Wollner v. Columbia Property Trust, Inc. ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FRANCES LONG WOLLNER
REVOCABLE TRUST, et al.,
Plaintiffs,
Civil Case No. 21-2186 (RJL)
Vv.
COLUMBIA REIT MARKET
SQUARE EAST & WEST, LLC,
Defendant. 4t—-
MEMORANDUM OPINION
(September fgo2022) [Dkt. #17]
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The Frances Long Wollner Revocable Trust, George W. Wollner Revocable Trust,
and George W. Wollner (collectively, “plaintiffs”) own two condominium units in the
District of Columbia located above a commercial office building operated by Columbia
REIT — Market Square East & West, LLC (“CPT” or “defendant”). Plaintiffs allege that
the elevators in the commercial building create unbearable noises and vibrations in their
units. Seeking injunctive relief and compensatory and punitive damages, plaintiffs filed a
three-count complaint alleging common-law claims of private nuisance and negligence and
a statutory claim under the District of Columbia Consumer Protection Procedures Act
(“CPPA”). See Complaint [Dkt. #1]. Defendant now moves to dismiss for failure to state
aclaim. See Def.’s Mot. to Dismiss [Dkt. #17].
Because plaintiffs’ claims for negligence and violation of the CPPA fail to state a
claim upon which relief can be granted but plaintiffs allege sufficient facts to state a claim
for nuisance, the Motion to Dismiss is GRANTED IN PART and DENIED IN PART.
BACKGROUND
A. Factual Background
Plaintiffs own two condominium units located above a commercial office building,
Market Square, at 701 Pennsylvania Avenue NW in Washington, D.C. See Amended
Complaint (““Am. Compl.”) [Dkt. #11] at §§] 7-8. The units are “situated proximate to a
large elevator bank” operated by Market Square. Am. Compl. 4 12. Plaintiffs allege that
“the noise stemming from the elevators” rises to “an extreme and otherwise-unacceptable
level, severely impacting any quiet enjoyment of the” units. /d. at 413. The elevators
allegedly also cause “strong, jarring vibrations” in plaintiffs’ units. /d. at 414. These
disruptions occur “at all hours of day and night.” Jd. at 15. Plaintiffs further allege that
the “noise and vibrations have ... forc[ed] the [p]laintiffs to devote significant quantities
of their time elsewhere” and caused a tenant of one of the units to give “written notice two
weeks after moving in that he could no longer tolerate living in the noise-filled apartment.”
Id. at J{ 16-17; see also id. at | 25.
In 2020, CPT allegedly began a “‘modernization’ project” to renovate the elevators.
Am. Compl. ¥ 18. Plaintiffs allege that this project “disturb[ed] insulation components ...,
rendering the noises and vibrations even more abrasive.” Jd. at 419. Plaintiffs have
informed CPT of the disturbances and requested that CPT perform sound testing. Jd. at
{| 20-21. Defendant allegedly agreed to the testing, but has not shared the resulting report
with plaintiffs. Jd. at {J 22-24.
B. Procedural Background
On August 16, 2021, plaintiffs filed a three-count complaint alleging common-law
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claims of private nuisance and negligence and a violation of the CPPA and seeking
injunctive relief, lost rental income, damages for loss of quiet enjoyment, and punitive
damages. See Complaint [Dkt. #1]. On the same day, plaintiffs moved for a preliminary
injunction, but later withdrew their motion. See Mot. for Prelim. Inj. [Dkt. #2]; Notice of
Withdrawal of Motion (Sept. 5, 2021) [Dkt. #7]. Plaintiffs subsequently filed their
Amended Complaint on September 28, 2021. Based on defendant’s agreement to operate
only a “modernized” elevator that does not cause the alleged disturbances during overnight
hours, plaintiffs then moved for a consent preliminary injunction, which this Court granted.
See Consent Mot. for Prelim. Inj. [Dkt. #13]; Minute Order of November 13, 2021.
In the meantime, defendant moved to dismiss plaintiffs’ Amended Complaint for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See Def.’s Mot. to
Dismiss [Dkt. #17]. Defendant’s motion is now ripe.
LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The allegations must allow the Court “to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” /d. “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements,” are insufficient. Jd. When resolving
a Rule 12(b)(6) motion to dismiss, the Court “assumes the truth of all well-pleaded factual
allegations in the complaint and construes reasonable inferences from those allegations in
the plaintiff's favor.” Sissel v. U.S. Dep’t of Health & Human Servs., 760 F.3d 1, 4 (D.C.
Cir. 2014).
ANALYSIS
Defendant argues that plaintiffs fail to state a claim for private nuisance, negligence,
and violation of the CPPA. Def.’s Memo. in Support of Mot. to Dismiss (“MTD”) [Dkt.
#17-1] at 1. Unsurprisingly, plaintiffs disagree on all three counts. See generally Pls.’
Opp. to Def.’s Mot. to Dismiss (“Opp.”) [Dkt. #19]. Although I agree with defendant that
plaintiffs have not stated a claim to relief for negligence or under the CPPA, I disagree that
plaintiffs’ private nuisance claim fails at this early stage. How so?
A. Private Nuisance
‘‘A private nuisance is a nontrespassory invasion of another’s interest in the private
use and enjoyment of land.” Carrigan v. Purkhiser, 466 A.2d 1243 (D.C. 1983) (quoting
Restatement (Second) of Torts § 821D (1979)). Unlike trespass, private nuisance “does
not require interference with the possession” of land; rather, it is “an interference with the
interest in the private use and enjoyment of land.” Carrigan, 466 A.2d at 1243 (quoting
Restatement (Second) of Torts § 821D, comment d (1979)).
Defendant argues that District of Columbia courts “have not yet affirmatively
recognized private nuisance as a stand-alone cause of action.” MTD at 3. Although the
District of Columbia Court of Appeals has not “viewed favorably” “claims of nuisance” as
“independent tort[s],” it “has on occasion recognized an actionable private nuisance.”
Wood v. Neuman, 979 A.2d 64, 78 (D.C. 2009) (internal quotation marks and citations
omitted). Defendant’s argument otherwise is therefore unpersuasive. “To be actionable as
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a nuisance, the offending thing must be marked by ‘some degree of permanence’ such that
the ‘continuousness or recurrence of the things, facts, or acts which constitute the
nuisance,’ give rise to an ‘unreasonable use.’” Jd. (quoting Reese v. Wells, 73 A.2d 899,
902 (D.C. 1950)); cf Ortberg v. Goldman Sachs Grp., 64 A.3d 158, 167-68 (D.C. 2013)
(observing that D.C. nuisance law is “perhaps conflicting or hard to decipher,” but
recognizing that “case law has been unambiguous in its embrace of the Restatement’s
definition of ‘private nuisance’” and observing that D.C. courts have recognized private
nuisance as an actionable claim in some circumstances).
Plaintiffs allege that defendant’s operation of elevators without sufficient insulation
or other protection “has unreasonably interfered with [their] ability to both use and rent”
their condominium units by creating “noises and vibrations.” Am. Compl. 431; see also
id. at J 13 (alleging that “the noise stemming from the elevators beneath [plaintiffs units]
grew to an extreme and otherwise-unacceptable level, severely impacting any quiet
enjoyment of” their property). Moreover, plaintiffs allege that this conduct “is ongoing in
nature” and has continued “for several months.” Jd. at 432; see also id. at { 15 (alleging
that the disturbance “occurred at all hours and night prior to and following the filing of this
case’). As such, plaintiffs’ factual allegations are sufficient to survive defendant’s motion
to dismiss. Of course, to be entitled to relief, plaintiffs must support their allegations with
evidence in the record that defendant’s conduct meets the elements of a private nuisance
claim and is sufficiently continuous and extreme to rise to the level of an “actionable
private nuisance” under D.C. law. See Wood, 979 A.2d at 78. But at this preliminary stage,
I find that plaintiffs have set forth factual allegations that, if proven, may give rise to an
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actionable claim for private nuisance. Accordingly, defendant’s Motion to Dismiss
plaintiffs’ private nuisance claim must be DENIED.
B. Negligence
To state a claim for negligence under D.C. law, a claimant must allege three
elements: 1) the defendant owed a duty to the claimant; 2) the defendant breached that
duty; and 3) the breach was the proximate cause of the claimant’s injury. Poola v. Howard
Univ., 147 A.3d 267, 289 (D.C. 2016); see also Hedgepeth v. Whitman Walker Clinic, 22
A.3d 789, 793 (D.C. 2011). “[T]he District of Columbia Court of Appeals has chastised”
insufficient, formulaic recitations of a claim’s elements “specifically in the negligence
context.” Roe v. Doe, 401 F. Supp. 3d 159, 164 (D.D.C. 2019) (citing Maddox v. Bano,
422 A.2d 763, 764 (D.C. 1980)).
Under the first element, a “defendant is liable to a plaintiff for negligence only when
the defendant owes the plaintiff some duty of care.” Heidi Aviation, LLC v. Jetcraft Corp.,
573 F. Supp. 3d 182, 197 (D.D.C. 2021) (citation omitted). “[I]f there is no duty, there can
be no breach, and hence no negligence.” Gilbert v. Miodovnik, 990 A.2d 983, 988 (D.C.
2010) (citation omitted). “It is the role of the court to determine whether the defendant
owed the claimant a duty of care.” McDonald’s USA, LLC v. Craft, 263 F. Supp. 3d 56,
62 (D.D.C. 2017) (citing Haynesworth v. D.H. Stevens Co., 645 A.2d 1095, 1087—98 (D.C.
1994)). To do so, “[t]he court first defines the scope of the defendant's duty and then asks
whether the injury was reasonably foreseeable to the defendant at the time of the incident.”
McDonald's, 263 F. Supp. 3d at 62 (citing Haynesworth, 645 A.2d at 1098). The District
of Columbia Court of Appeals has “described a court’s examination of whether a duty
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exists as a ‘foreseeability of harm test’ that is determined, in large part, by the nature of the
relationship between the parties.” Hedgepeth, 22 A.3d at 794. Because “the relationship
between the parties is the key to determining whether the defendant had a legally
enforceable duty to the plaintiff,” there is generally “only a minimal duty—if any—owed
to a party who is at arms’ length.” Jd. (internal quotation marks and citations omitted).
Here, plaintiffs make only a conclusory allegation as to defendant’s duty “to not
create a nuisance upon the premises of neighboring properties[.]” Am. Compl. { 34. Their
Amended Complaint alleges no facts from which the Court can infer a relationship between
the defendant and plaintiffs that creates a duty of care. Moreover, plaintiffs have not
pointed to—nor has the Court found—any case in which a D.C. court recognized at
common law a freestanding duty to not create a nuisance. At bottom, plaintiff's allegations
concerning excessive disruption from a neighboring property sound in nuisance, not
negligence. Defendant’s Motion to Dismiss plaintiffs’ negligence claim is therefore
GRANTED.
C. District of Columbia Consumer Protection Procedures Act
The CPPA governs “procedures and remedies for a broad spectrum of practices
which injure consumers.” Krukas v. AARP, Inc., 376 F. Supp. 3d 1, 34 (D.D.C. 2019)
(citing Atwater v. District of Columbia Dept. of Consumer & Regulatory Affairs, 566 A.2d
462, 465 (D.D.C. 1989)). Although the statute is intended to “be construed and applied
liberally,” see D.C. Code § 28-3901(c), it applies only to “trade practices arising out of
consumer-merchant relationships,” Krukas, 376 F. Supp. 3d at 37 (citing Sundberg v. TTR
Realty, LLC, 109 A.3d 1123, 1129 (D.C. 2015)). Under the CPPA, a “consumer” is one
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“who ... does or would purchase, lease (as lessee), or receive consumer goods or services”
or a person who “does or would provide the economic demand for a trade practice.” D.C.
Code § 28-3901(a)(2). And a “merchant” is an “individual, firm, corporation, partnership,
cooperative, association, or any other organization, legal entity, or group of individuals
however organized” who “in the ordinary course of business does or would sell, lease (to),
or transfer, either directly or indirectly, consumer goods or services” or who “does or would
supply the goods or services which are or would be the subject matter of a trade practice.”
D.C. Code § 28-3901(a)(1), (3).
Plaintiffs’ Amended Complaint contains no factual allegations suggesting the
existence of a consumer-merchant relationship between plaintiffs and CRT. Although
plaintiffs allege that the condominium units are “consumer goods” within the statutory
definition, they allege no facts from which this Court can infer a consumer-merchant
relationship between plaintiffs and CRT. Accordingly, plaintiffs’ CPPA claim must be
dismissed. See, e.g., Busby v. Capital One, N.A., 932 F. Supp. 2d 114, 143-44 (D.D.C.
2013).
CONCLUSION
For the foregoing reasons, defendant’s Motion to Dismiss [Dkt. #17] is hereby
GRANTED IN PART and DENIED IN PART. An order consistent with this decision
accompanies this Memorandum Opinion.
A
RICHARD J. LE
United States District Judge
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