17
Five months later, on April 20, 2005, the Port Authority, along with the
"7WTC Ground Defendants" named in the Amended Complaint in 04 Civ. 7272,
renewed its Motion to Dismiss (the "Renewed Motion") upon the same two grounds. I
hold again that the Renewed Motion is premature and that, insofar as it states a
negligence per se claim against the Port Authority, it should be dismissed. Fed. R. Civ.
P. 12(b)(6).
A. Standard for Motion to Dismiss
A Rule 12(b)(6) motion requires the court to determine if plaintiff has
stated a legally sufficient claim for relief, and may be granted only if "it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Branum v. Clark,
927 F.2d 698,705 (2d Cir. 1991). The court's function is "not to assay the weight of the
evidence which might be offered in support" of the complaint, but "merely to assess the
legal feasibility" of the complaint. Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.
1980). In evaluating whether plaintiff may ultimately prevail, the court must take the
facts alleged in the complaint as true and draw all reasonable inferences in favor of the
plaintiff. See Jackson Nat'l Life Ins. Co. v. Merrill Lynch & Co., 32 F.3d 697, 699-700
(2d Cir. 1994).
For purposes of Rule 12(b), "the complaint is deemed to include any
written instrument attached to it as an exhibit or any statements or documents
incorporated in it by reference." See Fed. R. Civ. P. 10(c) ("A copy of any written
instrument which is an exhibit to a pleading is a part thereof for all purposes."); Int'l
Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per
