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Parker v. John Moriarty & Associates

United States District Court, District of Columbia

December 14, 2016

JOHNNIE PARKER, et al., Plaintiffs,
JOHN MORIARTY & ASSOCIATES, Defendant/Third Party Plaintiff,
STRITTMATTER METRO, LLC, Third Party Defendant/Fourth Party Plaintiff,


          COLLEEN KOLLAR-KOTELLY, United States District Judge

         Plaintiffs Johnnie Parker and Starrelette Gail Jones-Parker bring this action against Defendant/Third Party Plaintiff John Moriarty & Associates of Virginia LLC (“JMAV”). Plaintiffs allege that JMAV, as general contractor of a construction project, was negligent resulting in serious injury to Plaintiff Johnnie Parker, a construction worker on the project site. Defendant JMAV subsequently filed a Third Party Complaint against Third Party Defendant Strittmatter Metro, LLC (“Strittmatter”), and Strittmatter, in turn, filed a Fourth Party Complaint against Fourth Party Defendant Environmental Consultants and Contractors, Inc. (“ECC”). Presently before the Court are Fourth Party Defendant ECC's [48] Motion to Dismiss the Fourth-Party Complaint and Third Party Defendant/Fourth Party Plaintiff Strittmatter's [54] Motion Nunc Pro Tunc for Leave to File Its Fourth-Party Complaint Against ECC. Upon consideration of the parties' submissions, [1] the applicable authorities, and the record as a whole, the Court shall GRANT Third Party Defendant/Fourth Party Plaintiff Strittmatter's [54] Motion Nunc Pro Tunc for Leave to File Its Fourth-Party Complaint against ECC and shall DENY Fourth Party Defendant ECC's [48] Motion to Dismiss the Fourth-Party Complaint for the reasons stated herein.

         I. BACKGROUND

         This action arises out of the construction work completed on the Apollo H Street project (“the project”), located at 600 and 624 H Streets, NE, Washington, D.C. Compl. ¶¶ 6, 8, ECF No. [1]. Fourth Party Defendant ECC contracted with the Owner of the project to provide professional environmental services to the project. 4th Party Compl. ¶ 5, ECF No. [38]. Defendant/Third Party Plaintiff JMAV was the general contractor on the project. Compl. ¶ 8. Third Party Defendant/Fourth Party Plaintiff Strittmatter was hired by JMAV as a subcontractor to perform excavation and backfill work on the project. 3d Party Compl. ¶¶ 7, 8, ECF No. [10]. Plaintiff Johnnie Parker worked on the project as an employee of Strittmatter and alleges that on December 18, 2014, he was instructed to excavate between 600 and 624 H Street, NE, as part of his regular duties of employment. Compl. ¶¶ 7-9. Mr. Parker further alleges that he was injured while performing this work because he was exposed to toxic chemicals from leaking underground storage tanks. Id. ¶¶ 10-15.

         On September 16, 2015, Mr. Parker and his wife, Plaintiff Starrelette Gail Jones-Parker, filed the underlying Complaint in the instant action with a claim of negligence by and against JMAV, along with a claim for punitive damages based on JMAV's alleged willful, reckless, and wanton conduct. See generally Id. On November 9, 2015, JMAV filed a Third Party Complaint against Strittmatter alleging claims of contractual indemnification and breach of contact. See generally 3d Party Compl. JMAV moved the Court for summary judgment on its contractual indemnification claim against Strittmatter based on Subcontract Agreement which the Court denied by written Order and Memorandum Opinion on May 23, 2016. See Order (May 23, 2016), ECF No. [42]; Mem. Op. (May 23, 2016), ECF No. [43].

         On May 12, 2016, Strittmatter filed a Fourth Party Complaint against ECC alleging claims of negligence, indemnity and/or contribution as a joint tortfeasor, breach of contract to a third party beneficiary, and negligent misrepresentation. See generally 4th Party Compl. Strittmatter's claims against ECC are grounded in tort and in contract based on ECC's Professional Services Agreement (“the contract”) with the Owner of the project. The contract dated November 1, 2014, as well as two plans prepared by ECC as part of that contract, the “Voluntary Remediation Action Plan” (“VRAP”) dated August 22, 2014, and the “Environmental Health and Safety and Impacted Material Management Plan” (“EHASP”) also dated August 22, 2014, were attached to the Fourth Party Complaint. See 4th Party Compl., Ex. 1 (Professional Services Agreement), ECF No. [38-1]; id., Ex. 2 (Voluntary Remediation Action Plan), ECF No. [38-2]; id., Ex. 3 (Environmental Health and Safety and Impacted Material Management Plan), ECF No. [38-3].[2] The Court shall briefly summarize the relevant portions of those documents, reserving further presentation of the facts for the discussion of the individual issues below.

         Pursuant to the terms of the contract, ECC was authorized by the Owner to provide certain services, namely to prepare and implement the VRAP and provide services detailed in the EHASP. ECC agreed to perform these services “under the direction of [the] Owner, and to the reasonable satisfaction of [the] Owner.” Prof'l Servs. Agmt. at 1. The contract clarified that ECC “shall operate as, and have the status of, an independent contractor and shall not act as or be an agent or employee of Owner. As an independent contractor, [ECC] . . . will be solely responsible for determining the means and methods for performing the Services . . . .” Id. at 2. The contract also provided that the “Owner is responsible for services performed by its Contractor, consultants and design professionals, but nothing herein is intended to relieve [ECC] . . . of its obligation to coordinate its Services with the services performed by the Owner's Contractor, consultants and design professionals.” Id.

         Both the VRAP and the EHASP were formulated based on an Environmental Site Assessment conducted by Tom Hardy, ECC President, and John Diehl, ECC Senior Project Manager and a Certified Professional Geologist. 4th Party Compl. ¶¶ 28-31. The VRAP set forth voluntary corrective actions to take due to the presence of soil and groundwater petroleum contamination at the project site. VRAP at 18. As noted in the VRAP, petroleum contamination at the site was attributed to underground storage tanks from a gasoline service station and automotive repair facility that previously were located at the site. Id.

         The contract between ECC and the Owner provided that the VRAP would be implemented in order to receive a “Case Closure” or “No Further Action” determination pursuant to D.C. Municipal Regulation § 20-6211 which governs compliance with the District of Columbia Underground Storage Tank Management Act of 1990 as amended, D.C. Law 8-242; D.C. Code § 6-995 et seq. (1995 Repl.). See Prof'l Srvs. Agmt. at 11. The VRAP also indicated that the purpose of the voluntary correction actions was, in part, to “ensure the health and safety of future residents, construction workers, and area residents during construction . . . .” VRAP at 6, 18. The VRAP proposed remediation actions for the removal and disposal of the petroleum storage tanks during site excavation and “any orphaned (previously unknown) petroleum or chemical storage vessels or other underground vessels or structures encountered during excavation.” Id. at 18. The remediation actions proposed in the VRAP also included the preparation and implementation of a site-specific EHASP for excavation and dewatering activities, including on-site air monitoring for construction workers and perimeter air monitoring for area residents. Id. Pursuant to the VRAP, all site excavation activities were to be conducted in accordance with the EHASP. Id. at 19.

         The EHASP was prepared by ECC and reviewed and approved by companies performing work on the site, including Strittmatter as a subcontractor completing excavation work. EHASP at 3. The EHASP, which is discussed in further detail below, “outline[d] acceptable health and safety requirements and procedures related to the control of potential worker and environmental hazards from contaminated soil and water at the site, which may be encountered in the performance of their activities that intrude upon or disturb contaminated soil and/or water.” Id. The Court shall further examine the relevant provisions of the EHASP in its discussion below.

         Strittmatter now seeks the Court's leave to file its Fourth Party Complaint nunc pro tunc and ECC requests that the Court dismiss the Fourth Party Complaint for failure to state a claim upon which relief can be granted. Specifically, ECC asserts that Strittmatter's tort and contract claims against it fail as a matter of law and should be dismissed pursuant to Federal Rule of Civil Procedures 12(b)(6).


         Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to ‘give 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) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

         In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court must construe the complaint in the light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Empl. Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C. 1994). Further, in deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, ” or “documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward v. D.C. Dep't of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C. 2011) (citations omitted).


         As an initial matter, Third Party Defendant/Fourth Party Plaintiff Strittmatter filed a Fourth Party Complaint in this action without first seeking leave to file the Complaint pursuant to Federal Rule of Civil Procedure 14. Fourth Party Defendant ECC raised an objection to the filing of the Fourth Party Complaint without first seeking leave in its motion to dismiss. Def.'s Mot. at 2 n.1. Strittmatter subsequently filed a motion for leave to file the Fourth Party Complaint nunc pro tunc to May 12, 2016, the date of the actual filing of the complaint with the Court. See Pl.'s Mot. for Lv. to File. This Court previously set May 13, 2016, as the deadline for the filing of motions to join additional parties. Order (Mar. 28, 2016), ECF No. [36]. As such, Strittmatter timely filed its Fourth Party Complaint but failed to seek leave to do so. Strittmatter has since sought to rectify this oversight by filing its motion for leave to file nunc pro tunc and noting that it “inadvertently neglected to seek the appropriate leave of Court.” Pl.'s Opp'n at 7. Strittmatter requests that the Court excuse its neglect pursuant to Federal Rule of Civil Procedure 6(b)(1)(B), “in favor of judicial economy and efficiency of litigation.” Id. The Court shall grant Strittmatter's request in light of the fact that it timely put ECC on notice of its claims through the filing of the Fourth Party Complaint, the claims in the Fourth Party Complaint are directly related to which party or parties can be held liable for Plaintiff Parker's alleged injuries, and Strittmatter's delay in filing the motion for leave to file the Complaint was due to Strittmatter's excusable neglect. Moreover, Strittmatter has represented that it did not receive a complete copy of the contract at issue between ECC and the Owner until April 19, 2016, less than one month prior to the filing of the Fourth Party Complaint. Pl.'s Opp'n at 3. As such, the Court shall grant Strittmatter's Motion Nunc Pro Tunc for Leave to File Its Fourth-Party Complaint Against ECC.

         The Court now turns to the substance of the motion to dismiss based on ECC's assertion that Strittmatter failed to state a claim upon which relief can be granted. Strittmatter through its Fourth Party Complaint raises four claims against ECC. First, Strittmatter raises a negligence claim against ECC. Specifically, Strittmatter contends that ECC had a duty to Strittmatter and others and, if Plaintiff Parker prevails on his claims, ECC breached the following duties: (1) to ensure the safety of workers on the project from volatile organic compound (“VOC”) vapors; (2) to continuously monitor VOC vapors during excavation and warn of hazards; (3) to perform its services pursuant to the standard set for an environmental professional and/or a certified professional geologist; and (4) to institute safety precautions and regulate safety equipment in accordance with the contract, the EHASP, and the VRAP. Second, Strittmatter argues that if it is found liable, it is entitled to indemnity and/or contribution from ECC because of ECC's negligence. Third, Strittmatter asserts a breach of contract claim, asserting that it is a third party beneficiary of the contract between ECC and the Owner and that ECC breached the terms of that agreement. Finally, Strittmatter raises a negligent misrepresentation claim against ECC, contending that “ECC directly and indirectly made knowingly and/or recklessly false and misleading statements about the environmental conditions at the H Street Project and failed to perform its duties in monitoring the Environmental Conditions pursuant to the ECC/Owner contract and the relevant statutes regarding undergrounds storage tanks.” 4th Party Compl. ¶ 62.

         ECC now moves to dismiss all of Strittmatter's claims against it. Specifically, ECC argues that Strittmatter's claims fail as a matter of law for two reasons: (1) ECC owed no legal duty to Strittmatter and ECC was not responsible for ensuring worker safety on the job site; and (2) Strittmatter was not an intended beneficiary of the agreement between ECC and the Owner. ECC also contends that if the Court does not find Strittmatter's claims against ECC fail as a matter of law at this juncture, any claims between these two parties should be severed and tried separately because the agreement at issue contains a jury waiver provision.

         A. ECC's Alleged Duties to Strittmatter

         ECC first argues that it does not owe a duty of care to Strittmatter or its employees and, as such, Strittmatter cannot recover from ECC for ECC's purported negligence. In order to recover under a negligence theory, Strittmatter must demonstrate that ECC owed Strittmatter a duty of care, that ECC breached that duty, and that ECC's breach was the proximate cause of the injuries. See Presley v. Commercial Moving & Rigging, Inc., 25 A.3d 873, 880 (D.C. 2011). “Whether there is a duty of care is a question of law.” Id. at 883. However, “‘[a] determination of whether a duty exists is the result of a variety of considerations and not solely the relationship between the parties.'” Id. at 888 (quoting Bd. of Trs. of Univ. of District of Columbia v. DiSalvo, 974 A.2d 868, 871 (D.C. 2009)). In this jurisdiction, a common law duty of care may arise even in the absence of contractual privity. See Id. In determining whether such a duty exists, “whether a party should have foreseen that its contractual undertaking was necessary for the protection of the third party is important.” Id. Accordingly, a court must still examine the contract “to determine the scope of the undertaking as it relates to the protection of the third party.” Id. In addition to considering the contract itself, “[t]he existence of a duty is also shaped by considerations of fairness and ‘results ultimately from policy decisions made by the courts and the legislatures.'” Id. (quoting DiSalvo, 974 A.2d at 871 n.2).

         The District of Columbia Court of Appeals (“D.C. Court of Appeals”) has adopted the approach in the Restatement (Second) of Torts for determining whether a party who performs services pursuant to a contract to one party assumes a common law duty to an unrelated third party.

         Specifically, the court explained:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his ...

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