Kmart Corp v R.K. Hooksett, et a l . CV-09-167-JL 2/19/10 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Kmart Corporation
v. Civil N o . 09-cv-167-JL Opinion N o . 2010 DNH 030 R.K. Hooksett, LLC, Merchants Plaza, LLC, MRAC, LLC
MEMORANDUM ORDER
Since experiencing a number of instances of flooding at its
store in Hooksett, New Hampshire, Kmart Corporation has sued its
landlord at that location, R.K. Hooksett, LLC, and two owners of
adjacent property, Merchants Plaza, LLC and MRAC, LLC. Kmart
alleges that Merchants Plaza and MRAC made improvements to their
properties that caused surface water to enter its store,
amounting to either trespass or negligence. MRAC has moved to
dismiss those counts for failing to state a claim for relief.
See Fed. R. Civ. P. 12(b)(6). This court has jurisdiction over
this action between Kmart, an Illinois corporation with its
principal place of business in Michigan, and the defendants,
limited liability companies whose members are citizens of neither
of those states, under 28 U.S.C. § 1332(a)(1) (diversity). The
motion is denied.
Kmart, whose store is located at 1267 Hooksett Road, alleges
that MRAC owns property at 1271 Hooksett Road, the site of a car dealership. The complaint states that MRAC paved certain areas
of its property, with the result that stormwater was directed
toward the Kmart, but (a) failed to install sufficient drainage
to prevent that from happening, (b) failed to maintain the
drainage system to prevent water from backing up or otherwise
diverting toward the Kmart, or (c) installed a system that
allowed water to back up toward the Kmart. In fact, Kmart
alleges, these actions directly and proximately caused water to
enter its store on a number of occasions, damaging its
merchandise and trade fixtures and interrupting its business.
Kmart claims that MRAC “knew or should have known, to a
substantial certainty,” that its actions “would interfere with
Kmart’s property interest,” amounting to trespass (count 1 3 ) . In
the alternative, Kmart claims that MRAC’s actions breached its
“duty to maintain and construct” its improvements “in a
reasonable manner so as to avoid damaging property interests in
neighboring property,” amounting to negligence (count 1 4 ) . MRAC,
in moving to dismiss, argues that Kmart has not “plausibly
alleged” those claims because it has failed to describe MRAC’s
actions “with sufficient specificity”--particularly in light of
2 the fact that its property is “located across a major roadway
from Kmart, and downstream.”1
While it is true that “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,” it is also true that
“a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations.” Bell Atl. Corp. v .
Twombly, 550 U.S. 5 4 4 , 555 (2006) (bracketing omitted). Here,
Kmart alleges that MRAC paved its lot without installing or
maintaining sufficient drainage to prevent stormwater from
flowing toward or backing up into Kmart’s nearby store, resulting
in flooding that damaged its personal property there. That is
hardly the kind of “unadorned, the-defendant-unlawfully-harmed-me
1 The complaint alleges that MRAC’s property is located on the same side of the street as the Kmart (both addresses are identified by odd numbers), and says nothing about which property is downstream from the other. So MRAC, to show that it is in fact located across the street and downstream from the Kmart store, relies on materials outside the pleadings, including an affidavit by one of its members and a series of maps. In considering a motion to dismiss, of course, a “court may properly consider only facts and documents that are part of or incorporated into the complaint.” Trans-Spec Truck Serv., Inc. v . Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008). But because Kmart acknowledges in its response to the motion to dismiss that its store is indeed located across the street and upstream from MRAC’s land, the court will consider those facts to be undisputed for purposes of the motion.
3 accusation” that fails to state a claim for relief. Iqbal v .
Ashcroft, 129 S . C t . 1937, 1949 (2009).
Contrary to MRAC’s suggestion, then, Kmart need not have
further specified in its complaint how the drainage system was
inadequate or how it caused the flooding to state claims for
trespass or negligence. Compare Miller v . S e . Supply Header,
LLC, N o . 09-0067, 2010 WL 55637, at *3 (S.D. Ala. Jan. 4 , 2010)
(applying the Twombly/Iqbal standard in denying a motion to
dismiss a negligence claim arising out of flooding on plaintiffs’
property because “the facts have been sufficiently developed
. . . to draw the reasonable inference that the defendant is
liable for the misconduct alleged”) with Vill. of DePue, Ill. v .
Viacom Int’l, Inc., 632 F. Supp. 2d 8 5 4 , 864-65 (applying the
Twombly/Iqbal standard in dismissing a trespass claim that
alleged only the migration of substances from the defendants’
property without alleging any tortious conduct). As Kmart points
out, MRAC’s demands for “specificity” seem to invoke Rule 9(b)’s
heightened pleading standard for claims of fraud and mistake as
opposed to Rule 8's requirement for a “short and plain statement
showing the pleader is entitled to relief”--which, again, “‘does
not require detailed factual allegations.’” Iqbal, 129 S . C t . at
1949 (quoting Twombly, 550 U.S. at 5 5 5 ) .
4 Similarly, while “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim for relief
that is plausible on in its face,’” this “standard is not akin to
a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 129
S . C t . at 1949 (quoting Twombly, 550 U.S. at 5 7 0 ) . At best,
MRAC’s point that its land is located across the street and
downstream from the Kmart store tends to make the claim that
activities on MRAC’s property caused flooding at the Kmart less
probable than it might have been if MRAC’s land were situated
next to and upstream from the store. But the actual location of
MRAC’s parcel vis-a-vis the Kmart does not make the claim
“implausible on its face.”
Indeed, the complaint expressly alleges that MRAC’s actions
caused water to “back up” toward Kmart’s store. That scenario is
hardly “implausible” as a matter of the “judicial experience and
common sense” that come into play in applying the plausibility standard.2 Id. at 1949-50.
2 As Kmart points out, there are a number of reported cases considering the merits of trespass claims based on flooding caused by downstream activities. See, e.g., Bethel Inv. C o . v . City of Hampton, 636 S.E.2d 466, 468 (Va. 2006); Mack v .
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Kmart Corp v R.K. Hooksett, et a l . CV-09-167-JL 2/19/10 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Kmart Corporation
v. Civil N o . 09-cv-167-JL Opinion N o . 2010 DNH 030 R.K. Hooksett, LLC, Merchants Plaza, LLC, MRAC, LLC
MEMORANDUM ORDER
Since experiencing a number of instances of flooding at its
store in Hooksett, New Hampshire, Kmart Corporation has sued its
landlord at that location, R.K. Hooksett, LLC, and two owners of
adjacent property, Merchants Plaza, LLC and MRAC, LLC. Kmart
alleges that Merchants Plaza and MRAC made improvements to their
properties that caused surface water to enter its store,
amounting to either trespass or negligence. MRAC has moved to
dismiss those counts for failing to state a claim for relief.
See Fed. R. Civ. P. 12(b)(6). This court has jurisdiction over
this action between Kmart, an Illinois corporation with its
principal place of business in Michigan, and the defendants,
limited liability companies whose members are citizens of neither
of those states, under 28 U.S.C. § 1332(a)(1) (diversity). The
motion is denied.
Kmart, whose store is located at 1267 Hooksett Road, alleges
that MRAC owns property at 1271 Hooksett Road, the site of a car dealership. The complaint states that MRAC paved certain areas
of its property, with the result that stormwater was directed
toward the Kmart, but (a) failed to install sufficient drainage
to prevent that from happening, (b) failed to maintain the
drainage system to prevent water from backing up or otherwise
diverting toward the Kmart, or (c) installed a system that
allowed water to back up toward the Kmart. In fact, Kmart
alleges, these actions directly and proximately caused water to
enter its store on a number of occasions, damaging its
merchandise and trade fixtures and interrupting its business.
Kmart claims that MRAC “knew or should have known, to a
substantial certainty,” that its actions “would interfere with
Kmart’s property interest,” amounting to trespass (count 1 3 ) . In
the alternative, Kmart claims that MRAC’s actions breached its
“duty to maintain and construct” its improvements “in a
reasonable manner so as to avoid damaging property interests in
neighboring property,” amounting to negligence (count 1 4 ) . MRAC,
in moving to dismiss, argues that Kmart has not “plausibly
alleged” those claims because it has failed to describe MRAC’s
actions “with sufficient specificity”--particularly in light of
2 the fact that its property is “located across a major roadway
from Kmart, and downstream.”1
While it is true that “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,” it is also true that
“a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations.” Bell Atl. Corp. v .
Twombly, 550 U.S. 5 4 4 , 555 (2006) (bracketing omitted). Here,
Kmart alleges that MRAC paved its lot without installing or
maintaining sufficient drainage to prevent stormwater from
flowing toward or backing up into Kmart’s nearby store, resulting
in flooding that damaged its personal property there. That is
hardly the kind of “unadorned, the-defendant-unlawfully-harmed-me
1 The complaint alleges that MRAC’s property is located on the same side of the street as the Kmart (both addresses are identified by odd numbers), and says nothing about which property is downstream from the other. So MRAC, to show that it is in fact located across the street and downstream from the Kmart store, relies on materials outside the pleadings, including an affidavit by one of its members and a series of maps. In considering a motion to dismiss, of course, a “court may properly consider only facts and documents that are part of or incorporated into the complaint.” Trans-Spec Truck Serv., Inc. v . Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008). But because Kmart acknowledges in its response to the motion to dismiss that its store is indeed located across the street and upstream from MRAC’s land, the court will consider those facts to be undisputed for purposes of the motion.
3 accusation” that fails to state a claim for relief. Iqbal v .
Ashcroft, 129 S . C t . 1937, 1949 (2009).
Contrary to MRAC’s suggestion, then, Kmart need not have
further specified in its complaint how the drainage system was
inadequate or how it caused the flooding to state claims for
trespass or negligence. Compare Miller v . S e . Supply Header,
LLC, N o . 09-0067, 2010 WL 55637, at *3 (S.D. Ala. Jan. 4 , 2010)
(applying the Twombly/Iqbal standard in denying a motion to
dismiss a negligence claim arising out of flooding on plaintiffs’
property because “the facts have been sufficiently developed
. . . to draw the reasonable inference that the defendant is
liable for the misconduct alleged”) with Vill. of DePue, Ill. v .
Viacom Int’l, Inc., 632 F. Supp. 2d 8 5 4 , 864-65 (applying the
Twombly/Iqbal standard in dismissing a trespass claim that
alleged only the migration of substances from the defendants’
property without alleging any tortious conduct). As Kmart points
out, MRAC’s demands for “specificity” seem to invoke Rule 9(b)’s
heightened pleading standard for claims of fraud and mistake as
opposed to Rule 8's requirement for a “short and plain statement
showing the pleader is entitled to relief”--which, again, “‘does
not require detailed factual allegations.’” Iqbal, 129 S . C t . at
1949 (quoting Twombly, 550 U.S. at 5 5 5 ) .
4 Similarly, while “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim for relief
that is plausible on in its face,’” this “standard is not akin to
a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 129
S . C t . at 1949 (quoting Twombly, 550 U.S. at 5 7 0 ) . At best,
MRAC’s point that its land is located across the street and
downstream from the Kmart store tends to make the claim that
activities on MRAC’s property caused flooding at the Kmart less
probable than it might have been if MRAC’s land were situated
next to and upstream from the store. But the actual location of
MRAC’s parcel vis-a-vis the Kmart does not make the claim
“implausible on its face.”
Indeed, the complaint expressly alleges that MRAC’s actions
caused water to “back up” toward Kmart’s store. That scenario is
hardly “implausible” as a matter of the “judicial experience and
common sense” that come into play in applying the plausibility standard.2 Id. at 1949-50.
2 As Kmart points out, there are a number of reported cases considering the merits of trespass claims based on flooding caused by downstream activities. See, e.g., Bethel Inv. C o . v . City of Hampton, 636 S.E.2d 466, 468 (Va. 2006); Mack v . Edens, 412 S.E.2d 4 3 1 , 432-33 (S.C. App. C t . 1991); Guenther v . Finley, 769 P.2d 7 1 7 , 718 (Mont. 1989); Dial v . City of O’Fallon, 411 N.E.2d 2 1 7 , 220-21 (Ill. 1980); see also Restatement (Second) of Torts § 158 cmt. b ill. 5 (1965) (“A erects a dam across a
5 Finally, MRAC’s argument that its alleged conduct “may be
explained as actions that MRAC took to lawfully address the issue
of water flowing onto its property” turns the plausibility
standard on its head.3 Again, under that standard, dismissal for
failure to state a claim is appropriate only if “the well-pleaded
facts do not permit the court to infer more than the mere
possibility of misconduct.” Id. at 1950. It is not appropriate
in the opposite case, i.e., if the complaint simply permits (but
does not compel) the court to infer that the defendant acted
lawfully. C f . Ark. Pub. Employees Ret. Sys. v . GT Solar Int’l,
Inc., 2009 DNH 149, 10 & n.7 (“[a]t most . . . if the facts
alleged in a complaint could support either an inference of
wrongdoing or an ‘obvious alternative explanation’ then the
plausibility standard requires the court to choose the ‘obvious
alternative explanation’”) (quoting Twombly, 550 U.S. at 5 6 7 ) .
stream, thereby intentionally causing water to back up and flood the land of B , an upper riparian proprietor. A is a trespasser.”) (emphasis added). So “judicial experience” teaches that such claims are quite plausible (if not always successful, but that is a different question). 3 Under New Hampshire law, “[a] landowner may manage or control diffuse surface water in any manner, provided it is reasonable in light of the interests affected thereby”--a standard that incorporates a number of factors, such as “the extent of the alteration of natural or existing runoff patterns, the importance and nature of the land and its use, and the foreseeability and magnitude of any resulting damage.” Dudley v . Beckey, 132 N.H. 5 6 8 , 570 (1989).
6 Accordingly, MRAC’s motion to dismiss4 is DENIED.
SO ORDERED.
___ Jos^h N. Laplante __ ap __ nte _________ Uni e ed States District Judge
Dated: February 1 9 , 2010
cc: John McCabe, Esq. Nicholas Novak, Esq Jamie N . Hage, Esq. Donna Feeney, Esq. Andrew D. Dunn, Esq. Anthony M . Camp, Esq. Thomas J. Fay, Esq.
4 Document n o . 1 8 .