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South Shore Hellenic Church, Inc. v. Artech Church Interiors, Inc.

United States District Court, D. Massachusetts

February 26, 2015



GEORGE A. O'TOOLE, Jr., District Judge.

The magistrate judge to whom this matter was referred has filed a Report and Recommendation (dkt. no 50) ("R&R") with respect to the defendants' motion to dismiss (dkt. no. 32). After carefully reviewing the pleadings, the parties' submissions, the R&R, and the defendants' objections, I agree with the magistrate judge's analysis and conclusions regarding the denial of the motion to dismiss. I also agree with the magistrate's allowance of leave to file third-party complaints against Michael J. Cave (a/k/a Michael J. Cave Corp. of Massachusetts) and James J. Amirault (d/b/a/ Jim's Pro Plastering). I further agree with the magistrate's recommendation to not permit a third-party complaint against Michael G. Foley (d/b/a M.G. Construction) and Flynn Roofing Co. (a/k/a Flynn Roofing, LLC).

In their objection to the R&R, the defendants repeat the assertions made in their Motion to Dismiss that plaintiff South Shore Hellenic Church ("SSHC") lacks standing or rights under the contract and that Panagia Greek Orthodox Church ("Panagia Church") is the real party in interest. Specifically, the defendants object to the magistrate's conclusion that it was "plausible" that SSHC was the contracting principal. Although the defendants insist on the impropriety of that word, I view the magistrate's determination of plausibility to mean that, under the applicable Rule 12(c) standard, considering the facts in the light most favorable to the plaintiff, SHHC contracted under its trade name, Panagia Church. Ultimately, the question as to SHHC and Panagia Church's relationship is highly fact-specific and, where discovery has advanced this far, is properly addressed at the summary judgment stage. To the extent the defendants complain that the magistrate looked beyond the pleadings and exhibits, for example to circumstances showing community knowledge, it does not appear that those considerations were dispositive to her conclusion that SSHC has standing and is the real party in interest.

The defendants also assert that the magistrate erred in denying leave to file a third-party complaint against Foley and Flynn. Although the defendants have presented deposition evidence that suggests Foley and Flynn performed work on the roof at some point prior to the filing of this action, I am not persuaded that Foley and Flynn are required parties under Federal Rule of Civil Procedure 19(a). Granting the motion as to these third-parties who are unrelated to the current defendants would cause undue delay in this case - which has already had its discovery deadlines extended multiple times - and prejudice the plaintiff as it would likely further postpone the resolution of its claims. See Lehman v. Revolution Portfolio, LLC, 166 F.3d 389, 393 (1st Cir. 1999).

Finally, the defendants object to what they call the "procedural anomaly" of the R&R. I do not treat the R&R as making factual findings inappropriate at a motion to dismiss stage. After discovery, the defendants remain free to renew their claims for dismissal in a motion for summary judgment.

Accordingly, I ADOPT in full the Report and Recommendation. The defendants' motion to dismiss (dkt. no. 32) is DENIED as to dismissal. The defendants' request for leave to file a third-party complaint is GRANTED as to Cave and Amirault, and otherwise DENIED.



August 28, 2014

Pending before this court is a motion to dismiss filed by defendants Artech Church Interiors, Inc. ("Artech") and William Burns ("Burns") (collectively "defendants") in this breach of contract action involving repairs to the Panagia Greek Orthodox Church in Cohasset, Massachusetts. (Docket Entry #32). After conducting a hearing, this court took the motion (Docket Entry # 32) under advisement.


Defendants move to dismiss the amended complaint under Fed.R.Civ.P. 12(c) ("Rule 12(c)") on the basis that plaintiff South Shore Hellenic Church, Inc. ("SSHC") lacks Article III standing because it is not a party to the contract. (Docket Entry #32, ¶ 1). Defendants also seek dismissal due to the absence of diversity jurisdiction because the Panagia Greek Orthodox Church, an unincorporated association which signed the contract, is the "real party in interest" as well as a required party under Fed.R.Civ.P. 19 ("Rule 19"). (Docket Entry #32, ¶ 2). Further, because the citizenship of all of its members are not diverse from the Connecticut citizenship of defendants, defendants move to dismiss the action under Fed.R.Civ.P. 12(b)(1) and (h)(3) ("Rule 12(b)"). (Docket Entry #32, ¶ 2) (Docket Entry #33, pp. 13-14).

Defendants further submit that Michael Cave ("Cave"), Jim's Pro Plastering ("Jim's Pro"), Michael G. Foley d/b/a M.G. Foley Construction ("Foley") and Stephen Flynn d/b/a Flynn Roofing Co. ("Flynn") are required parties under Rule 19 whose joinder is not feasible because it deprives the court of diversity jurisdiction.[1] Alternatively, defendants request leave to file a third party complaint against Cave, Jim's Pro, Foley and Flynn.

The amended complaint sets out the following causes of action solely against Artech: (1) breach of contract (Count I); (2) breach of an express guarantee in the contract (Count II); (3) breach of an implied warranty to do a workmanlike job (Count III); (4) negligence (Count IV); and (5) breach of the implied covenant of good faith and fair dealing (Count V). Count VI against Artech and Burns, as an individual and officer of Artech, alleges a violation of Massachusetts General Laws chapter 93A, section nine. Jurisdiction is based on diversity.


Defendants challenge SSHC's standing under Rule 12(c). (Docket Entry #32, ¶ 1). A Rule 12(c) motion for judgment on the pleadings "is treated much like a Rule 12(b)(6) motion to dismiss.'" Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008). Faced with a Rule 12(c) motion, "the court must view the facts contained in the pleadings in the light most favorable to the nonmovant and draw all reasonable inferences therefrom" in the nonmovant's favor. R.G. Financial Corp. v. Verqara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006). Under Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007), "to survive a Rule 12(b)(6) motion (and, by extension, a Rule 12(c) motion) a complaint must contain factual allegations that raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true.'" Perez-Acevedo v. Rivero-Cubano, 520 F.3d at 29 (quoting Bell and setting out standard of review for Rule 12(c) motion).

A Rule 12(c) motion nonetheless differs from a Rule 12(b)(6) motion because it "implicates the pleadings as a whole." Aponte-Torres v. University of Puerto Rico, 445 F.3d 50, 54-55 (1st Cir. 2006). Filed after the close of the pleadings, a Rule 12(c) motion is based "on the factual allegations in the complaint and answer." NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 8 (1st Cir. 2002).

Subject to certain narrow exceptions and absent a conversion of the Rule 12(c) motion to a summary judgment motion under Rule 12(d), this court's review is confined to the amended complaint and the answer.[2] "Exhibits attached to the complaint are properly considered part of the pleading for all purposes, ' including Rule 12(b)(6)." Trans-Spec Truck Service, Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008); Fed.R.Civ.P. 10(c). Artech's supporting memorandum relies on a number of the exhibits attached to the amended complaint. These exhibits are part of the Rule 12(c) record. In the event "a written instrument contradicts allegations in the complaint to which it is attached, the exhibit trumps the allegations.'" Clorox Co. Puerto Rico v. Proctor & Gamble Commercial Co., 228 F.3d 24, 32 (1st Cir. 2000) (quoting Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 454 (7th Cir. 1998), in parenthetical).


SSHC "is a religious corporation organized" under Massachusetts law. (Docket Entry #9, ¶ 3). Formed and incorporated in May 1980, the articles of incorporation identify the church's name as "South Shore Hellenic Church, Inc." (Docket Entry #9-3). On November 26, 1980, SSHC purchased the Pope Memorial Church located at 811 Jerusalem Road in Cohasset. (Docket Entry #9, ¶¶ 10-11) (Docket Entry #9-3). SSHC's principal place of business is located at the same address. (Docket Entry #9, ¶ 3). After the purchase, the Pope Memorial Church became a Greek Orthodox church ("the church") and "was named the Panagia Greek Orthodox Church.'"[3] (Docket Entry #9, ¶ 11).

On June 19, 1984, SSHC purchased the adjacent property at 819 Jerusalem Road in Cohasset. (Docket Entry #9, ¶ 12). The deed identifies the purchaser as "South Shore Hellenic Church, Inc. a/k/a Panagia Greek Orthodox Church." (Docket Entry #9-5). The same name appears on the accompanying secretary's certificate and on the consent by the Greek Orthodox Archdiocese of North and South America filed with the deed. (Docket Entry #9-5).

In 1997, the church "was formally consecrated as the Nativity-Assumption of the Virgin Mary Greek Orthodox Church'" and "sanctioned by the Greek Orthodox Archdiocese of America as part of the Greek Orthodox Diocese of Boston." (Docket Entry #9, ¶ 13). Members of the church and its presiding bishop refer to the church as the "Panagia Church." (Docket Entry #9, ¶ 13) (Docket Entry #9-6).

In early 2009, the church building began to experience water leaks that damaged the interior. (Docket Entry #9, ¶ 15). Both the interior walls and the ceiling developed "visible water stains, discoloration, cracks, calcification, peeling and delamination of the lath and painted plaster surfaces." (Docket Entry #9, ¶ 15). In the spring of 2009, SSHC's board of stewards decided to undertake repairs to restore the water damaged interior and repair the exterior building envelope. (Docket Entry #9, ¶ 16). Edwin R. Lofgren ("Lofgren"), president of the board at the time, and Peter Bourikas ("Bourikas"), chairman of the board's building committee, interviewed a number of prospective contractors. (Docket Entry #9, ¶ 17). In addition to a few other contractors, Burns and Cave conducted an on site evaluation of the church. (Docket Entry #9, ¶ 17). During the inspection, Cave climbed the exterior of the church to evaluate the roof and the bell tower. (Docket Entry #9, ¶ 17).

On May 1, 2009, Artech submitted a proposal or quote in a letter to Lofgren "for construction work to be done at Panagia Greek Orthodox Church." (Docket Entry #9-8) (Docket Entry #9, ¶ 18). Burns, as president of Artech, signed the quote. The quote included seven paragraphs categorizing the work, each with subparagraphs, for a total cost of $111, 805. (Docket Entry #9, ¶ 18).

After a number of revisions, on June 18, 2009, Burns sent Lofgren another proposal or quote in letter form. (Docket Entry #9, ¶ 22) (Docket Entry #9-13). The four page letter contained seven separately priced categories of work, each with subparagraphs, for a total cost of $116, 625 and a $4, 600 discount if the work was "done at the same time." (Docket Entry #9, ¶ 22) (Docket Entry #9-13). The quote identified Cave as "Artech Project Manager." (Docket Entry #9-13).

Burns signed the letter as president. (Docket Entry #9-13). The contract did not include an integration clause. Underneath Burns' signature appears language that, "By signing below, we agree to contract Artech Church Interiors for the work selected." (Docket Entry #9-13). Below this language is a line for a "Purchaser Representative" and underneath this line is a signature line. (Docket Entry #9-13). On June 22, 2009, Lofgren as "Parish Council President" wrote and signed his name on the signature line. (Docket Entry #9-13). "Panagia Greek Orthodox Church" is the designated purchaser representative. (Docket Entry #9-13). Lofgren then mailed the contract and a required deposit of $35, 000 to Artech. (Docket Entry #9, ¶ 25) (Docket Entry #9-14). The address line in the upper left corner of the check reads, "Panagia Greek Orthodox Church" at 811 Jerusalem Road in Cohasset. (Docket Entry #9-14). The property assessment card for the building and land on file at Cohasset town hall when the parties entered into the contract reflects SSHC as the owner.[4]

The contract included a category for "Exterior Waterproofing" with a subcategory to repoint "[a]ll loose and missing mortar joints." (Docket Entry #9, ¶ 23) (Docket Entry #9-13). A category for the "Narthex" likewise included a subcategory to "have old loose or missing mortar replaced." (Docket Entry #9-13). The contract represented that "qualified craftsmen" would execute the work and that, "Artech Church Interiors guarantees all workmanship for a period of one year from the date of project completion." (Docket Entry #9, ¶ 22) (Docket Entry #9-13).

On June 29, 2009, Lofgren and Joanne S. Kelley, a member of the board of stewards and treasurer of the church, opened a commercial checking account at Rockland Trust Bank on behalf of "South Shore Hellenic Church, Inc., DBA Nativity of the Virgin Mary/Panagia." (Docket Entry #9, ¶ 29) (Docket Entry #9-16). Starting on July 8, 2009, the church "made a series of five, equal installment payments" to Artech in the amount of $15, 405. (Docket Entry #9, ¶ 30) (Docket Entry #9-17). The checks do not identify SSHC in the address line. (Docket Entry #9-17).

The "work proceeded throughout the summer of 2009." (Docket Entry #9, ¶ 31). At an undetermined point in time, Cave "informed Panagia that he had made the Narthex tight' and took care of any outside water leaks by some minor roof and stonework repairs." (Docket Entry #9, ¶ 28). On October 6, 2009, the church made the last installment payment after Cave completed a "punch list" of 20 items requested by Bourikas. (Docket Entry #9, ¶ 35) (Docket Entry #9-18).

In late February 2010, the church's exterior building envelope developed water leaks. (Docket Entry #9, ¶ 36). The leaks caused water damage to the ceiling and the walls of the Narthex and to a painted mural in the apse above the altar "which had never previously suffered water damage." (Docket Entry #9, ¶ 36). The church contacted its insurance company which sent a representative to inspect the damage on March 30, 2010. (Docket Entry #9, ¶ 37). The representative observed lifted shingles on the roof above the altar.[5] (Docket Entry #9, ¶ 37) (Docket Entry #9-19, p. 1). He also documented "[w]ater leaking through stones" as well as water damage to the Narthex wall and a sanctuary wall. (Docket Entry #9, ¶ 37).

Lofgren informed Cave about the "new water stains and plaster failure" in the spring of 2010 within the one year warranty period. (Docket Entry #9, ¶ 38). Shortly thereafter, Cave visited the church and promised Lofgren he would repair the damage at no cost. (Docket Entry #9, ¶ 38). In the spring and summer of 2010, Cave repeatedly assured Lofgren he would perform the repairs but failed to take remedial action. (Docket Entry #9, ¶ 38). In September 2010, Lofgren contacted Foley, who identified "numerous mortar ...

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