S. Shore Hellenic Church, Inc. v. Artech Church Interiors, Inc.

• Decision Date: 26 February 2015
• Docket Number: CIVIL ACTION NO. 12-11663-GAO
• Parties: SOUTH SHORE HELLENIC CHURCH, INC., a/k/a "NATIVITY-ASSUMPTION OF THE VIRGIN MARY GREEN ORTHODOX CHURCH," 'NATIVITY OF THE VIRGIN MARY GREEK ORTHODOX CHURCH," "NATIVITY OF THE VIRGIN MARY/PANAGIA," "PANAGIA GREEK ORTHODOX CHURCH," and "PANAGIA CHURCH," Plaintiffs, v. ARTECH CHURCH INTERIORS, INC. and WILLIAM BURNS, Individually, and as President, Artech Church Interiors, Inc., Defendants.
• Court: U.S. District Court — District of Massachusetts

SOUTH SHORE HELLENIC CHURCH, INC., a/k/a "NATIVITY-ASSUMPTION OF THEVIRGIN MARY GREEN ORTHODOX CHURCH," 'NATIVITY OF THE VIRGIN MARYGREEK ORTHODOX CHURCH," "NATIVITY OF THE VIRGIN MARY/PANAGIA,""PANAGIA GREEK ORTHODOX CHURCH," and "PANAGIA CHURCH," Plaintiffs, v. ARTECH CHURCH INTERIORS, INC. and WILLIAM BURNS, Individually,and as President, Artech Church Interiors, Inc., Defendants.

CIVIL ACTION NO. 12-11663-GAO

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

February 26, 2015

ORDER ON REPORT AND RECOMMENDATION

O'TOOLE, D.J.

The magistrate judge to whom this matter was referred has filed a Report and Recommendation (dkt. no 50) ("R&R") with respect to the defendants' motion to dismiss (dkt. no. 32). After carefully reviewing the pleadings, the parties' submissions, the R&R, and the defendants' objections, I agree with the magistrate judge's analysis and conclusions regarding the denial of the motion to dismiss. I also agree with the magistrate's allowance of leave to file third-party complaints against Michael J. Cave (a/k/a Michael J. Cave Corp. of Massachusetts) and James J. Amirault (d/b/a/ Jim's Pro Plastering). I further agree with the magistrate's recommendation to not permit a third-party complaint against Michael G. Foley (d/b/a M.G. Construction) and Flynn Roofing Co. (a/k/a Flynn Roofing, LLC).

In their objection to the R&R, the defendants repeat the assertions made in their Motion to Dismiss that plaintiff South Shore Hellenic Church ("SSHC") lacks standing or rights under the contract and that Panagia Greek Orthodox Church ("Panagia Church") is the real party ininterest. Specifically, the defendants object to the magistrate's conclusion that it was "plausible" that SSHC was the contracting principal. Although the defendants insist on the impropriety of that word, I view the magistrate's determination of plausibility to mean that, under the applicable Rule 12(c) standard, considering the facts in the light most favorable to the plaintiff, SHHC contracted under its trade name, Panagia Church. Ultimately, the question as to SHHC and Panagia Church's relationship is highly fact-specific and, where discovery has advanced this far, is properly addressed at the summary judgment stage. To the extent the defendants complain that the magistrate looked beyond the pleadings and exhibits, for example to circumstances showing community knowledge, it does not appear that those considerations were dispositive to her conclusion that SSHC has standing and is the real party in interest.

The defendants also assert that the magistrate erred in denying leave to file a third-party complaint against Foley and Flynn. Although the defendants have presented deposition evidence that suggests Foley and Flynn performed work on the roof at some point prior to the filing of this action, I am not persuaded that Foley and Flynn are required parties under Federal Rule of Civil Procedure 19(a). Granting the motion as to these third-parties who are unrelated to the current defendants would cause undue delay in this case—which has already had its discovery deadlines extended multiple times—and prejudice the plaintiff as it would likely further postpone the resolution of its claims. See Lehman v. Revolution Portfolio, LLC, 166 F.3d 389, 393 (1st Cir. 1999).

Finally, the defendants object to what they call the "procedural anomaly" of the R&R. I do not treat the R&R as making factual findings inappropriate at a motion to dismiss stage. After discovery, the defendants remain free to renew their claims for dismissal in a motion for summary judgment.

Accordingly, I ADOPT in full the Report and Recommendation. The defendants' motion to dismiss (dkt. no. 32) is DENIED as to dismissal. The defendants' request for leave to file a third-party complaint is GRANTED as to Cave and Amirault, and otherwise DENIED.

It is SO ORDERED.

/s/ George A. O'Toole. Jr.

United States District Judge

REPORT AND RECOMMENDATION RE: DEFENDANTS ARTECH CHURCH INTERIORS, INC.'S AND WILLIAM BURNS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT

(DOCKET ENTRY # 32)

August 28, 2014

BOWLER, U.S.M.J.

Pending before this court is a motion to dismiss filed by defendants Artech Church Interiors, Inc. ("Artech") and William Burns ("Burns") (collectively "defendants") in this breach of contract action involving repairs to the Panagia Greek Orthodox Church in Cohasset, Massachusetts. (Docket Entry # 32). After conducting a hearing, this court took the motion (Docket Entry # 32) under advisement.

PROCEDURAL BACKGROUND

Defendants move to dismiss the amended complaint underFed.R.Civ.P. 12(c) ("Rule 12(c)") on the basis that plaintiff South Shore Hellenic Church, Inc. ("SSHC") lacks Article III standing because it is not a party to the contract. (Docket Entry # 32, ¶ 1). Defendants also seek dismissal due to the absence of diversity jurisdiction because the Panagia Greek Orthodox Church, an unincorporated association which signed the contract, is the "real party in interest" as well as a required party under Fed.R.Civ.P. 19 ("Rule 19"). (Docket Entry # 32, ¶ 2). Further, because the citizenship of all of its members are not diverse from the Connecticut citizenship of defendants, defendants move to dismiss the action under Fed.R.Civ.P. 12(b)(1) and (h)(3) ("Rule 12(b)"). (Docket Entry # 32, ¶ 2) (Docket Entry # 33, pp. 13-14).

Defendants further submit that Michael Cave ("Cave"), Jim's Pro Plastering ("Jim's Pro"), Michael G. Foley d/b/a M.G. Foley Construction ("Foley") and Stephen Flynn d/b/a Flynn Roofing Co. ("Flynn") are required parties under Rule 19 whose joinder is not feasible because it deprives the court of diversity jurisdiction.¹ Alternatively, defendants request leave to file athird party complaint against Cave, Jim's Pro, Foley and Flynn.

The amended complaint sets out the following causes of action solely against Artech: (1) breach of contract (Count I); (2) breach of an express guarantee in the contract (Count II); (3) breach of an implied warranty to do a workmanlike job (Count III); (4) negligence (Count IV); and (5) breach of the implied covenant of good faith and fair dealing (Count V). Count VI against Artech and Burns, as an individual and officer of Artech, alleges a violation of Massachusetts General Laws chapter 93A, section nine. Jurisdiction is based on diversity.

STANDARD OF REVIEW

Defendants challenge SSHC's standing under Rule 12(c). (Docket Entry # 32, ¶ 1). A Rule 12(c) motion for judgment on the pleadings "'is treated much like a Rule 12(b)(6) motion to dismiss.'" Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1^st Cir. 2008). Faced with a Rule 12(c) motion, "the court must view the facts contained in the pleadings in the light most favorable to the nonmovant and draw all reasonable inferences therefrom" in the nonmovant's favor. R.G. Financial Corp. v. Verqara-Nunez, 446 F.3d 178, 182 (1^st Cir. 2006). Under Bell Atlantic v. Twomblv, 550 U.S. 544, 555 (2007), "to survive a Rule 12(b)(6) motion (and, by extension, a Rule 12(c) motion) a complaint must contain factual allegations that 'raise a right to relief above the speculative level, on the assumption that all the allegationsin the complaint are true.'" Perez-Acevedo v. Rivero-Cubano, 520 F.3d at 29 (quoting Bell and setting out standard of review for Rule 12(c) motion).

A Rule 12(c) motion nonetheless differs from a Rule 12(b)(6) motion because it "implicates the pleadings as a whole." Aponte-Torres v. University of Puerto Rico, 445 F.3d 50, 54-55 (1^st Cir. 2006). Filed after the close of the pleadings, a Rule 12(c) motion is based "on the factual allegations in the complaint and answer." NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 8 (1^st Cir. 2002).

Subject to certain narrow exceptions and absent a conversion of the Rule 12(c) motion to a summary judgment motion under Rule 12(d), this court's review is confined to the amended complaint and the answer.² "Exhibits attached to the complaint are properly considered part of the pleading 'for all purposes,' including Rule 12(b)(6)." Trans-Spec Truck Service, Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1^st Cir. 2008); Fed.R.Civ.P. 10(c). Artech's supporting memorandum relies on a number of the exhibits attached to the amended complaint. These exhibits arepart of the Rule 12(c) record. In the event "'a written instrument contradicts allegations in the complaint to which it is attached, the exhibit trumps the allegations.'" Clorox Co. Puerto Rico v. Proctor & Gamble Commercial Co., 228 F.3d 24, 32 (1^st Cir. 2000) (quoting Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 454 (7^th Cir. 1998), in parenthetical).

FACTUAL BACKGROUND

SSHC "is a religious corporation organized" under Massachusetts law. (Docket Entry #9, ¶ 3). Formed and incorporated in May 1980, the articles of incorporation identify the church's name as "South Shore Hellenic Church, Inc." (Docket Entry # 9-3). On November 26, 1980, SSHC purchased the Pope Memorial Church located at 811 Jerusalem Road in Cohasset. (Docket Entry # 9, ¶¶ 10-11) (Docket Entry # 9-3). SSHC's principal place of business is located at the same address. (Docket Entry #9, ¶ 3). After the purchase, the Pope Memorial Church became a Greek Orthodox church ("the church") and "was named the 'Panagia Greek Orthodox Church.'"³ (Docket Entry # 9, ¶ 11).

On June 19, 1984, SSHC purchased the adjacent property at819 Jerusalem Road in Cohasset. (Docket Entry # 9, ¶ 12). The deed identifies the purchaser as "South Shore Hellenic Church, Inc. a/k/a Panagia Greek Orthodox Church." (Docket Entry # 9-5). The same name appears on the accompanying secretary's certificate and on the consent by the Greek Orthodox Archdiocese of North and South America filed with the deed. (Docket Entry # 9-5).

In 1997, the church "was formally consecrated as the 'Nativity-Assumption of the Virgin Mary Greek Orthodox Church'" and "sanctioned by the Greek Orthodox Archdiocese of America as part of the Greek Orthodox Diocese of...