United States District Court, W.D. Virginia, Charlottesville Division
K. MOON UNITED STATES DISTRICT JUDGE.
excavator severed a telecommunications company's cable.
The telecommunications company sued for trespass and
negligence based on diversity-of-citizenship jurisdiction.
The excavator has moved to dismiss parts of the Complaint. It
argues: (1) the trespass claim should be dismissed; (2) the
negligence claim cannot be based on the excavator's
allegedly negligent training or supervision of employees; (3)
attorneys' fees are not recoverable, and; (4) punitive
damages are unavailable. The second and third arguments have
merit; the first and fourth do not. Accordingly, the motion
to dismiss will be granted in part and denied in part.
MCI Communications Services, Inc. (MCI) is a national
telecommunications company that uses underground fiber-optic
cable to provide services. (Complaint ¶ 6). MCI has an
agreement with the Commonwealth of Virginia giving MCI
“the right to construct, operate, maintain and
reinstall a fiber-optic cable system in the right-of-way of
certain railroads of” the Virginia Department of
Transportation. (Id. ¶ 7). Under that
agreement, MCI installed such a cable in a right-of-way near
Lovingston, Virginia. (Id.).
12, 2012, defendant MasTec North America, Inc. (Mastec) used
excavation equipment near Lovingston. (Complaint ¶ 9).
During the operation, “MasTec severed MCI's
fiber-optic cable, ” which “was buried completely
within VDOT's property pursuant to MCI's agreement
with VDOT.” (Id. ¶ 10). The severed cable
interfered with MCI's possessory rights and, obviously,
caused the loss of use of the cable. (Id. ¶
11). MCI alleges that MasTec's negligent acts or conduct
included, inter alia, failing to train its employees
on the relevant regulatory and safety standards, and failing
to supervise its employees to ensure they comply with those
standards. (Id. ¶¶ 15G-H).
alleges that “MasTec's actions were intentional,
grossly negligent and/or reckless, and exhibited a wanton
disregard of MCI's rights and a conscious indifference to
the consequences.” (Id. ¶ 17).
evaluating a motion to dismiss for failure to state a claim,
the Court must accept as true all well-pled allegations.
See Vitol, S.A. v. Primerose Shipping Co., 708 F.3d
527, 539 (4th Cir. 2013); see also Erickson v.
Pardus, 551 U.S. 89, 94 (2007). “While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's obligation to
provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations and quotation marks omitted). Stated
differently, in order 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 (2009) (quoting
Twombly, 550 U.S. at 570). The Court disregards the
Complaint's legal conclusions and arguments.
Iqbal, 556 U.S. at 578-79.
The Trespass Claim
contends the Complaint cannot support a trespass to chattels
claim, arguing only briefly that the claim fails because
MasTec did not act intentionally. (Dkt. 8 at 3). In
MasTec's view, the requisite intent is that MasTec dug
with the intent of severing MCI's cable, rather
than that MasTec intentionally dug but just so
happened to sever the cable. (See id.). In support
of its argument, MasTec cites only American Online, Inc.
v. IMS, 24 F.Supp.2d 548 (E.D. Va. 1998). Although
IMS states that “trespass to chattels occurs
when one party intentionally uses or intermeddles with
personal property in rightful possession of another without
authorization, ” it cited the Restatement of Torts
rather than Virginia law, which is binding in this diversity
case. Id. at 550.
state courts have held that the unpermitted use of personal
property is sufficient to establish a trespass to chattels,
for which the offender “is liable to its rightful
possessor for actual damages suffered by reason of loss of
its use.” Vines v. Branch, 244 Va. 185, 190
(Va. 1992); see DPR Inc. of Virginia v. Dinsmore, 82
Va. Cir. 451 (Fairfax Cty. Cir. Ct. 2011) (observing that
when “the personal property of another is used without
authorization, but the conversion is not complete, ”
there is trespass to chattels). All that is needed is an
“unauthorized invasion of one's interest in
personal property.” Level 3 Comm''ns, LLC
v. William T. Cantrell, Inc., No. 3:12CV081-HEH, 2012 WL
1580468, at *2 (E.D. Va. May 4, 2012); see also id.
at *3 (finding that, even under an intentionality standard,
severance of underground cable causing damages suffices for
trespass claim). Here, it is alleged that MasTec severed
MCI's cable without MCI's permission, and that such
action impaired MCI's use of the cable. MCI has thus
stated a claim for trespass to chattels, and MasTec's
motion thus fails in this regard.