International Tape v . Technicote CV-97-084-M 04/21/00 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
International Tape Company, Inc., Plaintiff
v.
Technicote, Inc., Defendant
AND Civil N o . 97-084-M (Consolidated Cases) Opinion N o . 2000 DNH 095 Universal Tape Company, Inc., Plaintiff
Technicote, Inc. and International Tape Company, Inc., Defendants
O R D E R
These consolidated cases arise from the manufacture and
distribution of an allegedly defective product by Technicote,
Inc. (“Technicote”). International Tape, Inc. says that it
contracted to purchase a “release liner” from Technicote, which it then incorporated into one of its products, a “security tape.”
In turn, International sold the finished product to Universal
Tape Company (a company related t o , or affiliated with,
International, that appears to operate as the entity through
which International distributes its products).
After what it claims were unsuccessful efforts to have
Technicote repair or replace the allegedly defective release
liner, International sued Technicote for breach of contract
(count 1 ) and intentional interference with advantageous economic
relations (count 2 ) . Subsequently, Universal sued both
Technicote and International, seeking compensation for losses it
claims to have sustained after reselling the product manufactured
by International that incorporated Technicote’s allegedly
defective release liner.
Technicote moves to dismiss Universal’s complaint for
failure to state a viable claim. See Fed. R. Civ. P. 12(b)(6).
Universal objects.
2 Standard of Review
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is one of
limited inquiry, focusing not on “whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims.” Scheuer v . Rhodes, 416 U.S.
232, 236 (1974). In considering a motion to dismiss, “the
material facts alleged in the complaint are to be construed in
the light most favorable to the plaintiff and taken as admitted,
with dismissal to be ordered only if the plaintiff is not
entitled to relief under any set of facts he could prove.”
Chasan v . Village District of Eastman, 572 F.Supp. 5 7 8 , 579
(D.N.H. 1983).
Notwithstanding the liberal allowances of notice pleading
and the deferential reading mandated by Rule 12(b)(6), a district
court must ensure that “each general allegation be supported by a
specific factual basis.” Fleming v . Lind-Waldock & Co., 922 F.2d
2 0 , 23 (1st Cir. 1990). As this court (Barbadoro, J.) has
observed:
3 [A] district court need not accept subjective characterizations, bald assertions, or unsubstantiated conclusions. Moreover, while “the line between ‘facts’ and ‘conclusions’ is often blurred,” the line must be drawn. For it is only when such conclusions are logically compelled, or at least supported, by the stated facts, that i s , when the suggested inference rises to what experience indicates is an acceptable level of probability, that “conclusions” become “facts” for pleading purposes.
Care is required in determining the sufficiency of a complaint to insure that “heightened pleading” requirements are invoked only if such requirements are specifically authorized by the Federal Rules of Civil Procedure. However, even under the general pleading requirements of Fed. R. Civ. P. 8 ( a ) , a complaint will not withstand a motion to dismiss if the plaintiff has merely recited the elements of the complaint’s causes of action in conclusory terms. Notice pleading requires factual allegations which, if true, establish all of the required elements of plaintiff’s causes of action.
Millard v . Wolfeboro, N o . 94-38-B, slip op. (D.N.H. August 1 8 ,
1994) (citations omitted).
Discussion
It i s , perhaps, best to begin with a discussion of
Universal’s claim against Technicote. In its complaint,
4 Universal alleges that “[a]s a result of the respective breaches
by Technicote and International of their obligations to
Universal, Universal has been damaged . . . and continues to be
damaged because of loss of contracts for the proprietary
product.” Complaint at para. 14 (emphasis supplied).
Unfortunately, what is entirely unclear from Universal’s
complaint is the nature of the legal obligations Universal claims
Technicote owed it (e.g., tort, contract, quasi-contract, product
liability, etc.) or the legal theory under which Universal is
proceeding.
A few things are clear, however. Plainly, Universal was not
a party to the contract between Technicote and International and,
therefore, has no direct breach of contract action against
Technicote. What is equally evident from Universal’s pleadings
is that it does not advance any claim that it was an intended
third-party beneficiary of the contract between International and
Technicote.
5 Because the complaint does not develop (or identify)
Universal’s claim in any meaningful way, except merely to allege
that “breaches” by Technicote caused it to suffer damages, the
court cannot reasonably conclude that, if Universal’s factual
allegations are credited as true, it is entitled to relief. And,
Universal’s one page objection to the motion to dismiss is
unhelpful. That objection presents not a single citation to
authority, is unaccompanied by a (required) legal memorandum, and
provides no insight at all into the nature of Universal’s legal
claims against Technicote. It provides, nearly in its entirety,
as follows:
[Universal] has alleged, and therefore it should be accepted, that the defendant Technicote, Inc. (Technicote) provided defective products to the defendant International. The defendant International, relying on the representations of Technicote, sold the product to Universal. Universal sold the defective product, and as a result has been economically harmed.
If the product defect was caused by Technicote, then Universal’s and International’s damages would be the responsibility of Technicote.
If the product defect was caused by International, then Universal’s damages would be the responsibility of International.
6 Until it is determined that there was a defect, and that one of the defendants was the cause of i t , plaintiff must sue both defendants.
Universal’s objection to motion to dismiss (document n o . 31)
(emphasis supplied).
Universal’s objection is plainly deficient. Like its
complaint, the objection fails to reveal even the basic legal
theory of recovery Universal is pursuing against Technicote. In
response to a motion to dismiss, a plaintiff must do more than
simply claim that it was harmed by someone and demand
compensation. At a minimum, a concise statement of plaintiff’s
legal theory of recovery and references to the pertinent,
supportive facts are necessary. Citations to controlling or
persuasive legal authority would also be helpful. Universal’s
objection offers none of this and, instead, rests solely on a
bald assertion of entitlement to damages.
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International Tape v . Technicote CV-97-084-M 04/21/00 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
International Tape Company, Inc., Plaintiff
v.
Technicote, Inc., Defendant
AND Civil N o . 97-084-M (Consolidated Cases) Opinion N o . 2000 DNH 095 Universal Tape Company, Inc., Plaintiff
Technicote, Inc. and International Tape Company, Inc., Defendants
O R D E R
These consolidated cases arise from the manufacture and
distribution of an allegedly defective product by Technicote,
Inc. (“Technicote”). International Tape, Inc. says that it
contracted to purchase a “release liner” from Technicote, which it then incorporated into one of its products, a “security tape.”
In turn, International sold the finished product to Universal
Tape Company (a company related t o , or affiliated with,
International, that appears to operate as the entity through
which International distributes its products).
After what it claims were unsuccessful efforts to have
Technicote repair or replace the allegedly defective release
liner, International sued Technicote for breach of contract
(count 1 ) and intentional interference with advantageous economic
relations (count 2 ) . Subsequently, Universal sued both
Technicote and International, seeking compensation for losses it
claims to have sustained after reselling the product manufactured
by International that incorporated Technicote’s allegedly
defective release liner.
Technicote moves to dismiss Universal’s complaint for
failure to state a viable claim. See Fed. R. Civ. P. 12(b)(6).
Universal objects.
2 Standard of Review
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is one of
limited inquiry, focusing not on “whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims.” Scheuer v . Rhodes, 416 U.S.
232, 236 (1974). In considering a motion to dismiss, “the
material facts alleged in the complaint are to be construed in
the light most favorable to the plaintiff and taken as admitted,
with dismissal to be ordered only if the plaintiff is not
entitled to relief under any set of facts he could prove.”
Chasan v . Village District of Eastman, 572 F.Supp. 5 7 8 , 579
(D.N.H. 1983).
Notwithstanding the liberal allowances of notice pleading
and the deferential reading mandated by Rule 12(b)(6), a district
court must ensure that “each general allegation be supported by a
specific factual basis.” Fleming v . Lind-Waldock & Co., 922 F.2d
2 0 , 23 (1st Cir. 1990). As this court (Barbadoro, J.) has
observed:
3 [A] district court need not accept subjective characterizations, bald assertions, or unsubstantiated conclusions. Moreover, while “the line between ‘facts’ and ‘conclusions’ is often blurred,” the line must be drawn. For it is only when such conclusions are logically compelled, or at least supported, by the stated facts, that i s , when the suggested inference rises to what experience indicates is an acceptable level of probability, that “conclusions” become “facts” for pleading purposes.
Care is required in determining the sufficiency of a complaint to insure that “heightened pleading” requirements are invoked only if such requirements are specifically authorized by the Federal Rules of Civil Procedure. However, even under the general pleading requirements of Fed. R. Civ. P. 8 ( a ) , a complaint will not withstand a motion to dismiss if the plaintiff has merely recited the elements of the complaint’s causes of action in conclusory terms. Notice pleading requires factual allegations which, if true, establish all of the required elements of plaintiff’s causes of action.
Millard v . Wolfeboro, N o . 94-38-B, slip op. (D.N.H. August 1 8 ,
1994) (citations omitted).
Discussion
It i s , perhaps, best to begin with a discussion of
Universal’s claim against Technicote. In its complaint,
4 Universal alleges that “[a]s a result of the respective breaches
by Technicote and International of their obligations to
Universal, Universal has been damaged . . . and continues to be
damaged because of loss of contracts for the proprietary
product.” Complaint at para. 14 (emphasis supplied).
Unfortunately, what is entirely unclear from Universal’s
complaint is the nature of the legal obligations Universal claims
Technicote owed it (e.g., tort, contract, quasi-contract, product
liability, etc.) or the legal theory under which Universal is
proceeding.
A few things are clear, however. Plainly, Universal was not
a party to the contract between Technicote and International and,
therefore, has no direct breach of contract action against
Technicote. What is equally evident from Universal’s pleadings
is that it does not advance any claim that it was an intended
third-party beneficiary of the contract between International and
Technicote.
5 Because the complaint does not develop (or identify)
Universal’s claim in any meaningful way, except merely to allege
that “breaches” by Technicote caused it to suffer damages, the
court cannot reasonably conclude that, if Universal’s factual
allegations are credited as true, it is entitled to relief. And,
Universal’s one page objection to the motion to dismiss is
unhelpful. That objection presents not a single citation to
authority, is unaccompanied by a (required) legal memorandum, and
provides no insight at all into the nature of Universal’s legal
claims against Technicote. It provides, nearly in its entirety,
as follows:
[Universal] has alleged, and therefore it should be accepted, that the defendant Technicote, Inc. (Technicote) provided defective products to the defendant International. The defendant International, relying on the representations of Technicote, sold the product to Universal. Universal sold the defective product, and as a result has been economically harmed.
If the product defect was caused by Technicote, then Universal’s and International’s damages would be the responsibility of Technicote.
If the product defect was caused by International, then Universal’s damages would be the responsibility of International.
6 Until it is determined that there was a defect, and that one of the defendants was the cause of i t , plaintiff must sue both defendants.
Universal’s objection to motion to dismiss (document n o . 31)
(emphasis supplied).
Universal’s objection is plainly deficient. Like its
complaint, the objection fails to reveal even the basic legal
theory of recovery Universal is pursuing against Technicote. In
response to a motion to dismiss, a plaintiff must do more than
simply claim that it was harmed by someone and demand
compensation. At a minimum, a concise statement of plaintiff’s
legal theory of recovery and references to the pertinent,
supportive facts are necessary. Citations to controlling or
persuasive legal authority would also be helpful. Universal’s
objection offers none of this and, instead, rests solely on a
bald assertion of entitlement to damages.
This court could, I suppose, liberally construe the bare
facts pled, identify all of the potentially applicable theories
7 of recovery given those facts, research the pertinent law, and
then advance arguments as to why one or more of those theories
survives (or fails to survive) a pending motion to dismiss. But
the court cannot act as Universal’s lawyer. At the very least,
the other parties could legitimately complain, and it would not
be appropriate for a judge to review the sufficiency of legal
arguments he or she has posited. Besides, the court has more
than enough to do considering and deciding the legal matters
properly presented in scores of other cases. In short, the court
cannot assume the role of adviser, advocate, or legal counsel to
any of the parties. See, e.g., Kauthar SDN BHD v . Sternberg, 149
F.3d 659, 668 (7th Cir. 1998) (“It is not the obligation of this
court to research and construct the legal arguments open to
parties, especially when they are represented by counsel.”)
(citation omitted), cert. denied, 525 U.S. 1114 (1999). See also
Higgins v . New Balance Athletic Shoe, Inc., 194 F.3d 252, 260
(1st Cir. 1999) (“The district court is free to disregard
arguments that are not adequately developed.”). United States v .
Torres-Rosa, __ F.3d __, 2000 WL 298569 (1st Cir. March 2 7 , 2000)
8 (concluding that it is not the court’s obligation “to do
counsel’s homework.”).
Counsel is no doubt busy and anxious to practice in as
efficient a manner as possible, but shifting research, pleading,
and briefing responsibilities to the court is not a viable
option. As then Judge Scalia observed when he was sitting on the
Court of Appeals for the District of Columbia:
The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them. Thus, Rule 28(a)(4) of the Federal Rules of Appellate Procedure requires that the appellant’s brief contain “the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.” Failure to enforce this requirement will ultimately deprive us in substantial measure of that assistance of counsel which the system assumes - a deficiency that we can perhaps supply by other means, but not without altering the character of our institution. . . . [W]here counsel has made no attempt to address the issue, we will not remedy the defect, especially where, as here, “important questions of far-reaching significance” are involved.
9 Carducci v . Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (citations
omitted). The same principles apply with equal force at the
district court level, though its doubtful that important
questions of far-reaching significance are involved in this case.
But, absent informative briefing it is difficult to tell with any
degree of certainty.
To the extent Universal believed it had a viable legal claim
against Technicote, it was obligated to plead that claim (and the
supporting factual allegations) with sufficient specificity to
enable both the court and Technicote to understand at least the
basics of its legal theory. See generally Fed. R. Civ. P.
8(a)(2). I f , upon further reflection, it realized that it lacked
a viable claim, it should have withdrawn its complaint (or, at a
minimum, acquiesced in Technicote’s motion to dismiss).
Universal has done neither. Instead, in response to Technicote’s
assertion that Universal does not have any viable legal cause of
action, Universal has simply said, without elaboration, “Oh, yes,
10 we do.” That response, particularly in the wake of Universal’s
vague complaint, is insufficient to defeat a motion to dismiss.
Conclusion
Universal’s objection to the motion to dismiss is plainly
deficient. Nevertheless, in the interests of justice, the court
will afford Universal the opportunity to respond in a more
appropriate fashion. Accordingly, on or before May 1 2 , 2000,
Universal shall file a supplemental objection and supporting
legal memorandum addressing, at a minimum: (a) the legal theory
or theories under which it is pursuing Technicote; (b) facts
which, if credited as true, would entitle it to relief under one
or more of those theories; and (c) statutory and/or case law
supportive of those theories. Should Universal fail to do s o ,
the court will dismiss its claims against Technicote for failure
to state a claim and/or failure to prosecute.
SO ORDERED.
Steven J. McAuliffe United States District Judge
11 April 2 1 , 2000
cc: Armand M. Hyatt, Esq. Douglas L. Ingersoll, Esq. Mark F. Sullivan, Esq.