Pelton et al v. Cotton Mill, LLC

Filing 57

ORDER denying 33 Motion to Dismiss. So Ordered by Chief Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
James Pelton and Tania Pelton
v.

Civil No. 18-cv-242-LM
Opinion No. 2019 DNH 072

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

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 fourthparty 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.
1

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

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, 871 F.3d 131, 135
(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.”

Id. (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.

Id. (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.
The contract is dated February 25, 2013.

Id. at 1-2.

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.”
no. 22 at 2.

Doc.

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.

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.
3

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, 871 F.3d at

135 (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
5

WL 1154817, 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., 524 F.3d 315,
321 (1st Cir. 2008); see also Fed. R. Civ. P. 12(d).
finds it inappropriate to do so in this case.
its infancy.

The court

Discovery is in

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, 966 F. Supp. 126, 130 n.8 (D. Mass.

This would be a different case if TAT and/or Cotton Mill
had attached the Standard Form Agreement to the amended fourthparty 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.”).
4

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 fourthparty complaint and cross claim.

See Garita Hotel Ltd. P’ship

v. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 18-19 (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., 772 F.3d 63, 71, 75

(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.”
662, 678 (2009).

7

Ashcroft v. Iqbal, 556 U.S.

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.
and plans to Harvey Construction.

TAT forwarded its drawings
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.
allegedly suffered serious injuries from that fall.

He

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.
44 at 2.

Doc. nos. 22 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, 772 F.3d at 71, 75.

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
10