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Pelton v. Cotton Mill, LLC

United States District Court, D. New Hampshire

May 2, 2019

James Pelton and Tania Pelton
v.
Cotton Mill, LLC

          ORDER

          Landy McCafferty, United States District Judge

         In the winter of 2016, James Pelton slipped and fell on ice outside of an apartment complex owned by defendant Cotton Mill, LLC (“Cotton Mill”). James and his wife Tania Pelton sued Cotton Mill, alleging that they suffered injuries caused by defects in the design of Cotton Mill's recent renovation of the apartment complex. Cotton Mill then filed a third-party complaint against The Architectural Team (“TAT”), which served as the architect for the renovation project, alleging that any design defects in the project were attributable to TAT. TAT, in turn, filed a fourth-party complaint against Harvey Construction Corporation (“Harvey Construction”), the alleged construction manager for the renovation project. TAT alleged that it provided proper architectural plans for the project to Harvey Construction, but that Harvey Construction did not fully implement those plans, causing the defect that led to plaintiffs' injuries. Cotton Mill then filed a cross claim against Harvey Construction asserting that it should be found at fault for plaintiffs' injuries based on its conduct as construction manager.

         Harvey Construction now moves to dismiss the claims asserted against it in TAT's fourth-party complaint and Cotton Mill's cross claim. Doc. no. 33. Put simply, it asserts that TAT and Cotton Mill have sued the wrong party because it did not serve as the construction manager for the renovation project. In support, Harvey Construction submits a contract that it contends demonstrates that another entity, Harvey/Stabile Cotton Mill, LLC (“Harvey/Stabile”), served as the construction manager.[1] TAT and Cotton Mill object. Doc. nos. 38, 39. For the following reasons, the court denies Harvey Construction's motion to dismiss.[2]

         DISCUSSION

         I. Appropriate Standard of Review

         As a threshold matter, the parties dispute the proper standard of review and whether the court should consider supplementary materials appended to the parties' pleadings. Ordinarily, on a motion to dismiss, “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.” Ironshore Specialty Ins. Co. v. United States, 871 F.3d 131, 135 (1st Cir. 2017) (internal quotation marks omitted). However, the First Circuit has recognized certain “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. (internal quotation marks omitted). And the court may review a document, the authenticity of which is not challenged, when a complaint's factual allegations are “expressly linked to . . . and admittedly dependent upon” that document. Id. (internal quotation marks omitted).

         Here, Harvey Construction appended to its motion to dismiss portions of a contract entitled “Standard Form of Agreement Between Owner and Construction Manager as Constructor” (“Standard Form Agreement”).[3] Doc. no. 34-1. This contract appears to be an agreement between Cotton Mill as the owner of the apartment complex and Harvey/Stabile as the construction manager of a renovation project at that complex. Id. at 1-2. The contract is dated February 25, 2013. Id. at 1. Harvey Construction contends that the Standard Form Agreement is the basis of Cotton Mill's and TAT's claims against it.

         Despite this contention, neither Cotton Mill's cross claim nor TAT's amended fourth-party complaint expressly references or relies upon this specific contract between Cotton Mill and Harvey/Stabile. Instead, Cotton Mill's and TAT's allegations refer to a contract between Cotton Mill and Harvey Construction. Cotton Mill's cross claim alleges that it “contracted with Harvey [Construction] for the latter to provide construction management services relative to the building renovations.” Doc. no. 22 at 2. Similarly, TAT's amended fourth-party complaint alleges that “On or about 2012, Cotton Mill hired Harvey [Construction] for the latter to provide general-contractor services for the renovation of the Apartment Complex.” Doc. no. 44 at 2.

         Both pleadings refer generally to a contract between Cotton Mill and Harvey Construction, not Harvey Stabile. And neither explicitly relies upon or refers to the Standard Form Agreement. Indeed, the allegations in TAT's amended fourth-party complaint refer to an agreement reached in or about 2012, prior to the Standard Form Agreement. Additionally, although Cotton Mill and TAT do not contest the authenticity of the Standard Form Agreement, both parties argue in objection to the motion to dismiss that the Standard Form Agreement is not the agreement underlying their claims against Harvey Construction. See doc. nos. 38 at 2-3, 39 at 3.

         Based on the allegations in the amended fourth-party complaint and cross claim, it is not clear that TAT's and Cotton Mill's claims against Harvey Construction are “expressly linked to” or “admittedly dependent upon” the Standard Form Agreement that Harvey Construction has submitted. Ironshoe, 871 F.3d at 135 (internal quotation marks omitted). In fact, TAT's and Cotton Mill's allegations raise the inference that their claims rely upon a different agreement or agreements between the parties. Because the claims in the amended fourth-party complaint and the cross claim are not linked to or dependent upon the Standard Form Agreement, the court finds it inappropriate to consider that contract in ruling on the motion to dismiss. See Gotlin v. Lederman, No. 05-CV-1899 (ILG), 2006 WL 1154817, at *5 (E.D.N.Y. Apr. 28, 2006) (refusing to consider documents submitted by defendants with motion to dismiss when there was “no indication that plaintiffs relied upon them in framing” the amended complaint).[4]

         Given that the court will not consider the Standard Form Agreement if it treats the motion as one under Rule 12(b)(6), the question remains whether the court should convert the motion into one for summary judgment and consider the Standard Form Agreement and the supplemental materials submitted by TAT and Cotton Mill. It is within this court's discretion whether to convert a motion to dismiss into one for summary judgment. Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008); see also Fed.R.Civ.P. 12(d). The court finds it inappropriate to do so in this case. Discovery is in its infancy. Harvey Construction has yet to respond to interrogatories and no depositions have been conducted. Further, some of the materials that the parties appended to their pleadings had not been previously disclosed. Under these circumstances, the court declines to convert the motion. See Dzuira v. United States, 966 F.Supp. 126, 130 n.8 (D. Mass. 1997) (declining to convert motion to dismiss to summary judgment “given the nascency of discovery”).

         The court therefore treats the pending motion as one to dismiss under Rule 12(b)(6), and in ruling on the motion, the court will focus only on the allegations in the amended fourth-party complaint and cross claim. See Garita Hotel Ltd. P'ship v. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 18-19 (1st Cir. 1992)(“If the district court chooses to ignore the supplementary materials and determines the motion under the Rule 12(b)(6) standard, no conversion [into a motion for summary judgment] occurs.”).

         Under 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 ...


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