307 Campostella, LLC v. Mullane

• Decision Date: 29 October 2015
• Docket Number: Civil Action No. 2:15cv224.
• Citation: 143 F.Supp.3d 407
• Parties: 307 CAMPOSTELLA, LLC, Plaintiff, v. Timothy J. MULLANE, Six M, LLC, American Marine Group, Inc., American Marine Group, LLC, Dominion Marine Group, Ltd., Mullane Bros Marine Transportation, LLC, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

143 F.Supp.3d 407

307 CAMPOSTELLA, LLC, Plaintiff,

v.Timothy J. MULLANE, Six M, LLC, American Marine Group, Inc., American Marine Group, LLC, Dominion Marine Group, Ltd., Mullane Bros Marine Transportation, LLC, Defendants.

Civil Action No. 2:15cv224.

United States District Court, E.D. Virginia, Norfolk Division.

Signed Oct. 29, 2015.

Filed Oct. 30, 2015.

James Thompson Lang, Pender & Coward PC, Virginia Beach, VA, for Plaintiff.

Patrick Michael Brogan, Bryan Karl Meals, Philip Norton Davey, Davey & Brogan PC, Norfolk, VA, for Defendants.

OPINION & ORDER

HENRY COKE MORGAN, JR., Senior District Judge.

This matter is before the Court pursuant to a Motion to Dismiss ("Motion") filed by Defendants Timothy J. Mullane,¹ American Marine Group, Inc., American Marine Group, LLC. Dominion Marine Group, Ltd., and Mullane Bros Marine Transportation, LLC ("Defendants"), Doc. 12.² For the reasons stated herein, the Court, ruling from the bench, DENIED the Motion as to Counts IV–VII and as to the first part of Count III, which alleges claims under 42 U.S.C. § 6972(a)(1)(A). The Court GRANTED the Motion WITH LEAVE TO AMEND the Complaint as to Count VIII and as to the claims under 42 U.S.C. § 6972(a)(1)(B) in Count III.

I. BACKGROUND

A. Factual Allegations ³

This action arises out of Defendants' alleged introduction of "unseaworthy vessels" and an "unlicensed pier/storage facility" to the Elizabeth River, which creates overcrowded conditions, interferes with and obstructs navigation in the navigable waterway adjacent to Plaintiff's property, causes pollution, and creates blight. Compl. ¶¶ 1, 15, 16. Plaintiff contacted Defendant Mullane in 2013 and 2014, asking him to reduce the number of vessels in the river and to clean up the river; however, Mullane refused. Compl. 2, 3, 4. Plaintiff has brought this action asking the Court to stop Defendants' uncontrolled release of pollution into the river and to remove Defendants' obstructions in the river. Compl. ¶¶ 1, 4.

Plaintiff owns a 6.8 acre parcel of waterfront land, and "[t]he part of the river fronting the [P]laintiff's property is a one quarter mile long waterway in the shape of a ‘cul-de-sac’ oriented north and south, with the mouth of the ‘cul-de-sac’ at the north end where it joins the Eastern Branch of the Elizabeth River." Compl. ¶ 7. "The navigable waterway adjoining the [P]laintiff's property belongs to the public." Compl. 87.

Plaintiff alleges that Defendant Mullane, acting on his own or through others, including, but not limited to the other Defendants, "has overcrowded the waterway with unseaworthy hulks of former vessels, many 60–70 years old, many of them sitting idly for years, many of them aground for years, rusting and having little or no use." Compl. ¶ 11. According to Plaintiff, Defendant Mullane owns and controls the entities that are the Co–Defendants. Compl. 6. Plaintiff avers that Defendants "berth an unreasonably large number of vessels at an unlicensed pier/storage facility, on the west side of the waterway, approximately 200' from (and immediately in front of) [P]laintiff's property." Compl. ¶ 13. Defendants have not obtained permits for the facility from the Army Corps of Engineers or from the Virginia Marine Resources Commission. Compl. 13. Plaintiff describes this facility as a two hundred by fifty foot structure, formerly a Hopper Barge, but no longer a vessel, and it notes that the structure "is pushed up into wetlands on shoreline owned by City of Norfolk." Compl. ¶ 14.

Plaintiff contends that Defendant Mullane previously had been found guilty or liable for violations relating to his activities at this location, including

a civil penalty and restoration order imposed by the Norfolk Wetlands Board in 2007 for destruction of wetlands; a criminal conviction in the Norfolk General District Court in 2010 for release of hazardous substances into the Elizabeth River; a criminal conviction in the Norfolk General District Court in 2010 for unlawful accumulation of solid waste; a criminal conviction in the Norfolk General District Court in 2010 for failure to notify fire official of release of hazardous waste; a civil penalty imposed by the State Water Control Board in 2010 for release of diesel fuel into the Elizabeth River from a vessel; a civil penalty and restoration order imposed by the Norfolk Wetlands Board in 2012 for destruction of wetlands; and, a civil penalty imposed by the State Water Control Board in 2014 for discharging industrial stormwater into the Elizabeth River without a permit.

Compl. ¶ 3–4.

Plaintiff claims that Defendants' actions have "created an impenetrable barrier around [the unlicensed pier/storage] facility" and that the facility has "been continuously in place for several years." Compl. ¶ 25. The vessels berthed at the unlicensed pier/storage facility "obstruct more than half the channel at all times" in front of Plaintiffs property. Compl. ¶ 30. They also "occupy at least 64% of the channel directly in front of the plaintiffs bulkhead at all times." Compl. TI35. Plaintiff notes that Defendants' "vessels and those of its business invitees[ ] occupy 50% or more of the channel at the [P]laintiff's non-bulkhead property at all times. They occupy so much of the navigable channel, and their occupation is of such duration, as to impede and/or interfere with the navigation of other vessels in the waterway." Compl. ¶ 41.

According to Plaintiff, "there is an extremely large inner cavity in the [D]efendants' unlicensed pier/storage facility—approximately 4,000 cubic yards—that is filled with hundreds of discarded creosote soaked timbers, discarded mechanical and electrical equipment, discarded paint cans, discarded drums, trash, rubbish, and other nonputrescible wastes." Compl. ¶ 44.

Plaintiff alleges that the exposure to the elements "is causing the wastes in the unlicensed pier/storage facility to deteriorate such that pollution and contamination is carried away by wind, rain, and other forces of nature after which the pollution and contamination is released into the waterway, and hence into the Elizabeth River and the surrounding environment." Compl. 46. Additionally, "there are large holes in the outer wall of the facility through which ... contaminated rainwater and contaminated leachate escape into the Elizabeth River." Compl. ¶ 47. Indeed, "there have been at least 180 dates in the last 5 years when a storm event at this location generated rainwater runoff from the many tons of solid waste in Defendants' unlicensed solid waste management facility." Compl. ¶ 49.

Defendants' unlicensed pier/storage facility is "aground, partly in tidal wetlands, and partly in navigable waters," and their other vessels are "aground in nearly all tidal conditions, except for high tide." Compl. ¶¶ 55, 61, 68. Plaintiff alleges that these vessels change the bottom elevation of the waterway. Compl. 56, 62, 69. Additionally, the fact that the vessels are aground creates an "adverse impact to benthic organisms and other aquatic life." Compl. ¶ 71. The vessels' presence in the waterway also causes "a degradation to the physical, chemical and/or biological properties of the waters of the inlet." Compl. ¶ 71.

Rainwater flows off of the vessels and "discharges pollutants into the waterway adjacent to [P]laintiff's property." Compl. ¶ 76. "Water that enters the interior of these vessels collects in the bilges and must be periodically removed." Compl. ¶ 80. Additionally, the vessels "have anti-fouling hull coatings that leach, thus discharging pollution into the waterway adjacent to the [P]laintiff's property, and hence into the Elizabeth River. The [D]efendants' failure to properly maintain the vessels results in paint peeling from the vessels and falling into the waterway." Compl. ¶ 83.

Plaintiff alleges that Defendants' actions cause it economic harm in the form of lost or reduced rents and reduction in the value of its property. It asks the Court "to order the defendants to remove the blockage they have placed in the navigation channel, clean up the eyesore they have created, and stop polluting the Elizabeth River." Compl. ¶ 4. Plaintiff also claims special damages. See Compl. 42, 53, 59, 66, 73, 82, 85.

B. Procedural History

Plaintiff filed the Complaint on May 22, 2015. Doc. 1. On August 4, 2015, Defendants filed this Motion to Dismiss. The parties entered a stipulation of dismissal as to Counts I and II, and Plaintiff responded to the rest of the Motion on August 25, 2015. Docs. 18, 19. Defendants replied to Plaintiffs response on August 31, 2015. Doc. 20. A hearing was held on this matter on October 29, 2015.

Defendants argue that the Court should dismiss the entire Complaint for failure to state a claim upon which relief can be granted. Specifically, Defendants argue that Count III should be dismissed because Plaintiff has failed to plead facts giving rise to a claim under the Resource Conservation and Recovery Act. Doc. 13 at 6. Defendants also assert that Counts IV–VII fail because they do not assert cognizable claims under the Clean Water Act. Doc. 13 at 10. Additionally, Defendants claim that Count VIII fails adequately to plead a nuisance claim. Doc. 13 at 16.

II. LEGAL STANDARDS

Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss tests the sufficiency of a complaint; it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992). "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, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ); see also Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir.2005) ("In considering a motion to dismiss, we accept as true all well-pleaded allegations and view the complaint...