Miller v. D.C. Water & Sewer Auth., No. 17-cv-0840 (KBJ)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtKETANJI BROWN JACKSON United States District Judge
PartiesMARQUETTA MILLER, et al., Plaintiffs, v. D.C. WATER AND SEWER AUTHORITY, et al., Defendants.
Decision Date02 October 2018
Docket NumberNo. 17-cv-0840 (KBJ)

MARQUETTA MILLER, et al., Plaintiffs,
D.C. WATER AND SEWER AUTHORITY, et al., Defendants.

No. 17-cv-0840 (KBJ)


October 2, 2018


The 21 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

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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 45.)1

Before 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.)2 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

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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.)

For the 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, 2018.

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A. Background3

During 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.)

WASA 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

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whom were white (see id. ¶ 35), that WASA 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).

B. Procedural History

By 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,

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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.).4

In 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

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costs with interest, medical monitoring, and any other equitable and legal relief to the maximum extent permitted by law. (See, e.g., id. at 28-29.)

As 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...

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