Obi v. Exeter Health Resources, Inc. et al

Filing 44

ORDER re: 18 Motion to Dismiss; 28 Motion to Dismiss for Failure to State a Claim. The pending motions to dismiss are converted to motions for summary judgment. So Ordered by Judge Steven J. McAuliffe. (Supplement to Summary Judgment Motions due by 4/5/2019. Follow up on Reply on 5/3/2019.)(lml) (Additional attachment(s) added on 3/4/2019: # 1 Notice Regarding Summary Judgment) (lml).

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Loretta Azuka Obi
v.

Case No. 18-cv-550-SM
Opinion No. 2019 DNH 033

Exeter Health Resources, Inc.;
Core Physicians, LLC; and
Barton Associates, Inc.
ORDER

As is often the case with pro se litigation, it is
difficult to determine with precision just what the plaintiff
here is and is not claiming.

Defendants have moved to dismiss

all claims remaining after the Magistrate Judge’s review.

After

careful consideration of defendants’ motions and plaintiff’s
objection (doc. no. 34), amended objection (doc. no. 35), and
second amended objection (doc. no. 37), none of which seem to
differ significantly, it seems that plaintiff’s case may be
fatally deficient with respect to each defendant.

First, it seems very likely that Defendant Barton
Associates, Inc.’s motion to dismiss on Fed. R. Civ. P. 12(b)(6)
grounds is meritorious.

Barton points to a forum selection

clause in the parties’ agreement designating the Commonwealth of
Massachusetts as the exclusive place for litigating disparities
arising under it.

(Plaintiff, by the way, has not objected to

Barton’s motion (doc. no. 18) by separate pleading, but rather

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includes a general response to it (of sorts) in her multiple
objections to the other motion to dismiss filed by Core
Physicians, LLC, and Exeter Health Resources, Inc. (doc. no.
28).

Next, it would seem likely that Exeter Health Resources’

motion is meritorious with respect to its assertions of a
comprehensive release executed by plaintiff, and statutory
immunity, and that it had no contract with plaintiff to breach,
and that no cognizable claim for tortious interference has been
adequately pled against it by plaintiff.

Similarly, Core

Physicians’ motion appears likely meritorious in that no
contract seems to exist between plaintiff and Core.

But there is a major preliminary problem.

The pending

motions are motions to dismiss under Rule 12; they are not
motions for summary judgment.

“Under Rule 12(b)(6), the

district court may properly consider only facts and documents
that are part of or incorporated into the complaint; if matters
outside the pleadings are considered, the motion must be decided
under the more stringent standards applicable to a Rule 56
motion 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) (“If, on a motion under Rule 12(b)(6) . .
., matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.

All parties must be given a
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reasonable opportunity to present all the material that is
pertinent to the motion.”)

Plaintiff does not refer to the Client Services Agreement
(“CSA”) in her complaint, upon which Barton rests its forum
selection clause argument, except perhaps very indirectly by
attaching placement orders that incorporate it by reference.
But even so, in her several objections she undeniably, though
somewhat conclusively, seems to assert that the electronic
signature on the CSA is not her doing, and that the CSA was
somehow fraudulent or perhaps her agreement was obtained through
fraud.

Similarly, while statutory immunity probably protects
Exeter from plaintiff’s defamation claim, that defense would
seem to require a determination with respect to good faith,
justifiable purpose, and reasonable belief in the truth of
statements made — matters not addressed in the complaint, not
necessarily undisputed, and not established by affidavit or
other admissible evidence.

And, while there are assertions of

“no contract” in the motions to dismiss, the complaint does
assert that plaintiff had contracts with all three defendants.
While it is said that Dr. Obi signed a release with respect to
future claims against Exeter, the complaint does not mention
that either, and plaintiff, while exceedingly unclear, cannot
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reasonably be said to “concede either its authenticity or its
enforceability.”

Perhaps finally, whether what contracts were in existence
were or were not breached cannot be determined based on the
allegations in the complaint.

There are probably other stray

issues of a similar nature, but these suffice for now.

The bottom line is this.

The current procedural posture of

this case is such that the motions to dismiss cannot be properly
resolved without referring to and taking note of matters outside
the pleadings.

Accordingly, they must be converted to motions

for summary judgment and all parties afforded an opportunity to
present all the material that is pertinent to the motions.

Fed.

R. Civ. P. 12(d).

The motions to dismiss and memoranda filed are adequate to
the task of identifying the dispositive issues and allowing the
court to resolve them.

But the summary judgment record is

inadequately developed at this point.

The parties must

supplement the record by asserting material facts that are not
or cannot reasonably be disputed, or plaintiff must demonstrate
the existence of disputed material facts sufficient to avoid
summary judgment, and the parties must support their assertions

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with affidavits and/or by citing to materials and documents, or
other evidence that would be admissible at trial.

The parties are reminded that “[a]n affidavit or
declaration used to support or oppose a motion [for summary
judgment] must be made on personal knowledge, set out facts that
would be admissible as evidence, and show that the affiant or
declarant is competent to testify on the matters stated.”
R. Civ. P. 56(c)(4).

Fed.

Here, the parties must address the

existence and content of contracts, releases, statements,
determinations, decisions made and the bases upon which made,
and any other matter necessary to disposition on motions for
summary judgment.

Defendants have filed the pending motions.

Accordingly, on

or before April 5, 2019, defendants may supplement the summary
judgment record as they deem appropriate, including filing
supplemental legal memoranda if they desire.

On or before May 3, 2019, plaintiff shall respond to the
pending motions as motions for summary judgment (see Federal
Rule of Civil procedure 56).

Plaintiff may file documents and

materials supportive of her position(s) as well as an additional
legal memorandum if she desires.

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Conclusion
The pending motions to dismiss are converted to motions for
summary judgment.

Fed. R. Civ. P. 12(d).

Defendants shall

supplement the record as they deem appropriate on or before
April 5, 2019.

Plaintiff shall supplement the record as she

deems appropriate on or before May 3, 2019.
SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
March 4, 2019
cc:

Loretta Azuka Obi, pro se
Timothy B. Sweetland, Esq.
Christopher R. O’Hara, Esq.
Jennifer A. Scully, Esq.
Julie K. Connolly, Esq.

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