UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
FEDERICA MENNELLA, 

### et al., Plaintiffs, 

### v. DAHLQUIST STUDIOS, INC., 

### et al., Def endants. Civil Action No. 16-538 (GK)

MEMORANDUM OPINION OnMarch 28, 2016, Defendants Dahlquist Studios, Inc. and Jeffrey Dahlquist ("Dahlquist"
or "Defendants") filed a Motion to Dismiss or, in the Alternative, for Summary Judgment against Plaintiffs FedericaMennella and Dr. LucaGattinoni, M.D., herhusband ("Plaintiffs") [DocketNo. 5]. Defendants request that the Complaint be dismissed pursuant to Rules 12(b)(6) and 56 ofthe Federal Rules ofCivil Procedure. On April 12, 2016, Plaintiffs filed an Opposition [Dkt. No. 6], and on April 19, 2016, Defendants filed their Reply [Dkt. No. 7]. Plaintiffs are suing Defendants for $100,000 because ofdissatisfaction with a custom-made bookcase whichwas priced at $12,400. The Court concludes that the Motion should be denied for the following reasons. I. FACTUAL BACKGROUND In November, 2014, Plaintiffs commissioned Inscape Studios, Inc. ("Inscape") to design a custom built bookcase to be constructed and then installed at theirresidence located in the District ofColumbia.Defendants quoted an amount of $12,400 which Plaintiffs accepted and, as agreed, paid Dahlquist Studios $6,200 so that it could purchase the necessary materials to manufacture the bookcase at its shop in Virginia. Plaintiffs became dissatisfied with the bookcase before and after it was installed and, thereafter, contacted another contractor to review Defendants' work. The second contractor inspected the project and indicated that some ofthe flaws could not be repaired. However, according to the Managing Principal of Inscape, Gregory Kearley, Dahlquist Studios manufactured the bookcase in conformity with (a) Inscape's design; (b) its approved shop drawings, and (c) industry standards for architectural millwork. Plaintiffs have refused to pay the remaining $6,200 they owed. 

### II. STANDARD OF REVIEW A Motion to Dismiss, under Fed. R. Civ. P. 12(b)(6), "tests the legal sufficiency of a complaint." Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The Supreme Court has ruled that the pleading must contain "a short and plain statement ofthe claim showing that the pleader is entitled to relief
...." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In ruling
on a Motionto Dismiss, the Court "mayconsideronlythe facts alleged inthe complaint, documents attached as exhibits orincorporatedbyreference inthe complaint, andmatters aboutwhichthe court may takejudicial notice." EEOC v. St. Francis Xavier Parochial School, 117 F.3d 621, 624 (D.C. Cir. 1997). In addition, "[t]hecourtmust construethe complaintliberallyintheplaintiffsfavor and credit plaintiffthe benefit of all reasonable inferences deriving from the complaint." Kruger v. Cogent Commc'ns. Inc., 2016 WL 125783, *3 (D.D.C., March 30, 2016) (citing Kowal v. MCI Commc'ns. Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1984).
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### III. ANALYSIS A. Motion to Dismiss and/or Motion for Summary Judgment Plaintiffs argue that the document filed by Defendants is not a Motion to Dismiss, but a Motion for Summary Judgment. In particular, Plaintiffs point out that with regard to a Motion to Dismiss, the Court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint, and matters ofwhich [the court] may take judicial notice." EEOC v. St. Francis Xavier Parochial School, 117 F.3d 621, 624-25 (D.C. Cir. 1997). However,PlaintiffspointoutthatDefendants didnotrestricttheirclaimstothe allegations contained within the four comers ofthe Complaint, and instead relied on nine exhibits, seven ofwhich were either not attached to the Complaint or incorporated in it. Those exhibits were referred to often in Plaintiffs' "Factual Background." Thus, it is clear that Defendants did not comply with the ruling in St. Francis Xavier. However, even if the Court treats the Motion as a Motion for Summary Judgment, Defendants still do notprevailbecauseLocal Rule 7(h)(1) requiresthat"[ e]achmotionfor summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there are no genuine issues, which shall include references to the parts ofthe record relied
on to support the statement." LCvR 7(h)(l) (2016). Defendants did not comply with any ofthese requirements. There are numerous factual issues either in dispute or not clear from the Complaint. For example, it is not at all clear why Plaintiffs became dissatisfied and whatthey were dissatisfied about. Itis also not clear whethertheir complaints had any merit given the affidavit ofMr. Kearley, which certainly contradicts the opinion ofthe second contractor company.

-3-This is simply not a case that fits within the Motion for Summary Judgment rubric and, therefore, even if Defendants were filing their papers as a Motion for Summary Judgment, the Motion could not be granted. "When a Rule 12(b)(6) motion is treated as a motion for summary judgmentpriorto theparties being 'providedwithnotice oran opportunityfor discovery,' theparties musthavehad areasonable opportunityto contestthe matters outside ofthepleadings suchthatthey
are not taken by surprise." Kruger, 2016 WL 1257834 at *3. However, Defendants are not filing a Motion for Summary Judgment, but a Motion to ·Dismiss which, as already noted, only requires that the Plaintiffs have filed a Complaint which, on its face, contains "a short and plain statement ofthe claim showing that the pleader is entitled to relief," Bell Atl. Corp., 550 U.S. at 555, andwhichmaybe construed liberallyinthePlaintiffs favor. Kruger v. Cogent Commc'ns. Inc., 2016 WL 125783, *3 (D.D.C., March 30, 2016), citing Kowal
v. MCI Commc'ns. Corp., 16 F.3d 1271, 1276 (D.C
..Cir. 1984). This Complaint clearly satisfies that standard. CONCLUSION The Parties have raised a number ofstraightforward legal issues in their papers which may
or may not be correct. However, those legal issues cannot be resolved by a Motion to Dismiss nor
a Motion for Summary Judgment, as Defendants have attempted to do. Rather, counsel should be raising them after discovery in pretrial motions when the case, as a whole, has been fleshed out. For all these reasons, the Court concludes that Defendants' Motion should be denied.

December 28, 2016 Gladys 

# KeSSief United States District Judge
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