Barker et al v. Naik et al

Filing 40

MEMORANDUM OPINION AND ORDER granting 13 Motion to Dismiss and DISMISSES Counts I, II, III, IV, V, VII, and VIII from Plaintiffs' Amended Complaint. Signed by Judge Thomas E. Johnston on 8/10/2018. (cc: counsel of record; any unrepresented party) (kp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

JOHN BARKER, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 2:17-cv-04387

SAURABH NAIK, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants’ Motion to Dismiss Amended Complaint. 1 (ECF
No. 13.) For the reasons discussed below, the Court GRANTS the motion to dismiss.
I. BACKGROUND
This case arises out of a warehouse fire in Parkersburg, West Virginia. (ECF No. 11 at
1.) Plaintiffs are West Virginia citizens who bring this action individually and seek certification
of two classes of persons defined as the Property Damage Class, which includes “[a]ll owneroccupants and renters of residential property within 1.5 miles of the property boundary of
Defendant’s #1 warehouse as of October 21, 2017” and the Exposure Class, which includes “[a]ll
owners, occupants and renters of residential property within 1.5 miles of the property boundary of
Defendant’s #1 warehouse as of October 21, 2017.” (Id. ¶ 34.) Defendants include Saurabh

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Further pending before this Court is Defendants’ Motion to Dismiss, (ECF No. 8), which was filed before Plaintiffs’
Amended Complaint and Defendants’ subsequent Motion to Dismiss Amended Complaint. Accordingly, the Court
DENIES AS MOOT Defendants’ first Motion to Dismiss.

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Naik, an individual citizen of Maryland and principal, owner, and/or executive owner of each of
the Defendant entities, Surnaik Holdings of WV, LLC, a West Virginia limited liability company,
Sirnaik LLC, a West Virginia limited liability company, Polymer Alliance Services, LLC, a West
Virginia limited liability company, Green Sustainable Solutions, LLC, a West Virginia limited
liability company, and Intercontinental Export Import, Inc., a business corporation incorporated
and with headquarters in Maryland doing business in West Virginia.

(Id. ¶¶ 5–12.)

The

Amended Complaint alleges that on Saturday, October 21, 2017, a facility owned by Defendants
caught fire and “release[ed] smoke, soot, pollutants, air contaminants, and noxious odors, causing
material injury to Plaintiffs’ property through negligence, gross negligence and nuisance.” (Id. ¶
1.) Plaintiffs assert (1) public nuisance; (2) private nuisance; (3) negligence; (4) gross negligence;
(5) trespass; (6) negligent infliction of emotional distress; (7) medical monitoring; and (8) unjust
enrichment. (Id. ¶¶ 43–90.) Plaintiffs request relief in the forms of “compensatory, special, and
punitive damages, all appropriate medical monitoring costs, and attorneys’ fees and costs,
including prejudgment and post-judgment interest thereupon (all in amounts to be determined at
trial),” “[e]quitable and injunctive relief for providing notice and medical monitoring to Plaintiffs
and the Exposure Class and to abate the damage to Plaintiffs’ properties,” and “such further relief
as the Court deems just and proper.” (Id. at 15.)
Plaintiffs filed their original Complaint in the Circuit Court of Wood County, West
Virginia, on October 30, 2017. (See ECF No. 1-2.) Defendant removed the case to this Court
on November 20, 2017. (ECF No. 1.) In the Notice of Removal, Defendants assert that this
Court has jurisdiction over this case pursuant to 28 U.S.C. § 1332, as amended by the Class Action
Fairness Act of 2005 (“CAFA”). (See id. at 2.) Defendants filed their original Motion to Dismiss
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on December 27, 2017. (ECF No. 8.) Plaintiffs subsequently filed an Amended Complaint on
January 17, 2018. (ECF No. 11.) Defendants then filed their current Motion to Dismiss on
January 31, 2018. (ECF No. 13.) Plaintiffs filed their response to the motion, as allowed by the
Court, on February 23, 2018, (ECF No. 24), and Defendants replied on March 2, 2018, (ECF No.
25). The motion is fully briefed and ripe for adjudication.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires that a pleader provide “a short and plain
statement of the claim showing . . . entitle[ment] to relief.” Fed. R. Civ. P. 8(a)(2); Erickson v.
Pardus, 551 U.S. 89 (2007). Rule 12(b)(6) correspondingly permits a defendant to challenge a
complaint when it “fail[s] to state a claim upon which relief can be granted . . . .” Fed. R. Civ. P.
12(b)(6).
The required “short and plain statement” must provide “‘fair notice of what the . . . claim
is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957), overruled on other grounds, Twombly,
550 U.S. at 563); see also Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007). In
order to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
(2009) (quoting Twombly, 550 U.S. at 570); see also Monroe v. City of Charlottesville, 579 F.3d
380, 386 (4th Cir. 2009).
Application of the Rule 12(b)(6) standard requires that the court “‘accept as true all of the
factual allegations contained in the complaint. . . .’” Erickson, 551 U.S. at 94 (quoting Twombly,
550 U.S. at 555–56); see also S.C. Dept. of Health and Envt’l Control v. Commerce and Indus.
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Ins. Co., 372 F.3d 245, 255 (4th Cir. 2004) (quoting Franks v. Ross, 313 F.3d 184, 192 (4th Cir.
2002)). The court must likewise “draw[] all reasonable . . . inferences from th[e] facts in the
plaintiff’s favor. . . .” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
Although “detailed factual allegations” are not necessary, the facts alleged must be enough “to
raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. This requires
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation,” or “threadbare
recitals of a cause of action’s elements, supported by mere conclusory statements.” Iqbal, 556
U.S. at 663, 678.
III. DISCUSSION
Defendants ask this Court to dismiss all of Plaintiffs’ counts except for Count VI. (See
ECF No. 14.) The Court will address each claim individually.
A. Nuisance – Count I & II
Plaintiffs have alleged both public and private nuisance claims. (See ECF No. 11 at 8–
10.) In West Virginia, a private nuisance interferes with the private use or enjoyment of land,
while a public nuisance interferes with a public right or inconveniences an indefinite number of
people. See Hendricks v. Stalnaker, 380 S.E.2d 198, 200–01 (W. Va. 1989); Hark v. Mountain
Fork Lumber Co., 34 S.E.2d 348, 354 (W. Va. 1945). A plaintiff that has suffered a private
interference with the use and enjoyment of his land always has standing to bring a private nuisance
claim. A plaintiff only has standing to pursue a public nuisance claim, however, if he has suffered
a special injury different in kind from the public in general. Hark, 34 S.E.2d at 354.

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i.

Private Nuisance

A private nuisance is “a substantial and unreasonable interference with the private use and
enjoyment of another’s land.” Hendricks, 380 S.E.2d at 200; see also Restatement (Second) of
Torts § 822 (1979). Notably, a private nuisance “injures one person or a limited number of
persons only.” Hark, 34 S.E.2d at 354. A private nuisance is not available under West Virginia
law when the alleged breach of duty affects only a right common to the general public. Rhodes
v. E.I. Du Pont de Nemours & Co., 657 F. Supp. 2d 751, 767–68 (S.D. W. Va. 2009).
Here, Plaintiffs claim that “[t]he odors, pollutants and air contaminants which have invaded
Plaintiffs’ property are indecent and/or offensive to the senses, and obstruct the free use of their
property so as to substantially and unreasonably interfere with the comfortable enjoyment of life
and/or property . . . ” and that “[t]he invasion of Plaintiffs’ property by odors, pollutants, and air
contaminants interfered with their distinct, individually held property rights, as opposed to a mere
invasion of a right common to the general public.” (See ECF No. 11 ¶¶ 45, 46.) However,
Plaintiffs’ allegations concern the invasion of the emissions from the fire into the public airspace
and general breathing community. Plaintiffs’ attempt to distinguish the circumstances of the fire
are without avail as they are similar to the facts dealt with by this Court in Rhodes, where the Court
found that a comparable instance of pollution could only be brought as a public nuisance. Rhodes,
657 F. Supp. 2d at 767–68. The Court in Rhodes found that the right to clean water, which is
similar to the right to clean air as in this case, was a right common to the community. Id. (citing
Restatement (Second) of Torts § 821B cmt. g (“A public right is one common to all members of
the general public.”)). The alleged intrusion into the water in Rhodes, like the alleged intrusion
of the air here, “affects only a right common to the general public” and gives “rise only to a public,
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rather than a private nuisance,” if at all. Id. Furthermore, as the West Virginia Supreme Court
of Appeals has held, Plaintiffs may not pursue an allegation of private nuisance if their allegations
are not tailored to the injury of “one person or a limited number of persons only.” Hark, 34 S.E.2d
at 354. In this case, the interference alleged by Plaintiffs is the contamination of the public air.
Accordingly, the alleged interference is an interference with a public right, and Plaintiffs have not
made any showing of a private nuisance. As such, the Court must GRANT Defendants’ motion
to dismiss as to Plaintiffs’ claim of private nuisance.
ii.

Public Nuisance

According to the West Virginia Supreme Court of Appeals, a public nuisance “operates to
hurt or inconvenience an indefinite number of persons.” Hark, 34 S.E.2d at 354. In other words,
a public nuisance “affects the general public.” Id. The Supreme Court of Appeals has explained
that this definition of a public nuisance is “consistent with the Restatement (Second) of Torts §
821B(1), which defines a public nuisance as ‘an unreasonable interference with a right common
to the general public.’” Duff v. Morgantown Energy Assocs. (M.E.A.), 421 S.E.2d 253, 257 n.6
(W. Va. 1992). Furthermore, an individual plaintiff only has standing to pursue a public nuisance
claim if he has suffered a special injury different in kind from the public in general. Hark, 34
S.E.2d at 354. The Hark Court went on to state that “a suit to abate a public nuisance cannot be
maintained by an individual in his private capacity, as it is the duty of the proper public officials
to vindicate the rights of the public.” Id.
Here, Plaintiffs allege that they “suffered a special injury different in kind from that
suffered by the public in general, because their properties were invaded and they were therefore
deprived of the full use and enjoyment of their property.” (ECF No. 11 ¶ 47.) However, these
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allegations are not sufficient to allege a special injury. Plaintiffs have not shown “a special injury
different in kind and degree from that of the general public.” Rhodes, 657 F. Supp. 2d at 769.
The invasion of the air pollution onto Plaintiffs’ properties are no different than the injuries
suffered by the general public, just like the Court found in Rhodes, and Plaintiffs have therefore
failed to demonstrate a special injury. Id. at 769 (finding that the injuries of the plaintiffs were
not different from the injuries of the other municipal water customers). Furthermore, as Plaintiffs
are not public officials, they fail to meet the requirements as articulated by the West Virginia
Supreme Court of Appeals regarding appropriate plaintiffs for public nuisance claims. As such,
the Court must GRANT Defendants’ motion to dismiss as to Plaintiffs’ claim of public nuisance.
B. Negligence – Count III & IV
To recover under a theory of negligence, a plaintiff must show injury. An injury can be
either present injury or “reasonably certain” future injury. Ellard v. Harvey, 231 S.E.2d 339, 342
(W. Va. 1976) (holding that “a plaintiff may recover the cost of reasonable and necessary future
medical and hospital services and for future pain and suffering where the evidence shows that it is
reasonably certain that such future expenses will be incurred and are proximately related to the
negligence of the defendant”). Plaintiffs have alleged that due to the fire, they “have suffered and
are reasonably certain to continue to suffer damages as alleged herein, including but not limited to
the loss of use and enjoyment of their property and the effects of physical exposure to noxious
emissions from the fire.”

(ECF No. 11 ¶ 57.)

However, these threadbare allegations are

conclusory at best. Plaintiffs have failed to assert that they currently suffer from any illness or
diseases caused by their exposure or that they will be subject to “reasonably certain” future injuries.
Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88, 95 (4th Cir. 2011). Further, Plaintiffs
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have specified no compensable injury to sustain their negligence cause of action. Rhodes, 657 F.
Supp. 2d at 767. As such, the Court must GRANT Defendants’ motion to dismiss as to Plaintiffs’
claim of negligence.
Moreover, as the Court has found that Plaintiffs have failed to sufficiently state a claim for
negligence, the Court cannot find that Plaintiffs have alleged sufficient facts to state a claim under
the higher standard of gross negligence and must GRANT Defendants’ motion to dismiss as to
Plaintiffs’ claim of gross negligence.
C. Trespass
A trespass is “an entry on another man’s ground without lawful authority, and doing some
damage, however inconsiderable, to his real property.” Hark, 34 S.E.2d at 352. “‘[A]n invasion
must constitute an interference with possession in order to be actionable as a trespass . . . . It is this
requirement of interference with possession and, therefore, with use, of another’s property that
separates the tort of trespass from the tort of private nuisance, and it is this requirement that justifies
the notion that the invasion is actionable without physical harm to the land being caused.’”
Rhodes, 657 F. Supp. 2d at 771 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of
Torts § 13 at 70 (5th ed. 1984)). “Further, only tangible, rather than intangible, invasions were
deemed to constitute an actual interference with property. See id. at 71 (noting “the defendant’s
act must result in an invasion of tangible matter”).” Id. In Bartlett v. Grasselli Chemical Co.,
the West Virginia Supreme Court held that the “chemical deposits upon [land] from fumes, gases,
and dust emitted from the defendant’s furnaces and carried over the land by air currents, or
spreading over it through the air,” does not effect a trespass but instead a private nuisance.
Bartlett v. Grasselli Chemical Co., 115 S.E. 451, 455 (W. Va. 1922).
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Here, Plaintiffs argue that “Defendants’ negligent acts and omissions in causing and
prolonging the fire at the Warehouse caused emissions from the fire, and specifically tangible
physical fallout to enter onto the real and personal property of Plaintiffs and the Property Damage
Class.” (ECF No. 11 ¶ 66.) While the facts here center around the burning of the warehouse
instead of the burning of substances inside of a furnace, the result is still the same as in Bartlett;
debris and emissions from the fires resulted in fallout entering the air spaces and landing onto
properties. As such, the ruling in Bartlett directs this Court’s findings. Accordingly, the Court
must GRANT Defendants’ motion to dismiss as to Plaintiffs’ claim of trespass.
D. Medical Monitoring
In Bower v. Westinghouse Electric Corp., the West Virginia Supreme Court recognized a
cause of action for “the recovery of medical monitoring costs, where it can be proven that such
expenses are necessary and reasonably certain to be incurred as a proximate result of the
defendant’s tortious conduct.” Bower v. Westinghouse Electric Corp., 522 S.E.2d 424, 431 (W.
Va. 1999). Under this cause of action, a plaintiff must prove that:
(1) he or she has, relative to the general population, been significantly exposed; (2)
to a proven hazardous substance; (3) through the tortious conduct of the defendant;
(4) as a proximate result of the exposure, plaintiff has suffered an increased risk of
contracting a serious latent disease; (5) the increased risk of disease makes it
reasonably necessary for the plaintiff to undergo periodic diagnostic medical
examinations different from what would be prescribed in the absence of exposure;
and (6) monitoring procedures exist that make the early detection of a disease
possible.
Id. at 432–33.
Here, Plaintiffs’ allegations mirror the factors set forth by the Bower Court but fail to allege
any facts in support of these elements, only making conclusory statements which are insufficient
to sustain this claim. As is the precedent of this Court, Plaintiffs’ general allegations that they
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“have been significantly exposed to proven hazardous substances through the tortious conduct of
the Defendants” and that these exposures “have or will have a significantly increased risk of
contracting one or more diseases, including but not limited to cancer” and “make it reasonably
necessary for them to undergo periodic diagnostic medical examinations different from what
would be prescribed in the absence of their exposure” are not sufficient to maintain a cause of
action. Hagy v. Equitable Prod. Co., No. 2:10-cv-01372, 2011 U.S. Dist. LEXIS 46920, at *10–
11 (S.D. W. Va. April 28, 2011) (holding that similar general allegations failed to state a claim for
medical monitoring). Plaintiffs’ conclusory allegations do not even come close to sufficiently
alleging the appropriate facts as required under the dictates of Twombly and Iqbal. Accordingly,
the Court must GRANT Defendants’ motion to dismiss as to Plaintiffs’ claim of medical
monitoring.
E. Unjust Enrichment
To maintain a claim of unjust enrichment, the following elements must be proven: “(1) a
benefit conferred upon the [defendant], (2) an appreciation or knowledge by the defendant of such
benefit, and (3) the acceptance or retention by the defendant of the benefit under such
circumstances as to make it inequitable for the defendant to retain the benefit without payment of
its value.” Veolia Es Special Servs., Inc. v. Techsol Chem. Co., No. 3:07-cv-0153, 2007 U.S. Dist.
LEXIS 88127, at * 25 (S.D. W. Va. Nov. 30, 2007) (citing 26 Williston on Contracts § 68:5 (4th
ed.)).
Plaintiffs’ allegations of unjust enrichment are immense reaches and the Court is puzzled
as to why Plaintiffs did not concede this claim in their response to the motion to dismiss. Plaintiffs
fail to sufficiently allege facts to meet any of the elements necessary to maintain a claim of unjust
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enrichment. All Plaintiffs offer are four threadbare allegations which fall well short of the
requirements of Twombly and Iqbal. Accordingly, the Court must GRANT Defendants’ motion
to dismiss as to Plaintiffs’ claim of unjust enrichment.
IV.

CONCLUSION

For the reasons set forth above, the Court GRANTS Defendants’ Motion to Dismiss and
DISMISSES Counts I, II, III, IV, V, VII, and VIII from Plaintiffs’ Amended Complaint.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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August 10, 2018