UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Micronics Filtration Holdings, Inc.
v. Civil No. 18-cv-303-JL Opinion No. 2018 DNH 248 Timothy Miller, Peter Kristo, and Pure Filtration, LLC
MEMORANDUM ORDER
In this trade-secrets case, plaintiff Micronics Filtration
Holdings, Inc. has moved for reconsideration of the court’s
October 4, 2018, order granting-in-part and denying-in-part
defendants’ motion to dismiss the amended complaint.1 Micronics
argues that the court erred, first when it applied the
heightened pleading standard of Federal Rule of Civil Procedure
9(b) to portions of its claims for intentional interference with
existing contractual relations and violation of the New
Hampshire Consumer Protection Act (“NHCPA”), and also when the
court refused to consider material attached to Micronics’
withdrawn motion for a preliminary injunction in assessing those
claims and Micronics’ defamation claim. Local rule 7.2(d)
allows a party to seek reconsideration of an interlocutory order
1 Doc. no. 39. based on manifest errors of fact or law. Micronics has
identified no such errors.
Application of Rule 9(b). Micronics argues that the court
made two errors when it applied Rule 9(b) to Micronics’
interference and NHCPA claims. First, it contends that the
court improperly inserted a reliance requirement into these
claims. This misreads the court’s order. The court did not
suggest that Micronics needed to show that it relied on alleged
misstatements to state a claim. Claims which do not explicitly
charge fraud are still subject to Rule 9(b) if the factual
allegations “effectively charge fraud.” N. Am. Catholic Educ.
Programming Found., Inc. v. Cardinale, 567 F.3d 8, 15 (1st Cir.
2009). In the relevant passage of the order, the court
considered potential arguments Micronics might have made that
its factual allegations did not “effectively charge fraud,” and
therefore should not be subject to Rule 9(b).2 The court
highlighted the fact that Micronics did not rely on the alleged
misstatements not as a deficiency in its claims, but as a
potential argument that its allegations were not essentially
2 Thus, when the court considered whether Micronics “effectively alleged that defendants committed fraud,” “effectively” stood for “in effect,” referencing Cardinale. Doc. no. 39 at 11. Micronics seems to have read it as “in an effective manner” –- a valid usage, but not consistent with the context of the passage. See Bryan A. Garner, Garner’s Modern English Usage 321 (4th ed. 2016).
2 allegations of fraud. For the reasons stated in the order, the
court determined that this arguable deviation from the “textbook
elements of a fraud” was not decisive and that Rule 9(b) applied
to Micronics’ allegations. The court did not insert a reliance
element into Micronics’ claims.
Second, Micronics maintains that the court incorrectly
interpreted the Cardinale decision. Micronics reads Cardinale
as limiting the application of Rule 9(b) to instances where the
plaintiff has explicitly pleaded fraud. The court considered
and rejected this reading in the order.3 While it is true that
the plaintiff in Cardinale explicitly pleaded fraudulent conduct
as support for an interference claim, the First Circuit Court of
Appeals explained in both Cardinale and Mulder v. Kohl’s Dep’t
Stores, Inc. that Rule 9(b) also applies “where the core
allegations effectively charge fraud.” Cardinale, 567 F.3d at
15; Mulder, 865 F.3d 17, 21–22 (1st Cir. 2017). And Mulder
favorably cites a District of Massachusetts case in which the
district court applied Rule 9(b) to a claim under
Massachusetts’s consumer protection statute even though the
plaintiff did not explicitly plead fraud. 865 F.3d at 22
(citing Martin v. Mead Johnson Nutrition Co., No. 09-cv-11609-
NMG, 2010 WL 3928707, at *3 (D. Mass. Sept. 30, 2010)).
3 Order of October 4, 2018 (doc. no. 39) at 10-11.
3 Micronics’ reliance on Cardinale’s statement that “arguably Rule
9(b) does not apply except so far as fraud is specifically
alleged as an ingredient of the claim” assumes that
“specifically alleged” means “explicitly alleged.” 567 F.3d at
14. But the better reading is that “specifically alleged”
includes both “explicitly alleged” and “effectively alleged,”
and that the statement means that Rule 9(b) only applies to an
intentional interference claim to the extent that the underlying
factual allegations of interference explicitly or effectively
allege fraud.4 Micronics has identified no manifest error in the
court’s application of Cardinale.
Consideration of injunction pleadings. In ruling on the
motion to dismiss, the court declined to consider materials that
Micronics submitted in support of its motion for a preliminary
injunction.5 Micronics argues that this constitutes manifest
error. It further contends that allegations in these materials,
when combined with the amended complaint, would allow Micronics
to meet the heightened standard of Rule 9(b) for its intentional
4 If such a claim also alleges an independent means of interference other than fraud, that portion of the claim would not be subject to Rule 9(b). Cf. Order of October 4, 2018 (doc. no. 39) T 8-9 (explaining a similar rule for the application of New Hampshire Uniform Trade Secrets Act preemption). 5 Order of October 4, 2018 (doc. no. 39) at 4 n.1, 15 n.13.
4 interference and NHCPA claims and the heightened requirement for
defamation pleading.6
Consideration of documents “not attached to the complaint
or expressly incorporated by it” is normally forbidden in the
context of a motion to dismiss. Flores v. OneWest Bank, F.S.B.,
886 F.3d 160, 167 (1st Cir. 2018). But the First Circuit Court
of Appeals has recognized “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. (quoting Watterson v. Page, 987 F.2d 1, 3 (1st
Cir. 1993)). Micronics argues that its injunction-related
filings fall under the “official public records” and “central to
plaintiffs’ claim” exceptions. They do not.
The contents of documents filed with a court are not
automatically “official public records” for the purposes of Rule
12(b)(6) review. See Rocket Learning, Inc. v. Rivera-Sanchez,
715 F.3d 1, 9 n.5 (1st Cir. 2013) (A “preliminary injunction
hearing record . . . does not fall within any of the narrow
exceptions” outlined in Watterson.); Streit v. Bushnell, 424
F.Supp.2d 633, 639 n.3 (S.D.N.Y. 2006)(“A complaint cannot be
6 Micronics has not asked the court to reconsider the dismissal of its breach of contract claim involving solicitation of employees.
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UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Micronics Filtration Holdings, Inc.
v. Civil No. 18-cv-303-JL Opinion No. 2018 DNH 248 Timothy Miller, Peter Kristo, and Pure Filtration, LLC
MEMORANDUM ORDER
In this trade-secrets case, plaintiff Micronics Filtration
Holdings, Inc. has moved for reconsideration of the court’s
October 4, 2018, order granting-in-part and denying-in-part
defendants’ motion to dismiss the amended complaint.1 Micronics
argues that the court erred, first when it applied the
heightened pleading standard of Federal Rule of Civil Procedure
9(b) to portions of its claims for intentional interference with
existing contractual relations and violation of the New
Hampshire Consumer Protection Act (“NHCPA”), and also when the
court refused to consider material attached to Micronics’
withdrawn motion for a preliminary injunction in assessing those
claims and Micronics’ defamation claim. Local rule 7.2(d)
allows a party to seek reconsideration of an interlocutory order
1 Doc. no. 39. based on manifest errors of fact or law. Micronics has
identified no such errors.
Application of Rule 9(b). Micronics argues that the court
made two errors when it applied Rule 9(b) to Micronics’
interference and NHCPA claims. First, it contends that the
court improperly inserted a reliance requirement into these
claims. This misreads the court’s order. The court did not
suggest that Micronics needed to show that it relied on alleged
misstatements to state a claim. Claims which do not explicitly
charge fraud are still subject to Rule 9(b) if the factual
allegations “effectively charge fraud.” N. Am. Catholic Educ.
Programming Found., Inc. v. Cardinale, 567 F.3d 8, 15 (1st Cir.
2009). In the relevant passage of the order, the court
considered potential arguments Micronics might have made that
its factual allegations did not “effectively charge fraud,” and
therefore should not be subject to Rule 9(b).2 The court
highlighted the fact that Micronics did not rely on the alleged
misstatements not as a deficiency in its claims, but as a
potential argument that its allegations were not essentially
2 Thus, when the court considered whether Micronics “effectively alleged that defendants committed fraud,” “effectively” stood for “in effect,” referencing Cardinale. Doc. no. 39 at 11. Micronics seems to have read it as “in an effective manner” –- a valid usage, but not consistent with the context of the passage. See Bryan A. Garner, Garner’s Modern English Usage 321 (4th ed. 2016).
2 allegations of fraud. For the reasons stated in the order, the
court determined that this arguable deviation from the “textbook
elements of a fraud” was not decisive and that Rule 9(b) applied
to Micronics’ allegations. The court did not insert a reliance
element into Micronics’ claims.
Second, Micronics maintains that the court incorrectly
interpreted the Cardinale decision. Micronics reads Cardinale
as limiting the application of Rule 9(b) to instances where the
plaintiff has explicitly pleaded fraud. The court considered
and rejected this reading in the order.3 While it is true that
the plaintiff in Cardinale explicitly pleaded fraudulent conduct
as support for an interference claim, the First Circuit Court of
Appeals explained in both Cardinale and Mulder v. Kohl’s Dep’t
Stores, Inc. that Rule 9(b) also applies “where the core
allegations effectively charge fraud.” Cardinale, 567 F.3d at
15; Mulder, 865 F.3d 17, 21–22 (1st Cir. 2017). And Mulder
favorably cites a District of Massachusetts case in which the
district court applied Rule 9(b) to a claim under
Massachusetts’s consumer protection statute even though the
plaintiff did not explicitly plead fraud. 865 F.3d at 22
(citing Martin v. Mead Johnson Nutrition Co., No. 09-cv-11609-
NMG, 2010 WL 3928707, at *3 (D. Mass. Sept. 30, 2010)).
3 Order of October 4, 2018 (doc. no. 39) at 10-11.
3 Micronics’ reliance on Cardinale’s statement that “arguably Rule
9(b) does not apply except so far as fraud is specifically
alleged as an ingredient of the claim” assumes that
“specifically alleged” means “explicitly alleged.” 567 F.3d at
14. But the better reading is that “specifically alleged”
includes both “explicitly alleged” and “effectively alleged,”
and that the statement means that Rule 9(b) only applies to an
intentional interference claim to the extent that the underlying
factual allegations of interference explicitly or effectively
allege fraud.4 Micronics has identified no manifest error in the
court’s application of Cardinale.
Consideration of injunction pleadings. In ruling on the
motion to dismiss, the court declined to consider materials that
Micronics submitted in support of its motion for a preliminary
injunction.5 Micronics argues that this constitutes manifest
error. It further contends that allegations in these materials,
when combined with the amended complaint, would allow Micronics
to meet the heightened standard of Rule 9(b) for its intentional
4 If such a claim also alleges an independent means of interference other than fraud, that portion of the claim would not be subject to Rule 9(b). Cf. Order of October 4, 2018 (doc. no. 39) T 8-9 (explaining a similar rule for the application of New Hampshire Uniform Trade Secrets Act preemption). 5 Order of October 4, 2018 (doc. no. 39) at 4 n.1, 15 n.13.
4 interference and NHCPA claims and the heightened requirement for
defamation pleading.6
Consideration of documents “not attached to the complaint
or expressly incorporated by it” is normally forbidden in the
context of a motion to dismiss. Flores v. OneWest Bank, F.S.B.,
886 F.3d 160, 167 (1st Cir. 2018). But the First Circuit Court
of Appeals has recognized “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. (quoting Watterson v. Page, 987 F.2d 1, 3 (1st
Cir. 1993)). Micronics argues that its injunction-related
filings fall under the “official public records” and “central to
plaintiffs’ claim” exceptions. They do not.
The contents of documents filed with a court are not
automatically “official public records” for the purposes of Rule
12(b)(6) review. See Rocket Learning, Inc. v. Rivera-Sanchez,
715 F.3d 1, 9 n.5 (1st Cir. 2013) (A “preliminary injunction
hearing record . . . does not fall within any of the narrow
exceptions” outlined in Watterson.); Streit v. Bushnell, 424
F.Supp.2d 633, 639 n.3 (S.D.N.Y. 2006)(“A complaint cannot be
6 Micronics has not asked the court to reconsider the dismissal of its breach of contract claim involving solicitation of employees.
5 modified by a party's affidavit or by papers filed in response
to a dispositive motion to dismiss or for summary judgment.”).
Instead, “the phrase ‘official public records’ . . . appears
limited, or nearly so, to documents or facts subject to judicial
notice under Federal Rule of Evidence 201.” Freeman v. Town of
Hudson, 714 F.3d 29, 36 (1st Cir. 2013). That rule permits
judicial notice of “a fact that is not subject to reasonable
dispute,” because it is either generally known or “can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201.
Court filings certainly might fall within the scope of the
rule, especially if the question at hand is the legal effect of
previous proceedings. See Boateng v. InterAm. Univ., Inc., 210
F.3d 56 (1st Cir. 2000) (considering a state court complaint and
judgement in assessing res judicata); Henson v. CSC Credit
Services, 29 F.3d 280 (7th Cir. 1994) (considering state court
documents to determine if a certain judgment had in fact been
entered). But the fact that a party has filed a document with a
court does not elevate the accuracy of its contents. Micronics
asks the court to take accusations from disputed affidavits
attached to a motion for preliminary injunction and add them as
allegations to the amended complaint in the same lawsuit. As
these accusations are subject to reasonable dispute, this would
6 not be an exercise of judicial notice, and so is beyond the
“official public records” exception.
Micronics’ injunction-related filings also do not fall
within the “central to plaintiff’s claim” exception. This
exception exists for documents from which the claims arise, such
as transactional documents or allegedly wrongful publications.
See Watterson, 987 F.2d at 4 (citing offering documents in a
securities fraud case and an article alleged to be libelous);
Shaw v. Dig. Equip. Corp., 82 F.3d 1194, 1220 (1st Cir. 1996)
(considering the substance of allegedly false or misleading
statements in a securities action); Campbell v. Specialized Loan
Servicing, LLC, No. 13-cv-278, 2014 WL 280492 at *1 n.1 (D.N.H.
Jan. 23, 2014) (Barbadoro, J.) (considering the note and
mortgage in a foreclosure case). Under this exception, “[a]
court may properly consider the relevant entirety of a document
integral to or explicitly relied upon in the complaint, even
though not attached to the complaint,” because plaintiffs might
otherwise selectively quote or omit material which undermined
their claim. Shaw, 82 F.3d at 1220. The measure of whether a
document is central to a claim is not whether its content
assists plaintiff in adequately pleading the claim, but whether
it is itself a necessary foundation of the claim. Affidavits
describing alleged misstatements or defamation are not “central”
in this way.
7 Even if there were grounds to consider the injunctive
pleadings, Micronics has not shown that the court would be
obligated to do so. The First Circuit Court of Appeals recently
explained that “there are some ‘narrow exceptions’ in which a
court may, if it chooses, consider extrinsic documents . . .
without turning the 12(b)(6) motion into a motion for summary
judgment.” Newman v. Lehman Bros. Holdings Inc., 901 F.3d 19,
25 (1st Cir. 2018)(emphasis added). Once exception is where the
document “effectively merges into the pleadings,” which gives
“the court the discretion to consider such additional material.”
Id. (emphasis added). Newman arguably assumes that defendants
are arguing for consideration of extrinsic documents, and the
alternative is summary judgement. But Micronics has not shown
that a court is obligated, rather than permitted, to consider
documents beyond the complaint at plaintiff’s request. Absent
an obligation, refusing to consider the injunctive pleadings
cannot be manifest error.
Micronics has not shown manifest error in the court’s
exclusion of the injunctive pleadings. The affidavits attached
to those pleadings are neither “official public records” nor
documents “central to plaintiff’s claim.”
8 Conclusion. The court DENIES Micronics’ motion for
reconsideration.7
SO ORDERED.
Joseph N. Laplante United States District Judge
Dated: December 12, 2018
cc: W. Fulton Broemer, Esq. Matthew R. Johnson, Esq. Mark B. Rosen, Esq.
7 Doc. no. 47.