Revaz v. Fleet

• Court: District Court, D. New Hampshire
• Decided: April 7, 1997
• Docket: CV-96-379-M
• Status: Published

Opinion

Revaz v . Fleet CV-96-379-M 04/07/97 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Suzanne Y . Revaz, Individually and as Co-Trustee of the Frederic E . Revaz Revocable Trust and Jacqueline White

v. Civil N o . 96-379-M

Fleet, N.H., formerly Shawmut Bank, N.A., Fred Edward Revaz, and Anna Revaz

O R D E R

Defendants Fred and Anna Revaz move to dismiss Count VI of

Plaintiffs' Second Amended Complaint that alleges breach of

contract for failure to repay loans resulting in the depletion of

the family trust. For the reasons that follow, defendants’

motion is denied.

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 court

accepts “all well-pleaded factual averments and indulg[es] all

reasonable inferences in the plaintiff[s’] favor.” Aulson v .

Blanchard, 83 F.3d 1 , 3 (1st Cir. 1996). The court is limited to

the factual allegations included in the amended complaint,

however. Doyle v . Hasbro, Inc., 103 F.3d 186, 190 (1st Cir.

1996). Materials outside of the complaint may not be considered

on a motion to dismiss unless the materials are referred to in

the complaint, are central to the claim, and their authenticity is undisputed. See Fed. R. Civ. P. 12(b) and Watterson v . Page,

987 F.2d 1 , 3 (1st Cir. 1993).

Defendants contend that plaintiffs’ breach of contract claim

must be dismissed because it fails to allege the existence of a

valid loan agreement or the terms of repayment. In support of

their assertion, defendants point to the elements of a breach of

contract claim under Massachusetts law. In response, plaintiffs

argue, without citation to legal authority, that their amended

complaint, supported by materials submitted with their objection

to the motion to dismiss, states a viable breach of contract

claim.

If Massachusetts law is controlling, plaintiffs’ allegations

of breach of contract are likely sufficient to survive dismissal.

With inferences taken in their favor, plaintiffs allege that if

Fred Revaz’s use of trust funds was pursuant to a loan from his

father, the terms of the agreement were as follows: his father

agreed to loan the money; Fred agreed to repay the loan with

interest; and Fred breached the agreement by failing to repay the

loan as he promised. See Petricca v . Simpson, 862 F. Supp. 1 3 ,

17 (D. Mass. 1994) (“Under Massachusetts law, in order to sustain

a cause of action for breach of contract, a plaintiff must plead

and prove that the parties had an agreement supported by valid

consideration; that plaintiff was ready willing and able to

perform; and that plaintiff was damaged.” Citing Singarella v .

City of Boston, 173 N.E.2d 290 (Mass. 1961)).

2 Deficiencies in the motion to dismiss and response preclude resolution of defendants’ motion to dismiss on the merits, however. Once again, the parties have not addressed the choice- of-law issue that underlies this case (which the court brought to the attention of the parties in its order of November 1 2 , 1996). The court declines to unilaterally resolve the choice-of-law issue for the parties. In addition, plaintiffs have submitted materials with their objection, and without explanation, that are not apparently appropriate for consideration on a motion to dismiss. The court also notes that plaintiffs have not alleged the basis upon which they assert individual rights to recover damages for breach of contracts allegedly made between Frederick Revaz, now deceased, and his son, defendant Fred Revaz.

To avoid ruling based upon assumptions about the controlling law without benefit of full briefing, and to allow the parties to address these legal issues as well as the potential factual issues raised by the additional materials submitted by plaintiffs, the court denies defendants’ motion to dismiss without prejudice to filing a properly supported dispositive motion, preferably one for summary judgment addressing the questions raised here.

3 SO ORDERED.

Steven J. McAuliffe United States District Judge April 7 , 1997

cc: David P. Cullenberg, Esq. Lawrence M . Edelman, Esq. Diane R. Bech, Esq.