Loretta Azuka Obi v. Exeter Health Resources, Inc.; Core Physicians, LLC; and Barton Associates, Inc.

2019 DNH 033

• Court: District Court, D. New Hampshire
• Decided: April 5, 2019
• Docket: 18-cv-550-SM
• Status: Published

Opinion

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

1 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

2 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

3 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

4 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.” Fed.

R. Civ. P. 56(c)(4). 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.

5 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.