Matiella v. Murdock St.
| Docket Number | 21-cv-2112 (GMH) |
| Decision Date | 21 July 2023 |
| Parties | CHARLES MATIELLA Plaintiff, v. MURDOCK STREET LLC, et al., Defendants. MURDOCK STREET, LLC, Third-Party Plaintiff, v. EWORA, L.L.C., et al., Third-Party Defendants. |
| Court | U.S. District Court — District of Columbia |
This action concerns whether the construction of a condominium building damaged a townhouse next door owned by the Plaintiff Charles Matiella. Plaintiff alleges that the heavy construction and excavation activity seriously damaged the townhouse, rendering it uninhabitable. See ECF No 50, ¶¶ 15, 17, 18, 20, 28, 30. Plaintiff brings this action under negligence and trespass theories against the owner of the condominium building property, the two companies who operated as the general contractor for its construction, and the subcontractor involved in the excavation. He also seeks injunctive relief related to the restoration of his property.
Pending before the Court are the following motions: (1) the joint Motion to Dismiss and Motion to Strike, ECF No. 64, filed by Defendants EWORA, L.L.C. (“EWORA) and IFG Group LLC (“IFG”), and (2) the Motion to Dismiss, ECF No 83, filed by Defendant City Concrete Corporation (“City Concrete”). Both motions have been fully briefed and are ripe for resolution, and the Court finds that no hearing is necessary to resolve either motion. See LCvR 7(f) (). Upon consideration of the parties' briefs, and the entire record herein,[1]both motions are granted in part and denied in part.
Plaintiff's original complaint was filed August 6, 2021, against Defendant Murdock Street, LLC (“Murdock Street”). ECF No. 1. With the leave of court, Plaintiff filed an Amended Complaint on January 26, 2023, adding defendants EWORA and IFG, as well as City Concrete. ECF No. 50. In relevant part, the Plaintiff alleges the following.
Plaintiff owns the property located at 770 Princeton Place NW, Apt B, Washington DC 20010 (“Plaintiff's Property”). ECF No. 50, ¶¶ 1, 15. Defendant Murdock Street owns the adjacent property at 3619 Georgia Avenue NW, Washington DC, 20018 (“Murdock Street's Property”), where Plaintiff alleges a condominium building named “The Exchange” was constructed. Id., ¶¶ 17, 19. Defendant EWORA was the “builder” retained to “manage the construction activities” at The Exchange, and Defendant IFG was the “develop[er]” of the condominium complex at The Exchange.” Id., ¶¶ 47, 48. Both companies are referred to as “general contractors” for the project and are “owned and operated by the same principal, Fatih [Guner], and are sister companies.” Id., ¶¶ 8, 46, 48, 49. Defendant City Concrete was the subcontractor who “provide[d] labor and material” for the construction of The Exchange. Id., ¶ 59.
Regarding the timeline of events, Plaintiff alleges that in 2017, Defendant Murdock Street engaged Defendant IFG to develop the condominium complex, and in 2017, one of those two defendants then engaged Defendant EWORA to construct or “manage the construction activities.” Id., ¶ 48. In turn, EWORA retained City Concrete “on or about October 23, 2017” to perform construction activities at The Exchange. Id., ¶ 59. “Thereafter,” City Concrete performed the construction work. Id., ¶ 60. In 2019, 2020, and 2021, Plaintiff alleges that “construction had been in progress” at Murdock Street's Property, including “excavation, heavy drilling and other major construction activity.” Id., ¶ 18. Construction activities at The Exchange were completed as of May 2021. Id., ¶ 19.
Plaintiff alleges that the construction damaged his property that was adjacent to The Exchange. Specifically, he alleges that the “heavy excavation, drilling and other major construction activity” caused “reverberations of the earth or other elements connected to Plaintiff's property” which caused “serious damage” to it, including causing its foundation “to be defective, dislodged, cracked and unsafe.” Id., ¶¶ 20, 21. According to the Amended Complaint, Defendant Murdock Street “admitted that [its] actions caused the damage to Plaintiff's property.” Id., ¶ 23. Over “the past two years,” Plaintiff alleges, “Defendant Murdock made remedial attempts to address and rectify the damage” to Plaintiff's property, but those efforts were ultimately “insufficient.” Id. Due to Defendant Murdock Street's “failure to remedy the problems and severe damage” to Plaintiff's property, Plaintiff filed a complaint with the Illegal Construction Unit of the District of Columbia Department of Consumer and Regulatory Affairs (“DCRA”). Id., ¶ 24. On May 7, 2021, DCRA held a meeting to address the protection of Plaintiff's property and issued a May 13, 2021 report “detailing the insufficient remedial measures” taken to address the damage caused to Plaintiff's property. Id., ¶ 26. One of those measures had involved the installation of a monitoring device in September 2020 to “ensure no settling is occurring” in the building facade. Id., ¶ 26.E.
The Amended Complaint also includes findings of a June 2021 report by a structural engineer who “evaluated the problems that Defendant Murdock [Street] caused” at Plaintiff's Property. Id., ¶ 28. According to that engineer's report, during the construction of The Exchange, an excavation was made “adjacent” to Plaintiff's property, which included the installation of a “soldier pile and lagging retaining wall.”[2]Id., ¶ 28.A. The soldier pile and lagging retaining wall had “no walers, rakers or crossbracing,”[3]and photographs of the excavation did not indicate any “backfill in the space behind [the] lagging between the walls of the excavation” to “close[] the void and prevent[] the lateral movement of the soil into the void space.” Id., ¶ 28.F. The report also refers to photographs depicting “soil flowing out from beneath the lagging.” Id., ¶ 28.G. The report states that the “lateral movement of the subsoil results in settlement of the structure.” Id., ¶ 28.F. The report notes that soil had “settled from beneath the sidewalk and the brick planter wall separated from the walk at the entryway” to Plaintiff's house. Id. Further, it states that settlement or outward movement of the building wall may have caused roof leakage, which may in turn have caused water dripping from the ceiling. Id., ¶ 28.I. Photographs also reportedly showed “cracks in the masonry bearing walls and settling of a support for the deck” on Plaintiff's property, as well as cracks around doorways, at lintels, and on interior walls and the ceiling of the property. Id., ¶ 28.G. In the opinion of the engineer:
[S]ettlement of [Plaintiff's] building may continue until the soil migrates to fill-in the voids created by the excavation and void space behind the lagging. Continued settlement will result in further structural damage to the building and compromise [of] its structural integrity. Movement of the bearing walls may result in the joists slipping out of their pockets and floors or roof collapsing. Also, further settlement may adversely affect underground utilities servicing the building.
Id., ¶ 28.K.; see also id. at 34-35.
As a result of the damage to his property, Plaintiff alleges that the townhouse on his property “has become an unsafe structure and it is currently uninhabitable.” Id., ¶ 30. Plaintiff asserts that the building “will have to be knocked down or razed to ensure the safety and protection of human life as well as property,” and that Defendant Murdock Street should be ordered to pay “for the demolition and full rebuild,” pay for the “loss of use sustained by Plaintiff's property,” and pay for Plaintiff's mounting out of pocket costs and expenses he has incurred as a result of the damage caused to his property. Id., ¶¶ 34-37.
Plaintiff alleges that Defendant Murdock Street's actions or inaction with respect to his adjacent property violated D.C. Mun. Regs. tit. 12, § 3307A, which states in relevant part:
Adjoining public and private property shall be protected from damage during construction, alteration, repair, demolition or raze of a premises at the expense of the person causing the work. Protection must be provided for lots, and for all elements of a building or other structure, including, but not limited to, footings, foundations, party walls, chimneys, vents, skylights, porches, decks, roofs, roof outlets, roof structures and flashing. Provisions shall be made to control water runoff and erosion during construction or demolition or raze activities.
D.C. Mun. Regs. tit. 12, § 3307A; see also ECF No. 50, ¶¶ 38-39. Further, Plaintiff alleges that because the work performed in building The Exchange entailed “excavation, drilling, and other heavy construction activity with heavy equipment” it was “inherently dangerous” and therefore the duty of care that Defendant Murdock Street owed to Plaintiff was “non-delegable.” ECF No. 50, ¶¶ 41-42. Accordingly, Plaintiff sues Defendant Murdock Street for negligence (Count I), trespass (Count II), and for injunctive relief related to the restoration of his property (Count III). See id., ¶¶ 66-86.
Plaintiff also brings claims directly against EWORA, IFG, and City Concrete. As to EWORA and IFG, Plaintiff alleges that their work as the developer, builder and and/or general contractor for the construction of Murdock Street's property included managing “the construction necessary to excavate the land upon which The Exchange would be built.” Id., ¶ 50. Plaintiff also claims that EWORA and IFG were “involved in and responsible for” (1) addressing the “numerous Stop Work Orders” issued by DCRA, including ones related...
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