Hernandez v. City of Boston et al

Filing 86

Judge F. Dennis Saylor, IV: ORDER entered denying 69 Motion to Dismiss; finding as moot 83 Motion to Strike (Schultz, Allison)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
MIRNA HERNANDEZ,
)
)
Plaintiff,
)
)
v.
)
)
CITY OF BOSTON; Commissioner of
)
Public Works JOANNE MASSARO;
)
Superintendent of Bridges and
)
Buildings FOUAD HAMZEH; BEC
)
ELECTRICAL, INC.; CORA OPERATIONS, )
LLC; CORA OPERATIONS, INC.;
)
ADVANCED ALARM SYSTEMS;
)
HARDESTY & HANOVER, LLP;
)
HARDESTY & HANOVER, LLC;
)
HARDESTY & HANOVER HOLDING, LLC; )
B&B ELECTROMATIC, INC; B&B
)
ELECTROMATIC CORPORATION; B&B
)
ROADWAY, LLC; and B&B ARMR,
)
)
Defendants.
)
__________________________________________)

Civil Action No.
16-10797-FDS

ORDER ON DEFENDANTS’ MOTION TO DISMISS
AND PLAINTIFF’S MOTION TO STRIKE
This suit arises from the tragic death of Aura Beatriz Garcia. On December 31, 2013,
Garcia was walking across the Andrew McArdle Bridge, a drawbridge in East Boston,
Massachusetts. According to the complaint, the bridge tender opened the bridge without first
checking to see if any pedestrians were crossing. (Am. Compl. ¶ 44). The bridge opened while
Garcia was walking across it, and then closed on top of her, causing her death. (Id. ¶ 45).
Mirna Hernandez, Garcia’s sister and the personal representative of her estate, has brought suit
against multiple defendants.

The amended complaint includes claims against Hardesty & Hanover, LLP, Hardesty &
Hanover, LLP, and Hardesty & Hanover Holding, LLC for gross negligence and wrongful death
pursuant to Mass. Gen. Laws ch. 229, § 2 (Counts Five, Six, and Seven) and for deprivation of
rights under 42 U.S.C. § 1983 (Counts Eighteen, Nineteen, and Twenty). The complaint alleges
that the Hardesty & Hanover defendants were responsible for installing and maintaining
appropriate and adequate video cameras and surveillance equipment on or near the McArdle
Bridge, and that they did so negligently and with deliberate indifference to the safety of
pedestrians who may cross the bridge. (See, e.g., Am. Compl. ¶¶ 94, 96-97, 225-227).
The Hardesty & Hanover defendants have moved to dismiss all claims against them
pursuant to Fed. R. Civ. P. 12(b)(6) on the ground that the claims are barred by the
Massachusetts statute of repose, Mass. Gen. Laws ch. 260, § 2B. The statute provides as
follows:
Actions of tort damages arising out of any deficiency or neglect in the design,
planning, construction, or general administration of any improvement to real
property, other than that of a public agency . . . shall be commenced within three
years next after the cause of action accrues; provided, however, that in no event
shall such actions be commenced more than six years after the earlier of the dates
of: (1) the opening of the improvement to use; or (2) substantial completion of the
improvement and the taking of possession for occupancy by the owner.
Actions of tort for damages arising out of any deficiency or neglect in the design,
planning, construction, or general administration of any improvement to real
property of a public agency . . . shall be commenced only within three years next
after the cause of action accrues; provided, however, that in no event shall actions
be commenced more than six years after the earlier of the dates of: (1) official
acceptance of the project by the public agency; (2) the opening of the real property
to public use; (3) the acceptance by the contractor of a final estimate prepared by
the public agency . . .; or (4) substantial completion of the work and the taking
possession for occupancy by the awarding authority.
Mass. Gen. Laws ch. 260, § 2B. In support of their motion to dismiss, the Hardesty &
Hanover defendants have submitted various exhibits that they contend demonstrate that

2

that statute of repose applies to bar the claims against them. Plaintiff has moved to strike
those documents.
“Under Rule 12(b)(6), [a] district court may properly consider only facts and
documents that are part of or incorporated into the complaint.” Trans-Spec Truck Serv.,
Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008). It is within a court’s discretion
to convert a Rule 12(b)(6) motion to dismiss into a motion for summary judgment
pursuant to Rule 56 and consider the materials outside the pleadings. Id. However,
before converting a motion to dismiss into a motion for summary judgment, “[a]ll parties
must be given a reasonable opportunity to present all the material that is pertinent to the
motion.” Fed. R. Civ. P. 12(d). Alternatively, a court can “ignore the supplemental
materials submitted with the motion papers and determine the motion under the Rule
12(b)(6) standard.” Trans-Spec Truck Serv., Inc., 524 F.3d at 321.
The Court declines to consider the supplemental materials at this time. Based on
the facts as pleaded in the complaint, without the supplemental materials, it cannot be
determined whether or not the statute of repose applies. Defendants’ motion to dismiss is
therefore DENIED. That denial is without prejudice to the raising of the same or similar
issues in a motion for summary judgment. Plaintiff’s motion to strike is DENIED as
moot.
So Ordered.

s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: April 27, 2017

3