Judge Salinger dismissed a real estate developer’s counterclaims against a project manager, ruling that the counterclaim allegations did not “plausibly suggest that [project manager] [wa]s liable for the contractor’s missteps.”
In Gerhardt v. Burr, the developer hired a project manager to oversee construction of a commercial property. According to the developer, a contractor defectively installed flooring during construction. The project manager filed suit, alleging insufficient payment. The developer, in turn, counterclaimed that the project manager “‘failed to perform his duties and fulfill his obligations’ because he was ‘responsible for ensuring that the Project was completed properly’ and the project was completed improperly.”
The project manager moved to dismiss the counterclaims. Allowing the motion, Judge Salinger ruled that the counterclaim did not “plausibly suggest that [project manager] failed to exercise reasonable care and skill in carrying out his job, or that [project manager] is strictly liable for any construction defect.” As to the allegation that project manager “failed to perform his duties and fulfill his obligations,” Judge Salinger ruled that such “conclusory assertions” were insufficient.
[The developer’s] conclusory assertions that [the project manager] breach[ed] a contractual obligation cannot salvage this claim. When deciding a motion to dismiss under Rule 12(b)(6), a court 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 (2015), quoting Curtis v. 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 any “legal conclusions cast in the form of factual allegations.” Sandman v. Quincy Mut. Fire Ins. Co., 81 Mass. App. Ct. 188, 189 (2012).
Judge Salinger also ruled that the project manager could not be vicariously liable for the negligence of the contractor. “The allegation that . . . the project manager [was] responsible for overseeing the work by the construction contractor,” Judge Salinger wrote, “does not plausibly suggest that he can be held liable for negligence by the contractor, in the absence of any allegation that [the project manager] could control the manner in which the contractor installed the flooring.”
View the BLS’ decision.
The Business Litigation Session of Superior Court:
Docket Number: 2184CV01017
Case Name: Michael Gerhardt, et al., v. Robert Burr, et al.
Date of Decision: February 15, 2022
Judge: Kenneth W. Salinger, Justice of the Superior Court
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