We note, moreover, that there is no trace of the "dilatory, collusive or otherwise ... bad faith" behavior by the agency of the sort that has concerned other courts. E.g., Pitroff v. United States, No. 16-cv-522-PB, 2017 WL 3614436, at *5 (D.N.H. Aug. 22, 2017) (quoting Conn. Fund for the Env't v. Cont. Plating Co., 631 F. Supp. 1291, 1293 (D. Conn. 1986) ). Blackstone nevertheless contends that the District Court erred in finding that the MassDEP's activity just described was diligent as a matter of law because the record supportably shows that a "staff shortage" had forced the agency to make fewer visits to the site during the year after the ACOP was executed than it otherwise might have done and because the record supportably shows that the agency "delegated" some of its monitoring activity to a consultant hired by the defendants.
SeeCarroll v. UnitedStates, 661 F.3d 87, 94 (1st Cir. 2011); Pitroff v. United States, 2017 DNH 158, 2017 WL 3614436, at *3 (D.N.H. Aug. 22, 2017).
I may also consider extrinsic evidence, such as exhibits and affidavits, without converting the motion to dismiss into one for summary judgment. See Carroll v. United States, 661 F.3d 87, 94 (1st Cir. 2011); Pitroff v. United States, 2017 DNH 158, 2017 WL 3614436, at *3 (D.N.H. Aug. 22, 2017).
I may also consider extrinsic evidence, such as exhibits and affidavits, without converting the motion to dismiss into one for summary judgment. See, e.g., Carroll v. United States, 661 F.3d 87, 94 (1st Cir. 2011); Pitroff v. United States, No. 16-CV-522-PB, 2017 WL 3614436, at *3 (D.N.H. Aug. 22, 2017). B. Rule 12(b)(6) Motion to Dismiss
I may also consider extrinsic evidence, such as exhibits and affidavits, without converting the motion to dismiss into one for summary judgment. See, e.g., Carroll v. United States, 661 F.3d 87, 94 (1st Cir. 2011); Pitroff v. United States, No. 16-CV-522-PB, 2017 WL 3614436, at *3 (D.N.H. Aug. 22, 2017). III. ANALYSIS
The diligent prosecution bar "does not require government prosecution to be far-reaching or zealous," or to achieve compliance as quickly as citizens might wish. See Pitroff v. U.S., 2017 WL 3614436, at *6 (D.N.H. Aug. 22, 2017) citing Karr v. Hefner, 475 F.3d 1192, 1197 (10 Cir. 2007). The circumstances of this case demonstrate ongoing diligent prosecution.
However, "[w]hen considering a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1), a court may need to consider extrinsic materials submitted by a plaintiff even when reviewing a facial challenge to jurisdiction." Pitroff v. United States, No. 16-CV-522-PB, 2017 WL 3614436, at *3 (D.N.H. Aug. 22, 2017) (citing Dynamic Image Techs., Inc. v. United States, 221 F.3d 34, 37 (1st Cir. 2000)). "In contrast, the court ordinarily should confine its review to the complaint and a limited subset of documents such as those incorporated in the complaint by reference and matters of public record when determining whether the complaint states a claim for relief." Id.
They are mistaken. A motion to dismiss under Rule 12(b)(6) is an appropriate means to test the sufficiency of the pleadings and does not pertain to what facts may be learned through discovery. See Charles Alan Wright & Arthur Miller, 5 Federal Practice and Procedure, § 1203 (3d ed. 2017); see also, e.g., Filler v. Kellett, 859 F.3d 148, 150 (1st Cir. 2017); Pitroff v. United States, 2017 WL 3614436, at *3 (D.N.H. Aug. 22, 2017); Metro. Prop. & Casualty Ins. Co. v. Savin Hill Family Chiropractic, Inc., --- F. Supp. 3d ---, 2017 WL 3120273, at *7 (D. Mass. July 21, 2017); Adams v. Town of Montague, 2015 WL 1292402, at *1 (D. Mass. Mar. 23, 2015) (explaining difference between a motion to dismiss and a motion for summary judgment). Beaulac and Beattie are represented by counsel.