Olcan III Props. v. Glob. Tower Holdings
| Decision Date | 25 April 2023 |
| Docket Number | Civil Action RDB-22-2456 |
| Parties | OLCAN III PROPERTIES, LLC, Plaintiff, v. GLOBAL TOWER HOLDINGS, LLC, Defendant. |
| Court | U.S. District Court — District of Maryland |
Plaintiff Olcan III Properties, LLC (“Plaintiff” or “Olcan”) brings this four-count action against Defendant Global Tower Holdings, LLC (“Defendant” or “Global Tower”) for Defendant's alleged damage to Plaintiff's real property. (Amended Complaint ECF No. 12.) Global Tower has filed a Motion to Dismiss (ECF No. 15) principally arguing that Plaintiff's Amended Complaint advances unsupported and threadbare assertions. The Court has considered the relevant filings (ECF Nos. 15, 16 17) and finds no hearing necessary. Loc. R. 105.6 (D. Md 2021). For the reasons set forth below, Defendant's Motion is GRANTED. More specifically, Plaintiff's breach of contract claim (Count One) is DISMISSED WITHOUT PREJUDICE and Plaintiff is granted fifteen days within the date of this Memorandum Opinion to amend that claim. Plaintiff's claims for negligent misrepresentation (Count Two), negligence (Count Three), and public nuisance (Count Four) are DISMISSED WITH PREJUDICE.
In ruling on a motion to dismiss, this Court “accept[s] as true all well-pleaded facts in a complaint and construe[s] them in the light most favorable to the plaintiff.” Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017) (citing SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015)). Plaintiff owns real property in Baltimore, Maryland, and Defendant is the current tenant and holds an easement to that property. (ECF No. 12 at 1.)
In May 2007, prior to Defendant's occupancy, Plaintiff granted T2 Unison Site Management, LLC (“T2”) an easement in the “transmission and reception of any and all wireless communication signals and the construction, maintenance, repair, replacement, improvement, operation and removal of towers, antennas, buildings, fences, gates and related facilities and any related activities and uses” to a “cell phone tower” affixed to the top of Plaintiff's building. Id. at 2. Olcan also entered into a “Net Profits Agreement” with T2 on the same day. Id.
Five years later, in 2012, Olcan and Global Tower Partners[1]entered a “Subrogation Agreement” and Global Tower Partners became a tenant of the building. (ECF No. 12 at 2.) Thereafter, Global Tower Partners “assigned its interests in the Net Profits Agreement and the Easement Agreement” to Defendant Global Tower Holdings in 2018. Id. Plaintiff alleges that since January 2021, Defendant's use of the easement has caused damage to the real property which has resulted in continuing repair costs, and lost rent and profits. Id.
Plaintiff filed suit on August 4, 2022, in the Circuit Court for Baltimore City, against American Tower Corporation. (ECF No. 1.) American Tower Corporation removed the case to this Court on September 27, 2022, and Plaintiff subsequently amended its Complaint to replace American Tower Corporation with Defendant Global Tower Holdings. (ECF Nos. 8, 12.) Plaintiff's Amended Complaint alleges breach of contract (Count One), negligent misrepresentation (Count Two), negligence (Count Three), and “private action for public nuisance” (Count Four) for alleged damage to Plaintiff's property. (ECF No. 12.) Global Tower has filed a Motion to Dismiss (ECF No. 15), arguing principally that Plaintiff's Amended Complaint is devoid of facts to support any of its claims and secondarily that Plaintiff failed to properly effectuate service of process.
A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. The purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
To survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (quoting Bell Atl., Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Under the plausibility standard, a complaint must contain “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). A complaint need not include “detailed factual allegations.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A complaint must, however, set forth “enough factual matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to plead a claim. Iqbal, 556 U.S. at 678; see A Soc'y Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011).
Defendant moves to dismiss each of Plaintiff's four claims, all of which are brought under state law. As the basis of this Court's jurisdiction lies in diversity of citizenship under 28 U.S.C. § 1332(a), Maryland law applies. Hartford Fire Ins. Co. v. Harleysville Mut. Ins Co., 736 F.3d 255, 261 n.3 (4th Cir. 2013) (citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)). Each of Plaintiff's claims are addressed in turn.
Olcan asserts that Global Tower “breached the contract between the parties by failing to properly maintain the cell phone tower and area supporting the cell phone tower” which has caused damage to the property. (ECF No. 12 at 2.) In Maryland, the elements of a claim for breach of contract are “‘contractual obligation, breach, and damages.'” Parkway 1046, LLC v. U.S. Home Corp., 961 F.3d 301, 307 (4th Cir. 2020) (quoting Kumar v. Dhanda, 17 A.3d 744, 749 (Md. Ct. Spec. App. 2011)).
“It is well-established in Maryland that a complaint alleging a breach of contract must of necessity allege with certainty and definiteness facts showing a contractual obligation owed by the defendant to the plaintiff and a breach of that obligation by defendant.” RRC Ne., LLC v. BAA Maryland, Inc., 994 A.2d 430, 440 (Md. 2010) (internal quotations and citations omitted).
Plaintiff's Amended Complaint references two agreements: “agreement for an easement and net profits agreement.” (ECF No. 12 at 1.) In the light most favorable to Olcan, the breach of contract claim likely relates to the parties' easement agreement, but the claim is otherwise completely devoid of any factual allegations for the Court to interpret. Olcan has failed to plead any terms of this “easement agreement”, and it is consequently unclear what contractual obligation Global Towers could have breached. Furthermore, Olcan has not alleged what type of damage has resulted from the purported breach. Plainly, Plaintiff's allegations wholly fail to include facts supporting its breach of contract claim and amount to mere recitation of the elements. See Dern v. Liberty Mut. Ins. Co., No. GJH-15-1737, 2015 WL 8665329, at *4 (D. Md. Dec. 11, 2015) (“the Complaint does not indicate what provision of the insurance agreement has been implicated, how Defendant's conduct breached any such provision, or what damage occurred”). Accordingly, Plaintiff's breach of contract claim (Count One) is DISMISSED WITHOUT PREJUDICE, with the opportunity to file a Second Amended Complaint within fifteen days of the date of this Memorandum Opinion. See Dern, 2015 WL 8665329, at *4 ().
Olcan's claims for negligent misrepresentation and negligence are predicated on damage to Plaintiff's real property despite Defendant's alleged assertion “and the contract” that it would “repair, replace, and maintain the area of the easement.” (ECF No. 12 at 3.) Claims of negligent misrepresentation and negligence both require that a defendant owe a plaintiff a duty separate from a contractual obligation. See CapitalSource Fin., LLC v. Pittsfield Weaving, Co., Inc., 571 F.Supp.2d 668, 674 (D. Md. 2006) (); see also Jacques v. First Nat'l Bank, 515 A.2d 756, 759 (Md. 1986). (“[t]he mere negligent breach of a contract, absent a duty or obligation imposed by law independent of that arising out of the contract itself, is not enough to sustain an action sounding in tort.”). “When the dispute is over the existence of any valid contractual obligation covering a particular matter, or where the defendant has failed to recognize or undertake any contractual obligation whatsoever, the plaintiff is ordinarily limited to a breach of contract remedy.” Mesmer v. Maryland Auto. Ins. Fund, 725 A.2d 1053, 1059 (Md. 1999). In other words, a negligence claim is improper where it is based solely on an underlying breach of contract. Id. at 1058 ( ).
Here the relationship between Olcan and Global Towers was purportedly...
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