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Murby v. Children's Hospital Corp.

Superior Court of Massachusetts, Suffolk, Business Litigation Session

June 22, 2016

Gustave H. Murby et al. [1]
v.
Children's Hospital Corporation, doing business as Boston Children's Hospital et al No. 134359

          Filed June 23, 2016

          MEMORANDUM AND ORDER ON MOTIONS TO DISMISS

          Kenneth W. Salinger, Justice

         Plaintiffs 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.

         The 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.

         All 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.

         Finally, 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 defendants.

         1. Legal Standard

          To 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 (2011).

          In 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).

         2. Claims Against the Hospital

         2.1. The Wolbach Building

         The 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.

         But the 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.

         If 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 ...


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