UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James Pelton and Tania Pelton

v. Civil No. 18-cv-242-LM Opinion No.

Cotton Mill, LLC

O R D E R

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

1 In response to Harvey Construction’s claim that Harvey/Stabile served as the general contractor, TAT moved to amend its complaint to add allegations against Harvey/Stabile. The court granted that request and TAT filed an amended fourth- party complaint. Doc. no. 44. Ordinarily, when amendment is permitted after the filing of a motion to dismiss for failure to state a claim, the motion to dismiss will be automatically denied without prejudice to defendant’s ability to respond to the amended complaint. LR 15.1(c). Departure from this rule is warranted here because TAT’s amended fourth-party complaint did not alter its allegations against Harvey Construction; it merely added similar allegations against Harvey/Stabile. Compare doc. no. 14, with doc. no. 44. Accordingly, the court will rely upon TAT’s amended fourth-party complaint in ruling on the instant motion.

2 TAT requested a hearing on this motion. Doc. no. 39 at 1. Upon review of the relevant pleadings, the court is not convinced that oral argument would “provide assistance to the court.” LR 7.1(d). 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,

(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.”

(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.

(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”

3 (“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.

3 Only the first and last pages of the contract appear to be included in Harvey Construction’s exhibit. See doc. no. 34-1. None of the parties submitted the entire contract with any subsequent pleadings. 4 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,

(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

, 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.,

(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,

, 130 n.8 (D. Mass.

4 This would be a different case if TAT and/or Cotton Mill had attached the Standard Form Agreement to the amended fourth- party complaint or cross claim, thereby indicating that it was central to their allegations. See Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of that pleading for all purposes.”). 6 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.,

(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.,

(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,

(2009).

7 II. Merits

Cotton Mill owns an apartment complex in Nashua, New

Hampshire. In or about 2012, Cotton Mill hired Harvey

Construction to provide general contractor management services

for a renovation project at the apartment complex.

Cotton Mill also hired TAT to provide architectural design

services for the renovation project. TAT prepared drawings and

other plans for a system of canopies, gutters, and downspouts to

be installed over the front entrances of the apartment complex.

That system was intended to prevent precipitation from

collecting at the front entrances. TAT forwarded its drawings

and plans to Harvey Construction. During the renovation, Harvey

Construction implemented the plans for the canopies, but not

those for the gutters and downspouts.

In 2016, plaintiffs were residents at Cotton Mill’s

apartment complex. In February of that year, James Pelton

slipped and fell on ice that had accumulated on an exterior

stairway near one of the front entrances to the complex. He

allegedly suffered serious injuries from that fall. Plaintiffs

sued Cotton Mill, asserting claims of negligence and loss of

consortium. The complaint alleged that Cotton Mill was

negligent in that it failed to keep the walkways of the complex

free of snow and ice and because it failed to design, renovate,

8 and maintain the premises in compliance with applicable building

codes.

Cotton Mill then filed a third-party complaint against TAT,

claiming that TAT’s design was defective and seeking damages for

breach of contract and contribution. TAT, in turn, filed a

fourth-party complaint against Harvey Construction alleging that

it failed as the general contractor to properly implement TAT’s

designs and seeking contribution and indemnification. TAT later

amended that fourth-party complaint to add the same claims

against Harvey/Stabile—the entity that Harvey Construction

claims actually served as the general contractor for the

renovation project. Cotton Mill then asserted a cross claim

against Harvey Construction as the general contractor, alleging

claims of contribution, breach of contract, and indemnification.

At issue here are the claims asserted against Harvey

Construction in TAT’s amended fourth-party complaint and Cotton

Mill’s cross claim.

Harvey Construction’s sole argument in favor of its motion

to dismiss is that it was not a party to the contract that forms

the basis of Cotton Mill’s and TAT’s claims against it. As

discussed above, Harvey Construction asserts that the Standard

Form Agreement demonstrates that Cotton Mill contracted with

another entity—Harvey/Stabile, not Harvey Construction—for

general contractor services on the renovation project.

9 For the reasons outlined above, however, the court is not

considering the Standard Form Agreement and is focused solely on

the allegations in the amended fourth-party complaint and cross

claim. Both the amended fourth-party complaint and cross claim

allege that Cotton Mill had a contractual relationship with

Harvey Construction for general contractor services for the

renovation project at the apartment complex. Doc. nos. 22 at 2,

44 at 2. The court must accept the factual allegations in the

amended fourth-party complaint and cross claim as true and

construe all reasonable inferences in TAT’s and Cotton Mill’s

favor. See Foley,

. Those facts are

sufficient, at this early stage, to state contractual-based

claims against Harvey Construction and to survive Harvey

Construction’s motion to dismiss.

CONCLUSION

For the foregoing reasons, Harvey Construction’s motion to

dismiss (doc. no. 33) is denied.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

May 2, 2019

cc: Counsel of Record

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