United States District Court, D. New Hampshire
Great Northern Ins. Co.
Iron Mountain Water Servs. Co., Inc.
K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE.
Great Northern Insurance Company, as subrogee for its
insureds, Michael and Tracy Roberge, filed this lawsuit
against Iron Mountain Water Services Company. Great Northern
alleges that Iron Mountain negligently operated the water
system that provided water service to Great Northern’s
insureds’ property, resulting in damage to the
parties have consented to the jurisdiction of the undersigned
magistrate judge. Doc. No. 12. Iron Mountain filed a motion
to dismiss (Doc. No. 14) the complaint, which contains a sole
claim of negligence. Great Northern opposes dismissal. For
the reasons that follow, the court construes the motion to
dismiss as a motion for judgment on the pleadings and denies
Motion for Judgment on the Pleadings
Iron Mountain filed its answer before filing the motion to
dismiss, the motion to dismiss is construed as a motion for
judgment on the pleadings under Federal Rule of Civil
Procedure 12(c). See e.g., Weeks v. Five Bros.
Mortg. Servs. & Securing, Inc., 2014 WL 1379335, at
*3 (D.N.H. April 9, 2014).
motion for a judgment on the pleadings is used to attack the
plausibility of a complaint, the motion is evaluated under
the same standard as a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6). Diaz-Nieves v. United
States, 858 F.3d 678, 689 (1st Cir. 2017); Grajales
v. P.R. Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012).
Judgment on the pleadings, therefore, is appropriate if the
facts from the pleadings, taken in the light most favorable
to the nonmovant, fail to allege a plausible entitlement to
relief. Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26,
29 (1st Cir. 2008) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-58 (2007)). As usual, the
court disregards conclusory allegations. Manning v.
Boston Med. Ctr. Corp., 725 F.3d 34, 43 (1st Cir. 2013).
At bottom, the complaint must allege “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) (citing
Twombly, 550 U.S. at 556).
Evidence Attached to Motion to Dismiss
Iron Mountain attached evidence to its motion to dismiss,
Great Northern suggests that the court would have to convert
the motion into one for summary judgment before ruling on it.
See Fed.R.Civ.P. 12(d). Iron Mountain contends that
this evidence shows that it operated the water system for the
insureds’ property pursuant to contracts with a
homeowners’ association for the insureds’
neighborhood. As explained below, however, the contracts are
irrelevant to the negligence claim before the court.
Accordingly, the court need not and does not consider them
for purposes of resolving the motion. Therefore, it is not
necessary to convert the motion to a summary judgment motion.
See id. (requiring conversion to summary judgment
only if the material is not excluded by the court).
to Great Northern’s complaint, Iron Mountain
“operated the water system providing domestic water
service” to a real estate property owned by Great
Northern’s insureds. Doc. 1 ¶¶ 6, 9. On July
16, 2017, “there was a spike in the water
pressure” at the insureds’ property, which
“caused water to discharge” through the
insureds’ property. Id. ¶¶ 10-11. As
a result of the damage caused by the water discharge, the
insureds made a claim to Great Northern, which paid $398,
453.99 to the insureds. Id. ¶¶ 12-14.
Great Northern filed this lawsuit against Iron Mountain to
recover that amount, accusing it of negligently operating the
water system that it says provided service to its
insureds’ property and caused the damage to it.
Mountain argues that it had no “relationship”
with the insureds from which a duty to act with reasonable
care could arise. As noted above, Iron Mountain attached
contracts to its motion that, it asserts, establishes that it
provided services to a homeowners’ association for the
insureds’ neighborhood. Iron Mountain argues that the
insureds cannot rely on the contracts to create a duty of
care or relationship between it and the insureds because the
insureds were not parties to the contracts.
response, Great Northern argues that Iron Mountain’s
motion is procedurally improper, a subject which the court
has addressed above in discussing the appropriate standard of
review. Great Northern further contends that the motion fails
on its merits because Iron Mountain had a general common law
duty to act ...