Nimco Real Estate Assoc., LLC, et al. v. Nadea, as Administrator

2017 DNH 056

• Court: District Court, D. New Hampshire
• Decided: March 22, 2017
• Docket: 16-cv-406-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Nimco Real Estate Associates, LLC, et al.

v. Civil No. 16-cv-406-JD Opinion No. 2017 DNH 056 Gregory G. Nadeau, as Administrator of the Federal Highway Administration, et al.

O R D E R

Nimco Real Estate Associates, LLC; Ultima Nashua Equipment

Corporation; and Anoosh Irvan Kiamanesh, who is manager of Nimco

and president of Ultima, brought suit against Gregory G. Nadeau,

the administrator of the Federal Highway Administration

(“FHWA”), the City of Nashua, and the New Hampshire Department

of Transportation (“NHDOT”), alleging claims that arose from the

acquisition of the plaintiffs’ property by eminent domain for a

highway project. The plaintiffs move to strike a declaration

filed in support of Nadeau’s motion to dismiss, and Nadeau

objects.

Nadeau moved, pursuant to Federal Rule of Civil Procedure

12(b)(1), to dismiss the claims brought against the Federal

Department of Transportation on the ground that the court lacks subject matter jurisdiction.1 In support, Nadeau submitted the

declaration of Mark Hasselmann, the Right of Way Program manager

at the FHWA. The plaintiffs move to strike the declaration,

arguing that in considering a motion under Rule 12 the court

cannot consider matters outside the pleadings, that the motion

should not be converted to a motion for summary judgment, and

that the declaration is defective.

A. Scope of Motion under Rule 12(b)(1)

In considering a motion under Rule 12(b)(1), the court

credits a plaintiff’s properly pleaded allegations and draws all

reasonable inferences in the plaintiff’s favor. Reddy v.

Foster, 845 F.3d 493, 497 (1st Cir. 2017). The court also

considers other materials and evidence in the record “whether or

not the facts therein are consistent with those alleged in the

complaint.” Id.; see also Torres-Negron v. J&N Records, LLC,

504 F.3d 151, 163 (1st Cir. 2007). Therefore, an affidavit or

declaration that would not be considered for purposes of a

motion to dismiss under Rule 12(b)(6) is properly considered for

purposes of a motion under Rule 12(b)(1). See Mehic v. Dana-

Farber Cancer Inst., Inc., 2017 WL 637681, at *3 (D. Mass. Feb.

Nadeau is sued in his official capacity as the administrator 1

of the Federal Highway Administration, which is part of the United States Department of Transportation.

2 16, 2017); Conservation Law Found. v. Cont’l Paving, Inc., 2016

WL 7116019, at *2 (D.N.H. Dec. 6, 2016).

Nadeau properly submitted a declaration in support of the

motion to dismiss for lack of subject matter jurisdiction

pursuant to Rule 12(b)(1). As a result, the court need not

consider whether to convert the motion to one for summary

judgment pursuant to Rule 12(d).

B. Declaration

The plaintiffs also argue that the declaration should be

struck because Hasselmann failed to show that he has personal

knowledge of the facts alleged in the complaint and failed to

provide additional information that the plaintiffs contend is

necessary. Nadeau failed to respond to the plaintiffs’

challenge to the validity of the declaration.

To be considered as evidence for purposes of a motion

pursuant to Rule 12(b)(1), a declaration must be based on the

declarant’s personal knowledge.2 See Fed. R. Evid. 602; Friends

of Mariposa Creek v. Mariposa Pub. Utils. Dist., 2016 WL

1587228, at *5 (E.D. Cal. Apr. 19, 2016); Mark Wandering

Medicine v. McCulloch, 2014 WL 12588302, at *8 (D. Mont. Mar.

26, 2014); Corless v. Cole, 865 F. Supp. 2d 1002, 1019, n.4

The personal knowledge required is of the facts stated in 2

the declaration, not the facts alleged in the complaint, as the plaintiffs suggest.

3 (C.D. Cal. 2011); Dimodica v. U.S. Dep’t of Justice, 2006 WL

89947, at *2 (S.D.N.Y. Jan. 11, 2006); Adarbe v. United States,

58 Fed. Cl. 707, 711, n.1 (Fed. Cl. 2003); Johnson v. United

States, 47 F. Supp. 2d 1075, 1079, at n.2 (S.D. Ind. 1999). The

basis for personal knowledge may be provided by the witness’s

own statements. Fed. R. Evid. 602; Friends, 2016 WL 1587228, at

*5.

In his declaration, Hasselmann states that he is employed

by the FHWA as the Right of Way manager for the New Hampshire

division. Hasselmann’s duties include providing oversight and

guidance to NHDOT to ensure its compliance with the Uniform

Relocation Assistance and Real Property Acquisition Policies Act

of 1970 (“URA”). He further states that he has been an employee

of the FHWA for sixteen years. Hasselmann provides a factual

and procedural background for the highway project at issue in

the plaintiffs’ complaint.

The plaintiffs fault Hasselmann for not stating how long he

has served as right of way manager and for not explaining

whether the information he provides is based on his own

experience as right of way manager, on his research, or on

hearsay. The plaintiffs also argue that Hasselmann does not

provide sufficient facts to support his statements that the

plaintiffs failed to file an administrative appeal.

4 Nadeau did not address the plaintiffs’ substantive

challenges to the declaration. The plaintiffs are correct that

the declaration does not explicitly or even clearly show that

the statements made are based on Hasselmann’s personal

knowledge. In the absence of any clarification about the bases

for his declaration from Hasselmann, the court cannot determine

whether the declaration is based on his personal knowledge.

Therefore, the declaration cannot be considered in support of

Nadeau’s motion to dismiss.

Conclusion

For the foregoing reasons, the plaintiffs’ motion to strike

(document no. 28) is granted. Exhibit 2 to document no. 22, the

declaration of Mark Hasselmann, is struck and will not be

considered for purposes of the motion to dismiss.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

March 22, 2017

cc: Jared Joseph Bedrick, Esq. Steven A. Bolton, Esq. Mark S. Bourbeau, Esq. Matthew T. Broadhead, Esq. Stephen G. LaBonte, Esq. Celia K. Leonard, Esq. Terry L. Ollila, Esq.