UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Micronics Filtration Holdings, Inc.

v. Civil No. 18-cv-303-JL Opinion No.

Timothy Miller, Peter Kristo, and Pure Filtration, LLC

MEMORANDUM ORDER

In this 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.1 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withdrawn motion for a preliminary injunction in assessing those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

1 Doc. no. 39. based on manifest errors of fact or law. Micronics has

identified no such errors.

Application of Rule 9(b). Micronics 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,

(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).2 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

2 Thus, when the court considered whether Micronics “effectively alleged that defendants committed fraud,” “effectively” stood for “in effect,” referencing Cardinale. Doc. no. 39 at 11. Micronics seems to have read it as “in an effective manner” –- a valid usage, but not consistent with the context of the passage. See Bryan A. Garner, Garner’s Modern English Usage 321 (4th ed. 2016).

2 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.

Second, 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.3 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,

; Mulder,

, 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.

(citing Martin v. Mead Johnson Nutrition Co., No. 09-cv-11609-

NMG,

, at *3 (D. Mass. Sept. 30, 2010)).

3 Order of October 4, 2018 (doc. no. 39) at 10-11.

3 Micronics’ 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.”

. 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.4 Micronics has identified no manifest error in the

court’s application of Cardinale.

Consideration of injunction pleadings. In ruling on the

motion to dismiss, the court declined to consider materials that

Micronics submitted in support of its motion for a preliminary

injunction.5 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

4 If such a claim also alleges an independent means of interference other than fraud, that portion of the claim would not be subject to Rule 9(b). Cf. Order of October 4, 2018 (doc. no. 39) T 8-9 (explaining a similar rule for the application of New Hampshire Uniform Trade Secrets Act preemption). 5 Order of October 4, 2018 (doc. no. 39) at 4 n.1, 15 n.13.

4 interference and NHCPA claims and the heightened requirement for

defamation pleading.6

Consideration 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.,

(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.”

(quoting Watterson v. Page,

(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.

The 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,

, 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,

, 639 n.3 (S.D.N.Y. 2006)(“A complaint cannot be

6 Micronics has not asked the court to reconsider the dismissal of its breach of contract claim involving solicitation of employees.

5 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,

(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.

Court 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.,

(1st Cir. 2000) (considering a state court complaint and

judgement in assessing res judicata); Henson v. CSC Credit

Services,

(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

6 not be an exercise of judicial notice, and so is beyond the

“official public records” exception.

Micronics’ 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,

(citing offering documents in a

securities fraud case and an article alleged to be libelous);

Shaw v. Dig. Equip. Corp.,

(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,

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,

. 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.

7 Even if 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.,

(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.”

(emphasis added). Newman arguably assumes that defendants

are arguing for consideration of extrinsic documents, and the

alternative is summary judgement. But Micronics has not shown

that a court is obligated, rather than permitted, to consider

documents beyond the complaint at plaintiff’s request. Absent

an obligation, refusing to consider the injunctive pleadings

cannot be manifest error.

Micronics has not shown manifest error in the court’s

exclusion of the injunctive pleadings. The affidavits attached

to those pleadings are neither “official public records” nor

documents “central to plaintiff’s claim.”

8 Conclusion. The court DENIES Micronics’ motion for

reconsideration.7

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: December 12, 2018

cc: W. Fulton Broemer, Esq. Matthew R. Johnson, Esq. Mark B. Rosen, Esq.

7 Doc. no. 47.

9