Matiella v. Murdock Street LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHARLES MATIELLA
Plaintiff,
v.
MURDOCK STREET LLC, et al.,
Defendants.
Case No. 21-cv-2112 (GMH)
MURDOCK STREET, LLC,
Third-Party
Plaintiff,
v.
EWORA, L.L.C., et al.,
Third-Party
Defendants.
MEMORANDUM OPINION AND ORDER
This action concerns whether the construction of a condominium building damaged a town-
house next door owned by the Plaintiff Charles Matiella. Plaintiff alleges that the heavy construc-
tion and excavation activity seriously damaged the townhouse, rendering it uninhabitable. See
ECF No. 50, ¶¶ 15, 17, 18, 20, 28, 30. Plaintiff brings this action under negligence and trespass
theories against the owner of the condominium building property, the two companies who operated
as the general contractor for its construction, and the subcontractor involved in the excavation. He
also seeks injunctive relief related to the restoration of his property.
Pending before the Court are the following motions: (1) the joint Motion to Dismiss and
Motion to Strike, ECF No. 64, filed by Defendants EWORA, L.L.C. (“EWORA) and IFG Group
LLC (“IFG”), and (2) the Motion to Dismiss, ECF No. 83, filed by Defendant City Concrete Cor-
poration (“City Concrete”). Both motions have been fully briefed and are ripe for resolution, and
the Court finds that no hearing is necessary to resolve either motion. See LCvR 7(f) (“A party
may in a motion or opposition request an oral hearing, but its allowance shall be within the discre-
tion of the Court.”). Upon consideration of the parties’ briefs, and the entire record herein, 1 both
motions are granted in part and denied in part.
I. BACKGROUND
A. The Amended Complaint
Plaintiff’s original complaint was filed August 6, 2021, against Defendant Murdock Street,
LLC (“Murdock Street”). ECF No. 1. With the leave of court, Plaintiff filed an Amended Com-
plaint on January 26, 2023, adding defendants EWORA and IFG, as well as City Concrete. ECF
No. 50. In relevant part, the Plaintiff alleges the following.
Plaintiff owns the property located at 770 Princeton Place NW, Apt B, Washington DC
20010 (“Plaintiff’s Property”). ECF No. 50, ¶¶ 1, 15. Defendant Murdock Street owns the adja-
cent property at 3619 Georgia Avenue NW, Washington DC, 20018 (“Murdock Street’s Prop-
erty”), where Plaintiff alleges a condominium building named “The Exchange” was constructed.
Id., ¶¶ 17, 19. Defendant EWORA was the “builder” retained to “manage the construction activ-
ities” at The Exchange, and Defendant IFG was the “develop[er]” of the condominium complex
at The Exchange.” Id., ¶¶ 47, 48. Both companies are referred to as “general contractors” for the
project and are “owned and operated by the same principal, Fatih [Guner], and are sister compa-
nies.” Id., ¶¶ 8, 46, 48, 49. Defendant City Concrete was the subcontractor who “provide[d] labor
and material” for the construction of The Exchange. Id., ¶ 59.
1
The relevant docket entries for purposes of this Memorandum Opinion and Order are: (1) the Amended Complaint,
ECF No. 50, filed by Plaintiff Charles Matiella (“Plaintiff”); (2) EWORA and IFG’s Motion to Dismiss and Motion
to Strike, ECF No. 64 (“EWORA and IFG’s motion”); (3) Plaintiff’s Memorandum in Opposition thereto, ECF No.
67; (4) EWORA and IFG’s Reply in support their motion, ECF No. 70; (5) City Concrete’s Motion to Dismiss, ECF
No. 83 (“City Concrete’s Motion”); (6) Plaintiff’s Memorandum in Opposition thereto, ECF No. 86; and (7) City
Concrete’s Reply in support of its motion, ECF No. 87. The page numbers cited herein are those assigned by the
Court’s CM/ECF system.
2
Regarding the timeline of events, Plaintiff alleges that in 2017, Defendant Murdock Street
engaged Defendant IFG to develop the condominium complex, and in 2017, one of those two
defendants then engaged Defendant EWORA to construct or “manage the construction activities.”
Id., ¶ 48. In turn, EWORA retained City Concrete “on or about October 23, 2017” to perform
construction activities at The Exchange. Id., ¶ 59. “Thereafter,” City Concrete performed the
construction work. Id., ¶ 60. In 2019, 2020, and 2021, Plaintiff alleges that “construction had
been in progress” at Murdock Street’s Property, including “excavation, heavy drilling and other
major construction activity.” Id., ¶ 18. Construction activities at The Exchange were completed
as of May 2021. Id., ¶ 19.
Plaintiff alleges that the construction damaged his property that was adjacent to The Ex-
change. Specifically, he alleges that the “heavy excavation, drilling and other major construction
activity” caused “reverberations of the earth or other elements connected to Plaintiff’s property”
which caused “serious damage” to it, including causing its foundation “to be defective, dislodged,
cracked and unsafe.” Id., ¶¶ 20, 21. According to the Amended Complaint, Defendant Murdock
Street “admitted that [its] actions caused the damage to Plaintiff’s property.” Id., ¶ 23. Over “the
past two years,” Plaintiff alleges, “Defendant Murdock made remedial attempts to address and
rectify the damage” to Plaintiff’s property, but those efforts were ultimately “insufficient.” Id.
Due to Defendant Murdock Street’s “failure to remedy the problems and severe damage” to Plain-
tiff’s property, Plaintiff filed a complaint with the Illegal Construction Unit of the District of Co-
lumbia Department of Consumer and Regulatory Affairs (“DCRA”). Id., ¶ 24. On May 7, 2021,
DCRA held a meeting to address the protection of Plaintiff’s property and issued a May 13, 2021
3
report “detailing the insufficient remedial measures” taken to address the damage caused to Plain-
tiff’s property. Id., ¶ 26. One of those measures had involved the installation of a monitoring
device in September 2020 to “ensure no settling is occurring” in the building façade. Id., ¶ 26.E.
The Amended Complaint also includes findings of a June 2021 report by a structural engi-
neer who “evaluated the problems that Defendant Murdock [Street] caused” at Plaintiff’s Property.
Id., ¶ 28. According to that engineer’s report, during the construction of The Exchange, an exca-
vation was made “adjacent” to Plaintiff’s property, which included the installation of a “soldier
pile and lagging retaining wall.” 2 Id., ¶ 28.A. The soldier pile and lagging retaining wall had “no
walers, rakers or crossbracing,” 3 and photographs of the excavation did not indicate any “backfill
in the space behind [the] lagging between the walls of the excavation” to “close[] the void and
prevent[] the lateral movement of the soil into the void space.” Id., ¶ 28.F. The report also refers
to photographs depicting “soil flowing out from beneath the lagging.” Id., ¶ 28.G. The report
states that the “lateral movement of the subsoil results in settlement of the structure.” Id., ¶ 28.F.
The report notes that soil had “settled from beneath the sidewalk and the brick planter wall sepa-
rated from the walk at the entryway” to Plaintiff’s house. Id. Further, it states that settlement or
outward movement of the building wall may have caused roof leakage, which may in turn have
2
A soldier pile retaining wall system generally consists of piles, which are vertical steel or concrete beams installed at
specific spacing intervals to hold “lagging,” which are wood or concrete planks placed horizontally between the piles.
Together, the piles and lagging form a wall to retain soil as an excavation proceeds. See, e.g., Deep Excavations:
Soldier Pile Walls: Information, Advantages & Disadvantages, https://perma.cc/9VMV-KKDL (last visited July 17,
2023); Deep Foundations Institute Glossary, Soldier Pile, https://perma.cc/ME7Q-JKCV (last visited July 21, 2023);
Z. Hiobil et al, Revising the Concepts of the Soldier Pile Wall, XIII ICSMFE 919, 919 (1994) available at
https://perma.cc/X8CN-DLLX.
3
Walers, rakers, and crossbracing are all methods of supporting the wall of an excavation. A waler is a beam that
runs parallel to the face of the retaining wall to distribute the pressure evenly. What Are Walers in Construction, HPD
Construction, (Mar. 21, 2022) https://perma.cc/R8QQ-W9KU. A raker is a beam that supports the wall diagonally
from the ground inside the excavation like “an enormous kickstand” for the shoring wall. Michael Diez de Aux, How
Tiebacks, Rakers, and Struts Support Shoring Walls, Skyrise Cities, https://perma.cc/C9VZ-RFEY (last visited July
21, 2023). Crossbracing involves “diagonal bracing” to provide internal stability to existing rectangular frames. Chris-
topher Gorse, et al., Oxford Dictionary of Construction, Surveying and Civil Engineering 98 (1st ed. 2012).
4
caused water dripping from the ceiling. Id., ¶ 28.I. Photographs also reportedly showed “cracks
in the masonry bearing walls and settling of a support for the deck” on Plaintiff’s property, as well
as cracks around doorways, at lintels, and on interior walls and the ceiling of the property. Id., ¶
28.G. In the opinion of the engineer:
[S]ettlement of [Plaintiff’s] building may continue until the soil migrates to fill-in
the voids created by the excavation and void space behind the lagging. Continued
settlement will result in further structural damage to the building and compromise
[of] its structural integrity. Movement of the bearing walls may result in the joists
slipping out of their pockets and floors or roof collapsing. Also, further settlement
may adversely affect underground utilities servicing the building.
Id., ¶ 28.K.; see also id. at 34–35.
As a result of the damage to his property, Plaintiff alleges that the townhouse on his prop-
erty “has become an unsafe structure and it is currently uninhabitable.” Id., ¶ 30. Plaintiff asserts
that the building “will have to be knocked down or razed to ensure the safety and protection of
human life as well as property,” and that Defendant Murdock Street should be ordered to pay “for
the demolition and full rebuild,” pay for the “loss of use sustained by Plaintiff’s property,” and
pay for Plaintiff’s mounting out of pocket costs and expenses he has incurred as a result of the
damage caused to his property. Id., ¶¶ 34–37.
Plaintiff alleges that Defendant Murdock Street’s actions or inaction with respect to his ad-
jacent property violated D.C. Mun. Regs. tit. 12, § 3307A, which states in relevant part:
Adjoining public and private property shall be protected from damage during con-
struction, alteration, repair, demolition or raze of a premises at the expense of the
person causing the work. Protection must be provided for lots, and for all elements
of a building or other structure, including, but not limited to, footings, foundations,
party walls, chimneys, vents, skylights, porches, decks, roofs, roof outlets, roof
structures and flashing. Provisions shall be made to control water runoff and ero-
sion during construction or demolition or raze activities.
5
D.C. Mun. Regs. tit. 12, § 3307A; see also ECF No. 50, ¶¶ 38–39. Further, Plaintiff alleges that
because the work performed in building The Exchange entailed “excavation, drilling, and other
heavy construction activity with heavy equipment” it was “inherently dangerous” and therefore
the duty of care that Defendant Murdock Street owed to Plaintiff was “non-delegable.” ECF No.
50, ¶¶ 41–42. Accordingly, Plaintiff sues Defendant Murdock Street for negligence (Count I),
trespass (Count II), and for injunctive relief related to the restoration of his property (Count III).
See id., ¶¶ 66–86.
Plaintiff also brings claims directly against EWORA, IFG, and City Concrete. As to
EWORA and IFG, Plaintiff alleges that their work as the developer, builder and and/or general
contractor for the construction of Murdock Street’s property included managing “the construction
necessary to excavate the land upon which The Exchange would be built.” Id., ¶ 50. Plaintiff also
claims that EWORA and IFG were “involved in and responsible for” (1) addressing the “numerous
Stop Work Orders” issued by DCRA, including ones related to Plaintiff’s Property; (2) addressing
the May 13, 2021 report detailing remedial measures to address damages to Plaintiff’s Property;
(3) addressing visual monitoring reports related to damages to Plaintiff’s Property; and (4) sub-
mitting plans to the DCRA to obtain the construction permit. Id., ¶¶ 53–57. Plaintiff claims that
Defendant Murdock Street “has asserted that Defendants EWORA and IFG are directly responsi-
ble for any damages to Plaintiff’s Property caused by the construction of The Exchange.” Id., ¶
58. Accordingly, Plaintiff sues them, like Defendant Murdock Street, for negligence (Counts IV
and VII), trespass (Counts V and VIII), and for injunctive relief related to the restoration of Plain-
tiff’s property (Counts VI and IX). Id., ¶¶ 87–128.
As for Defendant City Concrete, Plaintiff alleges that it entered into a contract “to provide
labor and material for the construction of The Exchange[.]” Id., ¶ 59. Thereafter, City Concrete
6
performed construction work. Id., ¶ 60. Plaintiff then alleges that, according to Defendants
EWORA and IFG, the construction activities at The Exchange were “developed, planned, and
performed by City Concrete,” and City Concrete’s actions and omissions caused any trespass
and/or damage to Plaintiff’s property. Id., ¶¶ 62, 63. Accordingly, like the other defendants,
Plaintiff sues City Concrete for negligence (Count X), trespass (Count XI), and for injunctive relief
(Count XII). Id., ¶¶ 129–149.
B. EWORA and IFG’s Motion to Dismiss
EWORA and IFG first argue that the Amended Complaint should be dismissed under Fed-
eral Rule of Civil Procedure 12(b)(6) because the statute of limitations bars the claims against
them. 4 Although they concede that Plaintiff should receive the benefit of tolling of the statute of
limitations because of D.C. Superior Court administrative orders related to the COVID-19 pan-
demic, EWORA and IFG argue that Plaintiff’s claims are nevertheless barred because (1) Plaintiff
has not pleaded a date of accrual of either his injuries or of his discovery of them; and (2) the
Amended Complaint does not relate back to the original complaint under Federal Rule of Civil
Procedure 15(c). ECF No. 64-1 at 5–12. They next argue that (1) Plaintiff did not state a claim
for negligence against EWORA (Count IV) or IFG (Count VII); (2) Plaintiff did not plead facts
rendering EWORA and IFG liable for any negligence perpetuated by City Concrete; and (3) Plain-
tiff did not state a claim for trespass against EWORA (Count V) or IFG (Count VIII). Id. at 12–
19. EWORA and IFG alternatively request that, pursuant to Rule 12(f), the Court strike Plaintiff’s
4
Defendants EWORA and IFG assert in their reply that Plaintiff misinterpreted their arguments, as they were not
arguing that the statute of limitations barred Plaintiff’s claims but rather that the Amended Complaint lacked factual
content sufficient to state a claim. ECF No. 70 at 2-4. This was not clear to the Court. See ECF No. 64-1 at 10 (“If
the construction activities that Plaintiff seeks to hold Defendants liable for were performed prior to January 7, 2019—
and the FAC provides no reason to conclude otherwise—then Plaintiff’s negligence and trespass claims are un-
timely.”); id. at 12 (“Plaintiff may not . . . assert that his claims against EWORA and IFG are timely.”). Although the
statute of limitations argument could be consider conceded, the Court nevertheless considers below some of the issues
raised by Defendants related to the statute of limitations.
7
requests for injunctive relief, which are set out both as separate counts in the Complaint (Counts
VI and IX) and as a demand in the prayer for relief. Id. at 20–23
Plaintiff responds that his pleading is sufficient. As to the statute of limitations, Plaintiff
argues that because the Amended Complaint does not conclusively establish that his claims are
time-barred, the motion should be denied on that basis. ECF No. 67 at 4–5. As to his negligence
claim, Plaintiff contends that the Amended Complaint contains sufficient factual allegations to
plausibly state a claim for negligence. Id. at 5–8. Plaintiff also argues that it is premature at this
procedural stage to determine whether EWORA and IFG are liable for any negligence committed
by City Concrete. Id. at 8–14. Plaintiff asserts that he has plausibly stated a claim for trespass.
Id. at 14–15. Finally, Plaintiff argues that striking his requests for injunctive relief under Rule
12(f) is not appropriate because his requests are not redundant, immaterial, impertinent, or scan-
dalous. Id. at 15–18.
C. City Concrete’s Motion to Dismiss
Defendant City Concrete raises similar issues in its motion to dismiss. First, it argues gen-
erally that Plaintiff has failed to allege facts indicating that “City Concrete did anything to cause
Plaintiff’s alleged damage,” appearing to argue that both the negligence and trespass claims against
City Concrete do not state a claim upon which relief can be granted. ECF No. 83 at 4. Second,
City Concrete argues that the claims against it are barred by the statute of limitations, asserting
that because Plaintiff has not stated any facts about when the alleged excavation and damage be-
gan, the Court cannot determine whether it has authority to grant Plaintiff relief under the statute
of limitations. Id. at 5–7. City Concrete seeks dismissal on that basis or, in the alternative, an
order directing Plaintiff to file a more definite statement of his claims pursuant to Federal Rule of
Civil Procedure 12(e). Id. at 7; ECF No. 87 at 2–3. Third, City Concrete argues that reverberations
8
and vibrations from construction work are not a physical invasion amounting to trespass under
D.C. law. ECF No. 83 at 7–8. Finally, it asserts that Plaintiff’s claims for injunctive relief should
be dismissed because he has an adequate remedy at law, and some of Plaintiff’s injunctive requests
are not provided for by D.C. law. Id. at 8–10.
Plaintiff responds by first arguing that City Concrete’s motion to dismiss was not author-
ized by this Court’s scheduling order permitting it to file a “responsive pleading.” ECF No. 86 at
5–6. On the merits, Plaintiff contends that he has alleged sufficient facts to plausibly state a claim
for negligence against City Concrete. Id. at 7–8. Plaintiff argues that the statute of limitations
argument fails because the Amended Complaint is not conclusively time barred on its face. Id. at
8–10. Regarding his trespass claim, Plaintiff argues that he has plausibly alleged trespass. Id. at
10–12. Finally, Plaintiff asserts that his requests for injunctive relief are proper under D.C. law
and should not be dismissed.
II. LEGAL STANDARD
A. Motion to Dismiss for Failure to State a Claim under Rule 12(b)(6)
In a complaint, a plaintiff must provide a “short and plain statement of the claim,” Fed. R.
Civ. P. 8(a)(2), that “give[s] the defendant fair notice of what the . . .claim is and the grounds upon
which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original)
(citation omitted). A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of a com-
plaint on the basis that it fails to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). While a plaintiff need not make “detailed factual allegations” to avoid dismissal, he or
she must provide “more than labels and conclusions” or “a formulaic recitation of the elements of
a cause of action.” Twombly, 550 U.S. at 555. Rather, the complaint “must contain sufficient fac-
tual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
9
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). To meet this standard, a
plaintiff must “plead[ ] factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. Generally, a court must accept as true the
well-pleaded factual allegations contained in the complaint, Atherton v. D.C. Office of Mayor, 567
F.3d 672, 681 (D.C. Cir. 2009), and construe those allegations “in the light most favorable to the
plaintiff[ ],” Vick v. Brennan, 172 F. Supp. 3d 285, 295 (D.D.C. 2016). “In assessing a Rule
12(b)(6) motion, a court may consider ‘the facts contained within the four corners of the complaint’
along with ‘any documents attached to or incorporated into the complaint, matters of which the
court may take judicial notice, and matters of public record.’” Yazzie v. Nat’l Org. for Women, No.
19-cv-3845, 2021 WL 1209347, at *6 (D.D.C. Mar. 30, 2021) (internal citations omitted) (first
quoting Nat’l Postal Prof’l Nurses v. U.S. Postal Serv., 461 F. Supp. 2d 24, 28 (D.D.C. 2006),
then quoting United States ex rel. Head v. Kane Co., 798 F. Supp. 2d 186, 193 (D.D.C. 2011)).
B. Motion for a More Definite Statement under Rule 12(e)
Under Rule 12(e), “[a] party may move for a more definite statement of a pleading . . .
which is so vague or ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ.
P. 12(e); Swierkiewicz v. Sorema, 534 U.S. 506, 514 (2002) (“If a pleading fails to specify the
allegations in a manner that provides sufficient notice, a defendant can move for a more definite
statement under Rule 12(e).”). “Consistent with Rule 8(a)’s liberal pleading requirements, courts
are reluctant to compel a more definite statement pursuant to Rule 12(e).” McQueen v. Wood-
stream Corp., 244 F.R.D. 26, 34 (D.D.C. 2007) (citing Latch String, Inc. v. The Rouse Co., No.
76-cv-1502, 1977 WL 1346, at *1 (D.D.C. Jan. 4, 1977)). More, [t]o prevent Rule 12(e) from
becoming a substitute for discovery, courts will generally deny a motion for a more definite state-
ment where the information sought may be obtained in discovery.” Id.10
C. Motion to Strike under Rule 12(f)
Rule 12(f) permits a court to “order stricken from any pleading any insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). This decision
is “vested in the trial judge’s sound discretion . . . [;] [h]owever, a motion to strike is a drastic
remedy that courts disfavor.” Shaw v. District of Columbia., No. 17-cv-738, 2018 WL 5044248,
at *2 (D.D.C. Sept. 11, 2018) (second alteration in original) (internal citation omitted) (quoting
Gates v. District of Columbia, 825 F. Supp. 2d 168, 169 (D.D.C. 2011)); see also Barnes v. District
of Columbia, 289 F.R.D. 1, 26 (D.D.C. 2012) (“Motions to Strike are strongly disfavored and
require the Court to consider alternatives.”). Although Rule 12(f) does not require a showing of
prejudice, “courts view motions to strike portions of a complaint with such disfavor that many
courts will grant such a motion only if the portions sought to be stricken as immaterial are also
prejudicial or scandalous.” Makuch v. FBI, No. 99-cv-1094, 2000 WL 915767 at *2 (D.D.C. Jan
7, 2000). “In the rare instance that a motion to strike is granted, the submission to which it is
directed ‘should be pruned with care,’ rather than completely scrapped.” Meyer v. Panera Bread
Co., No. 17-cv-2565, 2018 WL 5017747, at *4 (D.D.C. Oct. 16, 2018) (internal citation omitted)
(quoting Johnson v. M&M Commc’ns, Inc., 242 F.R.D. 187, 189 (D. Conn. 2007)).
III. DISCUSSION
As a preliminary matter, the Court dispenses with Plaintiff’s contention that City Con-
crete’s motion to dismiss was somehow improperly filed. Plaintiff cites cases regarding what
constitutes a “responsive pleading” for the purposes of Federal Rule of Civil Procedure 15 to argue
that the instant motion filed by City Concrete was not authorized by the April 11, 2023 Memoran-
dum Opinion and Order of this Court setting aside the entry of default. ECF No. 86 at 2, 5–6; see
ECF No. 78. However, setting aside an entry of default does not deprive the party of the ability to
11
file a motion to dismiss. See Owens v. Republic of Sudan, 374 F. Supp. 2d 1, 9 (D.D.C. 2005)
(“Courts routinely allow defendants to file a motion to dismiss in place of an answer despite a prior
entry of default.”). Moreover, this Court’s Local Civil Rules instruct that “upon the granting of a
motion to vacate an entry of default, or a judgment by default, or both, the movant shall have 14
days within which to answer or otherwise respond to the complaint.” LCvR 7(g). City Concrete’s
filing complies with this Court’s Order and this Court’s Local Civil Rules. Accordingly, the Court
considers the merits of the arguments raised by Defendants EWORA, IFG, and City Concrete in
their motions.
A. The Statute of Limitations Does Not Warrant Dismissal At this Early Stage
The D.C. Circuit has “repeatedly held” that “courts should hesitate to dismiss a complaint
on statute of limitations grounds based solely on the face of the complaint.” Firestone v. Firestone,
76 F.3d 1205, 1208–09 (D.C. Cir. 1996) (per curiam). A motion to dismiss may be granted on
statute of limitations grounds “only if the complaint on its face is conclusively time barred.” Tog-
gas v. Wachovia Mortgage, FSB, 2020 WL 3103966, at *6 (D.D.C. June 11, 2020) (quoting
McQueen, 244 F.R.D. at 31); see also Zorgani v. District of Columbia, No. 17-cv-2360, 2022 WL
1491133, at *4 (D.D.C. May 11, 2022) (“[A] defendant is entitled to succeed on a Rule 12(b)(6)
motion to dismiss brought on statutes of limitations grounds only if the facts that give rise to this
affirmative defense are clear on the face of the plaintiff's complaint.” (quoting Lattisaw v. District
of Columbia, 118 F. Supp. 3d 142, 153 (D.D.C. 2015))). To prove that conclusive bar, “no rea-
sonable person could disagree on the date on which the cause of action accrued.” Toggas, 2020
WL 3103966, at *6 (citing McQueen, 244 F.R.D. at 32). Where there is a factual dispute bearing
on the statute of limitations, a motion to dismiss should be denied. See Capitol Servs. Mgmt., Inc.
v. Vesta Corp., 933 F.3d 784, 789 (D.C. Cir. 2019) (reversing the grant of a motion to dismiss
12
where the factual question of when the plaintiff had notice of claim was not resolved by the face
of the complaint); de Csepel v. Republic of Hungary, 613 F. Supp. 3d 255, 305 (D.D.C. 2020)
(“[M]otions to dismiss based on a limitations defense are disfavored because resolution generally
requires the development of a record and the adjudication of factual issues.” (quoting de Csepel v.
Republic of Hungary, 808 F. Supp. 2d 113, 139 (D.D.C. 2011)); see also Williams-Jones v. La-
Hood, 656 F. Supp. 2d 63, 68 (D.D.C. 2009) (denying a motion to dismiss where a factual dispute
existed regarding when the plaintiff knew or should have known of the conduct in question).
Moreover, at the motion to dismiss stage, defendants “are not entitled to offer their own evidence—
even if uncontested—but must rely, instead, exclusively on the factual allegations contained in
[the] complaint.” Marzorati v. MedStar-Georgetown Med. Ctr., Inc., 265 F. Supp. 3d 24, 26
(D.D.C. 2017).
Defendants have not cleared that high bar here. They have not demonstrated at this early
stage of the proceedings that the allegations contained in the Amended Complaint “conclusively”
demonstrate that Plaintiff’s claims are time barred using the traditional accrual rule. Toggas, 2020
WL 3103966, at *6 (quoting McQueen, 244 F.R.D. at 32). Even had Defendants done so, it would
be improper to dismiss on limitations grounds because whether to apply the discovery rule or con-
tinuing tort doctrine in this case raises questions of fact not properly adjudicated at this early stage
of the litigation.
Generally, the timeliness of a cause of action depends on three things: (1) the length of the
appropriate limitations period, (2) the date that the cause of action accrued and the limitations
period began to run, and (3) the date the relevant claims were filed with the court. Taking the last
issue first, the Court will assume for purposes of this decision that Plaintiff’s claims were raised
13
on January 18, 2023, the date when he first sought leave to file the Amended Complaint. 5,6 The
length of the limitations period for the causes of action at issue is also fairly easy to determine.
Under the law of the District of Columbia, 7 for both negligence claims and for claims to recover
for “an injury to real or personal property”—which includes trespass claims—a litigant must bring
suit within three years from when the claim accrues. D.C. Code § 12-301(3), (8); see L’Enfant
Plaza E., Inc. v. John McShain, Inc., 359 A.2d 5, 6 (D.C. 1976) (finding that D.C. Code § 12-
301(3) was “controlling statutory provision” for trespass actions); see also Tolbert v. Nat'l Har-
mony Mem’l Park, 520 F. Supp. 2d 209, 212 (D.D.C. 2007) (similar). But here, as Defendants
agree, Plaintiff should benefit from an additional one year and twelve days to the limitations period
because of the D.C. Superior Court’s tolling of D.C. Code statute of limitations beginning on
5
Because no party addresses the issue on the merits, the Court assumes at this stage without deciding that the Amended
Complaint does not relate back to the original complaint as to EWORA, IFG, and City Concrete pursuant to Rule
15(c)(1)(C). See Fed. R. Civ. P. 15(c)(1)(C).
6
EWORA and IFG do not contest that January 18, 2023 is the operative date for the Amended Complaint. ECF No.
64-1 at 9-10. City Concrete appears to assert that the operative date is January 26, 2023, the date that the Amended
Complaint was separately docketed. ECF No. 83 at 7. This Court’s January 30, 2023 Order explaining its decision
to grant Plaintiff’s motion to amend, ECF No. 54, did not identify an operative date for the Amended Complaint;
however, the Court finds that the operative date for the Amended Complaint in this case is January 18, 2023, the date
the motion was filed. See Ealy-Simon v. Liberty Med. Supply, No. 05-cv-14059, 2007 WL 1521628, at *3 (S.D. Fla.
May 23, 2007); accord Pompey v. Lumpkin, 321 F. Supp. 2d 1254, 1258 n.2 (M.D. Ala. 2004), aff'd sub nom. Pompey
v. Fulmer, 127 F. App’x 473 (11th Cir. 2005); Wallace v. Sherwin Williams Co., 720 F. Supp. 158, 159 (D. Kan.
1988).
7
In a diversity case like this one, the limitations period and accrual date are questions of state law. See A.I. Trade
Fin., Inc. v. Petra Int’l Banking Corp., 62 F.3d 1454, 1458 (D.C. Cir. 1995) (citing Guaranty Trust Co. v. York, 326
U.S. 99, 110 (1945)) (explaining that “a federal court sitting in diversity looks to the state law to determine whether a
cause of action based upon state law has expired”). For purposes of choice of law, the District of Columbia “treat[s]
statutes of limitations as procedural, and therefore almost always mandate[s] application of the District’s own statute
of limitations.” Id. (citing Namerdy v. Generalcar, 217 A.2d 109, 113 (D.C. 1966) (“[A] limitation on the time of suit
is procedural and is governed by the law of the forum.”)).
14
March 18, 2020, 8 due to the COVID-19 pandemic. 9 ECF No. 64-1 at 10; ECF No. 83 at 6–7; see
also Fragola v. Kenific Grp., Inc., No. 21-cv-1423, 2022 WL 1908824, at *3 (D.D.C. June 3, 2022)
(in diversity case, taking judicial notice of the D.C. Superior Court administrative orders, and find-
ing that they tolled all D.C. Code statutes of limitations from March 18, 2020 until March 30,
2021, the date that the limitations period began to run again). Therefore, assuming that Plaintiff’s
claims had not expired prior to the beginning of the tolling period on March 18, 2020, 10 and giving
Plaintiff the benefit of the full tolling period, his negligence and trespass claims would be deemed
8
See Order, Joint Committee on Judicial Administration for the District of Columbia Courts, https://perma.cc/NTL9-
ESJE (Mar. 18 2020) (authorizing D.C. Courts to, inter alia, toll deadlines); Order, Superior Court of the District of
Columbia, https://perma.cc/P2DC-8XCL (issued Mar. 18, 2020, amended Mar. 19, 2020) (tolling statute of limitations
through May 15, 2020); Order, Superior Court of the District of Columbia, https://perma.cc/C4FN-C4VQ (May 14,
2020) (tolling statute of limitations until June 19, 2020); Order, Superior Court of the District of Columbia,
https://perma.cc/C4UX-K6L9 (June 19, 2020) (tolling statute of limitations through August 14, 2020); Order, Superior
Court of the District of Columbia, https://perma.cc/PE5N-BBNM (Aug. 13, 2020) (tolling statute of limitations
through November 9, 2020); Order, Superior Court of the District of Columbia, https://perma.cc/2V4F-8L48 (Nov.
5, 2020) (tolling statute of limitations through January 15, 2021); Order, Superior Court of the District of Columbia,
https://perma.cc/F9RC-CW7F (Jan. 13, 2021) (tolling statute of limitations through March 31, 2021); Order, Superior
Court of the District of Columbia, https://perma.cc/6M4D-R2US (Mar. 30, 2021) (ending tolling of statute of limita-
tions).
9
Under the doctrine articulated in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal courts that sit pursuant
to their diversity jurisdiction are “to apply state substantive law and federal procedural law.” Hanna v. Plumer, 380
U.S. 460, 465 (1965). The statute of limitations is substantive under the Erie doctrine. A.I. Trade, 62 F.3d at 1458
(citing Guaranty Trust Co. v. York, 326 U.S. 99 (1945)). Following this doctrine, federal courts around the country
sitting in diversity have applied state COVID-era tolling provisions as substantive law, even where the diversity cases
were initially filed in federal court. See Ceriani v. Dionysus, Inc., 599 F. Supp. 3d 365, 369 (E.D. Va. 2022) (finding
that state COVID-19 emergency orders tolled the statute of limitations for state law claims in a diversity case filed
initially in federal court); accord Timboe v. Clark, No. 20-cv-08719, 2022 WL 991721, at *4–5 (N.D. Cal. Mar. 31,
2022); Cain v. Cty. of Niagara, No. 20-cv-1710, 2022 WL 616795, at *7 (W.D.N.Y. Mar. 2, 2022); Liberty Mut. Ins.
Co. v. Murphy, No. 20-cv-01961, 2021 WL 2784264, at *4 (D. Md. July 2, 2021); Allen v. Sherman Operating Co.,
LLC, 520 F. Supp. 3d 854, 866 (E.D. Tex. 2021); Bownes v. Borroughs Corp., No. 20-cv-964, 2021 WL 1921066, at
*2 (W.D. Mich. May 13, 2021); Murden v. Wal-Mart, No. 20-cv-2505, 2021 WL 863201, at *2–3 (W.D. Tenn. Mar.
8, 2021); Allen v. Sherman Operating Co., LLC, No. 20-cv-290, 2021 WL 860458, at *7–11 (E.D. Tex. Feb. 18,
2021); Argueta v. City of Galveston, No. 20-cv-367, 2021 WL 137664, at *2 (S.D. Tex. Jan. 14, 2021); Lewis v. City
of Edmond, No. 19-cv-489, 2020 WL 6275174 (W.D. Okla. Oct. 26, 2020).
10
The D.C. Circuit has declined to find that the D.C. Superior Court’s administrative orders during the pandemic had
a tolling effect where “the statute of limitations on [plaintiff’s] claims expired nearly a year before the Superior Court
paused statutes of limitations in connection with the COVID-19 pandemic.” 400 E St. SW, LLC v. Chevron U.S.A.
Inc., No. 21-7075, 2022 WL 2677091, at *1, 3 (D.C. Cir. July 12, 2022).
15
timely filed on January 18, 2023 (when Plaintiff sought leave to file the Amended Complaint) as
long as they accrued on or after January 7, 2019.
But that is where the clarity ends. Determining when the statute of limitations began to
run on Plaintiff’s claims—i.e., their accrual date—is not readily determinable from the face of the
Amended Complaint. And because the Court cannot determine when the limitations period on
Plaintiff’s claims began to run, it cannot say at this early stage of the proceedings that those claims
are “conclusively time barred.” Toggas, 2020 WL 3103966, at *6 (quoting McQueen, 244 F.R.D.
at 32). Determining when a claim accrues for purposes of the statute of limitations can be chal-
lenging even when the factual record is complete, which is far from the case here. A negligence
claim accrues under D.C. law when the “injury result[s],” Hanna v. Fletcher, 231 F.2d 469, 472
(D.C. Cir. 1956), and a trespass claim “accrue[s] on the date of the trespass,” L’Enfant Plaza E.,
359 A.2d at 7. However, the D.C. Court of Appeals also applies the “discovery rule” whereby
“accrual occurs . . . when a party knows or by the exercise of reasonable diligence should know:
(1) of the injury; (2) the injury's cause in fact; and (3) of some evidence of wrongdoing.” Com-
monwealth Land Title Ins. Co. v. KCI Techs., Inc., 922 F.3d 459, 464 (D.C. Cir. 2019) (alteration
in original) (quoting Capitol Place I Assocs. L.P. v. George Hyman Constr. Co., 673 A.2d 194,
199 (D.C. 1996), superseded in part on other grounds by D.C. Code § 16-4406(c)). This “equita-
ble doctrine” is designed to “preserve claims in circumstances where the fact of injury or breach
‘may not be readily discernible at the time when it actually incurred.‘” Commonwealth, 922 F.3d
at 464–65 (quoting Ehrenhaft v. Malcolm Price, Inc., 483 A.2d 1192, 1202 (D.C. 1984)). Even
more challenging, “allied with the discovery rule” is the “continuing tort” doctrine. Beard v. Ed-
mondson & Gallagher, 790 A.2d 541, 548 (D.C. 2002). Under this doctrine, a “continuing tort”
can be established for statute of limitations purposes by showing “‘(1) a continuous and repetitious
16
wrong, (2) with damages flowing from the act as a whole rather than from each individual act, and
(3) at least one injurious act . . . within the limitation period.’” Id. at 547–48 (alteration in original)
(quoting DeKine v. District of Columbia, 422 A.2d 981, 988 n.16 (D.C. 1980)). This doctrine is
appropriately applied in situations where “the wrongfulness and injuriousness of tortious activity
may be discernible only from the continuation over time of a course of conduct.” Id. at 548. In
sum, the “running of the limitations period is tolled until the continuation of the wrongful conduct
renders the existence of the cause of action sufficiently manifest to permit the victim to seek re-
covery.” Id.
Both the discovery rule and continuing tort doctrine may be at play in determining when
the statute of limitations began to run with respect to Plaintiff’s claims that the construction activ-
ities next door caused damage to his property. The parties do not meaningfully engage with either
doctrine in their briefing on the motions to dismiss. Setting that deficiency to the side, a review
of the Amended Complaint reveals few of the facts needed to ascertain the date of the alleged
damage or injury to Plaintiff’s property, much less those needed to determine whether and how
the discovery rule and continuing tort doctrine may apply to the limitations calculation. Plaintiff
claims that EWORA retained City Concrete “on or about October 23, 2017 to perform construction
activities at The Exchange,” and that “[t]hereafter” City Concrete “performed construction work”
which apparently concluded “[a]s of May 2021.” ECF No. 50, ¶¶ 19, 59, 60. The construction
included the “excavation, heavy drilling and other major construction activity,” that Plaintiff
blames for the damage to his property, id., ¶ 18, but as for the date when that injurious activity
occurred the Amended Complaint states only that “construction [was] in progress” in “2019, 2020
and into 2021,” id. Based on that limited record, the Court cannot say definitively Plaintiff’s
17
claims are “conclusively time barred,” 11 Toggas, 2020 WL 3103966, at *6 (citing McQueen, 244
F.R.D. at 32), a conclusion that Defendants themselves acknowledge. ECF No. 64-1 at 8 (“This
failure to specify when this work took place makes it impossible for Defendants to determine
whether Plaintiff’s claims are timely.”); ECF No. 83 (“Because Plaintiff has not stated any facts
indicating when the alleged excavation and resulting damage began, this Court cannot even make
an initial determination whether it has, or may have, authority to . . . grant the Plaintiff relief.”).12
Indeed, accepting the allegations in the Amended Complaint as true, the Court finds that it is plau-
sible that the damage to Plaintiff’s occurred on or after January 7, 2019.
As for Plaintiff’s discovery of the alleged damage to his property, the Amended Complaint
again reveals little. It alleges that on May 7, 2021, DCRA’s Illegal Construction Unit held a meet-
ing to address the protection of Plaintiff’s property in response to a “formal Amended Complaint
filed by Plaintiff,” and that a few days later a report was issued “detailing the insufficient remedial
measures . . . taken to address damage caused to Plaintiff’s property.” ECF No. 50, ¶ 26. One of
11
Although City Concrete contends that the damage to Plaintiff’s property occurred at “the very beginning of the
construction in 2017 or at the latest in early 2018,” this timeframe is not alleged in the Amended Complaint, nor,
despite City Concrete’s assertions, do the DCRA website or the photos attached to the Amended Complaint conclu-
sively establish that the damage occurred in this earlier time period. ECF No. 83 at 6; see generally ECF No. 50.
12
Unsurprisingly, Defendants complain that the paucity of detail in the Amended Complaint concerning when the
damage to Plaintiff’s property occurred makes it impossible for them to argue that the statute of limitations bars
Plaintiff’s claims at this early stage. ECF No. 64-1 at 8; ECF No. 83 at 7. But because the statute of limitations is an
affirmative defense under Fed. R. Civ. P. 8(c)(1), a plaintiff need not anticipate and preemptively dispute a statute of
limitations argument in a complaint. See Jones v. Changsila, 271 F. Supp. 3d 9, 24 (D.D.C. 2017) (citing Connors v.
Hallmark & Son Coal Co., 935 F.2d 336, 343 n.12 (D.C. Cir. 1991) (finding that the plaintiffs were “not obliged to
anticipate” the affirmative defense of the statute of limitations in their complaint)). For the same reason, the Court
denies City Concrete’s motion for a more definite statement under Rule 12(e) to require Plaintiff to provide more
“facts indicating when the alleged excavation and resulting damage began . . . [so that the] Court can[] . . . make an
initial determination” concerning whether the statute of limitations has run with respect to Plaintiff’s claims. ECF
No. 83 at 7. Where a plaintiff has satisfied the pleading requirements of Rule 8—which the Court finds below Plaintiff
has done here—to the extent the defendant “needs additional facts to determine which affirmative defenses are avail-
able,” there is “no reason to direct [plaintiff] to file a more definite statement.” Maynard v. Melton, No. 17-cv-2612,
2021 WL 6845008, at *13 (D.D.C. Apr. 7, 2021), report and recommendation adopted, 2023 WL 1963919 (D.D.C.
Feb. 10, 2023). Rather, discovery will provide City Concrete with the opportunity to establish the “additional facts”
it needs “to determine which affirmative defenses are available.” Id.18
those remedial measures apparently involved the installation of a monitoring device in September
2020 to “ensure no settling [was] occurring” in the façade of the building on Plaintiff’s property.
Id., ¶ 26.E. Even assuming that the installation of the monitoring device would be sufficient to
trigger D.C.’s discovery rule—a conclusion the Court need not and does not reach here—Septem-
ber 2020 is still well within the three-year statute of limitations period, and that is without giving
Plaintiff the benefit of the additional year and twelve days of tolling provided during the pandemic
by D.C. Superior Court order. Potential application of the continuing tort doctrine to Plaintiff’s
claims is no clearer from the facts alleged in the Amended Complaint, but if it is applicable here
it may work further in Plaintiff’s favor.
This is all to say that “fact-bound question[s] that [are] not suitable for resolution at the
motion-to-dismiss stage” abound with respect to Defendants’ statute of limitations defense. He
Depu v. Oath Holdings, Inc., 531 F. Supp. 3d 219, 240 (D.D.C. 2021). Accordingly, dismissal
under Rule 12(b)(6) on the basis of statute of limitations would be erroneous. See Capitol Servs.,
933 F.3d at 789.
B. Plaintiff Has Stated Claims for Negligence Against EWORA, IFG, and City
Concrete
1. Plaintiff has stated a claim for negligence directly against Defend-
ants EWORA and IFG
Under D.C. law, to state a claim for negligence, a plaintiff must allege “‘[a] duty of care
owed by the defendant to the plaintiff, a breach of that duty by the defendant, and damage to the
interests of the plaintiff, proximately caused by the breach.’” Azzam v. Rightway Dev. Inc., 789 F.
Supp. 2d 110, 117 (D.D.C. 2011) (alteration in original) (quoting District of Columbia v. Harris,
770 A.2d 82, 87 (D.C. 2001)). The Court finds that Plaintiff plausibly stated a negligence claim
against Defendants EWORA and IFG.
19
In seeking dismissal for failure to state a claim, Defendants EWORA and IFG first appear
to claim that they owed no duty to Plaintiff, arguing that the mere existence of Stop Work Orders
did not impose on them any “special duty to Plaintiff.” ECF No. 64-1 at 13; see also ECF No. 50,
¶ 53. To the extent Defendants EWORA and IFG are arguing that developers and contractors
engaging in major construction work own no duty of care to adjoining property owners, Defend-
ants are incorrect. Generally, “[w]hether there is a duty of care is a question of law.” Heidi Avi-
ation, LLC v. Jetcraft Corp., 573 F. Supp. 3d 182, 197 (D.D.C. 2021) (quoting Presley v. Com-
mercial Moving & Rigging, Inc., 25 A.3d 873, 883 (D.C. 2011)). “To determine whether a party
owes a duty of care to another party, courts “rely on the concept of ‘foreseeability’” and look to
the “relationship between the plaintiff and the defendant.” Hedgepeth v. Whigtman Walker Clinic,
22 A.3d 789, 793–94 (D.C. 2011). If the injury that befell the plaintiff was “reasonably foreseea-
ble” to the defendant, then courts will usually conclude that the defendant owed the plaintiff a duty
to avoid causing that injury; if the injury was not “reasonably foreseeable,” then there was no duty.
Id. at 793 (collecting cases).
In this case, Plaintiff alleges that Defendants owed him a duty of care because of his status
as an adjoining landowner to the Defendants’ construction project. ECF No. 50 ¶¶ 88, 89, 109, 110.
Specifically, Plaintiff alleges in the Amended Complaint that Defendants EWORA and IFG had “a
duty to exercise common prudence in constructing and developing Defendant Murdock’s Property
in such a way as to prevent injury to Plaintiff as an owner of adjacent property.” Id., ¶¶ 89, 110.
There is authority in D.C. law to support the finding of such a duty of care between construction
contractors (and those who supervise them) and the owners of property adjacent to the construction.
See Tolu v. Ayodeji, 945 A.2d 596, 603 n.5, 604 (D.C. 2008) (denying summary judgment and find-
ing individuals exercising control over construction work had duty to “exercise reasonable care to
20
avoid reasonably foreseeable harm to a neighbor” as possessors who had “supervisory control over”
the land); Levy v. Schnabel Found. Co., 584 A.2d 1251, 1255 (D.C. 1991) (finding that evidence
was sufficient to a support jury verdict finding negligence against contractors where experts testi-
fied that the “applicable standard of care for persons engaged in sheeting, shoring and underpinning
was to take all necessary steps to prevent any movement that would cause damage to adjacent prop-
erties”); Mullan v. Hacker, 49 A.2d 640, 642–43 (Md. 1946) (finding that an excavator has a duty
to perform excavation with due care to avoid “occasion[ing] greater danger to the adjoining
owner”); 13 see also Arnold’s Hofbrau, Inc. v. George Hyman Const. Co., 480 F.2d 1145, 1148 (D.C.
Cir. 1973) (“[O]ne who undertakes to act has a duty to act carefully and if he fails to do so, he may
be held liable in negligence.”) citing Restatement (Second) of Torts, Section 323 (1964)); D.C. Mun.
Regs. tit. 12, § 3307A (“Adjoining public and private property shall be protected from damage dur-
ing construction, alteration, repair, demolition or raze of a premises at the expense of the person
causing the work.”). While the outer bounds of the duty and/or standard of care 14 that Plaintiff was
owed as an adjoining landowner to the construction project next door should await further develop-
ment of the record, to the extent Defendants are arguing for dismissal because no such duty was
owed him, their motion is denied.
Next, Defendants EWORA and IFG posit that Plaintiff has failed to allege facts supporting
a finding that they breached any such duty to Plaintiff. ECF No. 64-1 at 13. The Court disagrees.
Plaintiff has plausibly alleged facts from which a reasonable inference can be drawn that EWORA
13
“[D]ecisions of the Court of Appeals of Maryland are ‘accorded the most respectful consideration by [District of
Columbia] courts’ . . . because ‘District of Columbia common law is derived from Maryland law.’” English v. United
States, 25 A.3d 46, 54 n. 11 (D.C. 2011) (first quoting In re Estate of Turpin, 19 A.3d 801, 809 n. 11 (D.C. 2011),
then quoting Roberts–Douglas v. Meares, 624 A.2d 405, 419 n. 20 (D.C. 1992)).
14
“The questions of duty of care and standard of care are separate inquiries under [D.C.] case law, but they often
overlap.” Gilbert v. Miodovnik, 990 A.2d 983, 990 n.5 (D.C. 2010); see also Newborn v. United States, 238 F. Supp.
2d 145, 149 (D.D.C. 2002) (observing that the questions of duty of care and standard of care appear “merged—or,
perhaps, blurred—into a single question in the District of Columbia”), aff’d, 84 Fed. App’x. 97 (D.C. Cir. 2003).
21
and IFG breached their duty of care owed an adjacent landowner. Plaintiff alleges that EWORA
and IFG were the general contractors for the construction at The Exchange. ECF No. 50, ¶ 46.
IFG was retained as the developer for the project, and EWORA was “the builder” retained “to
manage the construction activities” at the property. Id., ¶ 48. Together, Plaintiff alleges they
“were responsible for the construction and development of The Exchange.” Id., ¶ 51. Plaintiff
further alleges that both Defendants’ work “included the construction necessary to excavate the
land upon which The Exchange would be built.” Id., ¶ 50. It is that “heavy excavation, drilling
and other major construction activity” that Plaintiff alleges caused “reverberations of the earth or
other elements connected to [his] property” which caused “serious damage” to it, including causing
its foundation “to be defective, dislodged, cracked and unsafe.” Id., at ¶¶ 20–21. The Amended
Complaint also incorporates the findings of an engineer’s report that notes that “a portion of the
masonry (brick) foundation wall appears to have fallen out from beneath [Plaintiff’s] townhouse
as the excavation progressed.” Id., ¶ 28.B. The engineering report further states that excavation
included the installation of a “soldier pile and lagging retaining wall.” Id., ¶ 28.A. However, the
soldier pile and lagging retaining wall allegedly had “no walers, rakers or cross-bracing” and pho-
tos of the excavation “did not indicate backfill in the space behind [the] lagging between the walls
of the excavation,” which would have “close[d] the void and prevent[ed] the lateral movement of
the soil into the void space.” Id., ¶ 28.F. The report also refers to photos depicting “soil flowing
out from beneath the lagging.” Id., ¶ 28.G. Absent the necessary backfill, the engineer report
states that “lateral movement of the subsoil results in settlement of the structure.” Id., ¶ 28.F. In
fact, the report claims, “soil settled from beneath the sidewalk and the brick planter wall separated
from the walk at the entryway” to Plaintiff’s house. Id. Further, the report notes that settlement
or outward movement of the building wall may have caused roof leakage, which may in turn have
22
caused water dripping from the ceiling. Id., ¶ 28.F, H. The report notes that photos show that
there were, in fact, “cracks in the masonry bearing walls and settling of a support for the deck,” as
well as “cracks around doorways and at lintels” and on “interior walls and ceiling” of Plaintiff’s
property. Id., ¶ 28.G. In the opinion of the engineer:
[S]ettlement of [Plaintiff’s] building may continue until the soil migrates to fill-in
the voids created by the excavation and void space behind the lagging. Continued
settlement will result in further structural damage to the building and compromise
[of] its structural integrity. Movement of the bearing walls may result in the joists
slipping out of their pockets and floors or roof collapsing. Also, further settlement
may adversely affect underground utilities servicing the building.
Id., ¶ 28.K; see also id. at 34–35.
In other words, taking the facts alleged and all reasonable inferences in favor of Plaintiff,
Plaintiff claims that, as developers, builders, and/or general contractors for The Exchange, De-
fendants EWORA and IFG were responsible for the negligent construction and excavation of that
development which damaged his property in violation of the duty of care owed him as an adjoining
landowner, either through vibrations affecting his property or other actions. Moreover, the lack of
backfill left open a void between the walls of the excavation behind the lagging retaining wall,
which in turn led to lateral movement of soil beneath Plaintiff’s house causing settling and other
related damage. Id., ¶ 28. Plaintiff has therefore plausibly alleged defects in construction and
excavation resulting in damage to his house on the property adjacent to the construction, putting
Defendants on notice of the allegations against them. Such allegations are not mere “labels and
conclusions.” Simms v. District of Columbia, 699 F. Supp. 2d 217, 227 (D.D.C. 2010) (quoting
Iqbal, 556 U.S. at 678). Accordingly, the Court finds that Plaintiff has “describe[d] the circum-
stances in which the [defendants] allegedly did not fulfill their duty” and has therefore adequately
pleaded breach of the duty to prevent foreseeable injury to Plaintiff’s property. Millennium Square
Residential Ass’n v. 2200 M St. LLC, 952 F. Supp. 2d 234, 246 (D.D.C. 2013).
23
Finally, Defendants argue that “Plaintiff has not demonstrated that a particular act or omis-
sion by Defendants proximately caused injury to his property,” faulting the Amended Complaint
for failing to “note a specific date on which an act or omission . . . resulted in injury to his prop-
erty.” ECF No. 64-1 at 14. Defendants are essentially arguing that Plaintiff’s claims cannot go
forward unless he can identify at this early stage which specific hammer blow caused which crack
to the foundation of his home, and which Defendant wielded the hammer. The Court finds that
Rule 8(a)’s requirement of a “short and plain statement of the claim” imposes no such obligation
in a case such as this where information related to the proximate cause determination is unlikely
to be in Plaintiff’s possession prior to him engaging in discovery of the Defendants’ actions and
omissions during the three-year construction project next door, and the assessment of proximate
cause will likely require consideration of expert testimony. See Beach TV Props., Inc. v. Solomon,
324 F. Supp. 3d 115, 127 (D.D.C. 2018) (noting that substantive questions regarding proximate
cause are “better addressed later, at the summary judgment stage, or perhaps after, with the benefit
of a full record from discovery, including expert opinions”). Rather, at the motion to dismiss stage,
where “‘it is not absolutely clear that the defendant’s negligence could not have been a proximate
cause of the harm asserted by the plaintiff,’ the Court ‘must deny [the defendant’s] motion to
dismiss[.]’” Heidi Aviation, 573 F. Supp. 3d at 203 (second alteration in original) (quoting Bradley
v. NCAA, 249 F. Supp. 3d 149, 168 (D.D.C. 2017)). The Court finds that is the case here; that is,
it “cannot conclude that proximate cause does not exist” with respect to Defendants EWORA and
IFG, which were either the general contractor, developer and/or builder of The Exchange. Id. In
sum, Plaintiff has pleaded sufficient facts to plausibly allege negligence by both EWORA and IFG.
24
2. Plaintiff has stated a claim for negligence against Defendant City
Concrete
Defendant City Concrete takes issue principally with the fact that Plaintiff’s allegations
regarding its negligence rely in part on the representations of Defendants EWORA and IFG, which
Plaintiff apparently obtained through discovery in this matter. ECF No. 83 at 4. Namely, the
Amended Complaint alleges that, “[a]ccording to Defendants EWORA and IFG, ‘[t]o the extent
that Plaintiff’s Property was trespassed on and/or otherwise damaged, it was due to the acts or
omissions of City Concrete.’” ECF No. 50, ¶ 63 (alteration in original). City Concrete calls that
statement a “naked assertion” that is “insufficient as a matter of law.” ECF No. 83 at 4. At this
point in the proceedings, however, the Court must take that statement as true. The fact that it was
allegedly made by entities who should have knowledge of who did what during construction as it
relates to the alleged damage to Plaintiff’s property—by virtue of their roles as either general con-
tractor, developer and/or builder of The Exchange—makes that statement more compelling, not
less. City Concrete’s real issue is that the statement is not specific enough in that it does not
“indicated what work City Concrete did or did not do at the Property” or “how any work by City
Concrete caused Plaintiff’s alleged injury or damages.” ECF No. 83 at 4. But Plaintiff’s other
allegations fill in those gaps. The Amended Complaint alleges—again “according to Defendants
EWORA and IFG”—that “the construction activities that occurred at Defendant Murdock’s Prop-
erty set forth in this Amended Complaint were ‘developed, planned, and performed by City Con-
crete.’” ECF No. 50, ¶ 62. The Amended Complaint further alleges that City Concrete “completed
all its work at The Exchange pursuant to its contract with EWORA,” that it “provide[d] labor and
material for the construction of The Exchange,” and that the work it, or personnel hired by it,
performed “entailed [the] excavation, drilling and other heavy construction activity” which dam-
aged Plaintiff’s property through vibrations and “reverberations of the earth,” thereby allegedly
25
breaching the duty of care City Concrete owed Plaintiff, an adjoining landowner. Id., ¶¶ 20, 59,
132.
Essentially Plaintiff is claiming that City Concrete negligently performed the work detailed
in the Amended Complaint for which it also seeks to hold Defendants EWORA and IFG respon-
sible, whether in the alternative or as joint tortfeasors. See Fed. R. Civ. P. 8(d)(3) (authorizing a
party to “set out [two] or more statements of a claim or defense alternatively or hypothetically,
either in a single count . . . or in separate ones”); McNamara v. Picken, 950 F. Supp. 2d 125, 128
(D.D.C. 2013) (a plaintiff “need not use particular words to plead in the alternative as long as it
can be reasonably inferred that this is what [it was] doing” (quoting G-I Holdings, Inc. v. Baron &
Budd, 238 F. Supp. 2d 521, 536–37 (S.D.N.Y. 2002))). The Court found in Section II.B.1. that
those allegations were sufficient to plausibly state a claim against Defendants EWORA and IFG.
The Court makes the same finding with respect to Defendant City Concrete.
3. Plaintiff has stated a claim for negligence against Defendants
EWORA and IFG based on City Concrete’s alleged negligence
EWORA and IFG assert that to the extent City Concrete’s actions caused Plaintiff’s dam-
ages, EWORA and IFG are not liable because City Concrete was an independent contractor. ECF
No. 64-1 at 14. EWORA and IFG thus request that the Court dismiss Plaintiff’s negligence counts
against them for this independent reason. Id.Under D.C. law, “the general rule” is that “an employer of an independent contractor is not
liable for physical harm caused by the acts or omissions of the contractor.” Wilson v. Good Humor
Corp., 757 F.2d 1293, 1301 (D.C. Cir. 1985); see also Washington Area Metro. Transit Auth. v.
L’Enfant Plaza Properties Inc., 448 A.2d 864, 868 (D.C. 1982). This rule “bristles with a series
of long-standing exceptions,” however, which fall within three general categories: (1) negligence
of the employer in selecting, instructing, or supervising the contractor, (2) non-delegable duties of
26
the employer, arising out of some relation toward the public, and (3) work which is specially,
peculiarly, or inherently dangerous. See id; see also Restatement (Second) of Agency, § 219
(1958). The inquiry as to the application of the independent contractor rule, and its exceptions, to
a particular case is normally fact-specific and not generally suitable for resolution on a motion to
dismiss. Anderson v. Washington Metro. Area Transit Auth., No. 91-cv-646, 1991 WL 197024, at
*2 (D.D.C. Sept. 18, 1991) (questions of whether subcontractors were independent contractors or
were subject to exceptions were not resolvable on a motion to dismiss); see Taylor v. Tellez, 610
A.2d 252, 255 (D.C. 1992) (denying summary judgment where questions of fact precluded a find-
ing on whether a contractor’s work excavating the land adjacent to that of the plaintiff’s fell under
the exception for inherently dangerous work); see also Howell, 607 A.2d at 505 (“The existence
of that danger and knowledge of it by the employer are normally questions of fact for the jury”).
The Court finds that is the case here, and therefore denies Defendants’ EWORA and IFG’s motion
to dismiss on that basis.
In this case, Plaintiff has alleged that the heavy construction work performed next door
which damaged his property was inherently dangerous as it entailed excavation, drilling, and other
heavy construction activity. See ECF No. 50, ¶ 90. The D.C. Circuit has explained that the “in-
herently dangerous” exception applies both to “generically hazardous activities—work that, re-
gardless of the skill with which it is undertaken, poses a danger to others,” as well as situations
where the employer “has reason to know that his independent contractor is likely, under particular
circumstances, to endanger others absent reasonable precautions” and “depending on the entire
situation under examination.” Wilson, 757 F.2d at 1303 (emphasis omitted) (quoting Vale v. Bon-
nett, 191 F.2d 334, 338 (D.C. Cir. 1951)); see District of Columbia v. Howell, 607 A.2d 501, 506
(D.C. 1992) (holding that a jury could reasonably find that “hands-on” chemistry activity making
27
sparklers with eight- and nine-year-old children was “inherently dangerous,” thus making em-
ployer liable for independent contractor’s negligence). Hence the doctrine extends to activities
which may be dangerous in the circumstances under which they are performed. See Wilson, 757
F.2d at 1304–05. The existence of that danger and knowledge of it by the employer are normally
questions of fact for the jury. Levy, 587 A.2d at 209; L’Enfant Plaza Properties, 448 A.2d at 868(“Whether a particular kind of work is inherently dangerous is essentially a relative determination
based upon the facts of the particular case.”). Although Defendants’ argument “eventually may be
found to have merit,” 15 whether City Concrete falls under an exception to the independent con-
tractor rule “cannot be determined on a motion to dismiss.” Anderson, 1991 WL 197024, at *2;
see Taylor, 610 A.2d at 255. Accordingly, Defendants EWORA and IFG’s request to dismiss
Plaintiff’s claims of negligence against them based on application of that rule is denied.
C. Plaintiff Has Stated Claims for Trespass Against EWORA, IFG, and City
Concrete
Under D.C. common law, “[t]respass . . . requires ‘(i) an unauthorized entry (ii) onto the
plaintiff’s property (iii) that interferes with the plaintiff’s possessory interest.’” Robinson v. Far-
ley, 264 F. Supp. 3d 154, 163 (D.D.C. 2017) (quoting Council on Am.–Islamic Relations Action
Network, Inc. v. Gaubatz, 793 F. Supp. 2d 311, 344 (D.D.C. 2011)); see also Turpin v. Ray, 613
F. Supp. 3d 186, 215 (D.D.C. 2020) (same). Liability does not require a defendant to have “spe-
cific intent to invade unlawfully the property of another,” Nat’l Tel. Co-op. Ass’n v. Exxon Corp.,
38 F. Supp. 2d 1, 12 (D.D.C. 1998) (quoting Balt. Gas and Elec. Co. v. Flippo, 684 A.2d 456, 461
(Md. App. 1996)); rather, a plaintiff must allege only that the defendant “intend[s] the act which
15
The Court observes, however, that the D.C. Court of Appeals has affirmed a trial court decision, following a bench
trial, that the excavation and heavy construction activities presented in the case fell within the “inherently dangerous”
exception to the independent contractor rule. See L’Enfant Plaza Properties, Inc., 448 A.2d at 868 (affirming trial
court finding that a “deep open-cut excavation directly under the city’s water main” was inherently dangerous).
28
amounts to or produces the unlawful invasion, and the intrusion must at least be the immediate or
inevitable consequence of what [the defendant] willfully does,” Acosta Orellana v. CropLife Int’l,
711 F. Supp. 2d 81, 93 (D.D.C. 2010) (quoting Nat’l Tel., 38 F. Supp. 2d at 12).
The Amended Complaint alleges the following related to Plaintiff’s claim of trespass.
Plaintiff asserts that soil from under his house settled and “flow[ed] out from beneath the lagging”
of the retaining wall built on Murdock Street’s Property resulting in damage to Plaintiff’s building,
and that the “settlement of the building [on his property] may continue until the soil migrates” to
fill the voids created by Defendant’s excavation and the void space left behind the lagging. ECF
No. 50, ¶ 28.F, G. He also claims that Defendants’ “construction, excavation and drilling . . .
caused reverberations of the earth or other elements connected to Plaintiff’s Property or on Plain-
tiff’s Property to vibrate,” which in turn “caused the foundation of Plaintiff’s Property to be de-
fective, dislodged, cracked and unsafe.” Id., ¶ 20. Thus, Plaintiff appears to allege two different
theories of trespass: (1) that Defendant’s alleged negligent excavation led to the movement of soil
and settlement of Plaintiff’s house, causing cracks and other damage; and (2) that reverberations
and vibrations caused by Defendant’s heavy construction, excavation and drilling led to “substan-
tial and serious damage” to the property. Id.
The allegations related to Plaintiff’s first theory—that the excavation at Murdock Street’s
Property resulted in damage caused by the movement of soil under the lagging of the retaining
wall—do not state a claim for trespass. At a minimum, District of Columbia law requires a trespass
to involve an “entry upon someone else’s real or personal property.” Nat’l Tel., 38 F. Supp. 2d at
12 (quoting Balt. Gas and Elec. Co., 684 A.2d at 461 (emphasis added)); see also, e.g., Turpin,
613 F. Supp. 3d at 215 (“Trespass has three elements: ‘(i) an unauthorized entry (ii) onto the plain-
29
tiff’s property (iii) that interferes with the plaintiff’s possessory interest.” (emphasis added) (quot-
ing Democracy Partners v. Project Veritas Action Fund, 285 F. Supp. 3d 109, 118 (D.D.C.
2018))). Here, Plaintiff has not alleged an entry onto his property. Instead, the allegations describe
an exodus: soil from Plaintiff’s property “flow[ed] out” from beneath the lagging on Murdock
Street’s Property and possibly moved “lateral[ly] to “close[] the void” between the lagging and the
walls of the excavation. ECF No. 50, ¶ 28.G. As such, Plaintiff has not pleaded the required
elements of a cause of action for trespass based on the movement of soil from his property to the
adjacent property. 16
Plaintiff’s second theory—that Defendants committed the tort of trespass when vibrations
from their allegedly negligent work on Murdock Street’s Property caused damage to Plaintiff’s
Property—requires more discussion. State courts are divided on whether intangible incursions
onto property—vibrations, odors, particulate matter—can constitute a trespass. Those courts tak-
ing the traditional view seek to “preserve the separate identities of trespass and nuisance.” Adams
v. Cleveland-Cliffs Iron Co., 602 N.W.2d 215, 221 (Mich. Ct. App. 1999). Such courts generally
16
Plaintiff also alleges that
[u]nderpinning of the foundation wall was performed. A photo shows that the existing building is
supported on a continuous wall footing bearing on soil. Subsequent photos show that the excavation
extended below the underpinning. Also, subsequent photos show that the excavation extended below
the bottoms of soldier piles used for a soldier pile and lagging retaining wall.
ECF No. 50, ¶ 28.D. “In underpinning, the foundation of an existing house, building or similar structure is supported
or strengthened. Reinforcement of the existing foundation, strengthening of the soil through the introduction of ex-
panding filler or extension of the foundation will provide a greater surface area for distributing the load.” Chauncey
Crail, How Much Does Underpinning Foundation for a House Cost in 2023?, Forbes.com (Feb. 8, 2023, 10:00 AM),
https://perma.cc/3SWX-RJT6. Defendant makes it clear that the underpinning work was among the “remedial
measures which Defendant Murdock supposedly had taken to address the damage caused to Plaintiff’s Property.”
ECF No. 50, ¶ 26. There is no allegation in the Amended Complaint that such measures were unauthorized; indeed,
the most reasonable interpretation of the allegations in the Amended Complaint is that Murdock Street’s “remedial
attempts to address and rectify the damage to plaintiff’s Property” were done with Plaintiff’s consent. ECF No. 50, ¶
23. The underpinning work cannot be the basis for a trespass claim. See Democracy Partners, 285 F. Supp. 3d at 118
(noting that any entry must be unauthorized to constitute a trespass). Moreover, to the extent that Plaintiff intends to
assert such a claim based on the “excavation extend[ing] below the underpinning” and the “bottoms of the soldier
piles,” ECF No. 50, ¶ 28.D, there is insufficient information in the Amended Complaint to suggest that the excavation
extended under Plaintiff’s land.
30
reason that trespass requires an interference with the right to exclusive possession of land and
intangible intrusions affect only the use and enjoyment of the land, which is protected by nuisance
law. So, for example, Michigan’s intermediate appellate court has held that
Recovery for trespass to land in Michigan is available only upon proof of an unau-
thorized direct or immediate intrusion of a physical, tangible object onto land over
which the plaintiff has a right of exclusive possession. Once such an intrusion is
proved, the tort has been established, and the plaintiff is presumptively entitled to
at least nominal damages. Where the possessor of land is menaced by noise, vibra-
tions, or ambient dust, smoke, soot, or fumes, the possessory interest implicated is
that of use and enjoyment, not exclusion, and the vehicle through which a plaintiff
normally should seek a remedy is the doctrine of nuisance. To prevail in nuisance,
a possessor of land must prove significant harm resulting from the defendant’s un-
reasonable interference with the use or enjoyment of the property.
Adams, 602 N.W.2d at 222 (emphasis omitted); see also, e.g., Barnes v. Birds Eye Foods, No. 10-
cv-541, 2011 WL 13362363, at *5–6 (W.D. Mich. 2011) (relying on Adams and stating that the
plaintiff had failed to “muster a single Michigan decision suggesting that the Michigan Supreme
Court would or should refuse to apply . . . [its] reasoning”); Shrage v. Con Edison Co., 188
N.Y.S.3d 691, 694 (N.Y. App. Div. 2023) (“[C]ourts have precluded trespass claims where the
entry or intrusion was intangible, such as the occurrence of vibrations, shading of a plaintiff’s
property, or a permeating odor or vapors of gasoline. Generally, intangible intrusions, such as by
noise, odor, or light alone, are treated as nuisances, not trespass [because] they interfere with
nearby property owners’ use and enjoyment of their land, not with their exclusive possession of
it.” (alterations in original) (internal citation omitted) (quoting Ivory v. Int’l Bus. Machines Corp.,
983 N.Y.S.2d 110, 129–30 (N.Y. App. Div. 2014))). Other jurisdictions, however, follow the so-
called “modern theory” of trespass—although its provenance may go as far back as the early 20th
century, see In re Worldcom, Inc., No. 06-cv-2134, 2010 WL 334980, at *5 (S.D.N.Y. Jan. 29,
2010) (citing King v. Vicksburg Ry. & Light Co., 42 So. 204, 204–05 (Miss. 1906), for the propo-
sition that “Mississippi law recognizes trespass caused by an intangible invasion only to the extent
31
that it causes physical damage to the property”)—which recognizes that “invasions of intangible
matter are actionable in trespass . . . if they cause substantial damage to the plaintiff’s property,
sufficient to be considered an infringement on the plaintiff’s right to exclusive possession of the
property.” John Larkin, Inc. v. Marceau, 959 A.2d 551, 554 (Vt. 2008); see also, e.g., Davis v.
Georgia-Pac. Corp., 445 P.2d 481, 483 (Or. 1968) (“The traditional concept that a trespass must
be a direct intrusion by a tangible and visible object . . . has been abandoned in [Oregon]. . . . [Ra-
ther,] ‘we . . . define trespass as any intrusion which invades the possessor’s protected interest in
exclusive possession, whether that intrusion is by visible or invisible pieces of matter or by energy
which can be measured only by the mathematical language of the physicist.’” (quoting Martin v.
Reynolds Metals Co., 32 P.2d 790, 794 (Or. 1960)). That is, “[r]ecovery allowed in . . . trespass ac-
tions predicated upon noise, gas emissions, or vibration intrusions has, in each instance, been
predic[a]ted upon the deposit of particulate matter upon the plaintiffs’ property or on actual phys-
ical damage thereto.” Goldstein v. Exxon Mobil Corp., No. 17-cv-2477, 2023 WL 2667757, at *5
(C.D. Cal. Feb. 27, 2023) (ellipses in original) (quoting Wilson v. Interlake Steel Co., 32 Cal.3d
229, 233 (1982)), appeal dismissed sub nom. Navarro v. Exxon Mobil Corp., No. 23-55278, 2023
WL 4234263 (9th Cir. May 18, 2023); see also, e.g., Barton v. Ovintiv Mid-Continent, Inc., No.
20-cv-1098, 2021 WL 1566451, at *3 (W.D. Okla. Apr. 21, 2021) (“Oklahoma law allows a tres-
pass claim for an intangible intrusion if a plaintiff pleads ‘substantial damage to the prop-
erty.’” (quoting Beal v. Western Farmers Elec. Co-op, 228 P.3d 538, 541 (Okla. Civ. App. 2009)));
Maddy v. Vulcan Materials Co., 737 F. Supp. 1528, 1539 (D. Kan. 1990) (“The modern trend
departs from the traditional rule by finding that intangible invasions of the plaintiff’s property may
constitute a trespass. However, the modern trend also departs from traditional trespass rules by
refusing to infer damage as a matter of law, thereby eliminating the right to nominal damages. The
32
plaintiff claiming trespass must prove that the intangible invasion resulted in substantial damages
to the plaintiff’s land.”); Smith v. Lockheed Propulsion Co., 247 Cal. App. 2d 774, 784 (Cal. Ct.
App. 1967) (“Actionable trespass may be committed indirectly through concussions or vibra-
tions.”).
The D.C. Court of Appeals has not definitively ruled on the issue.17 However, as noted
above, District of Columbia courts “may look to Maryland common law for guidance since ‘the
District of Columbia derives its common law from Maryland[.]’” Solid Rock Church, Disciples
of Christ v. Friendship Pub. Charter Sch., 925 A.2d 554, 561 (D.C. 2007) (quoting West v. United
States, 866 A.2d 74, 79 (D.C. 2005)); see also, e.g., Bloom v. PNC Bank, N.A., __ F. Supp. 3d __,
__, 2023 WL 2681906, at *2 (D.D.C. 2023) (“[S]ince there is no District law on point, we should
look to Maryland law first . . . because the District of Columbia derives its common law from that
state and because District of Columbia courts have in the past looked to Maryland law for guid-
ance.” (ellipses in original) (quoting Conseco Indus., Ltd. v. Conforti & Eisele, Inc., 627 F.2d 312,
315–16 (D.C. Cir. 1980))). Precedent from Maryland courts and precedent interpreting the law of
Maryland both suggest that the State recognizes the modern theory allowing litigants to state a
claim of trespass based on intangible incursions onto their property. The Maryland Court of Ap-
peals has acknowledged (albeit in dicta in a case involving an incursion of mud from one property
17
Relying on National Telephone, City Concrete appears to argue that D.C. law does not recognize a trespass accom-
plished by an intangible intrusion, see ECF No. 87 at 4, but that case holds no such thing. There, the plaintiff claimed
that the defendant had trespassed when “gasoline contamination . . . migrated from Exxon’s underground storage
tanks to [National Telephone’s] adjacent property.” Nat’l Tel., 38 F. Supp. 2d at 3. The court found that the defend-
ant’s actions of placing the tanks beneath its property lacked the requisite volition to hold it liable under a trespass
theory. Id. at 4, 13. It reasoned that “the act that Exxon volitionally intended was to place [the tanks] beneath its
property. That act did not result in a trespass. Moreover, with [National Telephone’s] claim for negligent storage and
operation of [the tanks] dismissed, there is no basis to hold Exxon liable for negligent trespass.” Id. at 13 (internal
citation omitted). That is, National Telephone addressed the intent requirement of a trespass claim. It did not suggest
that the tort of trespass must be based on a tangible intrusion onto another’s land.
33
onto an adjacent property) that a litigant can state a claim for trespass “by an inanimate or intan-
gible object” where the defendant has “some connection with or some control over that object.”
Rockland Bleach & Dye Works Co. v. H.J. Williams Corp., 219 A.2d 48, 54 (Md. 1966) (emphasis
added). Maryland’s intermediate appellate court more recently addressed a claim for trespass
based on the incursion of cigarette smoke from a townhouse into another—an intangible intru-
sion—under both the traditional theory and the modern theory, ultimately affirming its dismissal
because the plaintiff had argued neither that there was an invasion of the property by tangible
matter nor that the property had been damaged by the intangible matter. See Schuman v. Greenbelt
Homes, Inc., 69 A.3d 512, 526 (Md. Ct. Spec. App. 2013). In In re Methyl Tertiary Butyl Ether
(“MTBE”) Products Liability Litigation, a court in Southern District of New York reviewed Mar-
yland’s law of trespass and rejected as “hyper-technical” the defendant’s argument that the state
required a “tangible invasion” of property rather than mere “penetration by smoke, dust, soot, or
other micro-particles.” 457 F. Supp. 2d 298, 313–16 (S.D.N.Y. 2006) (first quoting Exxon Corp.
v. Yarema, 516 A.2d 990, 1004 (Md. Ct. Spec. App.1986), then quoting the record).
This Court similarly finds that the District of Columbia would follow the “modern” theory
and recognize that a trespass can occur where intangible invasions, such as “noise, gas emissions,
or vibration intrusions,” have caused serious “physical damage” to property. Goldstein, 2023 WL
2667757, at *5. Plaintiff’s Amended Complaint sufficiently alleges that vibrations caused signif-
icant damage to his property: “The construction, excavation and drilling on Defendant Murdock’s
Property . . . caused reverberations of the earth or other elements connected to Plaintiff’s Property
or on Plaintiff’s Property to vibrate. Defendant Murdock’s actions directly caused substantial and
serious damage to Plaintiff’s Property.” ECF No. 50, ¶ 20. Indeed, Plaintiff alleges that the dam-
age is so great that the structure “has become . . . unsafe . . . and it is currently uninhabitable.” Id.,34
¶ 30.
Plaintiff’s allegations also meet the other requirements for a cause of action for trespass.
“[L]iability for trespass will not be imposed unless the trespass was intentional, the result of reck-
lessness, negligence, or the result of extra hazardous activity.” Goldstein, 2023 WL 2667757, at
*5 (quoting Wilson v. Interlake Steel Co., 649 P.2d 922, 924 (Cal. 1982); see also Restatement
(Second) of Torts, §§ 158 (“One is subject to liability to another for trespass, irrespective of
whether he thereby causes harm to any legally protected interest of the other, if he intentionally . . .
enters land in the possession of the other . . . .”), 165 (“One who recklessly or negligently, or as a
result of an abnormally dangerous activity, enters land in the possession of another or causes a
thing or third person so to enter is subject to liability to the possessor if, but only if, his presence
or the presence of the thing or the third person upon the land causes harm to the land . . . .”). As
noted above, the standard for an intentional trespass is met where the defendant “intend[s] the act
which amounts to or produces the unlawful invasion, and the intrusion must at least be the imme-
diate or inevitable consequence of what [the defendant] willfully does.” Acosta Orellana, 711 F.
Supp. 2d at 93 (quoting Nat’l Tel., 38 F. Supp. 2d at 12). The Amended Complaint sufficiently
alleges that Defendants intentionally engaged in the excavation and drilling that Plaintiff claims
caused the vibrations that damaged his property, see ECF No. 50, ¶¶ 20 (“The construction, exca-
vation and drilling on Defendant Murdock’s Property [was] at Defendant Murdock’s direction and
ordered by Defendant Murdock . . . .”), 50 (“Defendants IFG and EWORA’s work at Defendant
Murdock’s Property included the construction necessary to excavate the land . . . .”), 60 (“City
Concrete performed construction work at Defendant Murdock’s Property.”); the intrusion of those
vibrations onto his property was, if not an “inevitable” consequence of the work, certainly an “im-
mediate” one. Acosta Orellana, 711 F. Supp. 2d at 93. But even if there were no intentional
35
trespass, Plaintiff has alleged that the excavation and drilling were negligently performed and, as
discussed above, those claims survive Defendants’ motions to dismiss. Therefore, he has stated a
claim for trespass under a negligence theory. Defendants’ motions to dismiss the counts of trespass
are denied.
D. Plaintiff’s Requests for Injunctive Relief
Defendants EWORA and IFG have moved under Rule 12(f) to strike Plaintiff’s standalone
claims for injunctive relief (Counts VI and IX) and requests for injunctions in his prayer for relief.
ECF No. 64-1 at 20–24. City Concrete seeks the same for itself—dismissal of the standalone
injunction claim against it (Count XII) and of Plaintiff’s requests for injunctive relief in his claim
for relief—but under Rule 12(b)(6). ECF No. 83 at 8–10. The Court will grant Defendants’ mo-
tions as to Amended Complaint standalone counts for injunctive relief (Counts VI, IX, and XII),
but deny them without prejudice as to Plaintiff’s requests for injunction in his prayer for relief.
When faced with a request to find that a complaint’s demand for relief is legally insuffi-
cient, courts have utilized both Rule 12(f) and Rule 12(b)(6). Rule 12(f) provides that a “court
may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” Fed. R. Civ. P. 12(f). That said, “‘absent a strong reason for so doing,’ courts
will generally ‘not tamper with pleadings’” pursuant to Rule 12(f). Bey v. Wash. Metro. Area
Transit Auth., 341 F. Supp. 3d 1, 11 (D.D.C. 2018) (quoting Nwachukwu v. Rooney, 362 F. Supp.
2d 183, 190 (D.D.C. 2005)). Motions to strike under Rule 12(f) are typically denied “unless the
challenged allegations have no possible relation or logical connection to the subject matter of the
controversy and may cause some form of significant prejudice to one or more of the parties to the
action.” In re Rail Freight Fuel Surcharge Antitrust Litig., Nos. 19-cv-3379, et al., 2020 WL
5016922, at *10 (D.D.C. Aug. 25, 2020) (quoting 5C Wright & Miller Fed. Prac. & Proc. § 1382
36
(3d ed. 2020)). Specifically with respect to motions to strike a prayer for relief, courts have found
such requests premature if such relief is generally provided for by law. See Simba v. Fenty, 754
F. Supp. 2d 19, 23 (D.D.C. 2010) (denying a motion to strike a prayer for injunctive relief because
Title VII provides for injunctive relief); see also Smith v. Washington Post Co., 962 F. Supp. 2d
79, 84–85 (D.D.C. 2013) (denying a motion to strike a prayer for injunctive relief where it was not
clear from the face of the complaint that the plaintiff lacked standing to pursue injunctive relief);
United States v. Retta, 840 F. Supp. 2d 262, 269 (D.D.C. 2012) (denying a motion to strike a
request for liquidated damages where the statute provided for recovery of liquidated damages).
Other courts have found that when a party requests dismissal of all or part of a complaint
based on legal insufficiency, such a request is properly brought under Rule 12(b)(6), not Rule
12(f). See Logan v. Jones Lang LaSalle Americas, Inc., No. 18-cv-2278, 2019 WL 1960208, at
*4 (D.D.C. May 2, 2019) (“[Rule 12(f)] is not ‘a proper way to procure the dismissal of all or a
part of a complaint based on the legal insufficiency of the pleading.’” (alteration in original) (quot-
ing Koch v. White, 134 F. Supp. 3d 158, 164 (D.D.C. 2015))); see also Strojnik v. Evans Hotels,
LLC, No. 19-cv-650, 2019 WL 2918176, at *3 (S.D. Cal. July 8, 2019) (“A Rule 12(f) motion does
not provide a basis to strike a request for injunctive relief because such relief directly relates to the
merits of the underlying claims.”). Nevertheless, even under Rule 12(b)(6), courts have found that
when a party challenges the “substantive basis” for a request for injunctive relief—that is, “the
propriety of any particular remedy”—such a challenge is “premature.” Base One Techs., Inc. v.
Ali, 78 F. Supp. 3d 186, 199 (D.D.C. 2015) (“Insofar as Defendants attack the substantive basis
for such relief, it is premature at this stage to consider the propriety of any particular remedy.”).
Rather, as stated in the Restatement (Second) of Torts, “[i]n the usual case, the factors of appro-
37
priateness [of injunctive relief] . . . are appraised as of the time of the order or judgment.” Restate-
ment (Second) of Torts § 935 (1979). In considering whether to grant or deny an injunction, a
“court . . . comes to grips with the actualities of the situation” at the conclusion of the case, “in-
cluding those that have developed pending suit[.]” Id. cmt. a; see also Johnson v. Mao, 174 F.
Supp. 3d 500, 524 (D.D.C. 2016) (“[A]ny requests for injunctive relief will be addressed, if nec-
essary, as a remedy at the conclusion of the case.”); Shume v. Pearson Educ. Inc., 306 F. Supp. 3d
117, 130 (D.D.C. 2018) (dismissing standalone claims for equitable or declaratory relief but hold-
ing that if the plaintiff “believes she is entitled” to such relief under her remaining claims, “she
may request it at the appropriate time”).
Applying that case law here, the Court will grant Defendants’ requests to dismiss the
standalone claims seeking injunctive relief—Counts VI, IX, and XII—because those counts are
not causes of action but merely state a form of relief. See Base One, 78 F. Supp. 3d at 199; see
also Weir v. United States, 518 F. Supp. 3d 1, 11 (D.D.C. 2021 (“Count Eleven is only a request
for declaratory and injunctive relief; it is not a separate cause of action. Because [the count] does
not include a cause of action, the Court will dismiss it.” (internal citations omitted)). Moving to
Defendants’ challenges to Plaintiff’s prayer for injunctive relief, the undersigned finds that under
either of the approaches used by the courts in this Circuit, striking or dismissing Plaintiff’s requests
for injunctive relief is not appropriate at this early procedural stage. Under Rule 12(f), Defendants
have not shown that Plaintiff’s requests for relief are “redundant, immaterial, impertinent, or scan-
dalous” warranting this extraordinary measure. Nwachukwu, 216 F.R.D. at 178. Nor have De-
fendants shown that Plaintiff’s prayer for relief “may cause some form of significant prejudice to
one or more of the parties to the action.” In re Rail Freight, No. 19-cv-03379, 2020 WL 5016922,
at *10. Moreover, injunctive relief has been historically available in addressing torts against land,
38
subject to factors including the adequacy of other remedies, a plaintiff’s laches or unclean hands,
relative hardship to the defendant, interests of third persons, and practicability of framing and en-
forcing an order or judgment. See Restatement (Second) of Torts §§ 933, 936, 937 cmt.a (1979).
Accordingly, Defendants’ request to “strike [Plaintiff’s] prayer for relief is premature” and is de-
nied without prejudice. Simba, 754 F. Supp. 2d at 23. Defendants’ request fares no better under
a Rule 12(b)(6) analysis. Because they challenge the “substantive basis” of Plaintiff’s many re-
quests for injunctive relief, their challenge is “premature.” Base One Techs., 78 F. Supp. 3d at
199. Accordingly, Defendants’ motions, whether characterized as motions to dismiss or motions
to strike, are granted in part as to Counts VI, IX, and XII of the Amended Complaint, but are
denied as premature with respect to the prayer for relief. Plaintiff may seek injunctive relief if he
prevails on his claims. Whether his requests for injunctive relief will succeed is an issue for an-
other day.
IV. CONCLUSION
For the foregoing reasons, Defendants EWORA and IFG’s motion, ECF No. 64, and City
Concrete’s motion, ECF No. 83, are both GRANTED IN PART and DENIED IN PART, as
stated above. Those Defendants are hereby ORDERED to file an Answer to Plaintiff’s
Amended Complaint on or before August 4, 2023, see Fed. R. Civ. P. 12(a)(4)(A).
G. Michael Digitally signed by G. Michael
Harvey
Date: July 21, 2023 Harvey Date: 2023.07.21 14:40:41
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G. MICHAEL HARVEY
UNITED STATES MAGISTRATE JUDGE
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