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Miller v. D.C. Water and Sewer Authority

United States District Court, District of Columbia

October 2, 2018

MARQUETTA MILLER, et al., Plaintiffs,
D.C. WATER AND SEWER AUTHORITY, et al., Defendants.



         The 21 plaintiffs in the instant action are neighbors who had the distinct misfortune of living on Delafield Place in the District of Columbia-a street containing mostly single-family residences in the Northeast quadrant of the city-on November 18, 2016. On that date, “more than two feet of raw sewage, including sanitary, semi-industrial, and commercial waste from a nearby nursing home, hospital, and several retail operations, flooded into Plaintiffs' homes[.]” (Am. Compl., ECF No. 9, ¶ 1.) Plaintiffs have sued the District of Columbia Water and Sewer Authority (“WASA”) and three remediation companies that WASA hired to clean up and remediate the damage (collectively, “Defendants”); their complaint makes ten claims that can be grouped into three categories. Generally speaking, Plaintiffs allege that this disastrous occurrence and its unsatisfactory aftermath (1) constituted civil rights violations under federal and state law (Counts I-IV); (2) breached various federal and state environmental protection statutes (Counts V-VIII); and (3) amounted to gross negligence and trespass under D.C. common law (Counts IX and X). Plaintiffs seek compensatory and punitive damages, attorneys fees and costs, and an order requiring Defendants to “address the injuries that Defendants caused on Delafield Place, including by arranging for and paying the medical monitoring of the citizens affected by Defendants' conduct[.]” (Am. Compl., at 45.)[1]

         Before this Court at present are the four separate motions to dismiss that Defendants have filed in this matter. (See Def. WASA's Mot. to Dismiss Pl.'s Am. Compl. (“WASA's Mot.”), ECF No. 19; Mot. by Def. Charmay, Inc., d/b/a ServiceMaster NCR, to Dismiss Am. Compl. Relating to 129 Delafield Place (“ServiceMaster's Mot.”), ECF No. 23; Belfor USA Group Inc.'s Mot. to Dismiss the Am. Compl. (“Belfor's Mot.”), ECF No. 26; Def. Superior Mitigation Servs. Inc. d/b/a Servpro of Washington, DC's Rule 12(b)(6) Mot. to Dismiss (“Servpro's Mot.”), ECF No. 27.)[2] In the main and taken together, Defendants' motions argue that Plaintiffs failed to comply with the notice requirements of the environmental statutes they invoked-statutes which do not apply to the factual circumstances here in any event; that Plaintiffs have failed to allege sufficiently that Defendants acted under color of state law or had the requisite discriminatory intent for the purpose of Plaintiffs' civil rights claims; and that the facts alleged in the complaint contradict Plaintiffs' common-law tort claims, which are also barred by various immunity doctrines. In opposition, Plaintiffs insist that they provided sufficient notice of their claims to WASA under environmental statutes that apply to the sewage release at issue here and provide the purely injunctive relief they seek; that Plaintiffs' status as a uniformly African-American community raises a sufficient inference of discriminatory intent to raise civil rights claims; and that the immunity doctrines that Defendants allege do not insulate Defendants from the Plaintiffs' common-law tort claims, which Plaintiffs say have been alleged sufficiently. (See Pls.' Mem. in Opp'n to Defs.' Mots. To Dismiss Am. Compl. (“Pls.' Opp'n”), ECF No. 38, at 10-27.)

         For the reasons explained below, this Court concludes that Plaintiffs have failed to comply with the procedural requirements of the environmental statutes they invoke, and that the facts alleged in the complaint do not state a claim for relief under the statutes. Plaintiffs have also fallen far short of making plausible allegations of federal civil rights violations, because the complaint contains insufficient facts to establish either that Defendants acted under color of state law or that their conduct was discriminatorily motivated. Therefore, the federal claims in this case must be dismissed, and this Court will decline to exercise supplemental jurisdiction over the remaining local and common law claims. As a result, Defendants' motions to dismiss Plaintiffs' complaint have been GRANTED, and Plaintiffs' complaint has been DISMISSED. The Court issued a separate order consistent with this Memorandum Opinion on September 30, 2018.


         A. Background [3]

         During the eighteen months prior to Friday, November 18, 2016, Defendant WASA repeatedly attempted to repair a frail subsurface water main beneath Delafield Place, which is a street in the District of Columbia that is comprised predominantly of single-family row houses. (See Am. Compl. ¶ 35-36.) WASA's repair attempts were ultimately unsuccessful, as evidenced by the fact that, on November 18th, a “stream of concentrated water . . . bore into the adjacent underground sewage main by which WASA collects and carries untreated, raw sewage and household, commercial, and semi-industrial waste from the homes, ” (id. ¶ 26), and within minutes, raw sewage began to erupt from the toilets at the basement level of the houses on Delafield Place (id. ¶ 38). By the end of thirty minutes, the basement floors of Plaintiffs' homes were submerged beneath two to three feet of raw sewage, producing a stench that was “overwhelming and nauseating; the sight, terrifying.” (Id.) And these circumstances rendered the amenities and fixtures in the basements of the affected homes-which generally included the washer and drier, the sole hot water heater, the furnace, and in some cases living spaces such as a bedroom or lounge-entirely inaccessible. (See Id. ¶ 39.)

         WASA responded to the sewage release by immediately shutting off water and sewer access to Delafield Place. (See Id. ¶ 40.) It further advised most, but not all, of the 21 citizens of the District of Columbia who owned the impacted homes, none of whom were white (see Id. ¶ 35), that WAS A would handle the clean-up and would remediate their houses (see Id. ¶ 42). WASA then contracted with Defendants Belfor, Servpro, and ServiceMaster (collectively, “Defendant Contractors”) to perform the clean-up and remediation work. (See Id. ¶ 43.) According to Plaintiffs, the ensuing steps that these companies took to clean up the sewage and remediate their residences were entirely unsatisfactory, and not only did Defendant Contractors fail to fix the significant damage that the sewage leak had caused, their intervention also led to a host of additional problems. (See Id. ¶ 44 (asserting, inter alia, that the contractors tracked fecal matter into previously unaffected areas of the houses with no remedial clean-up; removed and disposed of owners' personal items without their knowledge or consent; removed tiling in at least three homes in a manner that resulted in friable asbestos exposure; they failed to remove all contaminated waste; and failed to restore the basement bathrooms to their original condition).) In short, Plaintiffs maintain that WASA exhibited “gross negligence and reckless disregard for Plaintiffs' health and property” from beginning to end (id. ¶ 1), and that instead of helping, the Defendant Contractors' clean-up and remediation effort actually “worsened the injury” (id. ¶ 2).

         B. Procedural History

         By letter dated December 5, 2016, Plaintiffs served a Notice of Citizen Suit-a prerequisite to litigation under the citizen suit provisions of several federal environmental statutes-on WASA. (See Id. ¶ 4 (referencing Section 7002 of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972; Sections 104, 112, and 310 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9604, 9612, 9659; and Section 20 of the Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2619).) Then, on May 7, 2017, Plaintiffs filed an eleven-count complaint in this Court against WASA. (See Compl., ECF No. 1.) Plaintiffs dropped one count and also added Belfor, Charmay, and ServiceMaster as defendants on August 24, 2017, when they amended the complaint. (See Am. Compl.).[4]

         In Counts I through IV, Plaintiffs claim that Defendants' conduct violated various federal and state civil rights statutes. (See Am. Compl. ¶¶ 128-32 (Count I, Violation of Civil Rights (42 U.S.C. § 1981)); id. ¶¶ 133-37 (Count II, Violation of Civil Rights (42 U.S.C. § 1982)); id. ¶¶ 138-42 (Count III, Violation of Civil Rights (42 U.S.C. § 1983)); id. ¶¶ 143-50 (Count IV, Violation of Civil Rights (D.C. Human Rights Act)).) In Counts V through VIII, Plaintiffs contend that the events of November 18, 2016, and their aftermath, transgressed a host of federal and state environmental laws. (See Id. ¶¶ 151-58 (Count V, Violation of Resource Conservation and Recovery Act: Citizens' Suit (42 U.S.C. § 6972(a)(1)(B))); id. ¶¶ 159-71 (Count VI, Comprehensive Environmental Resource Conservation and Liability Act Liability (42 U.S.C. § 9601)); id. ¶¶ 172-74 (Count VII, Violation of TSCA: Citizens' Suit (15 U.S.C. § 2619)); id. ¶¶ 175-81 (Count VIII, Violation of D.C. Asbestos Rules (D.C. Code § 111.01)).) Only Counts IX and X make the kinds of claims that are traditionally associated with a purportedly accidental and catastrophic event like the one at issue here. (See Id. ¶¶ 182-94 (Count IX, Common-law Gross Negligence); ¶¶ 195-202 (Count X, Common-law Trespass).) Plaintiffs' complaint seeks relief in the form of compensatory damages, consequential damages, punitive damages, attorneys' fees and costs with interest, medical monitoring, and any other equitable and legal relief to the maximum extent permitted by law. (See, e.g., Id. at 28-29.)

         As noted above, each of the Defendants has filed a separate motion to dismiss Plaintiffs' complaint. (See WASA's Mot.; ServiceMaster's Mot.; Belfor's Mot.; Servpro's Mot.) In general, Defendants assail the complaint on both procedural and substantive grounds, arguing, for example, that Plaintiffs have failed to comply with the statutory notice requirements of the environmental statutes they invoke, and that Plaintiffs have not alleged sufficiently that Defendants acted under color of state law or that they had discriminatory intent, as the civil rights statutes require. (See, e.g., WASA's Mot. at 25-26, 30-34; id. at 18-21; Belfor's Mot. at 23-24.) Plaintiffs respond that Defendants' motions are meritless, because the procedural requirements of the various statutes were followed and the facts that are alleged in the complaint are more than sufficient to state a plausible claim for relief under federal and state law. (See, e.g., Pls.' Opp'n at 10, 12, 17.) Defendants' motions became ripe for this Court's review on March 9, 2018. (See Reply Mem. in Supp. of Belfor's Mot., ECF No. 41; WASA's Reply to Pls.' Opp'n to WASA's Mot., ECF No. 42; Reply Mem. in Supp. of Servpro's Mot., ECF No. 43; Reply to Pls.' Opp'n to ServiceMaster's Mot., ECF No. 44.) This Court held a hearing on the motions on July 10, 2018.


         A. Motions To Dismiss Under Rule 12(b)(6)

         Motions to dismiss under Rule 12(b)(6) impugn the sufficiency of a complaint's allegations. Federal Rule of Civil Procedure 12(b)(6) specifically authorizes dismissal on the grounds that the complaint “fail[s] to state a claim upon which relief can be granted[.]” Fed.R.Civ.P. 12(b)(6). Accordingly, a motion under Rule 12(b)(6) requires the Court to consider whether the complaint contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 68 (D.C. Cir. 2015) (internal quotation marks omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 46 (2011) (explaining that the complaint's allegations must be sufficient to permit a “reasonable inference that the defendant is liable for the misconduct alleged” (internal quotation marks and citations omitted)).

         In this regard, the court must confine its review to the four corners of the complaint, as well as any “documents attached as exhibits or incorporated by reference in the complaint, or documents upon which the plaintiff's complaint necessarily relies[, ]” Page v. Mancuso, 999 F.Supp.2d 269, 275 (D.D.C. 2013) (internal quotation marks and citation omitted), and “must accept as true all of the allegations contained in a complaint[, ]” Harris, 791 F.3d at 68 (internal quotation marks and citation omitted). But this tenet “is inapplicable to legal conclusions.” Harris, 791 F.3d at 68. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (alteration in original) (internal quotation marks and citation omitted). Additionally, “the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Comm'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

         B. Supplemental Jurisdiction under 28 U.S.C. § 1367(c)(3)

         “Federal courts are courts of limited jurisdiction[, ]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); as a general matter, the U.S. Constitution enumerates the limited categories of cases to which their judicial power may extend, see Art. III, § 2. The two most significant categories of original jurisdiction in the federal courts are federal question jurisdiction and diversity jurisdiction, see 28 U.S.C. §§ 1331-1332, but federal courts also possess supplemental jurisdiction over certain state law claims that are anchored to claims over which federal original jurisdiction was appropriate. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966) (finding federal court jurisdiction to hear “state and federal claims [which] derive from a common nucleus of operative fact”).

         Specifically, under 28 U.S.C. § 1367(a), if a district court has original jurisdiction, it also has “supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). Moreover, supplemental jurisdiction is subject to the district court's discretion under 28 U.S.C. § 1367(c). “[D]istrict courts may decline to exercise supplemental jurisdiction” in certain specified circumstances, including if “the district court has dismissed all claims over which it has original jurisdiction[.]” 28 U.S.C. § 1367(c). While “[t]he exercise of supplemental jurisdiction remains discretionary on the part of a federal court, [in] the usual case in which all federal-law claims are dismissed before trial, ” courts have routinely found that “the balance of factors to be considered under the [supplemental] jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point toward declining to exercise jurisdiction over the remaining state law claims.” Robinson-Reeder v. Am. Council on Educ., 532 F.Supp.2d 6, 18 (D.D.C. 2008) (quoting Shekoyan v. Sibley Int'l, 409 F.3d 414, 424 (D.C. Cir. 2005)) (internal quotation marks and alterations omitted).

         III. ANALYSIS

         As explained above, Defendants make myriad arguments concerning the procedural and substantive deficiency of Plaintiffs' claims. For example, Defendants maintain that Plaintiffs' federal environmental law claims are procedurally barred because certain statutory notice requirements were not satisfied (see WASA's Mot. at 25-26, 30-34), and that the same environmental claims are also substantively insufficient, because the cited statutes do not address the type of harm that Plaintiffs allege (see Id. at 27-29, 32-35). Defendants contend that Plaintiffs' federal civil rights claims are similarly substantively flawed, because Plaintiffs' allegations do not demonstrate that Defendants acted under color of state law (see Belfor's Mot. at 23-24) or had the requisite discriminatory intent (see WASA's Mot. at 18-21). This Court generally agrees with Defendants' arguments, for the reasons explained fully below. Therefore, the Court has granted Defendants' Rule 12(b)(6) motions and has dismissed Plaintiffs' federal claims. The remainder of Plaintiffs' complaint has been dismissed as well, because the Court declines to exercise supplemental jurisdiction over the remaining common law claims.

         A. Plaintiffs' Federal Environmental Law Claims Are Dismissed Because Plaintiffs Did Not Satisfy The Statutory Pre-Suit Notice Requirements, And Because The Complaint Fails To State A Claim Under These Statutes In Any Event

         In their Counts V, VI, and VII, Plaintiffs contend that Defendants' conduct violated provisions of the following federal statutes: the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(B); the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9604, 9612, 9659; and the Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2619. (See Am. Compl. ¶ 4; see also Notice of Citizen Suit, Ex. 1 to Pls.' Opp'n, ECF No. 38-1, at 2.) Each of these three federal laws is “just one piece of a larger network of environmental laws and their ...

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