Superior Court of Massachusetts, Suffolk, Business Litigation Session
Gustave H. Murby et al. 
Children's Hospital Corporation, doing business as Boston Children's Hospital et al No. 134359
June 23, 2016
MEMORANDUM AND ORDER ON MOTIONS TO DISMISS
Kenneth W. Salinger, Justice
oppose the plans by Boston Children's Hospital to erect a
new clinical building on the site of the Prouty Garden, which
they and many others value as a quiet sanctuary for Hospital
patients and their families. In this lawsuit Plaintiffs ask
the Court to enforce the determination of need ("
DoN") law, which requires hospitals and other health
care facilities to obtain approval from the Department of
Public Health (" DPH") before making substantial
capital expenditures. See G.L.c. 111, § § 25B-25G.
Court previously denied Plaintiffs' motion for a
preliminary injunction [33 Mass.L.Rptr. 335]. It agreed with
Plaintiffs that they have standing and are otherwise entitled
to seek to enforce the DoN statute, but held that Plaintiffs
had not proved they are likely to succeed on their claims
that the Hospital has broken the law by starting construction
without first obtaining DoN approval.
four Defendants now move to dismiss this case. The Court will
deny part of the Hospital's motion but allow the rest.
The Hospital is not entitled to dismissal of the central
claims regarding demolition of the Wolbach Building.
Plaintiffs allege facts plausibly suggesting that the
Hospital could not legally begin that demolition without
first obtaining DoN approval. Whether Plaintiffs can
ultimately prove that claim is a question for another day. In
contrast, the Court must dismiss the claims against the
Hospital concerning three separate renovation projects
because there is no plausible claim that they require DoN
approval. It must also dismiss the claim that the Hospital
failed to give DPH advance notice of ongoing fundraising
because Plaintiffs will not be entitled to injunctive or
declaratory relief even if they prove that the Hospital did
not provide the required notice.
the Court will dismiss the claims against the Suffolk
Construction Company, Turner Construction Company, and the
Department of Public Health (" DPH") because they
are not proper parties to this action. The Hospital is the
real party in interest; Plaintiffs allege no facts plausibly
suggesting that they may obtain relief against the other
survive a motion to dismiss under Mass.R.Civ.P. 12(b)(6), a
complaint must allege facts that, if true, would "
plausibly suggest [ ] . . . an entitlement to relief."
Lopez v. Commonwealth, 463 Mass. 696, 701, 978
N.E.2d 67 (2012), quoting Iannacchino v. Ford Motor
Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008), and
Bell A. Corp. v. Twombly, 550 U.S. 544, 557, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007). For the purpose of
deciding the pending motion to dismiss, the Court must assume
that the factual allegations in the complaint and any
reasonable inferences that may be drawn in Plaintiffs'
favor from the facts alleged are true. See Golchin v.
Liberty Mut. Ins. Co., 460 Mass. 222, 223, 950 N.E.2d
853 (2011). In so doing, however, it must " look beyond
the conclusory allegations in the complaint and focus on
whether the factual allegations plausibly suggest an
entitlement to relief." Maling v. Finnegan,
Henderson, Farabow, Garrett & Dunner, LLP, 473 Mass.
336, 339, 42 N.E.3d 199 (2015), quoting Curtis v. Herb
Chambers I-95, Inc., 458 Mass. 674, 676, 940 N.E.2d 413
deciding the pending motions to dismiss, the Court may
consider not only the facts alleged in the body of their
complaint or demonstrated in the materials that Plaintiffs
attached to their complaint, but may also consider and take
judicial notice of other documents that Plaintiffs relied on
to frame their complaint or that are matters of public
record. See Melia v. Zenhire, Inc., 462 Mass. 164,
166, 967 N.E.2d 580 (2012) (exhibits attached to the
complaint); Golchin, 460 Mass. at 224 (documents
used in framing complaint); Schaer v. Brandeis
Univ., 432 Mass. 474, 477, 735 N.E.2d 373 (2000)
(matters of public record).
Claims Against the Hospital
The Wolbach Building
Hospital argues that Plaintiffs' claims regarding the
Wolbach Building demolition have no merit because DPH has
already determined that this work would have to be done
whether or not the proposed new Boston Children's
Clinical Building (which both sides call the "
BCCB") receives DoN approval, and that the demolition
may therefore proceed without any DoN review.
Plaintiffs allege in their complaint that this assertion is
incorrect. The complaint alleges that the Hospital would
never demolish the Wolbach Building if it were not permitted
to replace it with a new facility that requires DoN approval.
This is not a mere conclusory allegation; it is supported by
substantive allegations regarding what the Hospital has said
about the Wolbach demolition. The Court's prior ruling
that Plaintiffs had not met their burden of proving that this
claim is likely to succeed, and thus were not entitled to a
preliminary injunction, has no bearing on whether their
complaint states a legally sufficient claim.
Plaintiffs are able to prove that the Wolbach Building is
being demolished to make way for the BCCB or some other
facility subject to DoN review, then they may be able to show
that the Hospital acted illegally in demolishing Wolbach
without first obtaining DoN approval, and thus may be able to
obtain declaratory and injunctive relief against the
Hospital. For this reason the claims regarding the Wolbach