N.A., 772 F.3d 63, 71, 75 (1st Cir. 2014)
(quotation omitted). A claim is facially plausible
“when the plaintiff pleads 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).
following allegations are taken from the
complaint. In January 2017, plaintiffs purchased a
log home kit from defendant Southland Log Homes, Inc.
(“Southland”), which they intended to construct
on property located in New Hampshire. Southland provided
plaintiffs with a list of approved builders, and plaintiffs
selected Leroy Page from that list.
acting as an agent of UWS, sent plaintiffs a quote for the
proposed construction of the log home. Plaintiffs
subsequently signed a cost breakdown and construction budget
document provided to them by Page (“construction
and UWS started construction of the log home on
plaintiffs' property in New Hampshire in May 2017. Doc.
no. 1 at 3. Plaintiffs paid Page over $180, 000 during the
course of construction. After completion of the log home in
October 2017, plaintiffs discovered multiple construction
problems, such as crooked and leaning walls, drainage into
the home, and no heat in some areas. Plaintiffs allege that
the deficient construction caused them emotional distress and
forced them to incur additional costs, including alternative
living arrangements, and retention of a building inspector
and construction manager to repair the home.
on these allegations, plaintiffs assert the following claims
against UWS and Page: breach of contract and implied
warranties; quantum meruit and unjust enrichment; negligence;
negligent infliction of emotional distress; and violation of
the New Hampshire Consumer Protection Act.
moves to dismiss all claims against it, arguing that the
complaint alleges insufficient facts to support any of
plaintiffs' claims. Doc. no. 20 at 3-5. The court
addresses each claim in turn.
Breach of Contract and Implied Warranties (Count I)
moves to dismiss plaintiffs' breach of contract and
breach of implied warranties claims, arguing that the
complaint fails to state such claims because there is no
allegation that plaintiffs “had a contract or
agreement” with UWS or that “Page . . . was an
‘agent' of UWS.” Doc. no. 20 at 3. Plaintiffs
correctly point out that the complaint does, in fact, include
those allegations. Doc. no. 22 at 3.
order to state a breach of contract claim under New Hampshire
law, [the plaintiff] must allege sufficient facts to show (1)
that a valid, binding contract existed between the parties,
and (2) that [defendant] breached the terms of the
contract.” Wilcox Indus. Corp. v. Hansen, 870
F.Supp.2d 296, 311 (D. N.H. 2012); see also Norton v.
Burleaud,115 N.H. 435, 436 (1975) (recognizing claim
for breach of implied warranty ...