Matiella v. Murdock Street LLC

• Court: District Court, District of Columbia
• Decided: August 28, 2024
• Docket: Civil Action No. 2021-2112
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHARLES MATIELLA,

Plaintiff,

v.

MURDOCK STREET, LLC, et al.,

Defendants. Case No. 21-cv-2112 (GMH)

MURDOCK STREET, LLC,

Cross-Claimant,

CITY CONCRETE CORPORATION, et al.,

Cross-Defendants.

MEMORANDUM OPINION AND ORDER

This action concerns whether the construction of a condominium building damaged the

townhouses1 on an adjacent property owned by the Plaintiff, Charles Matiella. Plaintiff alleges

that the heavy construction and excavation activity seriously damaged his townhouses, rendering

them uninhabitable. See 2d Am. Compl., ECF No. 140, ¶¶ 22–23, 33. Plaintiff brings this action

under negligence and trespass theories against the owner of the condominium building property,

1 The Second Amended Complaint states that “Plaintiff [is] the owner of a 2,784 square foot multi-family rowhouse located at 770 Princeton Place NW, Apt. B, Washington, DC 20010.” ECF No. 140, ¶ 17. The specification of a particular apartment creates some ambiguity as to whether Plaintiff owns the entire property or only the unit on the property designated as Apartment B. Clarifying the issue somewhat, Plaintiff’s expert’s report, attached to the Second Amended Complaint, states that Plaintiff “owned [t]wo - two-story 2 townhome unit buildings at 770 Princeton Place NW.” ECF No. 140 at 52. While not material to the ultimate findings herein, the Court assumes from the expert report that Plaintiff is, in fact, the owner of the entire property and multiple townhouses thereupon (and perhaps simply resides or resided in Apartment B). Murdock Street, LLC (“Murdock Street”), the two companies who operated as the general con-

tractor for its construction, EWORA, LLC (“EWORA”), and IFG Group, LLC (“IFG”), and two

subcontractors allegedly involved in the excavation, City Concrete Corporation (“City Concrete”)

and Luis Construction, Inc. (“Luis Construction”).

This Memorandum Opinion and Order addresses the following motions pending before the

Court: (1) Luis Construction’s motion to dismiss the Second Amended Complaint, ECF No. 143;

(2) City Concrete’s motion to dismiss the Second Amended Complaint, ECF No. 145; (3) EWORA

and IFG’s joint motion to dismiss the Second Amended Complaint, ECF No. 148; (4) Murdock

Street’s motion for partial judgment on the pleadings, ECF No. 147; (5) City Concrete’s motion to

dismiss Murdock Street’s cross-claim, ECF No. 152; and (6) Luis Construction’s motion to dis-

miss Murdock Street’s cross-claim, ECF No. 153.2

For the reasons set forth below, the Court will deny the motions to dismiss the Second

Amended Complaint and grant the motions to dismiss the cross-claims. The Court will also strike

from the Second Amended Complaint Plaintiff’s request for punitive damages.

2 The relevant docket entries for purposes of this Memorandum Opinion are: (1) the Court’s Memorandum Opinion on the motions to dismiss the First Amended Complaint, ECF No. 93; (2) the Second Amended Complaint, ECF No. 140; (3) Luis Construction’s motion to dismiss the Second Amended Complaint, ECF No. 143, Plaintiff’s opposition, ECF No. 155, and Luis Construction’s reply, ECF No. 162; (4) City Concrete’s motion to dismiss the Second Amended Complaint, ECF No. 145, Plaintiff’s opposition, ECF No. 154, and City Concrete’s reply, ECF No. 164; (5) EWORA and IFG’s joint motion to dismiss the Second Amended Complaint, ECF No. 148, Plaintiff’s opposition, ECF No. 157, and EWORA and IFG’s reply, ECF No. 161; (6) Murdock Street’s motion for partial judgment on the pleadings, ECF No. 147, Plaintiff’s opposition, ECF No. 156, and Murdock Street’s reply, ECF No. 158; (7) City Concrete’s motion to dismiss Murdock Street’s cross-claim, ECF No. 152, Murdock Street’s opposition, ECF No. 159, and City Concrete’s reply, ECF No. 163; (8) Luis Construction’s motion to dismiss Murdock Street’s cross- claim, ECF No. 153, and Murdock Street’s opposition, ECF No. 160; and (9) EWORA and IFG’s notice of supple- mental authority, ECF No. 181, and Plaintiff’s response, ECF No. 183. The page numbers cited herein are those assigned by the Court’s CM/ECF system.

2 I. BACKGROUND

A. The Original and First Amended Complaint

Plaintiff’s original complaint was filed on August 6, 2021, against Defendant Murdock

Street. ECF No. 1. With leave of the Court, Plaintiff filed a First Amended Complaint on January

26, 2023, adding defendants EWORA, IFG, and City Concrete. ECF No. 50. In relevant part, the

Plaintiff alleged the following facts in the First Amended Complaint.

Plaintiff owns the property located at 770 Princeton Place NW, Washington, DC 20010

(“Plaintiff’s Property”). Id., ¶¶ 1, 17. Defendant Murdock Street owns the adjacent property at

3619 Georgia Avenue NW, Washington DC, 20018 (“Murdock Street’s Property”), where a con-

dominium building named “The Exchange” was constructed. Id., ¶¶ 17, 19. Defendant EWORA

was the “builder” retained to “manage the construction activities” at The Exchange, and Defendant

IFG was the “develop[er]” of the condominium complex at The Exchange. Id., ¶¶ 47, 48. Both

companies were the “general contractors” for the project. Id., ¶ 46. They are “owned and operated

by the same principal, Fatih [Guner], and are sister companies.” Id., ¶¶ 8, 49. Defendant City

Concrete was a subcontractor that “provide[d] labor and material” for the construction of The Ex-

change. Id., ¶ 59.

Regarding the timeline of the construction, Plaintiff alleged that in 2017, Defendant Mur-

dock Street engaged Defendant IFG to develop the condominium complex, and one of those two

companies then engaged Defendant EWORA to construct or “manage the construction activities.”

Id., ¶ 48. In turn, EWORA retained City Concrete “on or about October 23, 2017” to perform

construction activities at The Exchange. Id., ¶ 59. “Thereafter,” City Concrete performed the

construction work. Id., ¶ 60. Plaintiff alleged that “construction had been in progress” at Murdock

Street’s Property in 2019, 2020, and 2021, including “excavation, heavy drilling and other major

3 construction activity.” Id., ¶ 18. Construction activities at The Exchange were completed as of

May 2021. Id., ¶ 19.

As for damage to his property next door, Plaintiff alleged that the “heavy excavation, drill-

ing and other major construction activity” when The Exchange was being built caused “reverber-

ations of the earth or other elements connected to Plaintiff’s property,” which caused “serious

damage” to it, including causing its foundation “to be defective, dislodged, cracked and unsafe.”

Id., ¶¶ 20, 21. According to the First Amended Complaint, Defendant Murdock Street “admitted

that [its] actions caused the damage to Plaintiff’s property.” Id., ¶ 23. Over “the past two years,”

Plaintiff alleged, “Defendant Murdock made remedial attempts to address and rectify the damage”

to Plaintiff’s property, but those efforts were ultimately “insufficient.” Id. Due to Defendant

Murdock Street’s “failure to remedy the problems and severe damage” to Plaintiff’s property,

Plaintiff filed a complaint with the Illegal Construction Unit of the District of Columbia Depart-

ment of Consumer and Regulatory Affairs (“DCRA”). Id., ¶ 24. On May 7, 2021, DCRA held a

meeting to address the protection of Plaintiff’s property and issued a May 13, 2021, report “detail-

ing the insufficient remedial measures” taken to address the damage caused to Plaintiff’s property.

Id., ¶ 26. One of those measures involved the installation of a monitoring device in September

2020 to “ensure no settling [was] occurring” in the building façade of Plaintiff’s property. Id., ¶

26.E.

The First Amended Complaint also included findings of a June 2021 report by a structural

engineer who “evaluated the problems that Defendant Murdock [Street] caused” at Plaintiff’s

Property. Id., ¶ 28. According to that report, during the construction of The Exchange, an exca-

vation was made “adjacent” to Plaintiff’s property, which included the installation of a “soldier

4 pile and lagging retaining wall.”3 Id., ¶ 28.A. The soldier pile and lagging retaining wall had “no

walers, rakers or crossbracing,”4 and photographs of the excavation did not indicate any “backfill

in the space behind [the] lagging between the walls of the excavation” to “close[] the void and

prevent[] the lateral movement of the soil into the void space.” Id., ¶ 28.F. The report also referred

to photographs depicting “soil flowing out from beneath the lagging.” Id., ¶ 28.G. The report

stated that the “lateral movement of the subsoil result[ed] in settlement of the structure” on Plain-

tiff’s property. Id., ¶ 28.F. The report noted that soil had “settled from beneath the sidewalk and

the brick planter wall separated from the walk at the entryway” to Plaintiff’s townhouse. Id. Fur-

ther, it stated that settlement or outward movement of the building wall may have caused roof

leakage at the property, which may in turn have caused water to drip from the ceiling. Id., ¶ 28.I.

Photographs also showed “cracks in the masonry bearing walls and settling of a support for the

deck” on Plaintiff’s property, as well as cracks around doorways, at lintels, and on interior walls

and the ceiling of the property. Id., ¶ 28.G. In the opinion of the engineer:

[S]ettlement of [Plaintiff’s] building may continue until the soil migrates to fill-in the voids created by the excavation and void space behind the lagging. Continued settlement will result in further structural damage to the building and compromise its structural integrity. Movement of the bearing walls may result in the joists slip- ping out of their pockets and floors or roof collapsing. Also, further settlement may adversely affect underground utilities servicing the building.

3 A soldier pile retaining wall system generally consists of piles, which are vertical steel or concrete beams installed at specific spacing intervals to hold “lagging,” which are wood or concrete planks placed horizontally between the piles. Together, the piles and lagging form a wall to retain soil as an excavation proceeds. See, e.g., Deep Excavations: Soldier Pile Walls: Information, Advantages & Disadvantages, https://perma.cc/9VMV-KKDL; Deep Foundations Institute Glossary, Soldier Pile, https://perma.cc/ME7Q-JKCV; Z. Hiobil et al, Revising the Concepts of the Soldier Pile Wall, XIII ICSMFE 919, 919 (1994), https://perma.cc/X8CN-DLLX. 4 Walers, rakers, and crossbracing are all methods of supporting the wall of an excavation. A waler is a beam that runs parallel to the face of the retaining wall to distribute the pressure evenly. What Are Walers in Construction, HPD Construction, (Mar. 21, 2022), https://perma.cc/R8QQ-W9KU. A raker is a beam that supports the wall diagonally from the ground inside the excavation like “an enormous kickstand” for the shoring wall. Michael Diez de Aux, How Tiebacks, Rakers, and Struts Support Shoring Walls, Skyrise Cities, https://perma.cc/C9VZ-RFEY. Crossbracing involves “diagonal bracing” to provide internal stability to existing rectangular frames. Christopher Gorse, et al., Oxford Dictionary of Construction, Surveying and Civil Engineering 98 (1st ed. 2012).

5 Id., ¶ 28.K.; see also id. at 34–35.

As a result of the damage to his property, Plaintiff alleged that his townhouse “has become

an unsafe structure and it is currently uninhabitable.” Id., ¶ 30. Plaintiff asserted that it “will have

to be knocked down or razed to ensure the safety and protection of human life as well as property,”

and that Defendant Murdock Street should be ordered to pay “for the demolition and full rebuild,”

pay for the “loss of use sustained by Plaintiff’s property,” and pay for Plaintiff’s mounting out of

pocket costs and expenses he had incurred as a result of the damage caused to his property. Id., ¶¶

34–37. Plaintiff also alleged that because the work performed in building The Exchange entailed

“excavation, drilling, and other heavy construction activity with heavy equipment,” it was “inher-

ently dangerous” and therefore the duty of care that Defendant Murdock Street owed to Plaintiff

was “non-delegable” to any sub-contractor. Id. ¶¶ 41–42.

Plaintiff sued Defendant Murdock Street for negligence (Count I), trespass (Count II), and

for injunctive relief related to the restoration of his property (Count III). See id., ¶¶ 66–86. Count

I alleged that Murdock Street owed Plaintiff a duty of care to “exercise common prudence in main-

taining [its] property in such a way as to prevent injury to Plaintiff as an owner of adjacent prop-

erty”; that Murdock “breached its duty of care to Plaintiff”; and that this “breach of duty proxi-

mately caused substantial damages to Plaintiff.” Id., ¶¶ 67–71. Count II alleged that Murdock

Street “caused or committed a physical invasion . . . onto Plaintiff’s Property,” which “resulted in

interference with Plaintiff’s possessory interest in [his] Property,” and resulted in “severe[] dam-

age[]” to Plaintiff. Id., ¶¶ 74–77. Count III asked the Court to, among other things, “enjoin[] . . .

further construction activity on Defendant Murdock’s Property” due to “safety concerns and to

preserve evidence”; and to order Murdock Street to “knock down the existing building on Plain-

tiff’s Property and fully pay for the construction of a new building . . . having equal or greater

6 value.” Id., ¶¶ 80–86. In support of his claims, Plaintiff further alleged that Defendant Murdock

Street’s actions or inaction with respect to his property violated D.C. Mun. Regs. tit. 12, § 3307A,

which states in relevant part:

Adjoining public and private property shall be protected from damage during con- struction, alteration, repair, demolition or raze of a premises at the expense of the person causing the work. Protection must be provided for lots, and for all elements of a building or other structure, including, but not limited to, footings, foundations, party walls, chimneys, vents, skylights, porches, decks, roofs, roof outlets, roof structures and flashing. Provisions shall be made to control water runoff and ero- sion during construction or demolition or raze activities.

D.C. Mun. Regs. tit. 12, § 3307A; see also ECF No. 50, ¶¶ 38–39. Plaintiff did not, however,

allege Murdock Street’s violation of § 3307A as a standalone claim. See ECF No. 50, ¶¶ 66–86.

Plaintiff also brought claims directly against EWORA, IFG, and City Concrete in the First

Amended Complaint. As to EWORA and IFG, Plaintiff alleged that their work as the developer,

builder, and/or general contractor for the construction on Murdock Street’s property included man-

aging “the construction necessary to excavate the land upon which The Exchange would be built.”

Id., ¶ 50. Plaintiff also claimed that EWORA and IFG were “involved in and responsible for” (1)

addressing the “numerous Stop Work Orders” issued by DCRA, including ones related to Plain-

tiff’s Property; (2) addressing the May 13, 2021, report detailing remedial measures to address

damages to Plaintiff’s Property; (3) addressing visual monitoring reports related to damages to

Plaintiff’s Property; and (4) submitting plans to the DCRA to obtain the construction permit. Id.,

¶¶ 53–57. Plaintiff claimed that Defendant Murdock Street “has asserted that Defendants EWORA

and IFG are directly responsible for any damages to Plaintiff’s Property caused by the construction

of The Exchange.” Id., ¶ 58. Accordingly, Plaintiff sued EWORA and IFG, like Defendant Mur-

dock Street, for negligence (Counts IV and VII), trespass (Counts V and VIII), and injunctive relief

related to the restoration of Plaintiff’s property (Counts VI and IX). Id., ¶¶ 87–128.

7 As for Defendant City Concrete, Plaintiff alleged in the First Amended Complaint that it

entered into a contract “to provide labor and material for the construction of The Exchange.” Id.,

¶ 59. Thereafter, City Concrete performed construction work at The Exchange. Id., ¶ 60. Plaintiff

alleged that, according to Defendants EWORA and IFG, these construction activities were “devel-

oped, planned, and performed by City Concrete,” and City Concrete’s actions and omissions

caused any trespass and/or damage to Plaintiff’s property. Id., ¶¶ 62, 63. Accordingly, like the

other defendants, Plaintiff sued City Concrete for negligence (Count X), trespass (Count XI), and

injunctive relief (Count XII). Id., ¶¶ 129–149.

B. Memorandum Opinion and Order on Motions to Dismiss the First Amended Complaint

In response to the First Amended Complaint, EWORA and IFG filed a motion seeking the

dismissal of the claims against them under Federal Rule of Civil Procedure 12(b)(6) arguing: (1)

that the applicable statute of limitations barred the claims; (2) that the complaint failed to state a

negligence claim against either of them for anything they did directly or indirectly for the negli-

gence allegedly caused by City Concrete; and (3) that the complaint failed to state a claim against

either of them for trespass as a matter of law. In the alternative, EWORA and IFG sought to strike

Plaintiff’s requests for injunctive relief pursuant to Rule 12(f). See ECF No. 64. City Concrete

raised similar issues in its own motion to dismiss, arguing that Plaintiff had not stated a claim

against it as to negligence or trespass and that the claims against it were also barred by the statute

of limitations. See ECF No. 83.

In July 2023, the Court ruled on the motions to dismiss the First Amended Complaint. See

generally Matiella v. Murdock St. LLC, No. 21-cv-2112, 2023 WL 4684854 (D.D.C. July 21,

2023). The Court held that the statute of limitations did not warrant dismissal of any of Plaintiff’s

claims “at this early stage.” Id. at *7. In particular, the Court noted that to dismiss a claim on

8 statute of limitations grounds a court must find that “the complaint on its face is conclusively time

barred.” Id. at *6 (quoting Toggas v. Wachovia Mortgage, FSB, No. 19-cv-3407, 2020 WL

3103966, at *6 (D.D.C. June 11, 2020)). In denying Defendants’ motions, the Court found that,

after giving Plaintiff the benefit of the full one year and twelve days of tolling of the limitations

period provided by order of the D.C. Superior Court because of the COVID-19 pandemic, Plain-

tiff’s “negligence and trespass claims would be deemed timely filed on January 18, 2023 (when

Plaintiff sought leave to file the [First] Amended Complaint) as long as they accrued on or after

January 7, 2019.” Id. at *7. But because the First Amended Complaint alleged that construction

at The Exchange was ongoing in 2019, 2020, and 2021, and provided no more specificity as to

when the damage arising from those activities occurred at Plaintiff’s property, the Court found that

Defendants had “not demonstrated . . . that the allegations in the [First] Amended Complaint ‘con-

clusively’ demonstrate that Plaintiff’s claims [were] time barred using the traditional accrual rule.”

Id. “Even had Defendants done so,” the Court continued, “it would be improper to dismiss on

[statute of] limitations grounds because whether to apply the discovery rule or continuing tort

doctrine in this case raises questions of fact not properly adjudicated at this early stage of the

litigation.” Id.

The Court also held that Plaintiff had stated a claim for negligence against EWORA and

IFG. Id. at *10. Specifically, the Court found that Plaintiff had sufficiently pleaded that they owed

him a duty of care in performing various heavy construction activities on the property adjoining

his, that they had breached that duty of care by failing to take adequate measures to protect Plain-

tiff’s property from damage—including by inadequately shoring the excavation site—and that

their breach of duty was the proximate cause of damage to Plaintiff’s property. Id. at *9–10. The

Court also found that Plaintiff had stated a claim for negligence against City Concrete by

9 incorporating into the First Amended Complaint EWORA and IFG’s assertion that “[t]o the extent

that Plaintiff’s property was trespassed on and/or otherwise damaged, it was due to the acts or

omissions of City Concrete.” Id. at *11. Moreover, the Court noted that City Concrete’s work

included “excavation, drilling and other heavy construction activity,” which was consistent with

the mechanism of damage to Plaintiff’s property alleged in the First Amended Complaint. Id. The

Court also found that, in addition to Plaintiff stating a claim against EWORA and IFG for their

direct negligence, Plaintiff had also stated a claim against these defendants based on the alleged

negligence of their subcontractor, City Concrete. Id. at *12. Specifically, the Court found that the

determination of whether the facts supported an exception to the “general rule” in D.C. law that

“an employer of an independent contractor is not liable for physical harm caused by the acts or

omissions of the contractor” was “fact-specific and not generally suitable for resolution on a mo-

tion to dismiss” and that the facts as alleged were sufficient to survive a motion to dismiss on the

theory that the activities EWORA and IFG contracted City Concrete to perform were “inherently

dangerous,” although the Court noted that EWORA and IFG’s argument that the exception does

not apply “eventually may be found to have merit.” Id. at *11–12 (quoting Wilson v. Good Humor

Corp., 757 F.2d 1293, 1301 (D.C. Cir. 1985); and then quoting Anderson v. Wash. Metro. Trans.

Auth., Civ. A. No. 91-646, 1991 WL 197024, at *2 (D.D.C Sept. 18, 1991)).

The Court then turned to the trespass claims and found that Plaintiff had stated trespass

claims against EWORA, IFG, and City Concrete. In doing so, the Court dismissed one of Plain-

tiff’s theories of trespass—that the excavation at the construction site had resulted in damage

caused by soil movement under Plaintiff’s property—but sustained Plaintiff’s theory of trespass

based on vibrations from the excavation, drilling, and heavy construction work, which Plaintiff

alleges caused damage to the foundation of his building. Id. at *13, *15. While the Court noted

10 that the D.C. Court of Appeals had not ruled definitively on whether a trespass can occur from

“intangible invasions” of property, it looked to Maryland law—on which D.C. common law is

largely based—to find that the District of Columbia would follow the “modern theory” of trespass,

which includes intangible invasions of “noise, gas emissions, or vibration” that cause “serious

‘physical damage’” to another’s property. Id. at *15.

Finally, the Court struck Plaintiff’s claims for injunctive relief—Counts VI, IX, and XII—

“because those counts are not causes of action but merely state a form of relief.” Id. at *17.

C. The Second Amended Complaint

On December 20, 2023, Plaintiff moved for leave to file the Second Amended Complaint,

ECF No. 138, which the Court granted, ECF No. 139. Plaintiff formally filed his Second Amended

Complaint on January 6, 2024. ECF No. 140. The Second Amended Complaint is substantially

the same as the First Amended Complaint, except for the following: (1) Plaintiff adds Luis Con-

struction as a new defendant and asserts one count of negligence and one count of trespass against

it, see id., ¶¶ 67–71, 154–68; (2) Plaintiff adds a request for punitive damages against each De-

fendant, see id., ¶¶ 72–92, 101, 108, 116, 123, 131, 138, 146, 153; and (3) Plaintiff attaches an

expert report from construction investigator Timothy Galarnyk, see id. at 48–56 (Exhibit D).

With respect to the negligence of Luis Construction, the Second Amended Complaint al-

leges that “EWORA asked City Concrete to find a contractor to provide shoring for the construc-

tion,” and “City Concrete thereafter contracted with Luis Construction,” which “performed work

necessary to construct the soldier pile and lagging walls to shore the earth exposed by the excava-

tion.” ECF No. 140, ¶¶ 67–69. Therefore, Plaintiff alleges, Luis Construction is responsible “to

the extent that any shoring work, or any demolition, excavation, underpinning, or construction . . .

performed by Luis Construction caused Plaintiff’s damages” and “Luis Construction is jointly and

severally liable for Plaintiff’s damages” along with the other Defendants. Id. at 70–71.

11 With respect to punitive damages, Plaintiff alleges that Defendants “failed to perform a

pre-construction survey,” which is a “standard custom and practice in the construction industry,”

that he “promptly notified Defendant contractors . . . of the damage caused by the demolition and

excavation activity,” and that “Defendant Murdock was made well aware of this issue” but the

allegedly injurious construction activities “continued without proper modification of the means

and methods of construction otherwise necessary to prevent damage to Plaintiff’s [p]roperty.” Id.,

¶¶ 73–77. More, Plaintiff alleges that “[e]ven after Defendants Murdock, EWORA and IFG had

notice that damage began to occur to Plaintiff’s property in September 2017,” none of them “took

any actions to assure that the continued construction . . . would be performed in a manner to avoid

significant structural damage to Plaintiff’s property,” “willfully and f[l]agrantly continued to cause

damage to Plaintiff’s Property,” and “acted with willful disregard for Plaintiff’s rights.” Id., ¶¶

82, 86. Plaintiff claims that the total damage to his property is worth “at least $2,298,596,” and

that “a total removal of the townhomes on Plaintiff’s Property is the only practical and logical

solution because the two townhomes continue to ‘settle’ as a result of the Murdock building con-

struction.” Id., ¶¶ 89–91.

D. Murdock Street’s Cross-Claim Against EWORA and IFG

On January 31, 2024, Murdock Street filed a cross-claim against EWORA, IFG, City Con-

crete, and Luis Construction. ECF No. 146 at 24–28. Count One of the cross-claim alleges breach

of contract against EWORA and IFG on the grounds that those cross-defendants breached their

contractual obligation to “provide [their] Services in a workmanlike manner, and in compliance

with all applicable . . . laws and regulations” and to “us[e] knowledge and recommendations for

performing the services which meet generally acceptable standards in . . . [the] community and

region, and will provide a standard of care equal to, or superior to, care used by service providers

similar to [EWORA] on similar projects.” Id. at 27. Count Two alleges Murdock Street is entitled

12 to implied indemnification from EWORA, IFG, City Concrete, and/or Luis Construction because

“Plaintiff’s alleged damages,” if true, were the fault of those cross-defendants. Id. at 28. Finally,

Count Three alleges (on the same grounds) that if Plaintiff’s allegations are true, Murdock Street

“is entitled to a contributive share from each of [the] Cross-Defendants.” Id.

II. LEGAL STANDARD

A. Rules 12(b)(6) and 12(c)

In a complaint, a plaintiff must provide a “short and plain statement of the claim,” Fed. R.

Civ. P. 8(a)(2), that “give[s] 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) (second alteration in original)

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A motion to dismiss under Rule 12(b)(6)

challenges the sufficiency of a complaint on the basis that it fails to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). While a plaintiff need not make “detailed factual alle-

gations” to avoid dismissal, he or she must provide “more than labels and conclusions” or “a for-

mulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Rather, the

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). To meet this standard, a plaintiff must “plead[ ] factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “In

assessing a Rule 12(b)(6) motion, a court may consider only ‘the facts contained within the four

corners of the complaint’ along with ‘any documents attached to or incorporated into the com-

plaint, matters of which the court may take judicial notice, and matters of public record.’” Yazzie

v. Nat’l Org. for Women, No. 19-cv-3845, 2021 WL 1209347, at *6 (D.D.C. Mar. 30, 2021) (in-

ternal citations omitted) (first quoting Nat’l Postal Prof’l Nurses v. U.S. Postal Serv., 461 F. Supp.

13 2d 24, 28 (D.D.C. 2006); and then quoting United States ex rel. Head v. Kane Co., 798 F. Supp.

2d 186, 193 (D.D.C. 2011)).

“To prevail on a Rule 12(c) motion, ‘[t]he moving party must show that no material issue

of fact remains to be solved and that it is entitled to judgment as a matter of law.’ The standard of

review for motions pursuant to Rule 12(c) essentially mirrors the standard for motions to dismiss

under Rule 12(b).” Tapp v. Wash. Metro. Area Transit Auth., 306 F. Supp. 3d 383, 391 (D.D.C.

2016) (quoting Judicial Watch, Inc. v. U.S. Dep’t of Energy, 888 F.Supp.2d 189, 191 (D.D.C.

2012)). However, “while the focus of a motion to dismiss lies with the plaintiff's inability to

proceed on his claim (whether due to the Court’s lack of subject-matter jurisdiction, or the com-

plaint’s lack of factual allegations to support a claim, or otherwise), a motion for judgment on the

pleadings centers upon the substantive merits of the parties’ dispute.” Id. at 391–92.

B. Law of the Case Doctrine

The “‘[l]aw-of-the-case doctrine’ refers to a family of rules embodying the general concept

that a court involved in later phases of a lawsuit should not re-open questions decided (i.e., estab-

lished as the law of the case) by that court or a higher one in earlier phases.” Crocker v. Piedmont

Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995). The doctrine counsels that “the same issue

presented a second time in the same case in the same court should lead to the same re-

sult.” LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc) (emphasis omitted).

“This rule of practice promotes the finality and efficiency of the judicial process by ‘protecting

against the agitation of settled issues.’” Christianson v. Colt Indus. Operating Corp., 486 U.S.

800, 8116 (1988) (quoting 1B James William Moore et al., Moore’s Federal Practice ¶ 0.404[1],

p. 118 (1984)); see also Morgan v. Berry, 785 F. Supp. 187, 191 (D.D.C. 1992)

(“Law of the case is designed to promote judicial efficiency and the judicious resolution of

claims.”); 18B Charles Alan Wright et al., Federal Practice and Procedure § 4478 (2d ed.) (“Law-

14 of-the-case principles . . . are a matter of practice that rests on good sense and the desire to protect

both court and parties against the burdens of repeated reargument by indefatigable diehards.”).

While the doctrine does not prohibit a court from reconsidering earlier decisions, courts should

generally “refuse to reopen what has been decided” except in “extraordinary circum-

stances,” Christianson, 486 U.S. at 817 (internal quotation marks omitted) (quoting Messinger v.

Anderson, 225 U.S. 436, 444 (1912)), such as where there is “new evidence, an intervening change

of law, or some combination of clear error and manifest injustice,” Wright et al., supra, § 4478.

III. DISCUSSION

A. Statute of Limitations

As the Court explained in its prior Memorandum Opinion, “the D.C. Circuit has ‘repeatedly

held’ that ‘courts should hesitate to dismiss a complaint on statute of limitations grounds based

solely on the face of the complaint.’” Matiella, 2023 WL 4684854, at *6 (quoting Firestone v.

Firestone, 76 F.3d 1205, 1208–09 (D.C. Cir. 1996) (per curiam)). A motion to dismiss may be

granted on statute of limitations grounds “only if the complaint on its face is conclusively time

barred.” Toggas, 2020 WL 3103966, at *6 (quoting McQueen v. Woodstream Corp., 244 F.R.D.

26, 31 (D.D.C. 2007)); see also Zorgani v. District of Columbia, No. 17-cv-2360, 2022 WL

1491133, at *4 (D.D.C. May 11, 2022) (“[A] defendant is entitled to succeed on a Rule 12(b)(6)

motion to dismiss brought on statutes of limitations grounds only if the facts that give rise to this

affirmative defense are clear on the face of the plaintiff's complaint.” (quoting Lattisaw v. District

of Columbia, 118 F. Supp. 3d 142, 153 (D.D.C. 2015))). To prove that conclusive bar, “no rea-

sonable person could disagree on the date on which the cause of action accrued.” Toggas, 2020

WL 3103966, at *6 (quoting McQueen, 244 F.R.D. at 32). Where there is a factual dispute bearing

on the statute of limitations, a motion to dismiss should be denied. See Capitol Servs. Mgmt., Inc.

v. Vesta Corp., 933 F.3d 784, 789 (D.C. Cir. 2019) (reversing the grant of a motion to dismiss

15 where the factual question of when the plaintiff had notice of the claim was not resolved by the

face of the complaint); de Csepel v. Republic of Hungary, 613 F. Supp. 3d 255, 305 (D.D.C. 2020)

(“[M]otions to dismiss based on a limitations defense are disfavored because resolution generally

requires the development of a record and the adjudication of factual issues.” (quoting de Csepel v.

Republic of Hungary, 808 F. Supp. 2d 113, 139 (D.D.C. 2011)); see also Williams-Jones v. La-

Hood, 656 F. Supp. 2d 63, 68 (D.D.C. 2009) (denying a motion to dismiss where a factual dispute

existed regarding when the plaintiff knew or should have known of the conduct in question).

Moreover, at the motion to dismiss stage, defendants “are not entitled to offer their own evidence—

even if uncontested—but must rely, instead, exclusively on the factual allegations contained in

[the] complaint.” Marzorati v. MedStar-Georgetown Med. Ctr., Inc., 265 F. Supp. 3d 24, 26

(D.D.C. 2017).

As the Court also explained in its prior Memorandum Opinion, generally, the timeliness of

a cause of action depends on three things: (1) the length of the appropriate limitations period, (2)

the date that the cause of action accrued and the limitations period began to run, and (3) the date

the relevant claims were filed with the court. Matiella, 2023 WL 4684854, at *7. Under the law

of the District of Columbia,5 for both negligence claims and claims to recover for “an injury to real

or personal property”—which includes trespass claims—a litigant must bring suit within three

years from when the claim accrues. D.C. Code § 12-301(3), (8); see L’Enfant Plaza E., Inc. v.

John McShain, Inc., 359 A.2d 5, 6 (D.C. 1976) (finding that D.C. Code § 12-301(3), prescribing a

5 In a diversity case like this one, the limitations period and accrual date are questions of state law. See A.I. Trade Fin., Inc. v. Petra Int’l Banking Corp., 62 F.3d 1454, 1458 (D.C. Cir. 1995) (citing Guaranty Trust Co. v. York, 326 U.S. 99, 110 (1945)) (explaining that “a federal court sitting in diversity looks to the state law to determine whether a cause of action based upon state law has expired”). For purposes of choice of law, the District of Columbia “treat[s] statutes of limitations as procedural, and therefore almost always mandate[s] application of the District’s own statute of limitations.” Id. (citing Namerdy v. Generalcar, 217 A.2d 109, 113 (D.C. 1966) (“[A] limitation on the time of suit is procedural and is governed by the law of the forum.”)).

16 three-year statute of limitations, is “the controlling statutory provision” for trespass actions); Sykes

v. U.S. Att’y for the Dist. of Columbia, 770 F. Supp. 2d 152, 155 (D.D.C. 2011) (finding that

“[n]egligence . . . ha[s] a three-year statute of limitations”) under D.C. Code § 12-301(8)). A com-

plicating factor here, however, is a series of orders entered by the Chief Judge of the D.C. Superior

Court pursuant to D.C. Code § 11-947(a) that, due to the COVID-19 pandemic, tolled D.C. Code

statutes of limitations between March 18, 2020, and March 31, 2021, inclusive.6, 7 See Tovar, 317

A.3d at, 902 (referring to “the March 18, 2020, to March 31, 2021, emergency [tolling] period”).

In its prior Memorandum Opinion, the Court found—and Defendants appeared to agree—that

6 D.C. Code § 11-947(a) provides that, “[i]n the event of a natural disaster or other emergency situation,” the Chief Judge of the D.C. Superior Court “may enter such order or orders as may be appropriate to delay, toll, or otherwise grant relief from the time deadlines imposed by otherwise applicable laws or rules.” See also Tovar v. Regan Zambri Long, PLLC, 317 A.2d 884, 900 & n.7 (D.C. 2024). 7 See Order, Joint Committee on Judicial Administration for the District of Columbia Courts, https://perma.cc/NTL9- ESJE (Mar. 18 2020) (authorizing D.C. Courts to, inter alia, toll deadlines); Order, Superior Court of the District of Columbia, https://perma.cc/P2DC-8XCL (issued Mar. 18, 2020, amended Mar. 19, 2020) (tolling statute of limitations through May 15, 2020); Order, Superior Court of the District of Columbia, https://perma.cc/C4FN-C4VQ (May 14, 2020) (tolling statute of limitations until June 19, 2020); Order, Superior Court of the District of Columbia, https://perma.cc/C4UX-K6L9 (June 19, 2020) (tolling statute of limitations through August 14, 2020); Order, Superior Court of the District of Columbia, https://perma.cc/PE5N-BBNM (Aug. 13, 2020) (tolling statute of limitations through November 9, 2020); Order, Superior Court of the District of Columbia, https://perma.cc/2V4F-8L48 (Nov. 5, 2020) (tolling statute of limitations through January 15, 2021); Order, Superior Court of the District of Columbia, https://perma.cc/F9RC-CW7F (Jan. 13, 2021) (tolling statute of limitations through March 31, 2021); Order, Superior Court of the District of Columbia, https://perma.cc/6M4D-R2US (Mar. 30, 2021) (indicating the tolling of statutes of limitations was ending).

Under the doctrine articulated in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal courts that sit pursuant to their diversity jurisdiction are “to apply state substantive law and federal procedural law.” Hanna v. Plumer, 380 U.S. 460, 465 (1965). The statute of limitations is substantive under the Erie doctrine. A.I. Trade, 62 F.3d at 1458 (citing Guaranty Trust Co. v. York, 326 U.S. 99 (1945)). Following this doctrine, federal courts around the country sitting in diversity have applied state COVID-era tolling provisions as substantive law, even where the diversity cases were initially filed in federal court. See Ceriani v. Dionysus, Inc., 599 F. Supp. 3d 365, 369 (E.D. Va. 2022) (finding that state COVID-19 emergency orders tolled the statute of limitations for state law claims in a diversity case filed initially in federal court); accord Timboe v. Clark, No. 20-cv-08719, 2022 WL 991721, at *4–5 (N.D. Cal. Mar. 31, 2022); Cain v. Cty. of Niagara, No. 20-cv-1710, 2022 WL 616795, at *7 (W.D.N.Y. Mar. 2, 2022); Liberty Mut. Ins. Co. v. Murphy, No. 20-cv-01961, 2021 WL 2784264, at *4 (D. Md. July 2, 2021); Allen v. Sherman Oper- ating Co., LLC, 520 F. Supp. 3d 854, 866 (E.D. Tex. 2021); Bownes v. Borroughs Corp., No. 20-cv-964, 2021 WL 1921066, at *2 (W.D. Mich. May 13, 2021); Murden v. Wal-Mart, No. 20-cv-2505, 2021 WL 863201, at *2–3 (W.D. Tenn. Mar. 8, 2021); Allen v. Sherman Operating Co., LLC, No. 20-cv-290, 2021 WL 860458, at *7–11 (E.D. Tex. Feb. 18, 2021); Argueta v. City of Galveston, No. 20-cv-367, 2021 WL 137664, at *2 (S.D. Tex. Jan. 14, 2021); Lewis v. City of Edmond, No. 19-cv-489, 2020 WL 6275174 (W.D. Okla. Oct. 26, 2020).

17 Plaintiff should benefit by adding one year and twelve days8 to any limitations period because of

that emergency tolling provision, so long as the limitations period began to run on or before that

date. ECF No. 93 at 14–15; ECF No. 64-1 at 10; ECF No. 83 at 6–7; see also Fragola, 2022 WL

1908824, at *3 (in diversity case, taking judicial notice of the D.C. Superior Court administrative

orders, and finding that they tolled all D.C. Code statutes of limitations from March 18, 2020, until

March 30, 2021, the date that the limitations period began to run again). However, since that

Memorandum Opinion was issued, the D.C. Court of Appeals has clarified how and when the

8 Calculation of that period was the result of an interpretation that statutes of limitations were tolled beginning on March 18, 2020, and began to run again on March 30, 2021. See Matiella, 2023 WL 4684854, at *7 & n.8. That is a calculation that has been made by other courts, see Fragola v. Kenific Grp., Inc., No. 21-cv-1423, 2022 WL 1908824, at *3 (D.D.C. June 3, 2022) (indicating that the tolling period began on March 18, 2020, and that “[o]n March 30, 2021, the applicable limitations period began to run again”), as well as by parties here, see ECF No. 64-1 at 9 & n.4 (EWORA and IFG asserting that “[t]he tolling period for statutes of limitations ended on March 30, 2021,” and citing Fragola as support); ECF No. 83 at 6–7 (City Concrete stating, “[a]lthough the running of the statute of limitations was tolled by one year and twelve days as a result of the Covid-19 pandemic, as noted by co-defendants IFG and EWORA’s Motion to Dismiss . . . .”), and likely derives from the fact that the order of the Chief Judge of the D.C. Superior Court that indicated that tolling was ending was issued on March 30, 2021. See Order, Superior Court of the District of Columbia, https://perma.cc/6M4D-R2US (Mar. 30, 2021) (indicating the tolling of statutes of limitations was ending). There is another interpretation, however, that would have the tolling period last through March 31, 2021. The Chief Judge’s order of January 13, 2021—the order immediately prior to the March 30, 2021 order—stated that tolling would last “until at least March 31, 2021.” Order, Superior Court of the District of Columbia, https://perma.cc/F9RC-CW7F (Jan. 13, 2021) (emphasis added); see also Addendum to the General Order Concerning Civil Cases, Superior Court of the District of Columbia (amended Jan. 13, 2021), https://perma.cc/T3HU-SJE9 (“If no exception in the January 13 order or in the Chief Judge’s prior orders applies, the date on which the period of tolling ends is currently March 31, 2021 under the January 13 order . . . .”). The March 30, 2021 order did not explic- itly change that deadline; rather, its purpose was to extend “until at least May 20, 202l,” a more limited “suspension, tolling, and extension of deadlines”—which did not include the wholesale tolling of the D.C. Code’s statutes of limi- tations. Order, Superior Court of the District of Columbia, https://perma.cc/6M4D-R2US (Mar. 30, 2021). That is, the Chief Judge of the D.C. Superior Court’s orders would seem to indicate that the tolling period began on March 18, 2020 and continued through and including March 31, 2021. Unfortunately, the D.C. Court of Appeals decision in Tovar muddies the waters more. There, the court at one point stated that “to qualify for tolling, the deadline must have fallen within the emergency period, which was March 18, 2020, to March 30, 2021,” which would indicate that statutes of limitations began to run on March 31, 2021. Tovar, 317 A.3d at 901. At another point the court stated that March 30 is “one day earlier” than April 1, which must be a typographical error, as it ignores the existence of March 31. See id. at 902. And later in the opinion, it refers to the COVID-19 tolling period as “the March 18, 2020, to March 31, 2021, emergency period,” id.—a phrase that EWORA and IFG quote in their Notice of Supplemental Authority, see ECF No. 181 at 1. The Court interprets that last phrase as indicating that the tolling period lasted through and including March 31, 2021, and statutes of limitations began running on April 1, 2021, which is consistent with January 13, 2021 order of the Chief Judge of the D.C. Superior Court extending tolling “until at least March 31, 2021,” Order, Superior Court of the District of Columbia, https://perma.cc/F9RC-CW7F (Jan. 13, 2021). Accordingly, the duration of the COVID-19 tolling period was 379 days, or one year and fourteen days. As the Court believes the latter inter- pretation is the best reading of the orders of the Chief Judge of the D.C. Superior Court, it will guide the Court’s calculations going forward.

18 COVID-19 tolling period should be applied to statutes of limitations. That case, Tovar v. Regan

Zambri Long, PLCC, held that “for civil cases, the tolling orders tolled the limitations period only

in cases where the limitations period expired during the . . . tolling period.” 317 A.3d at 902

(emphasis added). In light of this material clarification in the law, the Court will revise its prior

analysis, applying Tovar in its discussion below as to each Defendant when calculating the dates

on which Plaintiff’s injuries could have accrued and not be time-barred by the statute of limita-

tions.9

As the Court explained in its prior Memorandum Opinion, a negligence claim accrues un-

der D.C. law when the “injury result[s]” and a trespass claim “accrue[s] on the date of the tres-

pass,” Matiella, 2023 WL 4684854, at *8 (alterations in original) (first quoting Hanna v. Fletcher,

231 F.2d 469, 472 (D.C. Cir. 1956); and then quoting L’Enfant Plaza E., 359 A.2d at 7). However,

the D.C. Court of Appeals also applies the “discovery rule” whereby “accrual occurs . . . when a

party knows or by the exercise of reasonable diligence should know: (1) of the injury; (2) the

injury’s cause in fact; and (3) of some evidence of wrongdoing.” Commonwealth Land Title Ins.

Co. v. KCI Techs., Inc., 922 F.3d 459, 464 (D.C. Cir. 2019) (alteration in original) (quoting Capitol

Place I Assocs. L.P. v. George Hyman Constr. Co., 673 A.2d 194, 199 (D.C. 1996), superseded in

part on other grounds by D.C. Code § 16-4406(c)). This “equitable doctrine” is designed to “pre-

serve claims in circumstances where the fact of injury or breach ‘may not be readily discernible at

the time when it actually incurred.‘” Commonwealth, 922 F.3d at 464–65 (quoting Ehrenhaft v.

9 On July 9, 2024, the Court ordered Plaintiff to file a response to EWORA and IFG’s notice of supplemental authority, which brought the Tovar decision to the Court’s attention and argued for its application here. See Minute Order (July 9, 2024). Plaintiff filed two pages of argument in response. See ECF No. 155. However, as with many of his responses to the pending motions to dismiss, Plaintiff declined to respond substantively to the specific issue, reverting back to his argument that the “law of the case” doctrine dictates that the Court should deny the pending motions without considering their merits. Id. Because Tovar represents an intervening change in the law material to the calculation of the statute of limitations in this matter, the Court will consider that case in its analysis going forward.

19 Malcolm Price, Inc., 483 A.2d 1192, 1202 (D.C. 1984)). Even more challenging when determin-

ing accrual of an injury, “allied with the discovery rule” is the “continuing tort” doctrine. Beard

v. Edmondson & Gallagher, 790 A.2d 541, 548 (D.C. 2002). Under this doctrine, a “continuing

tort” can be established for statute of limitations purposes by showing “(1) a continuous and repe-

titious wrong, (2) with damages flowing from the act as a whole rather than from each individual

act, and (3) at least one injurious act . . . within the limitation period.” Id. at 547–48 (alteration in

original) (internal quotation marks omitted) (quoting DeKine v. District of Columbia, 422 A.2d

981, 988 n.16 (D.C. 1980)). This doctrine is appropriately applied, however, only in situations

where “the wrongfulness and injuriousness of tortious activity may be discernible only from the

continuation over time of a course of conduct.” Id. at 548. In sum, the “running of the limitations

period is tolled until the continuation of the wrongful conduct renders the existence of the cause

of action sufficiently manifest to permit the victim to seek recovery.” Id.

1. Limitations Period for Claims Against Murdock Street

As noted, it is now clear that under D.C. law, the COVID-19 tolling period applies only to

claims for which the statute of limitations—here, three years—would otherwise have expired on a

date between March 18, 2020, and March 31, 2021, inclusive; in other words, it applies to claims

that accrued anytime from March 18, 2017, through March 31, 2018. In an easier case, then, the

Court would merely calculate the date three years from the accrual date; if that fell within the

COVID-19 tolling period (of March 18, 2020, to March 31, 2021), 379 days would be added to

the limitations period to determine the last date on which an action could have been filed as to that

claim.10 But here, as discussed below, the accrual dates of the claims against Murdock Street

10 The proper way to calculate the end of a limitations period that gets the benefit of COVID-19 tolling is not crystal clear. EWORA and IFG, the parties that filed the Notice of Supplemental Authority regarding the decision in Tovar, assert (without contradiction from any other party) that the statute of limitations on any claim that enjoys the benefit of COVID-19 tolling is extended for a period equal to the entire duration of that tolling period—here, as explained in

20 note 8, supra, 379 days. In Tovar the D.C. Court of Appeals cited with apparent approval an order from the Presiding Judge of the Civil Division of the D.C. Superior Court interpreting the Chief Judge of that court’s tolling order. See 317 A.3d at 901 n.9 (citing Addendum to the General Order Concerning Civil Cases, Superior Court of the District of Columbia (amended Jan. 13, 2021, https://perma.cc/T3HU-SJE9). That addendum (which was issued during the COVID-19 tolling period) explained that “new deadline[s] will be determined by the date on which the tolling period ends” and “depend[] in part on whether the event that triggers the deadline occurred before or after March 18, when the tolling period began.” Addendum to the General Order Concerning Civil Cases at 2, https://perma.cc/T3HU-SJE9. So far, so good—that is in line with the Tovar decision. It then asserts—in a line quoted in Tovar—that “[i]f an event before the start of the tolling period triggered a deadline that falls within the tolling period, the number of days re- maining before the original deadline on March 18 are added to the end of the tolling period.” Id., quoted in Tovar, 317 A.3d at 901 n.9. That statement, however, can be interpreted in two ways. It could mean that the number of days in the original limitations period left on March 18, 2020, should be calculated and the limitations period will end that number of days after the tolling period ends so that, for example, a claim that on March 18, 2020, had one week left in its limitations period would be timely if filed up to one week after March 31, 2021, the last day of the COVID-19 tolling period. On the other hand, if the clause “the number of days remaining before the original deadline on March 18 are added to the end of the tolling period” is meant to signify that the number of days left in the limitations period on March 18, 2020, will be added to a period that extends for the full duration of the COVID-19 tolling period, then the calculation would mirror the one urged by EWORA and IFG. A claim would be timely if filed on a date within the limitations period plus 379 days.

Tovar provides an example of how to calculate the end of a limitations period that gets the benefit of the COVID-19 tolling period, but it is of little help. The court there asserted that, if a claim with a three-year statute of limitations accrued on March 30, 2018, meaning that its filing deadline was March 30, 2021—a single day before the last day of the COVID-19 tolling period—that claim’s new filing deadline would be in April 2022, over one year after the filing deadline in the absence of tolling. Tovar, 317 A.3d at 902. That could be interpreted in line with the first example above—a claim whose statute of limitations expired on March 31, 2021, would have had 379 days left in its statute of limitations on March 18, 2020, and so its limitations period would be extended by 379 days from the end date of the COVID-19 tolling period, March 31, 2021, taking it into April 2022. Or it could be interpreted to mean that if a claim’s statute of limitations expired during the COVID-19 tolling period, that claim gets the benefit of the entire 379 days of tolling, taking it into April 2022. But the Tovar court also cited with approval the decision in Richards v. Hillard, which explained that there was

nothing irrational about the Chief Judge’s determination that statutes of limitations should be tolled only if they otherwise would have expired during the period of emergency. The prevailing view of scientists, public health officials, and court and other government leaders in the early months of the pandemic was that people should stay home as much as possible and not interact with others in person unless necessary to some urgent matter. It was thus entirely reasonable, in the court’s view, for the Chief Judge to determine that putative plaintiffs and their lawyers should not be forced to meet and investigate their claims during the heart of the pandemic but that those activities would be safe once the judicial emergency was lifted.

No. 2023-CAB-1452, 2023 WL 10352132, at *3 (D.C. Super. June 09, 2023), quoted in part in Tovar, 317 A.3d at 902. That is, the Tovar court seemed to rest its decision in part on the fact that communication between attorneys and clients and investigations of claims were interrupted during the COVID-19 emergency, an effect that lasted for its entire duration until the tolling period ended. That indicates that those who are able to take advantage of COVID-19 tolling should get the benefit of its full duration. More, Defendants EWORA and IFG (parties who have an interest in limiting the extent of the tolling period) have proposed, with no objection from any other party, calculations that give Plaintiff the benefit of the full duration of the tolling period, see ECF No. 181 at 3, just as they—along with Defendant City Concrete—did in their prior dispositive motions. See Matiella, 2023 WL 4686854, at *7; see also ECF No. 64-1 at 9–10; ECF No. 83 at 6. For these reasons, the Court will assume for the purposes of this opinion that limitations periods that expired during the COVID-19 tolling period should be extended by 379 days.

21 cannot be determined on this record; the only date that can be pinpointed is the date the claims

were filed: August 6, 2021, the date of the original complaint. And so, there will have to be some

reverse engineering to determine the dates on which accrual can have occurred in order for the

claims to be timely filed. As will be seen in the paragraph below, the result is two separate and

discontinuous periods during which the claims against Murdock Street could have accrued in order

to have been timely filed on August 6, 2021—a peculiar outcome, perhaps, but one that is con-

sistent with this Court’s interpretation of the D.C. Court of Appeals’ decision in Tovar.

Under the standard three-year statute of limitations, the claims in Plaintiff’s original com-

plaint would be timely if they accrued on or after August 6, 2018 (three years prior to the filing of

the original complaint on August 6, 2021). However, as noted, the three-year statutes of limitations

for claims that accrued from March 18, 2017, through March 31, 2018, are extended by an addi-

tional 379 days. To determine the earliest date on which a negligence or tort claim filed on August

6, 2021, would be timely with the benefit of the COVID-19 tolling period, the Court must deter-

mine the date 3 years and 379 days prior to August 6, 2021, which is July 23, 2017. To get at it

another way, a claim that accrued on July 23, 2017, with a three-year statute of limitations would

normally have to be filed by July 23, 2020.11 That date is within the COVID-19 tolling period, so

it gets the benefit of an extra 379 days. Adding those 379 days results in August 6, 2021, as the

last day on which the claim would be timely, which is the date the claims against Murdock Street

11 As discussed in Tovar, both the federal courts and the local D.C. courts use the “anniversary method” of computing deadlines when the limitations period is measured in years, so that the “the anniversary date of the date of accrual is the last day for instituting action.” Tovar, 317 A.3d at 904 (quoting Day v. Morganthau, 909 F.2d 75, 79 (2d Cir. 1990)). It works out that way in part because under both Rule 6(a) of the Federal Rules of Civil Procedure and Rule 6(a) of the D.C. Superior Court Civil Rules, the date triggering a specific time period is excluded from the calculation of the deadline. See id.; see also ASARCO, LLC v. Union Pac. R.R. Co., 765 F.3d 999, 1007-08 (9th Cir. 2014) (explaining that Federal Rule of Civil Procedure 6(a)’s method of computation, which excludes the triggering date, “is known as the anniversary method,” and “applies by default” unless the applicable statute dictates a different method).

22 were filed in this action. If the claim had accrued on July 22, 2017, it would still get the benefit

of the COVID-19 tolling, but the last day to file would be August 5, 2021, so claims filed on

August 6, 2021, would be time-barred. On the other hand, the latest the claim could have accrued

and still have the benefit of the COVID-19 tolling period was March 31, 2018 (three years before

the last day of the tolling period). A claim that accrued one day later, on April 1, 2018—as the

court recognized in Tovar—would not enjoy the benefit of COVID-19 tolling, because its limita-

tions period would have expired outside of “the March 18, 2020, to March 31, 2021, emergency

period.” See 317 A.3d at 902. Thus, Plaintiff’s claims against Murdock Street are not barred by

the statute of limitations if they accrued between July 23, 2017, and March 31, 2018, inclusive. In

addition, claims that accrued within the standard three years leading up to the filing date—that is,

on or after August 6, 2018—are also timely (those claims would not get the benefit of COVID-19

tolling because their limitations period would have expired outside the COVID-19 tolling period).

Thus, the application of the new caselaw with respect to COVID-19 tolling creates an un-

usual scenario where there are two nonconsecutive time periods during which a claim could have

accrued and been timely filed on August 6, 2021: July 23, 2017, through March 31, 2018 (with the

benefit of the COVID-19 tolling period to extend the statute of limitations by 379 days), and on or

after August 6, 2018 (within the standard 3-year statute of limitations period of the filing date). In

other words, Plaintiff’s claims here are only viable to the extent that they accrued within those two

time periods. Claims that accrued before July 23, 2017 (more than 3 years and 379 days before

the filing date) or between April 1, 2018, and August 5, 2018 (too late to qualify for the COVID-

19 tolling period extension, but too early to fall within the standard 3-year period) are time-barred.

2. Limitations Period for Claims Against EWORA and IFG

Plaintiff first asserted claims against EWORA and IFG in the First Amended Complaint.

The Court previously found that the operative date for the filing of the First Amended Complaint

23 was January 18, 2023, the date on which Plaintiff filed for leave to file the First Amended Com-

plaint. Matiella, 2023 WL 4684854, at *7 n.6 (collecting cases). While an amended pleading

bringing in a new defendant may, under certain circumstances, “relate back” to an earlier com-

plaint such that the operative date, for statute of limitations purposes, for the claims against the

new defendant is that of the earlier complaint, Plaintiff has conceded any such argument here. See

Fed. R. Civ. P. 15(c)(1)(C). Defendants EWORA and IFG have twice argued that the relation-

back doctrine does not apply to the amended complaints. See ECF No. 64-1 at 10–12; ECF No.

148-1 at 11–14. Plaintiff has twice failed to respond to those arguments in its memoranda in

opposition to EWORA and IFG’s motions to dismiss the First Amended and Second Amended

Complaints. See ECF No. 67 (Plaintiff’s response to EWORA and IFG’s motion to dismiss the

First Amended Complaint); ECF No. 157 (Plaintiff’s response to EWORA and IFG’s motion to

dismiss the Second Amended Complaint). Accordingly, the Court finds that Plaintiff has forfeited

any argument that the claims against EWORA and IFG in either amended complaint “relate back”

to the original complaint under Rule 15(c) and finds, therefore, that the operative date for those

claims is the date on which Plaintiff moved for leave to file the First Amended Complaint: January

18, 2023. See Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014) (“[I]f a party files

an opposition to a motion and therein addresses only some of the movant’s arguments, the court

may treat the unaddressed arguments as conceded.”); Hopkins v. Women’s Div., Gen. Bd. of Global

Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this Circuit that when

a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised

by the defendant, a court may treat those arguments that the plaintiff failed to address as con-

ceded.”), aff’d, 98 F. App’x 8 (D.C. Cir. 2004).

24 The Court next considers the length of the applicable limitations period for EWORA and

IFG. As discussed above, the D.C. Court of Appeals recently clarified that the COVID-19 tolling

period applies only to claims for which the statute of limitations would have expired during “the

March 18, 2020, to March 31, 2021, emergency period,” Tovar, 317 A.3d at 902; for claims like

the instant ones that carry a three-year statute of limitations, then, the benefit of the tolling period

applies only if they accrued from March 18, 2017, through March 31, 2018, inclusive (that is,

claims that otherwise would have expired within the COVID-19 tolling period three years later

from March 18, 2020, to March 31, 2021). The calculation here can be made somewhat differently

than the one above. Recall that the COVID-19 tolling provides 379 additional days to be added to

a limitations period. A claim accruing on March 31, 2018—the latest a claim could accrue and

have the benefit of the tolling period, which ended on March 31, 2021—would therefore be timely

if filed by April 14, 2022, 379 days after March 31, 2021.12 That is, no claim with a three-year

statute of limitations that was filed after April 14, 2022—379 days after the last day of the COVID-

19 tolling period—can receive the benefit of that tolling. Because the First Amended Complaint,

which includes the claims against EWORA and IFG, was filed after that date—on January 18,

2023—no injury that could be timely pleaded in the First Amended Complaint (without relating

back) can benefit from the tolling period, making the limitations period a simple three years for all

claims first asserted in the First Amended Complaint. Therefore, in order to be timely filed, the

claims against EWORA and IFG in that complaint would have to have accrued within three years

of the operative date of its filing: on or after January 18, 2020.13

12 Indeed, the Tovar court discussed a very similar scenario: “[A] litigant whose claim arose on April 1, 2018, would have been required to file their claim by April 1, 2021. Had their claim arisen just one day earlier, on March 3[1], 2018, however, their three-year deadline would have fallen within the tolling period, extending the deadline to file suit until April 2022.” Id. at 902. 13 As a check, assume that the claims against EWORA and IFG might get the benefit of the extra 379 days. Engaging in calculations similar to the ones above in connection with the claims against Murdock Street, three years plus 379

25 3. Limitations Period for Claims Against City Concrete

Although City Concrete has not argued in any of its motions that the claims against it in

the First Amended Complaint—which was the the first complaint in which it was named as a

defendant—or the substantially identical claims brought against in the Second Amended complaint

did not relate back to the original complaint, Plaintiff has never demonstrated that they do, as is its

burden. See Soto v. Brooklyn Corr. Facility, 80 F.3d 34, 35 (2d Cir. 1996) (discussing what the

plaintiff “must show” in order for his amended complaint to relate back to an earlier complaint);

Miller v. Holzmann, No. 95-cv-1231, 2007 WL 778599, at *2 (D.D.C. Mar. 6, 2007) (similar);

Alberts v. Arthur J. Gallagher & Co., 341 B.R. 91, 98 (“[The plaintiff] bears the burden of proof

to demonstrate that his amended complaint meets the requirements of Fed. R. Civ. P. 15(c)(3).”);

Woods v. District of Columbia, No. 20-cv-782, 2022 WL 17989326, at *4 (D.D.C. Dec. 29, 2022)

(“[I]t is Plaintiff’s burden to show actual notice [under Rule 15(c)(1)(C)] . . . .”).14 Because Plain-

tiff has not made any showing with respect to whether the claims against City Concrete relate back

to the original complaint, the Court will assume that they do not, and that the operative date for

the claims against it is the date on which Plaintiff moved for leave to file the First Amended Com-

plaint: January 18, 2023. As discussed above, the length of the limitations period for the claims

first asserted in the First Amended Complaint is three years. See supra Part III.A.2. Therefore, in

days (the length of a three-year limitations period extended by COVID-19 tolling) prior to January 18, 2023, is January 4, 2019. The three-year limitations period for a claim accruing on that date would end on January 4, 2022, which is after the end of the COVID-19 tolling period on March 31, 2021. The tolling therefore does not apply to the claims. 14 For a claim that changes a “party or the naming of the party against whom a claim is asserted,”—which the claims against City Concrete do because they add a new defendant not previously named—to relate back, Plaintiff must show that “within the [90-day] period provided by Rule 4(m) for serving the [earlier] summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C); see also Fed R. Civ. P. 4(m) (setting a 90-day period from the filing of the complaint for service of the summons and complaint on a defendant). Plaintiff has proffered no evidence that City Concrete “knew or should have known” of this action by November 4, 2021, which is 90 days after the filing of the original complaint.

26 order to be timely filed in the First Amended Complaint—assuming the claims do not relate back—

the claims against City Concrete must have accrued on or after January 18, 2020.

4. Limitations Period for Claims Against Luis Construction

Like Defendants EWORA and IFG, Luis Construction argued in its motion to dismiss that

the claims against it do not relate back to an earlier complaint. See ECF No.143 at 6. Plaintiff has

failed to respond to that argument in its memorandum in opposition to Luis Construction’s motion

to dismiss the Second Amended Complaint. See ECF No. 155. Accordingly, the Court finds that

Plaintiff has forfeited any argument that the claims against Luis Construction in the Second

Amended Complaint—the first complaint in which the claims were brought against Luis Construc-

tion—“relate back” under Rule 15(c) and further finds, therefore, that the operative date of those

claims is the date on which Plaintiff moved for leave to file the Second Amended Complaint:

December 20, 2023. See Wannall, 775 F.3d at 428; Hopkins, 284 F. Supp. 2d at 25; see also

Matiella, 2023 WL 4684854, at *7 (finding the operative date for an amended complaint is the

date on which the plaintiff moved for leave to file it). Because that date is after April 10, 2022, as

discussed above, no claims first asserted in the Second Amended Complaint can benefit from the

COVID-19 tolling period, and the length of the limitations period for those claims is simply three

years. See supra Part III.A.2 (finding that claims filed after April 10, 2022, cannot benefit from

the COVID-19 tolling period). Therefore, in order to proceed, the claims against Luis Construction

must have accrued on or after December 20, 2020.

5. Accrual of Claims

Defendants EWORA, IFG, City Concrete, and Luis Construction have each moved the

Court to dismiss Plaintiff’s claims against them on statute of limitations grounds. See ECF No.

148-1 at 4–14 (EWORA and IFG); ECF No. 145 at 7–10 (City Concrete); ECF No. 143 at 5–6

(Luis Construction). In ruling against similar claims by all of these parties except for Luis

27 Construction (who was not yet named as a defendant) as to the First Amended Complaint, the

Court held that Plaintiff’s claims were not barred by the statute of limitations because the facts in

that complaint did not “conclusively” establish that the damage to Plaintiff’s property accrued on

or after January 7, 2019, which is the earliest the Court calculated at that time that claims could

have accrued and still fall within the limitations period ending on the January 18, 202315 (the date

on which Plaintiff sought leave to file the First Amended Complaint). See Matiella, 2023 WL

4684854, at *8. The Court found that the only information in the First Amended Complaint as to

when the damage might have occurred was that the construction was “in progress” in “2019, 2020,

and into 2021,” and therefore, it was plausible that the claims had accrued—that is, Plaintiff had

discovered the damage and became aware that it was likely caused by Defendants’ wrongdoing—

within the limitations period beginning on January 7, 2019, and ending on the date Plaintiff moved

for leave to file his First Amended Complaint, January 18, 2023. See id.

EWORA, IFG, City Concrete, and Luis Construction all argue, however, that the Court

should dismiss the claims against them in the Second Amended Complaint, notwithstanding the

Court’s findings as to the First Amended Complaint. They argue that Plaintiff’s additional allega-

tions in the Second Amended Complaint demonstrate that Plaintiff became aware of damage to his

property sometime in September 2017, and that his claims therefore accrued by the end of that

month. See Luis Construction’s Mot., ECF No. 143 at 6 (“Allowing that construction allegedly

began sometime in September 2017 and therefore ‘rounding up’ to October 1, 2017 as the most

generous date that injury resulted to the Plaintiff, the Plaintiff had until October 13, 2021 to file

suit against Defendant Luis Construction”); City Concrete’s Mot., ECF No. 145 at 9 (“Plaintiff

15 This calculation was based on the assumption—which has since been disproved by the recent clarification from the D.C. Court of Appeals, see supra Part III.A.2—that all claims that accrued within three years of the COVID-19 tolling period would benefit from the tolling period.

28 had a discussion about the damage he had observed with Fatih [Guner], the owner of EWORA and

IFG[,] in late September 2017. As such, it is clear on the face of Plaintiff’s Second Amended

Complaint that he had actual notice of damage to his house by September 2017. . . . He [therefore]

would have had to file his claims . . . for this damage on or before October 12, 2021 . . . .”);

EWORA & IFG’s Mot., ECF No. 148-1 at 4–5 (“Plaintiff’s Second Amended Complaint indicates

that he knew of the cracking and damages at his property . . . as late as September 30, 2017. His

last day to sue Defendants for these claims was October 11, 2021 . . . .”). Defendants argue that

because Plaintiff did not file his claims against EWORA, IFG, and City Concrete until January

2023, and against Luis Construction until December 2023, the claims are conclusively barred by

the statute of limitations and should be dismissed. In response to these arguments by EWORA,

IFG, and City Concrete, Plaintiff provides five sentences arguing that because the Court previously

held that the statute of limitations did not bar the claims in the First Amended Complaint, stare

decisis and the “law-of-the-case” doctrine dictate that the Court should reach the same result here.

See ECF No. 154 at 6; ECF No. 157 at 3. Additionally, with respect to Luis Construction—which

was not a party to the First Amended Complaint—Plaintiff asserts that it “had no awareness of any

claim against Luis Construction until May 17, 2023” and that, on a conference call between the

parties on that date, “the parties essentially agreed that it would be prudent for the Court to have

all relevant parties before it.” ECF No. 155 at 4.

At the outset, the Court notes that, while the “law-of-the-case” doctrine is an important

guiding principle, it does not dictate, as Plaintiff suggests, that the Court must discount Defend-

ants’ statute of limitations arguments here simply because it denied their motions as to the First

Amended Complaint. That doctrine counsels that “the same issue presented a second time in the

same case in the same court should lead to the same result.” LaShawn A., 87 F.3d at 1393 (some

29 emphasis added, some emphasis omitted). Here, the Court is not presented with “the same issue”

with respect to the statute of limitations as it addressed in its prior Memorandum Opinion. Rather,

the Court here is presented with an amended complaint which alleges new facts as to when Plaintiff

discovered damage to his property—facts which are relevant to the statute of limitations analysis.

Defendants’ arguments therefore warrant consideration on their merits.

Even when considering the new facts presented in the Second Amended Complaint, how-

ever, Plaintiff’s claims are not conclusively time-barred, thus they will not be dismissed at this

stage of the proceedings. As discussed, when an injury is not immediately apparent upon its in-

fliction, its accrual occurs “when a party knows or by the exercise of reasonable diligence should

know: (1) of the injury; (2) the injury’s cause in fact; and (3) of some evidence of wrongdo-

ing.” Commonwealth Land Title Ins. Co., 922 F.3d at 464 (quoting Capitol Place I Assocs. L.P.,

673 A.2d at 199). The Second Amended Complaint asserts that “[a]fter the demolition of the prior

building on Defendant Murdock’s Property began, Plaintiff started to observe damage to Plaintiff’s

Property” and “promptly notified the Defendant contractors on Defendant Murdock’s Property of

the damage caused by the demolition and excavation activity at the adjacent Defendant Murdock’s

Property.” ECF No. 140, ¶¶ 72–73. Plaintiff further states that the damage “began in September

2017” and “Defendants Murdock, EWORA and IFG had notice that damage began to occur to

Plaintiff’s Property in September 2017.” Id., ¶ 79, 82; see also id. at 53 (Plaintiff’s expert’s report,

attached as Exhibit D to the Second Amended Complaint, stating that “[Plaintiff] observed crack-

ing in the concrete and walls of his buildings on September 30, 2017” and “recall[s] speaking to

[the owner of EWORA and IFG] during late September 2017 regarding his observations”). From

these facts, it appears that, by September 30, 2017, Plaintiff knew of an injury, reasonably believed

it had been caused by the conduct of Murdock Street, EWORA, and IFG, and had sufficient

30 evidence of wrongdoing to prompt him to notify those defendants of the resulting damage to his

property.

Defendants EWORA, IFG, and City Concrete argue that Plaintiff’s discovery of damage

to his property in September 2017 caused allegedly by the construction next door should result in

the “accrual” of all the claims in the Second Amended Complaint against them, thereby militating

in favor of their dismissal by operation of the statute of limitations, even with benefit of the

COVID-19 tolling period.16 However, fairly read, the Second Amended Complaint alleges inju-

ries to Plaintiff’s property later than September 2017. Specifically, it asserts that “construction

[that] included excavation, heavy drilling and other major construction activity” was “in progress”

“[i]n 2019, 2020, and 2021” and “directly caused the damage to Plaintiff’s property.” Id., ¶¶ 20,

23. For any injuries flowing from individual tortious acts that are distinct from that conduct which

caused the damage identified in September 2017, claims arising from those injuries may survive

so long as the conduct occurred (and the requirements of the discovery rule were met) within the

limitations period.17 Indeed, the Second Amended Complaint alleges that two of the defendants—

16 These Defendants are correct that if the accrual of an injury to Plaintiff’s Property in September 2017 were sufficient to trigger the statute of limitations as to every other injury caused to Plaintiff’s Property alleged in the Second Amended Complaint, the COVID-19 tolling period would not save Plaintiff’s claims against these defendants. Under the standard three-year statute of limitations, claims that accrued on September 30, 2017, would have to be filed by September 30, 2020. Because that expiration date falls within the COVID-19 tolling period (March 18, 2020, through March 31, 2021), under Tovar, these claims would benefit from a 379-day extension to the three-year statute of limi- tations, which would extend the limitations period to October 14, 2021. However, as discussed above in Parts III.A.2– 3, the operative date for the claims against EWORA, IFG, and City Concrete is more than a year later, on January 18, 2023. 17 Because the task of separating damage that occurred within the limitations period for each defendant from that which occurred outside the limitations period is a closely fact-bound one, it is inappropriate for resolution at this stage. See Capitol Servs. Mgmt., Inc. v. Vesta Corp., 933 F.3d 784, 789–90 (D.C. Cir. 2019) (reversing the grant of a motion to dismiss where the factual question of when the plaintiff had notice of claim was not resolved by the face of the complaint); de Csepel, 613 F. Supp. 3d at 305 (“[M]otions to dismiss based on a limitations defense are disfavored because resolution generally requires the development of a record and the adjudication of factual issues.” (quoting de Csepel, 808 F. Supp. 2d at 139); see also Williams-Jones v. LaHood, 656 F. Supp. 2d 63, 68 (D.D.C. 2009) (denying a motion to dismiss where a factual dispute existed regarding when the plaintiff knew or should have known of the conduct in question). For the same reason, as the Court stated in its prior Memorandum Opinion, it should not decide on a motion to dismiss whether some or all of the damage to Plaintiff’s property alleged in the Second Amended Complaint was part of a continuing tort, thereby effectively extending the statute of limitations to at least some of the

31 City Concrete and its subcontractor Luis Construction, against whom Plaintiff has asserted direct

claims of negligence and trespass—did not begin work until at least October 23, 2017, the date on

which Plaintiff alleges City Concrete signed an agreement to “provide labor and material for con-

struction of The Exchange at Defendant Murdock’s property.” ECF No. 140 at ¶ 61. Any negli-

gence or trespass committed by those defendants necessarily could not have occurred on or before

September 30, 2017. Moreover, even if all of the claims for direct negligence against Murdock

Street, EWORA, and IFG accrued on or before September 30, 2017—a conclusion that the Court

need not and does not reach here—they may still be vicariously liability for damage caused to

Plaintiff’s property by City Concrete and Luis Construction if the type of work they did is found

to be “inherently dangerous”—a determination that is also not appropriate at this phase of the

litigation.18 In sum, because the Court cannot determine based only on the pleadings that no injury

occurred during the limitations period for any claims asserted in the Second Amended Complaint,

it cannot say that those claims are conclusively time-barred.

B. Trespass

Under D.C. common law, “[t]respass . . . requires ‘(i) an unauthorized entry (ii) onto the

plaintiff’s property (iii) that interferes with the plaintiff’s possessory interest.’” Robinson v.

tortious conduct alleged therein. See Matiella, 2023 WL 4684854 at *6–8 ; cf. Beard, 790 A.2d at 548 (“When the plaintiff is or should be aware that he or she is being injured by a continuing tort, the statute of limitations begins to run. The plaintiff then may recover only for injuries attributable to the part of the continuing tort that was committed within the limitations period immediately preceding the date on which suit is brought.”); John McShain, Inc. v. L’En- fant Plaza Props., Inc., 402 A.2d 1222, 1231 n.20 (D.C. 1979) (“If . . . the continuing tort is of the type that causes a series of separate or recurrent injuries, then only those damages stemming from conduct occurring within the limita- tions period are recoverable.”). 18 The Court has already found that the question of whether the type of work at issue here was “inherently dangerous” so as to make an entity liable for injuries caused by the tortious conduct of an independent contractor is “normally a question of fact for the jury” that “cannot be determined on a motion to dismiss.” ECF No. 93 at 27–28 (quoting Anderson, No. 91-cv-646, 1991 WL 197024, at *2 (D.D.C. Sept. 18, 1991)).

32 Farley, 264 F. Supp. 3d 154, 163 (D.D.C. 2017) (quoting Council on Am.–Islamic Relations Action

Network, Inc. v. Gaubatz, 793 F. Supp. 2d 311, 344 (D.D.C. 2011)); see also Turpin v. Ray, 613

F. Supp. 3d 186, 215 (D.D.C. 2020) (same). Liability does not require a defendant to have “spe-

cific intent to invade unlawfully the property of another,” Nat’l Tel. Co-op. Ass’n v. Exxon Corp.,

38 F. Supp. 2d 1, 12 (D.D.C. 1998) (citing Balt. Gas and Elec. Co. v. Flippo, 684 A.2d 456, 461

(Md. App. 1996)); rather, a plaintiff must allege only that the defendant “intend[s] the act which

amounts to or produces the unlawful invasion, and the intrusion must at least be the immediate or

inevitable consequence of what [the defendant] willfully does,” Acosta Orellana v. CropLife Int’l,

711 F. Supp. 2d 81, 93 (D.D.C. 2010) (second alteration in original) (emphasis omitted) (quoting

Nat’l Tel., 38 F. Supp. 2d at 12).

In its previous Memorandum Opinion, this Court found that the District of Columbia would

follow the “modern” theory of trespass, which recognizes that a trespass can occur where intangi-

ble invasions, such as “noise, gas emissions, or vibration intrusions,” have caused serious “physi-

cal damage” to property. Matiella, 2023 WL 4684854, at *15 at 34 (quoting Goldstein v. Exxon

Mobil Corp., No. 17-cv-2477, 2023 WL 2667757, at *5 (C.D. Cal. Feb. 27, 2023)). The Court

further found that the First Amended Complaint “sufficiently allege[d] that vibrations caused sig-

nificant damage to [Plaintiff’s] property: ‘The construction, excavation and drilling on Defendant

Murdock’s Property . . . caused reverberations of the earth or other elements connected to Plain-

tiff’s Property or on Plaintiff’s Property to vibrate. Defendant Murdock’s actions directly caused

substantial and serious damage to Plaintiff’s Property.’” Id. (quoting 1st Am. Compl., ECF No.

50, ¶ 20).

The Court also found that the First Amended Complaint met the scienter requirement for a

cause of action for trespass—that “the trespass was intentional, the result of recklessness,

33 negligence, or the result of extra hazardous activity,” Id. (quoting Goldstein, 2023 WL 2667757,

at *5)—because it sufficiently alleged that Defendants intentionally engaged in the excavation and

drilling that Plaintiff claims caused the vibrations that damaged his property, 1st Am. Compl., ECF

No. 50, ¶¶ 20 (“The construction, excavation and drilling on Defendant Murdock’s Property [was]

at Defendant Murdock’s direction and ordered by Defendant Murdock . . . .”), 50 (“Defendants

IFG and EWORA’s work at Defendant Murdock’s Property included the construction necessary

to excavate the land . . . .”), 60 (“City Concrete performed construction work at Defendant Mur-

dock’s Property.”); and the intrusion of those vibrations onto his property was, if not an “inevita-

ble” consequence of the work, certainly an “immediate” one. Id. Moreover, the Court found that

even if there were no intentional trespass, Plaintiff had stated a claim for trespass under a negli-

gence theory. See id.

1. Plaintiff Has Stated a Claim of Trespass Against Murdock Street

In its motion for partial judgment on the pleadings, Murdock Street argues that Plaintiff

has failed to state a cause of action for trespass because (1) he “does not allege any entry by Mur-

dock Street” and the Court’s prior ruling with respect to the viability of Plaintiff’s “intangible

invasion” trespass claim was erroneous; and (2) “the common law in regard to construction activ-

ities occurring on neighboring properties has been abrogated by D.C. municipal regulations . . .

which do not provide for a private right of action.” ECF No. 147-1 at 4, 8. In response, similar to

its response to other Defendants’ arguments, Plaintiff provides just five sentences of briefing, ar-

guing only that the Court has already decided the issue and that decision should stand under the

“law-of-the-case” doctrine and stare decisis. ECF No. 156 at 3–4.

As to the first argument, Murdock Street argues that the Court’s application of Maryland

common law as a prediction of how the D.C. Court of Appeals would rule was erroneous. ECF

No. 147-1 at 4–8. Effectively, Murdock Street asks the Court to reconsider its ruling on that issue.

34 As previously discussed, the “law-of-the-case” doctrine counsels that “the same issue presented a

second time in the same case in the same court should lead to the same result,” LaShawn A., 87

F.3d at 1393 (emphasis omitted), except in certain circumstances where there is “new evidence,

an intervening change of law, or some combination of clear error and manifest injustice,” Wright

et al., supra, § 4478. Here, while the Court has not previously ruled on whether Plaintiff has stated

a claim of trespass against Murdock Street specifically (because Murdock Street did not move to

dismiss either of the prior complaints in this case), the Court previously analyzed Plaintiff’s iden-

tical theory of trespass against EWORA, IFG, and City Concrete, and found that he did state a

claim. See Matiella, 2023 WL 4684854, at *12–15. While Murdock Street appears to disagree

with the Court’s statements of law as to trespass under D.C. common law, Murdock Street has not

shown—or even argued—that there is now “new evidence, an intervening change of law, or some

combination of clear error and manifest injustice.” Wright et al., supra, § 4478. Therefore, the

Court declines Murdock Street’s invitation to reconsider its prior analysis and will instead apply

the law it previously announced to Plaintiff’s trespass claim against Murdock Street. Because that

claim against Murdock Street in the Second Amended Complaint is identical, in all material as-

pects, to the trespass claim asserted against EWORA, IFG, and City Concrete in the First Amended

Complaint, the Court finds that Plaintiff has stated a claim against Murdock Street under the same

“intangible invasion” theory which the Court previously found sufficient to state claim for trespass.

See id.19

Murdock Street’s second argument, that D.C. municipal regulations have abrogated com-

mon law liability for construction-related trespass on neighboring properties, has not been

19 As the Court found in its prior Memorandum Opinion, Plaintiff’s alternative trespass theory—the movement of soil under Plaintiff’s property caused by the lagging of the retaining wall during the excavation at The Exchange—is not cognizable as trespass. See id. at 13.

35 previously asserted in this case. The Court finds the argument unconvincing. Murdock Street

points to D.C. caselaw for the proposition that “a statute will be construed to abrogate the common

law where its words plainly import such a change,” ECF No. 147-1 at 9–10 (citing D.C. Pub. Schs.

v. D.C. Dep’t of Emp. Servs., 95 A.3d 1284, 1288 (D.C. 2014), and Holiday v. United States, 683

A.2d 61, 98 (D.C. 1996)), and argues that D.C. Municipal Regulation 12A § 3307.2.2 “clearly”

does so with respect to the construction-related trespass alleged in the Second Amended Com-

plaint. Id.. That regulation provides that “[w]here a party wall requires underpinning as a result

of the proposed work, a limited right of access to adjoining premises is authorized where [certain]

conditions are met,” in which case “the person doing the work is not required to obtain a right of

access to the adjoining or adjacent premises.” D.C. Mun. Regs. 12A, § 3307.2.2.

The Court disagrees with Murdock Street that this regulation provides a basis for dismiss-

ing what remains of Plaintiff’s trespass claim. First, there is no indication that this regulation

“plainly” abrogates the common law tort of trespass. Indeed, the provision makes no mention of

a construction company’s tort liability, whether sounding in trespass or negligence, arising from

its malfeasance or negligence. As Murdock Street notes, sections 3307.2.2 and 3307.3.1 do pro-

vide for a limited right of access to an adjacent property under certain circumstances when neces-

sary for underpinning or flashing repairs, respectively. See ECF No. 147-1 at 9 (quoting D.C.

Mun. Reg. tit. 12A § 3307, et seq.); see also D.C. Mun. Reg. tit. 12A § 3307.2.2 (underpinning),

§ 3307.4.1 (flashing repairs). While these regulations may allow for a construction company to

defend against a tangible trespass claim that is as narrowly circumscribed as the intrusions permit-

ted by the regulations, the Court has dismissed Plaintiff’s tangible trespass claim. See Matiella,

2023 WL 4684854, at *13 & n.16 (finding that “Plaintiff has not pleaded the required elements of

a cause of action for trespass based on the movement of soil from his property to the adjacent

36 property” and that “[t]he underpinning work cannot be the basis for a trespass claim”). What

remains is an intangible trespass claim arising from the vibrations from the excavation, drilling,

and heavy construction work allegedly caused by Murdock Street, which Plaintiff alleges caused

damage to the foundation of his building. Id. at *15. The regulations Murdock Street cites say

nothing about a “right of access” for such intangible invasions, and certainly do not “clearly abro-

gate” the common law tort of trespass in such a circumstance.20

Also inapposite is Murdock Street’s argument that section 3307 provides no private right

of action. While that may or may not be the case, Plaintiff is not bringing here a claim under

section 3307. In the Second Amended Complaint, Plaintiff’s claims are limited to common-law

claims for negligence (Counts I, III, V, VII, and IX) and trespass (Count II, IV, VI, VIII, X); while

Plaintiff alleges elsewhere that Murdock Street violated section 3307, he makes no direct mention

of the provision in his statement of the claims. See 2d Am. Compl., ECF No. 140 at ¶¶ 40–41, 67–

168. Though he has not yet explicitly asserted it, the doctrine of negligence per se may be Plain-

tiff’s reason for alleging in his complaint that Defendants violated Section 3307. Under that doc-

tine, a plaintiff may “‘rely on a statute or regulation as proof of the applicable standard of care’

. . . ‘if the statute is meant to promote safety, if the plaintiff is a member of the class to be protected

by the statute, and if the defendant is a person upon whom the statute imposes specific duties.’”

Night & Day Mgmt., LLC, v. Butler, 101 A.3d 1033, 1039 (D.C. 2014) (quoting Clark v. District

of Columbia, 708 A.2d 1134, 1140 (D.C. 2009); and then quoting Ginsberg v. Granados, 963 A.2d

1134, 1140 (D.C. 2009)). The Court need not determine here whether these criteria are met

20 The Court also notes that the provision to which Murdock Street cites, D.C. Municipal Regulation 12A § 3307.2.2, was added to the regulations effective May 29, 2020. See 67 D.C. Reg. 5690 (May 29, 2020) (publication of final rulemaking). The regulation may or may not have been in effect at the time of the alleged trespass (or trespasses), which, as alleged in the Second Amended Complaint, could have occurred “[i]n 2019, 2020, [or] 2021.” ECF No. 140, ¶ 20.

37 because Plaintiff has not yet made such an argument. It is enough to say that whether the regulation

creates a private right of action is not an element of the determination. See id.

Therefore, the Court will deny Murdock Street’s motion for partial judgment on the plead-

ings as to these issues.

2. Plaintiff Has Stated a Claim of Trespass Against EWORA, and IFG, and City Concrete

EWORA and IFG (jointly) and City Concrete all argue that Plaintiff has failed to state a

claim of trespass against them in the Second Amended Complaint. See EWORA & IFG’s Mot.,

ECF No. 148-1 at 14– 20; City Concrete’s Mot., ECF No. 145 at 12–13. EWORA and IFG

fault the Court’s analysis in reaching what it calls the “Erie-guess,” stating that it erred in looking

to Maryland law because “D.C. law governs, not Maryland law,” and “‘Maryland law is not bind-

ing precedent’ on the D.C. Court of Appeals.” ECF No. 148-1 at 15 (quoting West v. United States,

866 A.2d 74, 79 (D.C. 2005)). But, as the Court explained in its prior Memorandum Opinion,

where there is no established D.C. common law on an issue, D.C. courts look to Maryland law to

help predict how the D.C. Court of Appeals would rule, see Matiella, 2023 WL 4684854, at *15,

a practice that EWORA and IFG explicitly recognize, see ECF No. 148-1 at 15 (noting that “Mar-

yland law forms the basis of D.C. common law” and that Maryland case law is “persuasive au-

thority”). They further recognize that “when forecasting how the D.C. Court of Appeals will rule,

this Court is entitled to kick the tires on these nonbinding opinions or disregard them in their en-

tirety,” and their arguments make clear that it is an open question how D.C.’s highest court would

rule on trespass issue. ECF No. 148-1 at 18–19. The Court recognizes that there are colorable

arguments that the D.C. Court of Appeals would not recognize an intangible invasion trespass

claim, some of which are raised here. However, the fact that there might be some doubt about the

correctness of the Court’s prior determination is not tantamount to a showing that it was clearly

38 erroneous; nor has any party attempted to show that allowing Plaintiff’s trespass claims to go for-

ward would work a manifest injustice. See Wright et al., supra, § 4478. The Court therefore

adheres to its prior decision under the law of the case doctrine and will not grant EWORA, IFG,

or City Concrete’s motions to dismiss the trespass claims on these grounds.

Having already disposed of Plaintiff’s other theories of trespass—that underpinning or soil

movement constituted a physical invasion of Plaintiff’s property and therefore a trespass—in its

prior ruling, see Matiella, 2023 WL 4684854, at *13 & n.16, the Court need not further address

these defendants’ arguments against those theories.

3. Plaintiff Has Stated a Claim of Trespass Against Luis Construction

The Second Amended Complaint adds a claim of trespass against Luis Construction, a new

defendant. See 2d Am. Compl., ECF No. 140, ¶¶ 162–68. Because Luis Construction was not

named in either of the earlier complaints, unlike EWORA, IFG and City Concrete, the Court has

not previously ruled on whether Plaintiff has stated a trespass claim against Luis Construction.

However, the trespass claim against Luis Construction is identical, in all material respects, to those

asserted against EWORA, IFG, and City Concrete in the First Amended Complaint. Compare 2d

Am. Compl., ECF No. 140, ¶¶ 162–66 with 1st Am. Compl., ECF No. 50, ¶¶ 94–99 (trespass by

EWORA), 115–20 (trespass by IFG); 136–41 (trespass by City Concrete). Luis Construction ar-

gues that Plaintiff has not stated a claim because the complaint “provides no date for when the

shoring work was performed and/or completed by Luis Construction,” and “none of the areas of

concern” in the report from the structural engineer “point directly to Defendant Luis Construction

or the work that was performed by Luis Construction.” ECF No. 143 at 4–5. In response, Plaintiff

states only that the “Court already found that Plaintiff stated negligence and trespass claims” and

“Luis Construction is not in a materially different position [from its co-defendants] as it relates to

the substantive claims.” ECF No. 155 at 5.

39 The Court finds that Luis Construction is not in a materially different position from

EWORA, IFG, and City Concrete with respect to the trespass claim. The only potentially material

difference between City Concrete and Luis Construction is that the complaint alleges that Luis

Construction, as City Concrete’s subcontractor, performed a narrower scope of work—“work nec-

essary to construct the soldier pile and lagging retaining walls to shore the earth exposed by the

excavation on the construction of The Exchange.” Luis Construction’s Mot., ECF No. 143 at 4

(quoting 2d Am. Compl., ECF No. 140, ¶ 69). While it is possible that this particular type of work

did not involve the type of drilling and heavy construction activity that would cause vibrations of

the kind Plaintiff alleges damaged his property—and which the Court has already found would

constitute a trespass under D.C. law—there is not enough information in the complaint to conclu-

sively make such a determination, which would likely require a construction engineer or similar

expert to testify as to that question. See Marzorati, 265 F. Supp. 3d at 26 (noting that at the motion

to dismiss stage, defendants “are not entitled to offer their own evidence” and “must rely . . .

exclusively on the factual allegations contained in [the plaintiff’s] complaint.”). Therefore, while

Luis Construction may be able to introduce evidence that will allow it to prevail on this argument

at a later stage, the Court finds that the facts alleged in the Second Amended Complaint state a

claim of trespass against Luis Construction.

C. Negligence

As the Court explained in its prior Memorandum Opinion, to state a claim for negligence

under D.C. law, a plaintiff must allege “‘[a] duty of care owed by the defendant to the plaintiff, a

breach of that duty by the defendant, and damage to the interests of the plaintiff, proximately

caused by the breach.’” Matiella, 2023 WL 4684854, at *9 (alteration in original) (quoting Azzam

v. Rightway Dev. Inc., 789 F. Supp. 2d 110, 117 (D.D.C. 2011). Following that statement of the

law, the Court found that the First Amended Complaint stated a claim for negligence against

40 EWORA and IFG (both direct negligence and vicarious negligence based on the negligence of

their subcontractor, City Concrete) and against City Concrete. The Court noted that Plaintiff had

alleged that “as developers, builders and/or general contractors . . . EWORA and IFG were respon-

sible for the negligent construction and excavation of [the] development which damaged his prop-

erty in violation of the duty of care owed him as an adjoining landowner” thereby “plausibly al-

leg[ing] defects in construction and excavation resulting in damage to his house.” Id. at *10. The

Court also found unpersuasive those defendants’ “faulting the [First] Amended Complaint for fail-

ing to ‘note a specific date on which an act or omission . . . resulted in injury to his property,’”

finding that Rule 8(a)’s requirement of a “short and plain statement of the claim” imposes “no such

obligation” to identify “which specific hammer blow caused which crack to the foundation of his

home, and which Defendant wielded the hammer” at the motion to dismiss stage, and that such

questions are more appropriate for resolution at summary judgment. Id.

1. Plaintiff Has Stated a Claim of Negligence Against City Concrete

City Concrete asks the Court to dismiss the claim of negligence against it, arguing that

“Plaintiff has failed to allege facts demonstrating or suggesting that negligence by City Concrete

caused or contributed to causing his alleged damages.” ECF No. 145 at 10. Specifically, they

argue that “[i]t is very clear from the . . . Second Amended Complaint that [Plaintiff] attributes the

damage to his house to demolition of the prior structure on Murdock’s Property and to excavation,”

including “heavy drilling and other construction,” but that the complaint does not allege City Con-

crete was “involved in any of these activities”; only that they agreed to “perform the underpinning,

shoring, footings, walls, piers, columns, concrete floors and slabs, and the water proofing and ter-

mite treatment.” Id. City Concrete further argues that, although Plaintiff’s expert asserts that the

damage was caused by “demolition . . . excavation . . . and preparation of the foundation work

(shoring/underpinning),” the allegation that the damage was caused by underpinning “has no

41 factual support in his report” or any other report attached to the Second Amended Complaint and

is therefore “nothing more than a naked assertion.” Id. at 11. City Concrete also argues that the

Second Amended Complaint contains “different facts” from the First Amended Complaint, “which

change the Court’s analysis.” City Concrete’s Reply, ECF No. 164 at 3.

Notwithstanding City Concrete’s argument that the Second Amended Complaint contains

“different facts . . . which change the Court’s analysis,” the Court finds there are no such facts in

the Second Amended Complaint and, therefore, the “law-of-the-case” doctrine counsels that the

Court need not, and should not, reconsider whether Plaintiff has stated a claim of negligence

against City Concrete. For starters, the statement of the negligence claim against City Concrete in

the Second Amended Complaint is materially identical to that in the First Amended Complaint.

Compare 2d Am. Compl., ECF No 140, ¶¶ 61–66 with 1st Am. Compl, ECF No. 50, ¶¶ 59–64.

Moreover, the “additional facts” alleged in the Second Amended Complaint—primarily in the ex-

pert report by Timothy Galarnyk—are largely immaterial to the analysis. That expert report does

discuss City Concrete’s involvement in “underpinning, shoring, footings, wall, piers, columns,

concrete floors and slaps, and . . . water proofing and termite treatment.” ECF No. 140 at 52. But

the report does not, as City Concrete suggests, contradict Plaintiff’s allegation that City Concrete

“developed, planned, and performed” the “heavy excavation, drilling and other major construction

activity” that Plaintiff alleges caused damage to his property, ECF No. 140, ¶¶ 23, 64. Perhaps

City Concrete will be able to show, at a later stage, that they had no involvement in these activities,

but on a motion to dismiss, the Court must “presume that the complaint’s factual allegations are

true, construing them liberally in the plaintiff’s favor.” Lemon v. Kramer, 270 F. Supp. 3d 125,

141 (D.D.C. 2017); see Marzorati, 265 F. Supp. 3d at 26 (noting that at the motion to dismiss

stage, defendants “are not entitled to offer their own evidence” and “must rely . . . exclusively on

42 the factual allegations contained in [the plaintiff’s] complaint.”). The Court already found that the

statement of the claim in the First Amended Complaint—which is materially identical to that in

the Second Amended Complaint—alleges their involvement in those activities in a manner suffi-

cient to state a claim for negligence. Compare 2d Am. Compl., ECF No. 140, ¶¶ 61–66 with 1st

Am. Compl., ECF No. 50, ¶¶ 59–64; see Matiella, 2023 WL 4684854, at *11 (finding that the First

Amended Complaint stated a claim for negligence against City Concrete). City Concrete having

demonstrated no “new evidence, an intervening change of law, or some combination of clear error

and manifest injustice” that would justify reconsideration of the Court’s prior finding that Plaintiff

had stated a claim of negligence against it, the Court finds that Plaintiff has stated such a claim

against City Concrete in the Second Amended Complaint. Wright et al., supra, § 4478.

2. Plaintiff Has Stated a Claim of Negligence Against Luis Construction

The Second Amended Complaint adds a claim of negligence against Luis Construction, a

new defendant, alleging that “Luis Construction performed work necessary to construct the soldier

pile and lagging retaining walls to shore the earth exposed by the excavation on the construction

[site]” and “[a]ccordingly, to the extent that any shoring work, or any demolition, excavation, un-

derpinning, or construction . . . performed by Luis Construction caused Plaintiff’s damages, Luis

Construction is responsible.” ECF No. 140, ¶¶ 69–70. Because Luis Construction was not named

in either of the earlier complaints—unlike EWORA, IFG and City Concrete—the Court has not

previously ruled on whether Plaintiff has stated a negligence claim against Luis Construction. Luis

Construction argues that Plaintiff has not stated a claim because the complaint “provides no date

for when the shoring work was performed and/or completed by Luis Construction,” and “none of

the areas of concern” in the report from the structural engineer “point directly to Defendant Luis

Construction or the work that was performed by Luis Construction.” ECF No. 143 at 4–5. In

response, Plaintiff states only that the “Court already found that Plaintiff stated negligence and

43 trespass claims” and “Luis Construction is not in a materially different position [from its co-de-

fendants] as it relates to the substantive claims.” ECF No. 155 at 5.

The Court finds that, similarly to the other defendants, Plaintiff has stated a claim of neg-

ligence against Luis Construction. First, as to Luis Construction’s argument that the claim “pro-

vides no date” for when the damage allegedly occurred, the Court has already held that Plaintiff

need not allege a particular date on which the damage was inflicted. See Matiella, 2023 WL

4684854, at *10 (finding Plaintiff has “no . . . obligation” at the motion to dismiss stage to identify

a specific date on which the injury occurred.). As to Luis Construction’s argument that it did not

perform work in the “areas of concern” identified in the engineer’s report, as a subcontractor for a

subcontractor, Luis Construction did presumably preform a narrower scope of work than the other

defendants—apparently limited to “shoring work.” ECF No. 140 at 12. However, the Court al-

ready held that Plaintiff plausibly pleaded negligence resulting from “the lack of backfill [which]

left an open void between the walls of the excavation behind the lagging retaining wall, which in

turn led to lateral movement of soil beneath Plaintiff’s house causing settling and other related

damage.” Matiella, 2023 WL 4684854, at *10. That soil movement could easily have resulted

from poor or inadequate shoring of the excavation site, since shoring is the work done to prevent

the movement of earth from outside an excavation into the excavation. All that is new here is that

Plaintiff can now put a name to the entity that did the shoring work—Luis Construction—rather

than blaming only City Concrete, which subcontracted with Luis Construction and was apparently

responsible for the excavation as a whole. Therefore, while the Court has not previously ruled on

whether Plaintiff has stated a negligence claim against Luis Construction, a simple extension of

the Court’s prior findings as to City Concrete does away with Luis Construction’s arguments to

44 the contrary. The Court finds, therefore, that Plaintiff has stated a claim of negligence against Luis

Construction.

D. Punitive Damages

In the Second Amended Complaint, Plaintiff has added a request for punitive damages as

to each defendant, alleging that they knew about the damage their conduct was causing to Plain-

tiff’s property, continued that conduct anyway, and failed to take reasonable measures to mitigate

the harm. See ECF No. 140, ¶¶ 72–92 (general factual allegations in support of punitive damages),

101 (request for punitive damages against Murdock Street), 108 (same), 116 (request for punitive

damages against EWORA), 123 (same), 131 (request for punitive damages against IFG), 138

(same), 146 (request for punitive damages against City Concrete), 153 (same), 161 (request for

punitive damages against Luis Construction), 168 (same). Defendants Luis Construction and City

Concrete request that the court “dismiss” Plaintiff’s requests for punitive damages. ECF No. 143

at 7 (Luis Construction); ECF No. 145-1 at 13–14 (City Concrete). Defendant Murdock Street

asks the Court to grant it judgment as a matter of law on punitive damages. ECF No. 147-1 at 11–

16 (Murdock Street). The thrust of these arguments is that in the District of Columbia, punitive

damages are generally available only from tortfeasors who have committed intentional torts ac-

companied by malice, fraud, or other aggravating circumstances, and that Plaintiff has not pleaded

facts to show Defendants had any such level of culpability.

Because a request for punitive damages is not a “claim” but a prayer for relief, courts in

this Circuit have often construed a motion to dismiss punitive damages as a motion to strike, while

ruling on it concurrently with motions to dismiss. See, e.g., Anderson v. Wash. Hilton, LLC, 2021

WL 3885724, at *2 (D.D.C. Aug. 31, 2021) (treating a motion to dismiss a request for punitive

damages as a motion to strike because “this is not an actual count, but rather a component of

Plaintiff’s prayer for relief”); Odom v. District of Columbia, 248 F. Supp. 3d 260, 271 (D.D.C.

45 2017) (similar); but see, e.g., Primas v. District of Columbia, 718 F. Supp. 2d 59, 61–62 (D.D.C.

2010) (dismissing a claim for punitive damages at the motion to dismiss stage because the com-

plaint “fails to allege facts showing . . . the actual malice or evil motive necessary to sustain [Plain-

tiff’s] claim for punitive damages”). If Plaintiff has not pleaded sufficient facts to support his

request for punitive damages, ruling on the issue of punitive damages now—as opposed to at a

later stage—promotes judicial economy by focusing the parties on the live issues and avoids open-

ing Defendants unnecessarily to discovery as to their finances.

In the District of Columbia, “[a] showing of ordinary negligence, absent any proof of ex-

acerbating circumstances, will not support an award of punitive damages.” Price v. Griffin, 359

A.2d 582, 589 (D.C. 1976). Rather, “[t]he test for punitive damages . . . is a rigorous one,” and

“[p]unitive damages may only be awarded ‘in cases of outrageous or egregious wrongdoing where

the defendant has acted with evil motive, actual malice, or in willful disregard for the rights of the

plaintiff.’” Hickey v. Scott, 162 F. Supp. 3d 1, 2 (D.D.C. 2011) (first two alterations in original)

(quoting Rosenthal v. Sonnenschein Nath & Rosenthal, LLP, 985 A.2d 443, 455 (D.C. 2009)). The

D.C. Court of Appeals has gone so far as to say that “[p]unitive damages ‘are appropriately re-

served only for tortious acts which are replete with malice.’” Wood v. Neuman, 979 A.2d 64, 73

(D.C. 2009) (emphasis added) (quoting Zanville v. Garza, 561 A.2d 1000, 1002 (D.C. 1989). In

the Second Amended Complaint, Plaintiff claims that “Defendants knowingly failed to perform a

crack and damage survey, knowingly failed to carefully manage the demolition of the old structure

on Defendant Murdock’s Property, and knowingly failed to carefully manage the design and build

of The Exchange in order to avoid vibration and other damages to Plaintiff’s adjacent structure,”

despite crack and damage surveys and “careful[] manage[ment]” of demolition being “the standard

custom and practice in the construction industry.” ECF No. 140, ¶¶ 76, 78. Plaintiff also alleges

46 that Defendants “willfully and f[l]agrantly continued to cause damage to Plaintiff’s Property” and

“acted with a willful disregard for Plaintiff’s rights.” Id., ¶ 86.

“In civil or administrative proceedings, willful conduct is most often defined simply as that

which is intentional, rather than inadvertent or accidental.” Hager v. D.C. Dep’t of Consumer &

Regulatory Affairs, 475 A.2d 367, 368 (D.C. 1984). But Plaintiff alleges no facts that suggest that

any defendant intended to damage Plaintiff’s property; he alleges only that they were aware that

damage was occurring and continued their project anyway without adequate protective or remedial

measures. These threadbare claims as to Defendants’ “state of mind” (as it were) fall far from

plausibly alleging “evil motive, actual malice, or . . . willful disregard for the rights of the plaintiff.”

Rosenthal, 985 A.2d at 455 (quoting Dist. Cablevision Ltd. P’ship v. Bassin, 828 A.2d 714, 725

(D.C. 2003)). First, while the Second Amended Complaint attributes knowledge of the ongoing

damage to all Defendants, it does not explain how either City Concrete or Luis Construction would

have become aware of the issues. As to Murdock Street, EWORA, and IFG, the Second Amended

Complaint acknowledges that Defendant Murdock “made remedial attempts to address and rectify

the damage to Plaintiff’s property” after being made aware of the issues, ECF No. 140, ¶ 25, and

that Murdock Street, EWORA, and IFG “were involved in and responsible for addressing the al-

leged issues at the Plaintiff’s Property as it pertains to the [Department of Consumer and Regula-

tory Affairs],” id., ¶ 56. However inadequate the remedial and protective measures may have been,

these facts do not plausibly allege that any defendant intended to harm Plaintiff’s property, or that

their actions were “replete with malice.” Wood, 979 A.2d at 73 (quoting Zanville, 561 A.2d at

1002). Therefore, the Court will grant Defendants’ requests to strike Plaintiff’s prayers for puni-

tive damages from the Second Amended Complaint.

47 E. Motions to Dismiss Murdock Street’s Cross-Claims

Murdock Street has interposed cross-claims against City Concrete and Luis Construction

for indemnity. Both City Concrete and Luis Construction seek dismissal of those claims.

Murdock Street alleges that it contracted with EWORA and IFG to perform work on Mur-

dock Street’s Property and that EWORA thereafter contracted with City Concrete “to provide un-

derpinning, shoring, footing, and other concrete services” and with Luis Construction “to perform

excavation.” ECF No. 146 at 26. It then alleges that, to the extent damage was caused to Plaintiff’s

property by the work at Murdock Street’s property, it was the fault of EWORA, IFG, City Con-

crete, and Luis Construction. See id. Accordingly, Murdock Street claims that it “is entitled to

implied indemnification from each of [those companies] . . . jointly and severally and/or individ-

ually.” Id. at 28.

As noted, City Concrete and Luis Construction each move to dismiss the implied indem-

nification cross-claim against it, contending that Murdock Street fails to allege any relationship

between Murdock Street and either City Concrete or Luis Construction that would support such a

claim. See City Concrete’s Mot. to Dismiss Cross-Claim, ECF No. 152 at 3–4; Luis Construction’s

Mot. to Dismiss Cross-Claim, ECF No. 153 at 4–5.21 The D.C. Court of Appeals addressed im-

plied indemnity in Myco Inc. v. Super Concrete Co., in the context of “determin[ing] the effect of

the District of Columbia’s Workers’ Compensation Act on the right of a third party to indemnity

from the employer of an injured worker seeking recovery in tort from that third party.” 565 A.2d

293, 294 (D.C. 1989) (footnote omitted). The court explained that “[i]mplied indemnity is

21 City Concrete also moves to dismiss Murdock Street’s contribution claim against it, but its argument is dependent on dismissal of Plaintiff’s claims against City Concrete. See ECF No. 152 at 7 (“To any extent the Court grants City Concrete’s motion to dismiss Plaintiff’s Second Amended Complaint . . . , City Concrete will not be a joint tortfeasor and therefore not liable to Murdock Street in contribution.”). Luis Construction asks that the Court dismiss “all [Mur- dock Street’s] claims against Luis Construction” but fails to even mention the contribution cross-claim in its motion.

48 essentially an equitable remedy that ‘arise[s] without agreement, and by operation of law to prevent

a result which is regarded as unjust or unsatisfactory.’” Id. at 297 (second alteration in original)

(quoting William Prosser et al., Prosser & Keeton on the Law of Torts § 51, at 341 (5th ed. 1984)).

It “is based on the well-established theory that if one breaches a duty owed to another and the

breach causes injury, the former should compensate the latter.” Id. The D.C. Circuit further ex-

plained, “[i]n order to establish the right to this particular type of implied indemnity, the obligation

must arise out of a specific duty of defined nature—separate from the injury to the employee—

owed to the third party by the employer.” Id. at 299. There must be a “a special legal relationship

existing separate and apart from any liability which the employer might have had to the injured

employee.” Id. That is, there must be both a “specific duty of a defined nature” and a “special

legal relationship between the tortfeasors.” Quadrangle Dev. Corp. v. Otis Elevator Co., 748 A.2d

432, 435 (D.C. 2000) (quoting Myco, 565 A.2d at 299).

In Myco, the D.C. Court of Appeals provided some examples of the “special legal relation-

ship” that will support a claim for implied indemnity: the relationship between bailor and bailee,

lessor and lessee, or principal and agent. 565 A.2d at 299. Later, in Howard University v. Good

Food Services, Inc., that court again explored the “special relationship” requirement. There, How-

ard University had contracted with Good Food Services (“GFS”) in 1983 and again in 1987 for

GFS “to operate the University’s food service facilities” and take on the “day-to-day responsibili-

ties such as keeping the kitchen facilities clean, supervising GFS employees in the kitchens, and

implementing University food service policies.” Howard Univ. v. Good Food Servs., Inc., 608

A.2d 116, 118–19. A GFS employee was injured at work by a defective kettle and sued Howard

University; Howard University, in turn, filed a third-party complaint against GFS asserting a claim

for implied indemnification, among other things. See id. at 119. The trial court granted summary

49 judgment to GFS on the implied indemnification claim, finding that “the only duty GFS had with

respect to the defective kettle was the duty it owed to the plaintiff-employee, and because under

the contract the University maintained custody and control of the kettle and was responsible for

repairing all equipment defects.” Id. at 122. The D.C. Court of Appeals, however, found that GFS

did have an independent duty to Howard University “arising out of its contract with the Univer-

sity,” an “ongoing and comprehensive contractual relationship involving day-to-day interaction

and decisionmaking.” Id. at 124.

In opposition to the motions to dismiss of City Concrete and Luis Construction, Murdock

Street contends that each of those subcontractors “owed Murdock Street a duty of care in the man-

ner in which it performed its work on Murdock Street’s property.” ECF No. 159 at 3; ECF No.

160 at 3. Although Murdock Street cites no case law to support its assertion, the Court will assume

for the purposes of these motions that is an accurate statement of the law. Cf. Chapman Custom

Homes, Inc. v. Dallas Plumbing Co., 445 S.W.3d 716, 718 (Tex. 2014) (finding that a plumber

who contracted with a builder to install a plumbing system in a residence had an implied duty to

the owner of the residence “not to flood or otherwise damage the . . . house while performing its

contract with the builder”). However, as City Concrete points out in its reply, Murdock Street has

alleged no facts or law that would support a finding that Murdock Street had a “special legal rela-

tionship” with the subcontractors akin to that of bailor-bailee, lessor-lessee, principal-agent, or the

contractual relationship between Howard University and GFS at issue in Howard University. See

ECF No. 163 at 2–3 (“Murdock Street has cited . . . no case recognizing a special legal relationship

between an[] owner and a subcontractor of the owner’s contractor” or “any law showing that

merely performing work on Murdock Street’s property created the special legal relationship re-

quired.”). And the Court will not do counsel’s work to find case law that might support Murdock

50 Street’s claim. See, e.g., United States v. Sineneng-Smith, 590 U.S. 371, 375–76 (2020) (“[A]s a

general rule our system ‘is designed around the premise that [parties represented by competent

counsel] know what is best for them, and are responsible for advancing the facts and argument

entitling them to relief.’” (second alteration in original) (quoting Castro v. United States, 540 U.S.

375, 386 (2003) (Scalia, J., concurring in part and concurring in the judgment))); Schneider v.

Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005) (“It is not enough merely to mention a possible

argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for

the argument, and put flesh on its bones. . . . [A] litigant has an obligation to spell out its arguments

squarely and directly . . . .”).

Accordingly, the motions of City Concrete and Luis Construction to dismiss Murdock

Street’s implied indemnity claims will be granted.

IV. CONCLUSION

For the foregoing reasons, it is hereby

ORDERED that Luis Construction’s Motion to Dismiss, ECF No. 143, is DENIED. It is

further

ORDERED that City Concrete’s Motion to Dismiss, ECF No. 145, is DENIED. It is

ORDERED that EWORA and IFG’s Motion to Dismiss, ECF No. 148, is DENIED. It is

ORDERED that Murdock Street’s motion for partial judgment on the pleadings, ECF No.

147, is DENIED. It is further

ORDERED that Plaintiff’s prayers for punitive damages in the Second Amended Com-

plaint are STRICKEN. It is further

51 ORDERED that City Concrete’s motion to dismiss the cross-claim, ECF No. 152, is

GRANTED. It is further

ORDERED that Luis Construction’s motion to dismiss the cross-claim, ECF No. 153, is

GRANTED.

SO ORDERED.

Date: August 28, 2024 G. MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE