Judge Salinger dismisses ‘conclusive assertions’ against project manager in commercial real estate dispute | Nutter McClennen & Fish LLP
The project manager requested the dismissal of the counterclaims. Granting the motion, Justice Salinger ruled that the counterclaim did not “plausibly suggest that [project manager] has failed to exercise reasonable care and skill in the performance of his work, or that [project manager] is strictly responsible for any construction defect. As for the allegation that the project manager “failed to fulfill his duties and fulfill his obligations”, Judge Salinger ruled that such “conclusive assertions” were insufficient.
[The developer’s] conclusive assertions that [the project manager] infringe[ed] a contractual obligation cannot save this claim. When deciding a motion to dismiss under Rule 12(b)(6), a court must “look beyond the conclusive allegations of the complaint and focus on whether the factual allegations suggest plausibly a right to compensation”. Maling versus Finnegan, Henderson, Farabow, Garrett & Dunner, LLP473 Mass. 336, 339 (2015), citing Curtis vs. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). In other words, the court must accept as true only the facts alleged in the complaint, not the “legal conclusions formulated in the form of factual allegations”. Sandman v. Quincy Mut. Fire. Co., 81 Mass. App. CT. 188, 189 (2012).
Judge Salinger also ruled that the main contractor could not be vicariously liable for the contractor’s negligence. “The allegation that . . . the project manager [was] responsible for the construction contractor’s supervision of the work,” Judge Salinger wrote, “does not plausibly suggest that he can be held liable for the negligence of the contractor, in the absence of any allegation according to which [the project manager] could control how the contractor installed the flooring. »
To see the The BLS decision.
The Commercial Litigation Session of the Superior Court:
File number: 2184CV01017
Case name: Michael Gerhardt, et al., c. Robert Burr, et al.
Decision date: February 15, 2022
Judge: Kenneth W. Salinger, Superior Court Judge