Metro Towers, LLC v. Duff

CourtUnited States District Courts. 4th Circuit. Northern District of West Virginia
PartiesMETRO TOWERS, LLC, Plaintiff, v. MICHAEL C. DUFF and BARBARA C. LUDLOW, Defendants.
Docket NumberCivil Action 1:20cv206
Decision Date06 June 2022



Civil Action No. 1:20cv206

United States District Court, N.D. West Virginia

June 6, 2022



On May 28, 2021, Defendants Michael C. Duff and Barbara C. Ludlow (“Defendants”) filed Motion for Summary Judgment [ECF No. 17] seeking summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants renewed the motion on January 21, 2022, after the close of discovery. ECF No. 44. Plaintiff Metro Towers, LLC, (“Plaintiff” or “Metro”) responded in opposition to Defendants' Renewed Motion for Summary Judgment on February 4, 2022. ECF No. 52. Defendants replied in support on February 18, 2022, making these motions ripe for decision. ECF No. 64. For the reasons stated herein, the Court DENIES Defendants' Motion for Summary Judgment [ECF No. 17], GRANTS in part Defendant's Renewed Motion for Summary Judgment as to Plaintiff's request for expenses for remediation of the landslide and slippage [Compl. ¶ 15(c)] and DENIES in part Defendant's Renewed Motion for Summary Judgment on


Plaintiff's demand for annoyance and aggravation damages [Compl. ¶ 15(e)]. ECF No. 44.


Plaintiff filed a civil action against Defendants in the Circuit Court of Monongalia County, West Virginia, on January 17, 2020. ECF No. 1. On or about July 19, 2020, Defendants accepted service of the Complaint filed pursuant to this action. ECF No. 1, ¶ 2. Defendants removed the action on August 18, 2020, pursuant to 28 U.S.C. §§ 1332, 1441 and 1446. ECF No. 1. This Court entered a First Order and Notice on August 19, 2020. ECF No. 3. Defendants answered the complaint on August 21, 2020. ECF No. 5. The parties submitted their Report of Rule 26 Planning Meeting, a scheduling order was entered on October 9, 2020, and discovery ensued. ECF Nos. 7, 8.

On June 10, 2021, the parties jointly moved for an amended scheduling order, which the Court granted. ECF Nos. 18, 21. Plaintiff filed a Motion to Strike Defendants' Expert Douglas M. Clark [ECF No. 35] on December 30, 2021, which was referred to Magistrate Judge Aloi. The Magistrate Judge filed a Report and Recommendation recommending that Plaintiff's motion to strike be denied. ECF No. 51. This Court adopted the R&R by Order [ECF No. 89] without objection, denied the motion to strike, and permitted


Defendants to supplement the expert report and Plaintiff to redepose the expert.

Defendants moved for renewed summary judgment [ECF No. 44] and Plaintiff filed its motion for summary judgment [ECF No. 45] on January 21, 2022. Plaintiff filed an emergency motion for preliminary injunction on January 27, 2022, which was fully briefed, heard, and denied by Order on March 1, 2022. ECF Nos. 48, 87. Defendants filed a motion to exclude Plaintiff's experts [ECF No. 94] on March 25, 2022. The Court granted Defendant's motion and excluded Scott Copen as an expert. The instant motion for summary judgment is based largely on the failures of Plaintiff's proposed experts who are now excluded. [ECF No. 114].


At the summary judgment stage, the Court considers the facts in the light most favorable to the non-moving party. See Scott v. Harris, 550 U.S. 372, 378 (2007) (At summary judgment posture, “courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion.” (internal quotations and revisions omitted)); see also Rhoades v. County Commission of Marion County, Civil Action No. 1:18-CV-186, 2020 WL 807528, at *1 (N.D. W.Va. Feb. 18, 2020). Plaintiff Metro Towers, LLC, is the owner of real


property located at 40 Metro Towers, Morgantown, West Virginia, Parcel 278 of TM 15 in North Morgantown, West Virginia. Defendants Michael Duff and Barbara Ludlow are the owners of real property located at Parcel 93.1, BL 49, Lots 14 and 15 and Parcel 94, BL 49 Lots 16 and 17, in North Morgantown, Monongalia County, West Virginia. ECF No. 1-1, Compl. ¶¶ 2-4. Plaintiff and Defendants are adjoining landowners. Id. As of May 27, 2019, Defendants are citizens of Hawaii, residing in Maui County, Hawaii [Exhibit B, Aff. M. Duff, B. Ludlow ¶ 2]. Because Plaintiff is a citizen of West Virginia and Defendants are citizens of Hawaii, complete diversity of citizenship exists under 28 U.S.C. § 1332.

In the January 17, 2020, Complaint, Plaintiff alleges on February 9, 2019, it became aware that water, debris, mud, unstable soils, and other material slipped, slid, and moved from Defendants' property onto Plaintiff's property. ECF No. 1-1, Compl. ¶ 7. Plaintiff temporarily stabilized the hillside by regrading a bench that it had constructed in 2015. Id. at ¶ 8; Prelim. Inj. Tr., ECF No. 61, at 22:24-24:6. “The bench . . . is on the property that is owned by the city in-between them or on the Metro property.” Prelim. Inj. Tr., ECF No. 61, at 24:5-6. Two years after filing suit and three years after the February 9, 2019, slip, Plaintiff filed an Emergency Motion for Preliminary Injunction, ECF No. 48, claiming that at some time prior to January 25, 2022, the hillside


and slope failed again and that the City of Morgantown will condemn its property should the hillside slip again. ECF No. 48 at ¶¶ 9 and 11.

Plaintiff alleges two causes of action: (1) Negligence and (2) Trespass. Plaintiff argues that Defendants breached a duty owed, as adjoining landowners to Plaintiff, to protect Plaintiff from the encroachment, slippage, or movement of water, mud, debris, and unstable soils from Defendants' real property. Id. at ¶¶ 910. Such negligence was the proximate cause of the damages allegedly incurred by Plaintiff. Id. at ¶ 11. Plaintiff further asserts the encroachment of the materials from Defendants' property constitutes a trespass onto Plaintiff's property. Id. at ¶¶ 12-14. Plaintiff seeks compensatory damages and injunctive relief. Id. at ¶¶ 16-19.


Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which


it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must “make a sufficient showing on an essential element of its case with respect to which it has the burden of proof.” Id. at 317-18. Summary judgment is proper “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there [being] no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

This Court has previously summarized the burden imposed on parties opposing a summary judgment challenge.

However, as the United States Supreme Court noted in Anderson, “Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Id. at 256. “The inquiry performed is the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250; see also Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979) (Summary judgment “should be granted only in those cases where it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law.” (citing Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950)).

In reviewing the supported underlying facts, all inferences must be viewed in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Additionally, the party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. at 586. That is, once the movant has met its burden to show absence of material fact, the party opposing summary judgment must then come forward with affidavits or other evidence demonstrating there is indeed a genuine issue for trial. Fed.R.Civ.P. 56(c); Celotex Corp., 477 U.S. at 323-25; Anderson, 477 U.S. at 248. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249 (citations omitted).

Watson v. Warden, FCI Hazelton, Civil Action No. 2:16-CV-76, 2017 WL 1955532, at *2 (N.D. W.Va. May 11, 2017) (Bailey, J.). The Court views the evidence in the light most favorable to Plaintiff, the non-moving party, and draws any reasonable inferences in Plaintiff's favor. See Fed.R.Civ.P. 56(a); see Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). “The law is well established that uncorroborated, self-serving testimony of a plaintiff is not sufficient to create a material dispute of fact sufficient to defeat summary judgment.” Diquollo v. Prosperity Mortg. Corp., 984 F.Supp.2d 563, 570 (E.D. Va....

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT