United States District Court, District of Columbia
KETANJI BROWN JACKSON UNITED STATES DISTRICT JUDGE
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
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.) 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.)
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,
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.)
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).
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.).
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
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.
Motions To Dismiss Under Rule 12(b)(6)
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
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).
Supplemental Jurisdiction under 28 U.S.C. §
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”).
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).
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.
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
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 ...