MILLS JUSTICE SUPERIOR COURT
the court are seven motions to dismiss, filed by each of the
seven defendants. For the following reasons, the court treats
these motions to dismiss as motions for summary judgment. The
parties will proceed pursuant to Rule 56. M.R. Civ. P. 56.
Strategic Equity Partners, LLC and Robert Martin filed a
complaint on June 30, 2016. According to the complaint,
plaintiffs worked as independent contractors for defendants
beginning in 2007. (Pls.' Compl. ¶ 12.) Beginning in
July 2010, defendants failed to pay plaintiffs for services
performed pursuant to contracts entered into between
plaintiffs and the defendant companies. (Id.
their complaint, plaintiffs allege: count I, breach of
contract; count II, quantum meruit; count III, unjust
enrichment; and count IV, alter ego/veil piercing. Defendants
filed separate motions to dismiss between September 19 and
21, 2016. Plaintiffs opposed defendants' motions on
October 25, 2016. Defendants filed separate responses between
November 8 and 9, 2016.
reviewing a motion to dismiss, the court "examine[s] the
complaint in the light most favorable to the plaintiff to
determine whether it sets forth elements of a cause of action
or alleges facts that would entitle the plaintiff to relief
pursuant to some legal theory." In re Wage Payment
Litig. v. Wal-Mart Stores. Inc.. 2000 ME 162, Â¶ 3, 759
A.2d 217. "For purposes of a 12(b)(6) motion, the
material allegations of the complaint must be taken as
admitted." McAfee v. Cole, 637 A.2d 463, 465
(Me. 1994). "Dismissal is warranted when it appears
beyond a doubt that the plaintiff is not entitled to relief
under any set of facts that he might prove in support of his
claim." Johanson v. Dunnington. 2001 ME 169,
¶ 5, 785 A.2d 1244.
defendants have attached to their motions the affidavit of
defendant Kevin Mattson, and either a contract between
plaintiff Strategic Equity Partners and defendant Southern
Maine Commerce Center, or a contract between plaintiff
Strategic Equity Partners and defendant Saco Island, which
defendants maintain are the contracts referred to in the
complaint. (Ex. A to Mattson Affs.) Defendants argue, among
other things, that plaintiffs were required to mediate this
dispute before beginning litigation. Plaintiffs have attached
to their opposition the affidavits of plaintiff Robert Martin
and plaintiffs' counsel, a letter from plaintiffs'
prior counsel to the individual defendants, and email
correspondence between the parties' counsel. (Exs. A-C to
the court considers only the facts alleged in the complaint
when reviewing a motion to dismiss. Moody v. State Liquor
& Lottery Comm'n. 2004 ME 20, ¶ 8, 843 A.2d
43. If the court considers appropriate matters outside the
pleadings, the motion is treated as one for summary judgment.
M.R. Civ. P. 12(b). The court may, however, consider
"official public documents, documents that are central
to the plaintiff's claim, and documents referred to in
the complaint, without converting a motion to dismiss into a
motion for a summary judgment when the authenticity of such
documents is not challenged." Moody, 2004 ME
20, ¶ 10, 843 A.2d 43.
challenge the authenticity of the purported contracts on the
grounds that defendants have not produced any contracts with
defendants 415 Congress Street Properties or NPH, and the
contracts that defendants have produced are unsigned and were
never received by plaintiffs. (Martin Aff. ¶ 3;
Pls.' Opp'n to Mot. Dismiss 3-5.) Plaintiffs'
challenge to the authenticity of the contracts takes the
contracts outside of the Moody exceptions.
Moody, 2004 ME 20, ¶ 10, 843 A.2d 43. Further,
the parties have filed affidavits and other materials that do
not fall within the Moody exceptions. The court,
therefore, treats defendants' motions as motions for
summary judgment. See Beaucage v. City of Rockland,
2000 ME 184, ¶ 5, 760 A.2d 1054 ("The filing of the
affidavits converted the City's motion to dismiss into a
motion for a summary judgment.").
record, the court does not have the procedural benefits of a
motion for summary judgment. See M.R. Civ. P. 56(h); 2 Harvey
& Merritt, Maine Civil Practice § 12:13 at
431-32 (3d, 2016-2017 ed.) ("It is advisable ... for the
lawyer to make a motion for summary judgment labeled as such,
where he knows that matter outside the pleadings will be
needed to sustain his position. The last sentence of Rule
12(b) merely provides that error may be overlooked; it should
not be read as indicating what ought to be done.").
Further, although the parties have filed affidavits, it is
unclear whether all parties were aware the court would treat
defendants' motions as motions for summary judgment. See
2 Harvey & Merritt, Maine Civil Practice §
12:13 at 431 (3d, 2016-2017 ed.) (court has "special
obligation" to ensure all parties are notified summary
judgment is contemplated).
motions to dismiss are converted to motions for summary
judgment. Within 45 days of the date of this order,
defendants shall file statements of undisputed material
facts. The court encourages defendants to file a single
statement of undisputed material facts. Plaintiffs shall file
an opposing statement or statements of material facts and
defendants shall respond to plaintiffs 1 filing pursuant to
the rules. See Curtis v. Stover, 2016 Me. Super.
LEXIS 171, at * 2 (Aug. 9, 2016); M.R. Civ. P. 7(b)(B) &
clerk is directed to incorporate this order into the docket