United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE.
case involves a dispute between Plaintiff Edge Investment,
LLC (“Edge”), a building construction company,
and Defendants, various District of Columbia entities and
their contractors. Defendants razed a building constructed by
Edge, claiming that the building had damaged an underground
sewer. A lawsuit addressing the same dispute and many of the
same claims as this case is well into discovery in the
Superior Court of the District of Columbia (the
“Superior Court”). Before the Court are Defendant
District of Columbia Water and Sewer Authority's
(“D.C. Water”) and Defendant George S.
Hawkins' Motions to Stay or Dismiss. For the reasons
described below, the Court will grant these motions in part
and stay the case pursuant to the Colorado River
purposes of these motions, the Court assumes the truth of the
facts set forth in Edge's complaint. The Northeast
Boundary Tunnel Sewer (the “NEBTS”) is an
underground waste and storm sewer. ECF No. 1
(“Compl.”) ¶¶ 15, 28. D.C. Water is
authorized to operate the NEBTS on behalf of the District of
Columbia (the “District”). Id.
April 10, 2013, the D.C. Department of Consumer and
Regulatory Affairs (“DCRA”) issued a building
permit authorizing construction of a three-story residential
building on a lot (the “Lot”) located near the H
Street corridor. Id. ¶¶ 3, 24. The NEBTS
runs approximately thirteen feet below the Lot. Id.
¶ 18. In May 2013, Edge purchased both the Lot and the
approved building permit. Id. ¶ 39. Prior to
doing so, Edge obtained a title report, which did not
identify any easement granting authority to access or operate
an underground sewer tunnel on the Lot. Id. ¶
22, 2013, one of Edge's construction managers placed a
call, as required by the Underground Facilities Protection
Act (“UFPA”), D.C. Code § 34-2701 et
seq., to the District of Columbia's “one-call
center” to provide notice about upcoming excavation on
the Lot and request information about any conflicts.
Id. ¶¶ 46, 49. A contractor for D.C.
Water, Pinpoint Underground, LLC (“Pinpoint”),
subsequently provided a “Clear/No Conflict”
response to Edge's request. Id. ¶¶
52-54, 56-58. Having been given the green light, Edge began
construction on the new building (the
“Building”). Id. ¶ 67.
November 2013, a third party submitted paperwork to D.C.
Water to obtain approval for water and sewer service at the
Building on the Lot. Id. ¶ 72. On December 2,
2013, a D.C. Water employee responded via email that
construction over the NEBTS would be very costly.
Id. ¶ 73. That was when Edge first learned that
the NEBTS ran under the Lot. Id.
light of this development, the parties hired experts to
assess what harm, if any, the Building might cause to the
NEBTS. Edge submitted engineering reports to D.C. Water in
December 2013 and March 2014, which concluded that the
Building did not present any danger to the NEBTS.
Id. ¶ 98. And D.C. Water had inspectors visit
the site on July 31, 2014, who reported no damage to the
NEBTS under the Lot. Id. ¶ 103. But D.C. Water
claims that later inspections revealed a crack in the NEBTS,
and that an engineering firm it hired concluded that
demolition of the Building was one way to protect the NEBTS.
Id. ¶¶ 108-109.
alleges that, on or around December 2014, D.C. Water, DCRA,
and others formed a conspiracy to quickly raze the Building
without providing Edge adequate due process. Id.
¶ 111. On January 8, 2015, DCRA issued a Notice to
Revoke the permits for the Building. Id. ¶ 118.
Next, DCRA issued a Notice of Intent to Raze a Residential
Structure on January 22 (which was later withdrawn),
id. ¶¶ 122-133; another on January 29
(also later withdrawn), id. ¶¶ 126, 151;
and, finally, another on April 22, 2015, id. ¶
152. The Building was razed on May 18, 2015, by Celtic
Demolition, Inc. (“Celtic”), a contractor for
D.C. Water. Id. ¶ 156. Edge alleges that D.C.
Water lacked the authority to raze the Building and that it
did not receive adequate due process before the Building was
razed. See Id. ¶¶ 158-160, 166-174.
September 2015, after the Building had been razed, DCRA
placed two liens totaling approximately $3.65 million on the
Lot, which represented the costs of demolishing the Building
and repairing the NEBTS. Id. ¶¶ 204-213.
Superior Court Proceedings
January 8, 2016, D.C. Water brought suit in Superior Court
(the “Superior Court Action”) seeking damages for
harm caused to the NEBTS. See D.C. Sup. Ct. Case No.
2016 CA 000187 B (“Sup. Ct. Dkt.”). In its
complaint, D.C. Water asserted negligence claims against nine
defendants, including Edge and the District of Columbia.
Compl. ¶ 216. Several defendants moved to dismiss in
February and March 2016; those motions were denied, and D.C.
Water filed an amended complaint with leave of the court on
April 18, 2016. See ECF No. 23 at 6; Sup. Ct. Dkt.
Again, several defendants moved to dismiss the amended
complaint, and Edge filed both a partial motion to dismiss
and a motion for partial summary judgment. Sup. Ct. Dkt. In
June 2016, Edge's motion for partial summary judgment was
denied, and discovery proceeded. Id. In September
2016, the Superior Court granted the District's motion to
dismiss, but all other motions to dismiss were denied, at
least in part. Id. In December 2016, the District of
Columbia removed the Superior Court Action to federal court.
See D.C. Water & Sewer Auth. v. First Hand Land, LLC
et al., No. 1:16-cv-02456-ABJ (D.D.C.) (“Removed
Case Dkt.”). After D.C. Water filed a motion to remand,
the District of Columbia notified the court it did not oppose
remand, and the court remanded the case to Superior Court in
March 2017. Removed Case Dkt., ECF No. 32.
parties have filed counterclaims and third-party complaints
in the Superior Court Action. On October 24, 2016, Edge filed
counterclaims against D.C. Water. Id. On February 1,
2017, Edge filed amended counterclaims, alleging violations
of substantive due process and procedural due process,
conspiracy to violate Edge's due process rights, an
unconstitutional taking, trespass, negligence under the UFPA,
and inverse condemnation under the Fifth Amendment to the
U.S. Constitution. See Removed Case Dkt., ECF No.
22. Also, on November 7, 2016, Edge filed a third-party
complaint against the District, asserting many of the same
claims. See Removed Case Dkt., ECF No. 11 at 162-78.
Edge filed an amended third-party complaint on February 2,
2017, alleging violations of substantive due process and
procedural due process, conspiracy to violate Edge's due
process rights, an unconstitutional taking, trespass, inverse
condemnation under the Fifth Amendment to the U.S.
Constitution, and action to quiet title. Removed Case Dkt.,
ECF No. 23; Sup. Ct. Dkt. The District filed an answer on October
15, 2017. Sup. Ct. Dkt. D.C. Water also filed a complaint
against Pinpoint that was consolidated with the Superior
Court Action. Id.
November 17, 2017, Superior Court Judge John Mott issued an
order on D.C. Water's motion to dismiss Edge's
amended counterclaims. Id. Judge Mott dismissed
Edge's claim for negligence under the UFPA, but denied
the motion as to the other six claims. Id. On
January 12, 2018, Judge Laura Cordero, to whom the case had
been reassigned, issued a revised Scheduling Order that set
deadlines for expert reports (May 4 and July 6, 2018), the
close of discovery (September 14, 2018), deciding dispositive
motions (November 9, 2018), and the conclusion of mediation
(November 20, 2018). Id.
The Instant Case
April 6, 2017, Edge filed this complaint against the District
of Columbia, D.C. Water, Celtic, and a number of individuals
employed by D.C. Water and DCRA. See Compl.
¶¶ 4-14. The complaint alleges 13 causes of action
against one or more of the Defendants: violation of
substantive due process and procedural due process;
conspiracy to violate due process rights; an unconstitutional
taking; inverse condemnation; two counts alleging violations
of the Racketeer Influenced and Corrupt Organizations
(“RICO”) Act; a request for a declaratory
judgment; negligent supervision; negligence under the UFPA;
trespass; action to quiet title; and a request for injunctive
relief. Id. ¶¶ 251-370. Edge had already
brought most, but not all, of these causes of action in the
Superior Court Action; its new causes of action include the
two RICO claims. Edge's complaint in this case also adds
Celtic and a number of D.C. Water and DCRA employees in their
personal capacities as defendants.
before the Court are motions to stay the case pursuant to the
Colorado River abstention doctrine or,
alternatively, to dismiss the case, filed by D.C. Water, ECF
No. 23, and Defendant George S. Hawkins, ECF No.
other abstention doctrines do not apply, “a district
court may nonetheless exercise its discretion and decline to
hear a case that is otherwise properly before it based on the
principles the Supreme Court set forth in Colorado
River” Atkinson v. Grindstone Capital, LLC, 12
F.Supp.3d 156, 161 (D.D.C. 2014). “In Colorado
River, the Supreme Court explained that where there are
two courts with concurrent jurisdiction over the same matter,
the decision to abstain from an exercise of jurisdiction may
sometimes rest on considerations of ‘[w]ise judicial
administration, giving regard to conservation of judicial
resources and comprehensive disposition of
litigation.'” Id. (alteration in original)
(quoting Colo. River Water Conservation Dist. v. United
States, 424 U.S. 800, 817 (1976)).
circuits, “[i]n order to decide whether the
Colorado River doctrine applies to a particular
case, [a court] must first determine whether the concurrent
state and federal lawsuits are parallel.” TruServ
Corp. v. Flegles, Inc., 419 F.3d 584, 591 (7th Cir.
2005); see also Ambrosia Coal & Const. Co. v. Pages
Morales, 368 F.3d 1320, 1330 & n.21 (collecting
cases). The D.C. Circuit “has yet to address”
whether this threshold inquiry is required in this Circuit
and, if so, the standard for it. Saddler v. AMEC Foster
Wheeler Env't & Infrastructure, Inc., 253
F.Supp.3d 210, 219 (D.D.C. 2017). Nevertheless, the Court
will assume that this requirement applies. If actions are
deemed parallel, then a district should consider the
following factors “when deciding whether it will
abstain in favor of letting the case proceed in the other
forum:  which court first obtained jurisdiction over the
property in dispute, if any;  any inconvenience that might
result from litigating in a federal forum;  which court