United States District Court, D. New Hampshire
Micronics Filtration Holdings, Inc.
Timothy Miller, Peter Kristo, and Pure Filtration, LLC
Fulton Broemer, Esq. Matthew R. Johnson, Esq. Mark B. Rosen,
N. Laplante United States District Judge
trade-secrets case, plaintiff Micronics Filtration Holdings,
Inc. has moved for reconsideration of the court's October
4, 2018, order granting-in-part and denying-in-part
defendants' motion to dismiss the amended
complaint. Micronics argues that the court erred,
first when it applied the heightened pleading standard of
Federal Rule of Civil Procedure 9(b) to portions of its
claims for intentional interference with existing contractual
relations and violation of the New Hampshire Consumer
Protection Act (“NHCPA”), and also when the court
refused to consider material attached to Micronics'
withdrawn motion for a preliminary injunction in assessing
those claims and Micronics' defamation claim. Local rule
7.2(d) allows a party to seek reconsideration of an
interlocutory order based on manifest errors of fact or law.
Micronics has identified no such errors.
of Rule 9(b).
argues that the court made two errors when it applied Rule
9(b) to Micronics' interference and NHCPA claims. First,
it contends that the court improperly inserted a reliance
requirement into these claims. This misreads the court's
order. The court did not suggest that Micronics needed to
show that it relied on alleged misstatements to state a
claim. Claims which do not explicitly charge fraud are still
subject to Rule 9(b) if the factual allegations
“effectively charge fraud.” N. Am. Catholic
Educ. Programming Found., Inc. v. Cardinale, 567 F.3d 8,
15 (1st Cir. 2009). In the relevant passage of the order, the
court considered potential arguments Micronics might have
made that its factual allegations did not “effectively
charge fraud, ” and therefore should not be subject to
Rule 9(b). The court highlighted the fact that
Micronics did not rely on the alleged misstatements not as a
deficiency in its claims, but as a potential argument that
its allegations were not essentially allegations of fraud.
For the reasons stated in the order, the court determined
that this arguable deviation from the “textbook
elements of a fraud” was not decisive and that Rule
9(b) applied to Micronics' allegations. The court did not
insert a reliance element into Micronics' claims.
Micronics maintains that the court incorrectly interpreted
the Cardinale decision. Micronics reads Cardinale as limiting
the application of Rule 9(b) to instances where the plaintiff
has explicitly pleaded fraud. The court considered and
rejected this reading in the order. While it is true that the
plaintiff in Cardinale explicitly pleaded fraudulent conduct
as support for an interference claim, the First Circuit Court
of Appeals explained in both Cardinale and Mulder v.
Kohl's Dep't Stores, Inc. that Rule 9(b) also applies
“where the core allegations effectively charge
fraud.” Cardinale, 567 F.3d at 15; Mulder, 865 F.3d 17,
21-22 (1st Cir. 2017). And Mulder favorably cites a District
of Massachusetts case in which the district court applied
Rule 9(b) to a claim under Massachusetts's consumer
protection statute even though the plaintiff did not
explicitly plead fraud. 865 F.3d at 22 (citing Martin v.
Mead Johnson Nutrition Co., No. 09-cv-11609-NMG, 2010 WL
3928707, at *3 (D. Mass. Sept. 30, 2010)).
reliance on Cardinale's statement that “arguably
Rule 9(b) does not apply except so far as fraud is
specifically alleged as an ingredient of the claim”
assumes that “specifically alleged” means
“explicitly alleged.” 567 F.3d at 14. But the
better reading is that “specifically alleged”
includes both “explicitly alleged” and
“effectively alleged, ” and that the statement
means that Rule 9(b) only applies to an intentional
interference claim to the extent that the underlying factual
allegations of interference explicitly or effectively allege
fraud. Micronics has identified no manifest error
in the court's application of Cardinale.
of injunction pleadings
ruling on the motion to dismiss, the court declined to
consider materials that Micronics submitted in support of its
motion for a preliminary injunction. Micronics argues that this
constitutes manifest error. It further contends that
allegations in these materials, when combined with the
amended complaint, would allow Micronics to meet the
heightened standard of Rule 9(b) for its intentional
interference and NHCPA claims and the heightened requirement
for defamation pleading.
of documents “not attached to the complaint or
expressly incorporated by it” is normally forbidden in
the context of a motion to dismiss. Flores v. OneWest
Bank, F.S.B., 886 F.3d 160, 167 (1st Cir. 2018). But the
First Circuit Court of Appeals has recognized “narrow
exceptions for documents the authenticity of which are not
disputed by the parties; for official public records; for
documents central to plaintiffs' claim; or for documents
sufficiently referred to in the complaint.”
Id. (quoting Watterson v. Page, 987 F.2d 1,
3 (1st Cir. 1993)). Micronics argues that its
injunction-related filings fall under the “official
public records” and “central to plaintiffs'
claim” exceptions. They do not.
contents of documents filed with a court are not
automatically “official public records” for the
purposes of Rule 12(b)(6) review. See Rocket Learning,
Inc. v. Rivera-Sanchez, 715 F.3d 1, 9 n.5 (1st Cir.
2013) (A “preliminary injunction hearing record . . .
does not fall within any of the narrow exceptions”
outlined in Watterson.); Streit v. Bushnell, 424
F.Supp.2d 633, 639 n.3 (S.D.N.Y. 2006)(“A complaint
cannot be modified by a party's affidavit or by papers
filed in response to a dispositive motion to dismiss or for
summary judgment.”). Instead, “the phrase
‘official public records' . . . appears limited, or
nearly so, to documents or facts subject to judicial notice
under Federal Rule of Evidence 201.” Freeman v.
Town of Hudson, 714 F.3d 29, 36 (1st Cir. 2013). That
rule permits judicial notice of “a fact that is not
subject to reasonable dispute, ” because it is either
generally known or “can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.” Fed.R.Evid. 201.
filings certainly might fall within the scope of the rule,
especially if the question at hand is the legal effect of
previous proceedings. See Boateng v. InterAm. Univ.,
Inc., 210 F.3d 56 (1st Cir. 2000) (considering a state
court complaint and judgement in assessing res judicata);
Henson v. CSC Credit Services, 29 F.3d 280 (7th Cir.
1994) (considering state court documents to determine if a
certain judgment had in fact been entered). But the fact that
a party has filed a document with a court does not elevate
the accuracy of its contents. Micronics asks the court to
take accusations from disputed affidavits attached to a
motion for preliminary injunction and add them as allegations
to the amended complaint in the same lawsuit. As these
accusations are subject to reasonable dispute, this would not
be an exercise of judicial notice, and so is beyond the
“official public records” exception.
injunction-related filings also do not fall within the
“central to plaintiff's claim” exception.
This exception exists for documents from which the claims
arise, such as transactional documents or allegedly wrongful
publications. See Watterson, 987 F.2d at 4 (citing offering
documents in a securities fraud case and an article alleged
to be libelous); Shaw v. Dig. Equip. Corp., 82 F.3d
1194, 1220 (1st Cir. 1996) (considering the substance of
allegedly false or misleading statements in a securities
action); Campbell v. Specialized Loan Servicing, LLC,
No. 13-cv-278, 2014 WL 280492 at *1 n.1 (D.N.H. Jan. 23,
2014) (Barbadoro, J.) (considering the note and mortgage in a
foreclosure case). Under this exception, “[a] court may
properly consider the relevant entirety of a document
integral to or explicitly relied upon in the complaint, even
though not attached to the complaint, ” because
plaintiffs might otherwise selectively quote or omit material
which undermined their claim. Shaw, 82 F.3d at 1220. The
measure of whether a document is central to a claim is not
whether its content assists plaintiff in adequately pleading
the claim, but whether it is itself a necessary foundation of
the claim. Affidavits describing alleged misstatements or
defamation are not “central” in this way.
there were grounds to consider the injunctive pleadings,
Micronics has not shown that the court would be obligated to
do so. The First Circuit Court of Appeals recently explained
that “there are some ‘narrow exceptions' in
which a court may, if it chooses, consider extrinsic
documents . . . without turning the 12(b)(6) motion into a
motion for summary judgment.” Newman v. Lehman
Bros. Holdings Inc.,901 F.3d 19, 25 (1st Cir.
2018)(emphasis added). Once exception is where the document
“effectively merges into the pleadings, ” which
gives “the court the discretion to consider such
additional material.” Id. (emphasis added).
Newman arguably assumes that defendants are arguing for
consideration of extrinsic documents, and the alternative is
summary judgement. But Micronics has not ...