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Old Dominion Motors, Inc. v. Commercial Ready Mix Products, Inc.

United States District Court, E.D. Virginia, Richmond Division

November 20, 2018

OLD DOMINION MOTORS, INC., et al Plaintiffs,


          Henry E. Hudson Senior United States District Judge

         THIS 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 disposition.[1]

         The 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.


         According 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.)

         Plaintiffs 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.)

         Separate 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.)

         On June 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. (Id.)

         On 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.


         "A 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 (2009).


         Defendant 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.

         First, 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 punitive ...

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