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Callihan v. Surnaik Holdings of WV, LLC

United States District Court, S.D. West Virginia, Charleston Division

December 3, 2018

TIMOTHY CALLIHAN, et al., Plaintiffs,
v.
SURNAIK HOLDINGS OF WV, LLC, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON, CHIEF JUDGE

         Before this Court are motions to dismiss filed by Defendant SABIC Innovative Plastics U.S. LLC (“SABIC”), (ECF No. 60); Defendants Evergreen Transportation, LLC, Green Research Center, LLC, Green Sustainable Solutions LLC, Intercontinental Export Import, Inc., Rajiv Naik, Saurabh Naik, Shraddha Naik, Upendra Naik, Polymer Alliance Services, LLC, Sirnaik, LLC, and Surnaik Holdings of WV, LLC (collectively, “Surnaik Defendants”), (ECF No. 62), and Defendant Kuraray America, Inc. (“Kuraray”), (ECF No. 65). For the reasons explained more fully herein, SABIC's motion, (ECF No. 60), is GRANTED; Surnaik Defendants' motion, (ECF No. 62), is GRANTED IN PART and DENIED IN PART; and Kuraray's motion, (ECF No. 65), is GRANTED.[1]

         I. BACKGROUND

         This case arises out of a fire at a warehouse facility in Parkersburg, West Virginia, on October 21, 2017. (ECF No. 29 at 9-10.) Plaintiffs Timothy Callihan, Thomas Dent, Marcus Drake, John Jackson, Gloria Hall, Jan Drake Robinson, Thelma Barnett-Guinn, Doris Satterfield, and Wonetta Rose (collectively, “Plaintiffs”) allege that Surnaik Defendants “owned, operated, occupied, and/or managed” the warehouse as “a dump site” for hazardous waste. (Id. at 10-11.) They assert that “in the weeks and months leading up to” the fire, SABIC and Kuraray shipped hazardous materials to the warehouse but did not instruct Surnaik Defendants about proper storage of such substances. (Id. at 12-14.) Plaintiffs further allege that Surnaik Defendants stored these materials without “an effective fire prevention and suppression system” or “a disaster preparedness plan.” (Id. at 11.) Therefore, Plaintiffs allege, a fire occurred that “required a response from more than twenty emergency departments in six counties spread across West Virginia and Ohio” and that “exposed [Plaintiffs] to smoke, odors, gases, and/or fumes, particulate matter, and other harmful ‘fallout material' released by the destruction and/or combustion of harmful chemicals, compounds, hazardous waste, and/or substances.” (Id. at 16.)

         On October 23, 2017, while the fire was still burning, Plaintiffs filed a class action complaint against Surnaik Defendants in the Circuit Court of Wood County, West Virginia. (ECF No. 1-2 at 1-16.) Plaintiffs filed amended complaints on October 31, 2017, (id. at 17-39), and November 6, 2017, (id. at 40-63). Surnaik Defendants removed the matter to this Court on November 20, 2017. (ECF No. 1.) With this Court's leave, Plaintiffs filed the operative complaint in this case on April 27, 2018, against Surnaik Defendants, SABIC, and Kuraray (collectively, “Defendants”). (ECF No. 29.)[2]

         SABIC filed its motion to dismiss Plaintiffs' complaint on August 15, 2018. (ECF No. 60.) Plaintiffs responded on September 9, 2018, (ECF No. 71), and SABIC replied on September 17, 2018, (ECF No. 75). Surnaik Defendants also filed their motion to dismiss on August 15, 2018. (ECF No. 62.) Plaintiffs responded on September 7, 2018, (ECF No. 69), and Surnaik Defendants replied on September 21, 2018, (ECF No. 76). Finally, Kuraray filed its motion to dismiss on August 15, 2018. (ECF No. 65.) Plaintiffs responded on September 9, 2018, (ECF No. 70), and Kuraray replied on September 14, 2018, (ECF No. 73). As such, the motions to dismiss are fully briefed and ripe for adjudication.

         II. LEGAL STANDARD

         In general, a pleading must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); see McCleary-Evans v. Md. Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (stating that this requirement exists “to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))). However, to withstand a motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must plead enough facts “to state a claim to relief that is plausible on its face.” Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Stated another way, the factual allegations in the complaint “must be sufficient ‘to raise a right to relief above the speculative level.'” Woods v. City of Greensboro, 855 F.3d 639, 647 (4th Cir. 2017) (quoting Twombly, 550 U.S. at 555). A complaint that alleges enough facts “to satisfy the elements of a cause of action created by [the relevant] statute” will survive a motion to dismiss. Id. at 648 (quoting McCleary-Evans, 780 F.3d at 585).

         In evaluating the sufficiency of a complaint, this Court first “identif[ies] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. This Court then “assume[s] the[] veracity” of the complaint's “well-pleaded factual allegations” and “determine[s] whether they plausibly give rise to an entitlement to relief.” Id. Review of the complaint is “a context-specific task that requires [this Court] to draw on its judicial experience and common sense.” Id. “[T]o satisfy the plausibility standard, a plaintiff is not required to plead factual allegations in great detail, but the allegations must contain sufficient factual heft to allow a court, drawing on judicial experience and common sense, to infer more than the mere possibility of that which is alleged.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (internal quotation marks omitted).

         III. DISCUSSION

         A. Negligence and Gross Negligence (Counts I and IX)

         1. As to Surnaik Defendants

         Surnaik Defendants argue that Plaintiffs have not adequately pled past or reasonably certain future injury required to sustain a negligence claim. (ECF No. 63 at 6-7.) Indeed, injury is an essential element of a claim for negligence. Wheeling Park Comm'n v. Dattoli, 787 S.E.2d 546, 551 ( W.Va. 2016). Plaintiffs allege that Surnaik Defendants' negligence has caused them to suffer “bodily injury and property damage” as a result of their “ingest[ion]” of and “significant[] expos[ure] to” the fire, and they have also “incur[red] out-of-pocket expenses including . . . the cost of obtaining additional lodging, food, bottled water, and other necessary supplies.” (ECF No. 29 at 16, 17, 21.) They further allege that their property values have decreased due to the presence of smoke and “fallout material.” (Id. at 16.) Finally, they allege emotional injury in the form of “emotional and mental stress, anxiety, and fear of current and/or future illnesses.” (Id. at 17.) The allegations of past injury-although rather vague with respect to any non-economic loss Plaintiffs have suffered-are sufficient to establish injury at this stage.

         However, the bulk of the damages Plaintiffs seek appear to stem from alleged future injury they will suffer because of “the potential for contracting serious latent disease.” (Id. at 21.) For example, Plaintiffs request “expenses reasonably necessary” to “monitor[]” these illnesses, including payment of medical bills for “preventative treatment.” (Id. at 21-22.) But Plaintiffs fail to plead any facts to demonstrate “reasonable certainty” that they will incur such expenses. See Syl. Pt. 3, Cook v. Cook, 607 S.E.2d 459 ( W.Va. 2004) (quoting Syl. Pt. 7, Jordan v. Bero, 210 S.E.2d 618 ( W.Va. 1974)). Nothing in their complaint suggests that they underwent testing for latent illnesses or otherwise determined that such illnesses were likely to occur. “[C]ontingent or merely possible future injurious effects are too remote and speculative to support a lawful recovery.” Syl. Pt. 3, Cook, 607 S.E.2d 459 (quoting Syl. Pt. 7, Jordan, 210 S.E.2d 618). Accordingly, Plaintiffs' alleged future injury is insufficiently pled.

         Nonetheless, because there are factual allegations of past injury suffered, Surnaik Defendants' motion to dismiss Plaintiffs' negligence and gross negligence claims is DENIED.

         2. As to SABIC[3]

         In addition to arguing that Plaintiffs fail to adequately plead injury, which this Court discussed with respect to Surnaik Defendants, SABIC contends that it did not own or operate the warehouse where the fire occurred, nor was it engaged in a joint venture with Surnaik Defendants to do so. (ECF No. 61 at 15-17.) Plaintiffs allege that Surnaik Defendants-not SABIC- “owned, operated, occupied, and/or managed the [warehouse].” (ECF No. 29 at 10.) Plaintiffs further allege that Surnaik Defendants were engaged in a joint venture with the remaining Defendants, including SABIC, “allowing them to improperly house, store, and/or improperly dispose of their hazardous waste.” (Id.)

         Plaintiffs' assertion that “SABIC was in a joint venture with [Surnaik] Defendants, ” (id. at 8), is a legal conclusion that this Court is not required to accept as true for purposes of ruling on the motion to dismiss. See Bennett v. Lending Solutions Inc., No. 2:10-cv-01201, 2011 WL 4596973, at *4 (S.D. W.Va. Sept. 30, 2011); see also Walker v. Prince George's Cty., 575 F.3d 426, 431 (4th Cir. 2009) (noting that this Court is “not bound to accept as true a legal conclusion couched as a factual allegation”). Instead, to establish a joint venture, Plaintiffs must plead facts showing that Surnaik Defendants and SABIC entered into a contractual relationship “to carry out a single business enterprise for profit, for which purpose they combine[d] their property, money, effects, skill, and knowledge.” Syl. Pt. 5, Armor v. Lantz, 535 S.E.2d 737 ( W.Va. 2000) (defining “joint venture”). Plaintiffs allege that SABIC shipped materials to the warehouse. (ECF No. 29 at 12-13.) There are no facts in the complaint from which this Court may infer that Surnaik Defendants and SABIC “agreed to share profits and losses” with regard to the transfer of these materials or exercised equal “active management or control” over the operations at the warehouse. See Armor, 535 S.E.2d at 743, 745. Therefore, Plaintiffs have not adequately pled the existence of a joint venture between SABIC and Surnaik Defendants.

         More importantly, the precise conduct on which Plaintiffs base their gross negligence claims is not clear from the complaint, which states only that “Defendants' acts and omissions constitute . . . gross negligence.” (ECF No. 29 at 28.) Because Plaintiffs' negligence claims against Surnaik Defendants are based on the fire resulting from their operation of the warehouse, (id. at 21), this Court assumes that Plaintiffs mean to base their gross negligence claims on the fire as well. However, Plaintiffs fail to demonstrate that SABIC was responsible for the operation of the warehouse, either independently or as part of a joint venture with Surnaik Defendants. “[G]ross negligence on the part of the defendant must be proved before the plaintiff c[an] recover.” Hopkins v. Grubb, 230 S.E.2d 470, 473 ( W.Va. 1977). Therefore, Plaintiffs' gross negligence claims against SABIC are DISMISSED WITHOUT PREJUDICE.

         B. Trespass (Count III)

         Defendants also urge this Court to dismiss Plaintiffs' trespass claims because the allegations do not amount to a tangible interference with Plaintiffs' possession of their land. (ECF No. 61 at 19-21; ECF No. 63 at 7-9; ECF No. 66 at 12-13.) A trespass occurs when the defendant enters upon the plaintiff's land without authority and damages the plaintiff's real property. Hark v. Mountain Fork Lumber Co., 34 S.E.2d 348, 352 ( W.Va. 1945). “[T]he gist of trespass is injury to [the plaintiff's] possession [of the land].” Belcher v. Greer, 382 S.E.2d 33, 35 n.1 ( W.Va. 1989). “Liability for trespass to real property exists only where there is an intentional intrusion, negligence, or some extrahazardous activity on the part of the alleged wrongdoer” that caused the interference with possession. Syl. Pt. 1, Bailey v. S.J. Groves & Sons Co., 230 S.E.2d 267 ( W.Va. 1976).

         Plaintiffs allege that “harmful fallout” material-in the form of “chemical smoke, odors, gases and/or fumes” and “particulate matter”-was released as a result of the “destruction and/or combustion of harmful chemicals, compounds, hazardous waste, and/or otherwise harmful substances” during the fire and made its way onto Plaintiffs' land. (ECF No. 29 at 11, 23.) However, “chemical deposits upon [land] from fumes, gases, and dust” that are emitted as a result of a defendant's activities on its own property “and carried over the land by air currents, or spreading over it through the air” do not constitute a ...


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