UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Banfield Realty LLC, Plaintiff

v. Case No. 22-cv-0573-SM Opinion No.

William E. Copeland; Jack Copeland; Joseph P. Copeland; Roeseland Holdings 5, LLC; James W. Copeland; Country Motor Sales; Mountjoy & Carlisle, LLC d/b/a Olde Port Properties; George M. Carlisle; Jeffrey Mountjoy; Wayne Semprini; City of Portsmouth, New Hampshire; and Portsmouth Housing Authority, Defendants

O R D E R

This suit arises out of the sale of property located at 375

Banfield Road, Portsmouth, New Hampshire. Plaintiff, Banfield

Realty, bought the property on February 5, 2020. Shortly after

purchasing, Banfield discovered significant environmental

contamination. It promptly filed suit, asserting claims under

the Comprehensive Environmental Response, Compensation and

Liability Act of 1980 (“CERCLA”) and state law theories of

recovery, including claims based on negligence and negligence

per se. Defendants City of Portsmouth (“Portsmouth”) and

Portsmouth Housing Authority (“PHA”) have moved to dismiss all

claims against them pursuant to Fed. R. Civ. P. 12(b)(6).

Plaintiff objects.

1 Standard of Review

When considering a motion to dismiss, the court accepts all

well-pleaded facts alleged in the complaint as true,

disregarding legal labels and conclusions, and resolving

reasonable inferences in the plaintiff's favor. See Galvin v.

U.S. Bank, N.A.,

(1st Cir. 2017). To avoid

dismissal, the complaint must allege sufficient facts to support

a plausible claim for relief. See Ashcroft v. Iqbal,

(2009). To satisfy the “plausibility standard,” the

factual allegations in the complaint, along with reasonable

inferences drawn from those allegations, must show more than a

mere possibility of liability – that is, “a formulaic recitation

of the elements of a cause of action will not do.” Bell Atl.

Corp. v. Twombly,

(2007). See also Lyman v.

Baker,

, 359–60 (1st Cir. 2020) (“For the purposes

of our 12(b)(6) review, we isolate and ignore statements in the

complaint that simply offer legal labels and conclusions or

merely rehash cause-of-action elements.”) (cleaned up).

In other words, the complaint must include well-pled (i.e.,

non-conclusory, non-speculative) factual allegations with

respect to each of the essential elements of a viable claim

which, if assumed to be true, would allow the court to draw the

reasonable and plausible inference that the plaintiff is

2 entitled to the relief sought. See Tasker v. DHL Retirement

Savings Plan,

(1st Cir. 2010).

Background

Accepting the amended complaint's factual allegations as

true – as the court must at this juncture - the relevant

background is as follows. The dispute concerns property located

at 375 Banfield Road, Portsmouth, New Hampshire (“the

Property”), acquired by Banfield Realty from William E.

Copeland, Jack Copeland, Kevin Copeland, Joseph P. Copeland, and

Roeseland Holdings (the “Seller Defendants”) on February 5,

2020, for $1.2 million.

Before the February, 2020, sale, the Property had been

owned by the Copeland family for nearly 60 years. Over those 60

years, the Copelands used the Property as a solid waste

landfill, automobile repair shop, car-crushing facility, and

salvage yard. As a result, the Property had a history of

environmental issues, including contamination, that triggered

the New Hampshire Department of Environmental Conservation’s

involvement in remediation. When the Property was sold to

Banfield Realty, the Seller Defendants represented that the

contamination had been entirely remediated. Contrary to those

representations, however, the Seller Defendants knew that

3 building materials and automotive parts were buried on the

Property, and they were aware of the continued presence of

contaminants including heavy metals, polychlorinated biphenyls

(PCBs), and asbestos in the Property’s soil.

After purchasing, Banfield Realty claims to have discovered

that the Property was “contaminated from multiple sources and

releases, dating back several decades.” Am. Compl. ¶ 27. Two

of those sources, Banfield contends, were the City of

Portsmouth, and the PHA. It says that, on June 2, 2009, William

E. Copeland (as executor of Virginia Copeland’s estate)

submitted a Registration Form for Landfills Not Operated After

July 9, 1981, to the New Hampshire Department of Environmental

Services (“DES”), in which it reported that, during the 1960s,

“building and construction waste was disposed of on the site, as

part of the City of Portsmouth’s urban renewal.” Id. at ¶ 28.

Plaintiff further alleges that both the City of Portsmouth and

the PHA were involved in Portsmouth’s urban development, as the

PHA was created in 1953, and “many of its early projects

involved the urban renewal of Portsmouth.” Id. at ¶ 29.

Plaintiff’s amended complaint references a Limited

Subsurface Investigation Report prepared by Ransom Environmental

Consultants, Inc., for the DES dated November 8, 2008 (the

4 “Ransom Report”). 1 According to the Ransom Report, arsenic,

lead, selenium, PCBs, asbestos, and other hazardous substances

were found on the Property, as well as “buried building

materials (including burned and partially burned wood, metal,

plaster and paint fragments, flooring, etc.).” Pl.’s Obj. to

Portsmouth Mot. to Dismiss, Exh. A. Samples taken from the

buried building and construction materials included detectable

asbestos.

Banfield Realty alleges that it has incurred significant

costs related to the contamination, and “anticipates that DES

1 Generally, a court must decide a motion to dismiss exclusively upon the allegations set forth in the complaint and the documents specifically attached, or convert the motion into one for summary judgment. See Fed. R. Civ. P. 12(2). There is, however, an exception to that general rule, as “[a] district court may also consider ‘documents incorporated by reference in [the complaint], matters of public record, and other matters susceptible to judicial notice.’” Giragosian v. Ryan,

(1st Cir. 2008) (quoting In re Colonial Mortgage Bankers Corp.,

(1st Cir. 2003)) (alterations in original).

Plaintiff argues that the court may consider the findings of the Ransom Report without converting this motion into one for summary judgment because the Report is referenced in their amended complaint (see Am. Compl. ¶ 34), and because the Ransom Report is a public record, available on the NH DES’s website. Neither Portsmouth nor PHA object to the court’s consideration of the Report (although both parties take issue with plaintiff’s characterization of the Report’s findings). The Ransom Report is sufficiently referenced in the amended complaint to merit consideration in adjudicating defendants’ motions.

5 and [the U.S. Environmental Protection Agency] will require

substantial remediation efforts to be implemented,” which will

impose further costs and expenses on it. Id. at ¶ 46.

Discussion

Banfield asserts seven claims against Portsmouth and PHA.

It seeks recovery of costs and declaratory relief related to

future costs under CERCLA,

, et. seq.;

contribution and declaratory relief for future costs under New

Hampshire Rev. Stat. Ann. 147-B; contribution under New

Hampshire Rev. Stat. Ann. 507:7-g; and damages due to

defendants’ negligence per se and negligence.

1. CERCLA and NH RSA 147-B

CERCLA “establishes a complex statutory scheme for

responding to certain environmental hazards.” Territory of Guam

v. U.S.,

, 1611 (2021) (citations omitted). It

was “designed to promote the timely cleanup of hazardous waste

sites and to ensure that the costs of such cleanup efforts were

borne by those responsible for the contamination.” Burlington

No. and Sante Fe Ry. Co. v. U.S.,

(2009)

(internal quotations omitted). CERCLA “imposes strict liability

for the costs of cleanup on a party found to be an owner or

operator, past operator, transporter, or arranger.” U.S. v.

6 General Electric. Co.,

(1st Cir. 2012)

(quoting U.S. v. Davis,

(1st Cir. 2001)). 2

Four elements are “necessary for a prima facie case in a

private-party lawsuit under CERCLA:

1. The defendant must fall within one of four categories of covered persons.

(a).

2. There must have been a ‘release or threatened release’ of a hazardous substance from defendant's facility.

(a)(4); § 9601(14), (22).

3. The release or threatened release must ‘cause[ ] the incurrence of response costs’ by the plaintiff.

(a)(4).

4. The plaintiff's costs must be ‘necessary costs of response ... consistent with the national contingency plan.’

(a)(4)(B); § 9601(23)–(25).

Dedham Water Co. v. Cumberland Farms Dairy, Inc.,

(1st Cir. 1989), decision clarified sub nom. In re Dedham

Water Co.,

(1st Cir. 1990), (citations omitted).

2 “RSA 147–B:10, like CERCLA, gives a person who has incurred environmental response costs a right to contribution against a facility's prior owners and operators.” EnergyNorth Nat. Gas, Inc. v. UGI Utilities, Inc., No. CIV. 00-500-B,

, at *2 (D.N.H. Mar. 28, 2003) (citation omitted). Portsmouth’s and PHA’s arguments in support of their motions to dismiss plaintiff’s N.H. RSA 147-B claims are identical to their arguments concerning CERCLA.

7 Portsmouth and PHA argue that plaintiff’s CERCLA claims

should be dismissed for two reasons. First, they say, the

amended complaint fails to establish the second element of a

CERLCA claim: that the “building and construction waste”

disposed of was a “hazardous substance.” Second, they argue

that the amended complaint fails to sufficiently allege that

Portsmouth or PHA fall within the four categories of covered

persons under the statute.

(a) “Hazardous” Substance

CERCLA defines a “hazardous substance” “by incorporation of

certain lists of substances, wastes, and pollutants identified

in a number of other environmental statutes,” including the

Clean Water Act, the Solid Waste Disposal Act, the Clean Air

Act, and the Toxic Substances Control Act. Com. of Mass. v.

Blackstone Valley Elec. Co.,

(1st Cir. 1995)

(citing

(14)). Pursuant to

(a),

the EPA Administrator is required to “promulgate and revise

regulations designating as additional ‘hazardous substances’ any

substances which, ‘when released into the environment may

present substantial danger to the public health or welfare or

the environment’.”

Accordingly, the “EPA has codified a

consolidated list of hazardous substances subsuming all of the

8 statutory lists incorporated by CERCLA.”

See also

.

Portsmouth and PHA argue that Banfield’s amended complaint

fails to identify what the building and construction waste

consisted of, beyond that it was “building and construction

waste.” That allegation, they say, is plainly insufficient to

meet CERCLA’s definition of a “hazardous substance,” given that

not all building and construction waste is also “hazardous.” In

response, Banfield relies on the Ransom Report’s finding that

arsenic, lead, selenium, PCBs, asbestos, and other designated

hazardous substances were found on the Property, and,

specifically, its finding that “asbestos was detected in 3 of 17

waste bulk building material samples. . .” Pl.’s Obj. to

Portsmouth Mot. to Dismiss, Exh. A. Banfield points out that

all of those substances are “hazardous” under federal law.

The amended complaint alleges that Portsmouth and/or PHA

disposed of construction waste and debris on the Property in the

1960s, and that later testing disclosed multiple substances

listed by the EPA as “hazardous substances,”

,

in that construction waste, including asbestos. While meagre,

the amended complaint’s allegations, together with the

9 information in the Ransom Report, are sufficient to withstand

Portmouth’s and PHA’s motion to dismiss at this early stage.

(b) Covered Person

Portsmouth and PHA next argue that Banfield fails to allege

facts sufficient to support a finding that they committed any

acts required for liability under CERCLA. Specifically, they

contend that Banfield’s allegations concerning Portsmouth’s

and/or PHA’s involvement in the urban renewal of the city are

insufficient to support a finding that Portsmouth and/or PHA

“contracted, agreed, or arranged” for disposal of hazardous

materials.

Portsmouth and PHA are not wrong in arguing that the

allegations related to contracting, agreeing, or arranging for

the disposal of hazardous construction materials are sparse.

The amended complaint alleges that:

28. . . . on June 2, 2009, Defendant William E. Copeland, as Executor of the Estate of Virginia Copeland, submitted a Registration Form for Landfills Not Operated After July 9, 1981 to DES, reporting that, during the 1960s, building and construction waste was disposed of on the site, as part of the City of Portsmouth’s urban renewal.

29. According to the Portsmouth Housing Authority’s website, the City created the Housing Authority in 1953, and many of its early projects involved the urban renewal of Portsmouth. Historical

10 documents, including City Annual Reports, indicate involvement of both the City and the Housing Authority in the urban development of Portsmouth.

Banfield’s allegations are broad and unspecific, but sufficient

(albeit barely) to avoid dismissal at this point.

“Within the CERCLA scheme, arranger liability was intended

to deter and, if necessary, to sanction parties seeking to evade

liability by ‘contracting away’ responsibility.” United States

v. Gen. Elec. Co.,

(1st Cir. 2012). Pursuant

to Section 9607(a)(3), CERCLA liability attaches if an entity

enters “into a transaction for the sole purpose of discarding a

used and no longer useful hazardous substance.” Burlington N. &

Santa Fe Ry. Co. v. United States,

(2009).

While plaintiff does not directly allege that Portsmouth or PHA

disposed of building and construction waste on the Property,

plaintiff does allege that building and construction waste from

Portsmouth’s urban renewal (waste that contained hazardous

materials) was dumped on the Property. It is not unreasonable

to infer, based on that allegation, that the waste was dumped in

accordance with an agreement between Portsmouth/PHA (or its

contractors and the Copelands. On that thin basis, Banfield has

sufficiently — albeit barely — alleged that Portsmouth and PHA

are liable as arrangers under Section 9607(a)(3).

11 Portsmouth’s and PHA’s motions to dismiss plaintiff’s

CERLCA and NH RSA 147-B claims against them are denied. 3

2. Negligence

To state a claim for negligence under New Hampshire law, a

plaintiff must allege facts that show the defendant owed a duty,

breached that duty, and that the breach caused the plaintiff

harm. Yager v. Clauson,

(2016). “Whether a duty

exists in a particular case is a question of law.” Webber v.

Deck,

, 248 (D.N.H. 2020) (quoting Riso v.

Dwyer,

(2016)).

In support of its negligence claim against Portsmouth and

PHA, Banfield alleges that Portsmouth and PHA owed Banfield

Realty a duty to “ensure that . . . businesses and activities

[were] conducted on the Property in a manner so as to prevent

3 Portsmouth and PHA have also moved to dismiss plaintiff’s claims for declaratory relief under CERCLA and N.H. Rev. Stat. Ann. 147-B, arguing that, because plaintiff has not stated a claim under either statute, there is no “active controversy.” Because the court has determined that plaintiff has stated claims, that argument is unavailing.

For similar reasons, Portsmouth and PHA’s motions to dismiss plaintiff’s claim for contribution under N.H. Rev. Stat. Ann. 507:7-g are denied.

12 the release of contaminants into and onto the Property,” and

that they breached that duty “by causing and/or allowing the

release and disposal of contaminants into and onto the

Property.” Compl. ¶¶ 81-82. Portsmouth and PHA argue that

plaintiff’s negligence claim must be dismissed because, at the

time of the alleged breach (purportedly in the 1960s), they did

not owe a duty to Banfield Realty (which did not exist until

January 27, 2020). PHA and Portsmouth further argue that the

amended complaint fails to sufficiently allege facts that would

support a finding that PHA and/or Portsmouth breached any common

law negligence duty owed to Banfield.

Banfield does not directly address defendants’ argument,

and instead counters that Portsmouth and PHA owed Banfield a

common law duty to avoid the intentional entry onto the

Property, which extends to the duty to remove things placed on

the Property (and, to the extent that the Property’s prior

owners consented to Portsmouth’s and PHA’s entry into the land,

that consent was terminated when plaintiff purchased the

Property). Plaintiff’s argument is not persuasive.

The imposition of a legal duty results from weighing

certain policy considerations and determining that the

plaintiff's interests are entitled to legal protection against

13 defendant’s conduct. See Cui v. Chief, Barrington Police Dept.,

(2007) (“The determination of legal duty

focuses upon the policy issues that define the scope of the

relationship between the parties. The relevant inquiry,

therefore, is whether the plaintiff's interests are entitled to

legal protection from the defendant's conduct, or at the

defendant's hands, against the invasion which has in fact

occurred. The existence of a duty depends upon what risks, if

any, are reasonably foreseeable under the particular

circumstances.”) (quotations, brackets, and citations omitted).

The facts alleged by the plaintiff are somewhat unusual in

that the Property was purportedly contaminated (at least in

part) by Portsmouth’s and PHA’s disposal of hazardous debris

with the prior owner’s permission. Banfield cites no legal

authority directly on point, and the general research has not

identified any precedent analyzing facts substantially similar

to those presented here. 4

4 Lewis v. General Elec. Co.,

(D. Mass. 2003), is somewhat aligned. In Lewis, property owners sued General Electric, claiming negligence and trespass arising from its disposal of fill dirt containing PCBs on the plaintiffs' residential property. Defendant moved for summary judgment on the plaintiffs’ negligence claims, arguing, inter alia, that the deposit of the contaminated fill occurred prior to the plaintiffs’ ownership, and the claims were not assigned to the plaintiffs as the current owners.

. The court denied defendant’s motion for summary judgment, noting that a

14 Courts have, however, examined whether a landowner owes a

duty to subsequent owners in the context of environmental

contamination. The majority of those courts have concluded that

such a duty does not exist under common law. See, e.g., Wilson

Auto Enterps., Inc. v. Mobil Oil Corp.,

(D.R.I. 1991); John Boyd Co. v. Boston Gas Co.,

(D. Mass. 1991) (“landowner owes no common law duty to

subsequent owners with respect to the manner in which the land

had been maintained prior to sale”); Hydro–Manufacturing, Inc.

v. Kayser–Roth Corp.,

(R.I. 1994) (former landowner

cannot be liable for contamination of property under theories of

negligence, strict liability, or nuisance). Cf., Rolan v. Atl.

Richfield Co., No. 1:16-CV-357-TLS,

, at *17

tortfeasor should not be able to “escape liability by the happenstance of a property sale.”

.

While the facts in Lewis are facially similar, they are distinguishable in two critical ways. First, in Lewis, the prior owners were unaware that the fill dirt GE was providing contained PCBs. Here, Portsmouth and PHA are alleged to have discarded construction and building debris with permission of the prior owners. Second, as the Lewis court summarized, “GE did little to supervise either what was used as fill or where it went. [GE’s] indifference persisted over the decades despite knowledge that the fill contained trash and PCBs, and despite growing knowledge, and eventually virtual certainty, that PCBs were hazardous.”

. Here, Banfield Realty does not allege that PHA or Portsmouth were at all aware that the construction and building debris deposited on the Property contained hazardous materials.

15 (N.D. Ind. July 26, 2017) (prior landowner owes no duty to

tenants of residential housing complex when no relationship

existed between prior owner and tenants; it was not foreseeable

that the land would be converted to residential housing at the

time prior owner was operating a factory on the land; and

“public policy does not weigh in favor of holding Defendant

. . . to a duty to future, unknown possessors of its own land.”)

Those courts have generally reasoned:

The imposition of such a duty would be unreasonable because such future owners may not be known or even contemplated at the time the landowner creates or maintains a condition on his or her property. Moreover, such a duty would unreasonably interfere with a landowner's right of ownership; the right to do so with his or her property as desired without liability so long as he or she does not interfere with the interests of others.

Sanyo N. Am. Corp. v. Avco Corp., No. 1:06-CV-0405 LJM WTL,

, at *5 (S.D. Ind. July 3, 2008) (quoting Wickens v.

Shell Oil Co., No. 1:05–cv–645–SEB–JPG,

, at *5

(S.D. Ind. Nov. 9, 2006)). See also Wellesley Hills Realty Tr.

v. Mobil Oil Corp.,

(D. Mass. 1990) (same).

Portsmouth cites Read v. Corning Inc.,

(W.D.N.Y. 2018), which is helpful. In Read, plaintiffs filed

suit against Corning asserting claims arising out of Corning’s

disposal of fill that contained hazardous substances, including

16 arsenic, cadmium, and lead. At the time the fill was deposited,

the properties were owned by a predecessor-in-interest of

Corning; several years later, the properties were acquired by

plaintiffs. Plaintiffs alleged that Corning was negligent “in

permitting the release of contaminants on the subject property,

in failing to warn the plaintiffs about the dangers resulting

therefrom, and in failing to remediate the contamination.”

. The court granted Corning’s motion to dismiss the

claim, noting that there was “no indication from the complaint

that the disposal of those materials, at that time, was unlawful

or unauthorized,” and the complaint did not allege:

that at the time Corning deposited the fill . . . it knew or should have known that the fill contained hazardous chemicals. There are also no allegations that, at that time, Corning owed a duty to plaintiffs, which is not surprising, since plaintiffs did not purchase their properties until years later.

Given the allegations in the amended complaint, it would be

a substantial stretch to conclude that, by dumping building and

construction waste on privately-owned property, with the

permission of the Property’s prior owners, Portsmouth and PHA

somehow breached a common law duty owed to Banfield Realty, a

subsequent owner of the Property some forty years later (and an

entity which did not exist at the time of the disposal). If the

17 common law declines to impose a duty on prior owners of property

to refrain from activity that may harm the Property with respect

to the interests of future owners, the imposition of such a duty

upon third parties who dispose of materials on the Property with

permission of the prior owners, would also be highly improbable.

The amended complaint fails to delineate a relationship between

Portsmouth/PHA and Banfield Realty that might make it reasonably

foreseeable that Portsmouth’s or PHA’s disposal of construction

and building debris in the 1960s (again, with permission) would

ultimately harm Banfield Realty, an entity that did not exist

until several decades later. 5

PHA’s and Portsmouth’s motions to dismiss Banfield Realty’s

common law negligence claim against them is granted.

3. Negligence Per Se

For similar reasons, plaintiff’s negligence per se claim

against Portsmouth and PHA fails as a matter of law.

5 It bears mention that Banfield Realty is not without a remedy under federal and state law: both CERCLA and New Hampshire’s statutory environmental law provide a potential remedy under circumstances like those described in this case.

18 Banfield alleges that, pursuant to New Hampshire Rev. Stat.

Ann. 147-A:9 and 147-B:10, Portsmouth and PHA had a duty to

avoid disposal of hazardous materials into the environment, and

breached that duty in violation of statutory duties and

obligations when they caused contaminants to be released onto

the Property. Banfield notes that the operative question is

whether it could have maintained actions against Portsmouth and

PHA under the common law, not whether defendant owed a common

law duty of care, and contends that it could have maintained

actions under common law theories of nuisance and trespass.

Banfield misconstrues the applicable law and its argument is

unpersuasive.

Under New Hampshire law, the “doctrine of negligence per se

. . . provides that where a cause of action does exist at common

law, the standard of conduct to which a defendant will be held

may be defined as that required by statute, rather than as the

usual reasonable person standard.” Marquay v. Eno,

(1995). The New Hampshire Supreme Court has stated

that, when considering a negligence per se claim, courts must:

first inquire whether the plaintiff could maintain an action at common law. See Morris, The Role of Criminal Statutes in Negligence Actions,

, 21–22 (1949); Thayer, Public Wrong and Private Action,

, 329–31 (1914); see also Linden, Tort Liability for Criminal Nonfeasance, 44 Canadian B. Rev. 25, 27, 41 (1966);

19 Fricke, The Juridical Nature of the Action Upon the Statute, 76 Law Q. Rev. 240, 265 (1960). Put another way, did the defendant owe a common law duty of due care to the plaintiff? If no common law duty exists, the plaintiff cannot maintain a negligence action, even though the defendant has violated a statutory duty.

Id. at 714. The court continued:

As a general rule, a person has no affirmative duty to aid or protect another. See Walls v. Oxford Management Co.,

(1993). Such a duty may arise, however, if a special relationship exists. See, e.g., Murdock v. City of Keene,

(1993). “The relation of the parties determines whether any duty to use due care is imposed by law upon one party for the benefit of another. If there is no relationship, there is no duty.” Guitarini v. Company,

, (1953).

See also Town of Londonderry v. Mesiti Dev., Inc.,

(2015) (“Implicitly recognizing that a viable

negligence claim requires the existence of a duty owed by the

defendant to the plaintiff, see Lahm v. Farrington,

(2014), we explained in Marquay that the inquiry into

‘whether the plaintiff could maintain an action at common law’

is an inquiry into whether ‘the defendant owe[d] a common law

duty of care to the plaintiff.’”) (quoting Marquay,

).

As discussed supra, plaintiff has not sufficiently alleged

the existence of a relationship between Portsmouth/PHA and

Banfield Realty that would result in the imposition of a duty

20 upon Portsmouth/PHA. Because no duty exists, plaintiff’s

negligence per se claim fails. See Pruden v. CitiMortgage,

Inc., No. 12-CV-452-LM,

, at *19 (D.N.H. May 23,

2014) (“Negligence per se may establish the nature of a duty,

but cannot establish the existence of a duty.”). Accordingly,

PHA’s and Portsmouth’s motion to dismiss plaintiff’s negligence

per se claim against them is granted.

Conclusion

For the foregoing reasons, as well as those set forth in

Portsmouth’s memoranda (documents no. 60-1 and 82) and PHA’s

memoranda (documents no. 65-1 and 86), Portsmouth’s and PHA’s

motions to dismiss (document nos. 60 and 65) are GRANTED in

part, and DENIED in part, as described herein.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

October 13, 2023

cc: Counsel of record

21