United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING DEFENDANT'S MOTION TO
E. Hudson Senior United States District Judge
MATTER is before the Court on Defendant Commercial Ready Mix
Products, Inc.'s ("Defendant") Partial Motion
to Dismiss (ECF No. 3), filed on September 11, 2018. On
October 29, 2018, Plaintiffs Old Dominion Motors, Inc.
("Old Dominion") and Yeattes Brothers Rentals, LLC
("Yeattes Brothers") (collectively
"Plaintiffs") filed a Motion for Extension of Time
to File Response/Reply (ECF No. 8). Thereafter, the Court
granted the Motion and permitted Plaintiffs until November 2,
2018 to file a response (ECF No. 10). Plaintiffs, however,
did not file their response in accordance with the Order.
Accordingly, the Court has exclusively reviewed
Defendant's Partial Motion to Dismiss for
Court will dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the Court, and oral argument would not aid in the
decisional process. See E.D. Va. Local Civ. R. 7(J).
For the reasons that follow, the Court denies Defendant's
Partial Motion to Dismiss.
to the Complaint, Yeattes Brothers owns commercial property
located at 130 Courtland Road, Emporia, Virginia ("the
Property"). (Compl. ¶ 4, ECF No. 1-2.) Yeattes
Brothers leases portions of the Property, including
buildings, to several individuals and businesses. (Id.
¶ 5.) By Yeattes Brothers' consent, Old
Dominion uses a portion of the Property to store motor
vehicles. (Id. ¶¶ 5, 7-8.) Defendant
operates a concrete production plant adjacent to the
Property. (Id. ¶ 6.)
allege that beginning on or about June 9, 2016, and lasting
for several days, Defendant's employees spray painted a
mixing tower at the plant, despite strong winds blowing paint
in the direction of and onto the Property. (Id.
¶ 10-11.) The spray paint over spray, according to
Plaintiffs, irreparably damaged motor vehicles, as well as
stained roofs, windows, and exterior surfaces of the
Property. (Id. ¶ 12-13.) Furthermore,
Defendant's employees allegedly continued spray painting
even after Plaintiffs put Defendant on notice of the damage
on June 9, 2016. (Id. ¶ 12.)
from the spray painting incident, Plaintiffs further allege
that since the summer of 2016, and continuing until at least
the filing of the Complaint, Defendant has caused and allowed
"slurry runoff from its concrete production facility to
flow through an artificially created ditch or channel... in
concentrated form, onto the Property and into the sediment
control pond located thereon." (Id. ¶ 16.)
Plaintiffs allege this runoff "substantially and
materially impairs the value and/or use of the
Property." (Id. ¶ 17.)
5, 2018, Plaintiffs filed their Complaint against Defendant
in the Circuit Court of Greensville County, Virginia. (Compl.
1.) The Complaint lists four Counts. (Id.
¶¶ 18-49.) Plaintiffs jointly allege nuisance
(Count One), trespass (Count Two), and negligence (Count
Three), each pled in the alternative. (Id.
¶¶ 18-37.) Counts One, Two, and Three stem
from the alleged damage caused by Defendant's spray
painting activities and invasive runoff. For each of these
Counts, Plaintiffs seek compensatory damages and further
contend that Defendant's conduct merits punitive damages.
(Id.) Plaintiffs also seek injunctive relief.
(Id.) Under Count Four, Yeattes Brothers alleges
that Defendant's excessive use of groundwater constitutes
an interference with its riparian rights. (Id.
¶¶ 37-49.) Yeattes Brothers therefore seeks
compensatory, punitive, and injunctive relief for Count Four.
August 30, 2018, Defendant filed its Answer (ECF No. 1-3) in
state court. (Notice of Removal ¶ 5, ECF No.
1.) On September 11, 2018, Defendant removed the action to
the United States District Court for the Eastern District of
Virginia and filed this Partial Motion to Dismiss.
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation
omitted). The Federal Rules of Civil Procedure
"require only 'a short and plain statement of the
claim showing that the pleader is entitled to relief,' in
order to 'give the defendant fair notice of what the ...
claim is and the grounds upon which it rests.'"
Bell Atl Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
A complaint need not assert "detailed factual
allegations," but 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 (citations omitted). Thus, the "[f]actual
allegations must be enough to raise a right to relief above
the speculative level," id. (citation omitted),
to one that is "plausible on its face,"
id. at 570, rather than merely
"conceivable." Id. In considering such a
motion, a plaintiffs well-pleaded allegations are taken as
true and the complaint is viewed in the light most favorable
to the plaintiff. T.G. Slater & Son, Inc. v. Donald
P. & Patricia Brennan LLC, 385 F.3d 836, 841 (4th
Cir. 2004) (citation omitted). Legal conclusions enjoy no
such deference. Ashcroft v. Iqbal, 556 U.S. 662, 678
challenges the Complaint on four separate bases. First,
Defendant argues that Plaintiffs fail to allege sufficient
facts to support an award of punitive damages on any count.
(Def.'s Mem. in Supp. 3, ECF No. 4.) Second, Defendant
argues that Plaintiffs' nuisance claim should be
dismissed in light of their negligence claim. (Id.
at 5.) Third, Defendant argues that Plaintiffs fail to allege
a valid trespass claim. (Id. at 6.) Finally,
Defendant argues that Plaintiffs are not entitled to
injunctive relief as a matter of law because Plaintiffs are
not subject to irreparable harm. (Id. at 7.) The
Court will consider each argument in turn.
Defendant argues that the Court should dismiss
Plaintiffs' claims for punitive damages because these
claims lack any factual foundation in the Complaint.
(Id. at 3-5.) Under Virginia law, punitive damages
"may be recovered only when there is misconduct or
actual malice, or such recklessness or negligence as to
evince a conscious disregard of another." Simbeck,
Inc. v. DoddSisk Whitlock Corp.,508 S.E.2d 601, 604
(Va. 1999). Awarding punitive damages is disfavored in
Virginia due to their penal nature. Id. Accordingly,
as Defendant correctly argues, Virginia law requires that
Plaintiffs meet a demanding standard to justify an award of