Opinion
Civil Action 6:23-cv-3118-DCC-KFM
01-12-2024
Karissa Chorbajian, Plaintiff, v. Adams Scrap Recycling, LLC, Kamal Desor, HRP Associates, Inc., and Layton Environmental Engineering, LLC, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge.
T his matter is before the court on the motion to dismiss pursuant to Federal Rules of Civil Procedure 9(b), 12(b)(1), and 12(b)(6) of defendant Layton Environmental Engineering, LLC (“Layton”) (doc. 26). Under the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases involving pro se litigants and submit findings and recommendations to the district court.
PROCEDURAL HISTORY
The plaintiff, who is proceeding pro se, filed a complaint in state court on May 12, 2023 (doc. 1-1). Defendant HRP Associates, Inc. (“HRP”) removed the case to this court based on federal question jurisdiction on June 29, 2023, stating that the plaintiff's claims for relief arose under the Clean Air Act, the Clean Water Act, and the Toxic Substances Control Act (doc. 1 at 2-3). Defendant Layton consented to the removal (doc. 10) on July 17, 2023, and, on that same date, Layton filed a motion to dismiss pursuant to Rules 9(b), 12(b)(1), and 12(b)(6), arguing that the plaintiff failed to plead a claim for fraud with the required particularity, she otherwise failed to state any claim against Layton, and her claims were barred by the applicable statute of limitations (doc. 12). By order filed July 19, 2023, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if she failed to respond adequately to defendant Layton's motion (doc. 15). On July 20, 2023, the plaintiff filed an amended complaint (doc. 17). On July 26, 2023, the undersigned issued a report and recommendation recommending that the motion to dismiss the original complaint be found moot based on the filing of the plaintiff's amended complaint (doc. 23). That recommendation was adopted by the Honorable Donald C. Coggins, United States District Judge, on October 5, 2023 (doc. 43).
On August 1,2023, defendant HRP filed an answer to the amended complaint (doc. 25), and defendants Adams Scrap Recycling, LLC (“Adams Scrap”) and Kamal Desor (“Desor”) filed an answer on September 10, 2023 (doc. 40). On August 3, 2023, defendant Layton filed a motion to dismiss the amended complaint (doc. 26) that is now before the court for consideration. On that same day, pursuant to Roseboro, 528 F.2d 309, the plaintiff was again advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if she failed to respond adequately to the motion to dismiss (doc. 31). After requesting and receiving an extension of time (docs. 36, 37), the plaintiff filed a response in opposition to the motion to dismiss on October 5, 2023 (doc. 45). Defendant Layton filed a reply in support of its motion to dismiss on October 12, 2023 (doc. 46). Accordingly, the motion to dismiss the amended complaint is ripe for review.
FACTUAL ALLEGATIONS
The plaintiff alleges in her amended complaint that in 20191 she moved to 227 Earle Drive, Greenville, South Carolina 2961, approximately 600 feet from defendant Adams Scrap's recycling facility, which is located at 419 Old Easley Bridge Road, Greenville, South Carolina (doc. 17, amend. comp. ¶¶ 2, 7, 10). According to the plaintiff, Adams Scrap “uses a natural gas fired secondary aluminum processing rotary sweat furnace for the recovery of aluminum for automobiles, transmissions, engine parts, and other metal objects that contain aluminum components” (id. ¶ 2). She states that defendant Desor is the owner and operator of Adams Scrap, defendant HRP is an environmental and engineering consulting firm that has contracted with Adams Scrap, and defendant Layton is an environmental consultant that provided professional consulting services to Adams Scrap (id. ¶¶ 3-5).
In her original complaint, she provided the date she permanently moved to 227 Earle Drive as May 10, 2019 (doc. 1-1, comp. ¶ 27).
The plaintiff alleges that in 2020 she “experienced a rapid deterioration of systemic health, suffering life threatening episodes of respiratory distress and immune system impairment [that] baffled [the p]laintiff and her doctors at the time and led to her first hospital admission on May 12, 2020, when her doctor told [her] she was only hours away from death” (doc. 17, amend. comp. ¶ 8). She further alleges that she “experienced several more acute medical care visits, hospitalizations, and other severe life altering medical injuries that her medical team have determined to be caused by hazardous air pollutants emitted from Defendant Adams Scrap . . . “ (id. ¶ 9). She contends that Adams Scrap has throughout its history of operation violated permit conditions established by federal and state law and has engaged in continual release of emissions known to cause adverse health effects to humans (id. ¶¶ 12-13).
In her original complaint, the plaintiff alleged that "shortly thereafter [May 10, 2019]," she began to "suffer symptoms of fatigue, coughing, wheezing, difficulty breathing, inflammation, and other new and debilitating medical conditions" as well as "rapid deterioration of health, suffering life threatening episodes of respiratory distress, numerous hospitalizations, and other serious medical injuries that her medical team have determined to be caused by hazardous air pollutants emitted from Defendant Adams Scrap . . ." (doc. 1-1, comp. ¶¶ 7, 27).
The plaintiff alleges that the defendants submitted a permit application on April 26, 2018, to the South Carolina Department of Health and Environmental Control (“SCDHEC”) “for a new Air Quality Synthetic Minor Construction Permit to install a natural gas fired Secondary Aluminum processing rotary melting furnace with Baghouse with Lime Injection,” and, in so doing, the defendants “acted with a reckless disregard for truth or falsity in statements made to the media, to the regulatory agencies, and to the concerned and affected community regarding the safety of the sweat furnace and other business operations” (doc. 17, amend. comp. ¶¶ 18-19). She further alleges that the defendants were issued a permit to operate a new sweat furnace on or about February 15, 2019, and then failed a source test on November 21,2019, “by emitting unlawful dioxin and furan emissions that far exceeded the limits” established by state and federal law (id. ¶¶ 26-27). The plaintiff alleges that Adams Scrap was ordered to pay a civil penalty of $7,500.00 to SCDHEC in June 2021 for violating state and federal laws when it failed to limit dioxin and furan emissions from the furnace during the source test (id. ¶ 34).
The plaintiff alleges that massive fires occurred at the Adams Scrap facility on December 19, 2019, and May 5, 2022, and that nearby residents observed and recorded billowing thick smoke coming from the facility on other occasions (doc. 17, amend. comp. ¶¶ 28, 43, 46-47; see also doc. 17-1 at 43-50, amend. comp. attachs. 5, 6). She contends that in May 2020, she was admitted to the hospital on an emergency basis for acute respiratory distress and stayed in the hospital for four days, she went to the emergency room in June 2021 for acute respiratory distress, and she was admitted again to the hospital in July 2021, suffering from skin lesions, fatigue, and respiratory distress, all of which the plaintiff attributes to air pollutants emitted from Adams Scrap (doc. 17, amend. comp. ¶¶ 8-9, 29, 35, 37-38). The plaintiff alleges that her July 2021 hospitalization for a sudden eruption of skin lesions occurred the same day the defendants participated in an inspection conducted by SCDHEC “with the purpose of observing the sweat furnace during initial start-up while using the afterburner, instead of the baghouse with lime injection, for a pollution control device” (id. ¶ 36). The plaintiff alleges that the “SCDHEC inspector observed 18 minutes of fugitive visible emissions and noted that these emissions were likely coming from an access panel door Defendants had not adequately sealed” (id.). She contends that the defendants participated in a second furnace inspection with SCDHEC in September 2021 “to evaluate sweat furnace and afterburner and inspector noted opacity as high as 35%[,] which far exceeded permit conditions limiting opacity to 20% to control harmful Dioxin and Furan emissions” (id. ¶ 41). The plaintiff alleges that she “suffered another round of debilitating medical conditions including a new eruption of painful and disfiguring lesions on face and head, extreme weakness, fatigue, shortness of breath, and mental anguish” the same day as the second furnace inspection (id. ¶ 42). She contends that “[o]n or about December 5, 2022, [her] pulmonologist determined that [her] critical medical episodes are more likely than not caused by exposure to chemicals and hazardous air pollutants emitted from Defendants' furnace” and that she should move at least five miles away “if she wants to live” (id. ¶ 48). She further alleges that she first learned about the July and September 2021 furnace tests on December 5, 2022 (id. ¶ 49).
As to defendant Layton specifically, the plaintiff alleges:
Defendant Layton Environmental Engineering LLC and Defendant HRP Associates, Inc advised, directed, and consulted with Defendant Adams Scrap Recycling and Defendant Kamal Desor in the air quality permit application process. Defendants provided false or misrepresented information in the air quality permit application which enabled Defendant Adams Scrap Recycling to receive permit to operate the sweat furnace and emit unlawful and harmful levels of Hazardous Air Pollutants that caused serious medical injuries to Plaintiff.(Doc. 17, amend. comp. ¶ 54).
The plaintiff attached six exhibits to the amended complaint, including one identified as “Attachment 5,” which includes a “Secondary Aluminum Processing Melting Furnace Air Quality Construction Permit Application” received by the SCDHEC Bureau of Air Quality on April 26, 2018, which was prepared by defendant Layton on behalf of defendant Adams Scrap, as well as four separate emails between Layton and the SCDHEC (doc. 17-1 at 34-42). The permit application includes the following statement:
The proposed project will emit small amounts of Hydrochloric Acid and minuscule amounts of Dioxin/Furans into the air. These chemicals are addressed in EPA's NESHAP Standards for Secondary Aluminum Processing (Subpart RRR). Adams Scrap Recycling will meet the Emissions Standards for Dioxin/Furans.
The project will be located 600' away from the nearest residential building.(Id. at 39).
The documents in Attachment 5 to the amended complaint include an email dated January 12, 2019, in which Ken Layton, owner of defendant Layton, responded to an email from Utpal B. Patel, P.E., Bureau of Air Quality, SCDHEC, stating:
Utpal, during the 02/02/16 Grooms Aluminum Dioxin/Furans performance test, it was noted that the facility was melting aluminum scrap that was heavily contaminated with oil and paint (auto transmission pieces, cans, turnings). The test yielded an D/F value of 1.77 x 10-8 lbs TEQ/ton feed. Adams Recycling plans to melt cast aluminum which is much cleaner that the scrap melted at the Ashville facility. Therefore, the emission factor will be assumed to be reduced by approximately 15 percent. Ams [sic] will use an emission factor of 1.49 x 10-8 lbs TEQ/ton feed.(Id. at 41).
The plaintiff alleges causes of action for negligence, nuisance, constructive fraud, strict liability, and trespass against all the defendants (doc. 17, amend. comp. ¶¶ 5787).
In the original complaint, the plaintiff alleged causes of action for negligence, fraud, nuisance, and strict liability against defendants Adams Scrap and Desor (doc. 1-1 at 13-, comp. ¶¶ 54-61,75-77) and a cause of action against defendants Layton and HRP for fraud (id. at 17, comp. ¶¶ 62-63). As set out above, defendant HRP removed this matter from state court with the consent of the other defendants based on federal question jurisdiction (doc. 1 at 2-3). See 28 U.S.C. § 1331. Specifically, the plaintiff alleged in the negligence cause of action in the original complaint that defendants Adams Scrap and Desor breached duties owed to her through misconduct including violations of the Clean Air Act, Clean Water Act, and the Toxic Substances Control Act, and she similarly alleged violations of these federal acts in the fraud cause of action against Adams Scrap and Desor (doc. 1-1, comp. ¶¶ 56, 73). In the amended complaint, the plaintiff alleges in the negligence cause of action that all of the defendants breached duties owed to her through their “actions, omissions, and misconduct, including, but not limited to . . . violations of The Clean Air Act (42 U.S.C. §§ 7401 et seq.) and other applicable State and Federal laws, regulations, guidelines, and permit conditions surrounding the operation of a sweat furnace and other particulars1' (doc. 17, amend. comp. ¶ 59). Accordingly, the allegations in the amended complaint implicate a federal question, and this court continues to have subject matter jurisdiction over this action. See 28 U.S.C. § 1331; id. § 1367(a) (stating that when a plaintiff has alleged both federal and state claims, a district court may exercise supplemental jurisdiction over the state claims if they form “part of the same case or controversy” as the federal claim).
APPLICABLE LEGAL STANDARDS
Rule 12(b)(6) Standard
“'The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.'” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard, which requires only a "‘short and plain statement of the claim showing the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what . . . the claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,47 (1957)). “In assessing the sufficiency of a complaint, [the court] assume[s] as true all its well-pleaded facts and draw[s] all reasonable inferences in favor of the plaintiff.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'" Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). The court must liberally construe pro se complaints to allow the development of a potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980), and such pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978).
“In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The court may consider such a document, even if it is not attached to the complaint, if the document “'was integral to and explicitly relied on in the complaint'” and there is no authenticity challenge. Id. (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). See also Int'l Assn of Machinists & Aerospace Workers v. Haley, 832 F.Supp.2d 612, 622 (D.S.C. 2011) (“In evaluating a motion to dismiss under Rule 12(b)(6), the Court . . . may also ‘consider documents attached to . . . the motion to dismiss, so long as they are integral to the complaint and authentic.'”) (quoting Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007))). Rule 12(d) states: “If on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d).
Rule 9(b) Pleading Requirements
Rule 9(b) imposes a heightened pleading standard on fraud claims, requiring a plaintiff to “state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). “To meet this standard, a . . . plaintiff must, at a minimum, describe ‘the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.'” U.S. Ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 379 (4th Cir. 2008) (quoting Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999)). These facts are often “referred to as the ‘who, what, when, where, and how' of the alleged fraud.” Id. (citation omitted). Failure to comply “with Rule 9(b)'s particularity requirement for allegations of fraud is treated as a failure to state a claim under Rule 12(b)(6).” Harrison, 176 F.3d at 783 n.5 (citation omitted).
ANALYSIS
Negligence
In the negligence cause of action, the plaintiff alleges that the defendants in their “sweat furnace . . . and metal recovery operations” had a duty to comply with applicable statutes and regulations; operate the facility with due care; adequately inspect, operate, test, and maintain safe devices; correct defective, unsafe, and hazardous conditions; take proper precautions to protect adjacent residents from the unsafe and damaging effects of the metal recovery operations; warn of the hazards associated with the facility; and report each release, spill, disposal, or burial of hazardous materials (doc. 17, amend. comp. ¶ 58). She further alleges that the defendants breached the duties owed to her through their actions, omissions, and misconduct, including violating the Clean Air Act and other state and federal laws and regulations; failing to comply with applicable statutes, regulations, industry safety rules, and the defendants' own internal safety rules; unsafe design, construction, operation, maintenance, repair, and inspection of the facility; operation of the facility with equipment known to be defective and/or incapable of protecting against hazardous releases; failure to install and/or test and properly maintain the sweat furnace, pollution control device, and metal recovery equipment; failure to warn of the extreme health hazards from the hazardous and/or toxic emissions from the facility; and failure to take appropriate corrective action following identification of violations (id. ¶ 59). The plaintiff contends that the defendants knew or should have known of the high degree of risk of harm to her health that could result from exposure to hazardous, toxic, and dangerous materials being discharged from the sweat furnace, pollution control device, and metal recovery operations (id. ¶ 60). She claims the defendants were grossly negligent and acted willfully, wantonly, maliciously, and with reckless disregard for her health (id. ¶ 61). Lastly, the plaintiff alleges that she suffered severe medical injuries and other damages as a result of the defendants' negligence and recklessness (id. ¶ 62).
“'In order to state such a claim for negligence under [Rule] 12(b)(6) in South Carolina, a plaintiff must allege the following: (1) a duty of due care; (2) a breach of that duty by a negligent act or omission; (3) the defendant's breach was the actual and proximate cause of the plaintiff's injury; and (4) the plaintiff suffered an injury or damages.'” Greenberg Inv. P'ship, L.P. v. Cary's Lake Homeowners Ass'n, C. A. No. 3:15-cv-5096-JMC, 2016 WL 2766675, at *2 (D.S.C. May 13, 2016) (quoting Andrade v. Johnson, 588 S.E.2d 588, 592 (S.C. 2003)).
Defendant Layton argues that the plaintiff's amended complaint fails to allege facts sufficient to support the claim for negligence against it because the plaintiff does not, and cannot, allege that Layton owed her any duty related to the ownership, operation, or other control over defendant Adams Scrap's recycling facility or that Layton breached any duty to her (doc. 26 at 6-8; doc. 46 at 2-5). Under South Carolina law, there is generally no common law duty to act; “[t]hus, a person usually incurs no liability when he fails to take steps to protect others from harm not created by his own wrongful conduct.” Benjamin v. Wal-Mart Stores, Inc., 413 F.Supp.2d 652,655 (D.S.C. 2006) (citation and internal quotation marks omitted). However, “[a]n affirmative legal duty may be created by statute, a contractual relationship, status, property interest, or some other special circumstance.” McCullough v. Goodrich & Pennington Mortg. Fund, Inc., 644 S.E.2d 43, 46 (S.C. 2007) (citation omitted). As noted, in the factual allegations of the amended complaint as to defendant Layton specifically, the plaintiff alleges that Layton provided professional consulting services to defendant Adams Scrap in preparing the 2018 Bureau of Air Quality permit application (doc. 17, amend. comp. ¶¶ 5, 18-19, 54; doc. 17-1 at 34-42). The plaintiff does not allege that Layton had a duty under some statute, contract, or special relationship with her to make accurate statements in that permit application (see generally doc. 17, amend. comp.). Rather, the defendants' duties as alleged by the plaintiff in the negligence cause of action arise “from their sweat furnace operation and metal recovery operations . . . “ (doc. 17, amend. comp. ¶ 58). However, the plaintiff alleges that the recycling facility at issue is owned and operated solely by defendants Adams Scrap and Desor (doc. 17, amend. comp. ¶¶ 2-3), and there is no allegation in the amended complaint that defendant Layton at anytime had any hand in the operations, maintenance, or control of the recycling facility or anything emanating from it.
In her response to the motion to dismiss, the plaintiff adds allegations not present in the amended complaint in arguing that defendant Layton owed a duty of care to her (doc. 45 at 5-6). As argued by defendant Layton in its reply, “the complaint may not be amended by the briefs in opposition to a motion to dismiss.” Deas v. Prudential Ins. of America, C. A. No. 2:17-cv-03016-DCN, 2018 WL 1993869, at *3 (D.S.C. Apr. 26, 2018) (citations omitted). Moreover, as discussed below, even liberally construing the allegations raised for the first time in the plaintiff's response as a motion to amend her amended complaint, such allegations still fail to state a claim for negligence against defendant Layton, and thus the plaintiff should not be granted leave to amend. See United States v. Kellogg Brown & Root Inc., 525 F.3d 370, 376 (4th Cir. 2008) (stating that if a proposed amended complaint fails to state a claim under Rule 12(b)(6), amendment would be futile, and denial of a motion to amend is appropriate).
In her response to the motion to dismiss, the plaintiff raises the following additional facts and allegations:
The services of experts are sought because of their special skill. They have a duty to exercise the ordinary skill and competence of members of their profession, and failure to discharge that duty will subject them to liability for negligence. As a professional engineer, Defendant Layton had the duty and obligation to act in accordance with the standards of
professional engineering. To determine what classifies as reasonable care and competence as a professional engineer, the National Society of Professional Engineers outlines six fundamental canons in their Code of Ethics for Engineers: "l. Hold paramount the safety, health, and welfare of the public; 2. Perform services only in areas of their competence. 3. Issue public statements only in an objective and truthful manner. 4. Act for each employer or client as faithful agents or trustees. 5. Avoid deceptive acts. 6. Conduct themselves honorably, responsibly, ethically, and lawfully so as to enhance the honor, reputation, and usefulness of the profession." Whilst preparing the permit for SCDHEC on behalf of Defendant Adams and Defendant Kamal Desor, Defendant Layton acted negligently under the standards of professional engineer.
As part of the permit application compiled by Defendant Layton under the section “Community Outreach" they were required to address the project's potential impact towards nearby residents. The aforementioned section required the applicant (or preparer) to detail" . . . the potential air issues and community concerns." (ECF 17). Plaintiff due to her proximity to the proposed project and as a member of the community would be classified as a person who was foreseeably exposed to danger. Therefore, Plaintiff was owed a duty of care by Defendant Layton.(Doc. 45 at 5-6).
The plaintiff claims that the “Community Outreach” section of the permit application created a duty of care to her (doc. 45 at 6). Importantly, the “concept of a legal duty of care” will not be extended “beyond reasonable limits.” McCullough v. Goodrich & Pennington Mortg. Fund, Inc., 644 S.E.2d 43, 46 (S.C. 2007) (citing Huggins v. Citibank, N.A., 585 S.E.2d 275, 277 (S.C. 2003) (holding that the relationship between banks and potential victims of identity theft was too attenuated to establish a duty giving rise to a cause of action for negligent enablement of imposter fraud)). However, even assuming that defendant Layton owed the plaintiff a duty of due care in the preparation and submission of the permit application to the Bureau of Air Quality, the plaintiff does not allege how Layton breached any duty to her in making statements as to future events in the permit application (see doc. 17-1 at 36-41) (“The proposed project will emit small amounts of Hydrochloric Acid and minuscule amounts of Dioxin/Furans into the air. . .”; “Adams Scrap Recycling will meet the Emissions Standards for Dioxin/Furans. . .”; “Adams Recycling plans to melt cast aluminum which is much cleaner than the scrap melted at the Ash[e]ville facility. . .”) (emphasis added). As argued by Layton, the permit application provided estimates of future output if Adams Scrap was granted the permit and if Adams Scrap operated the facility pursuant to the permit (doc. 46 at 4). The plaintiff has failed to allege that the “proposed project” did emit more than minuscule amounts of dioxins/furans as operated pursuant to the permit or that Layton knew or should have known that Adams Scrap was not going to operate the facility pursuant to the permit at the time the statements were made (id.). Moreover, the plaintiff does not allege that Layton had anything to do with the sweat furnace operation or maintenance after the permit was approved by the Bureau of Air Quality, that Layton had any knowledge of the production or levels of hazardous and toxic emissions emanating from the facility after the equipment was in operation, or that Layton took any action specific to the plaintiff. The facts alleged by the plaintiff in the amended complaint are insufficient “'to raise a right to relief above the speculative level'” and “'to state a claim to relief that is plausible on its face'" for negligence against defendant Layton. Robinson, 551 F.3d at 222 (quoting Twombly, 550 U.S. at 555, 570). Based upon the foregoing, defendant Layton's motion to dismiss should be granted as to this cause of action.
Strict Liability
In the strict liability cause of action, the plaintiff alleges that the defendants “knew their operations were an inherently dangerous activity and that unlawful releases of hazardous air pollutants from such activity were extremely harmful to the health of nearby residents. Thus, Defendants are strictly liable for the damage to Plaintiff which was the direct and proximate result of this inherently dangerous activity which Defendants maintained” (doc. 1, amend. comp. ¶ 83).
Defendant Layton argues that the plaintiff has failed to sufficiently state a claim of strict liability against it (doc. 26 at 8-9). The plaintiff does not provide any argument in response to defendant Layton's arguments in support of dismissal of the strict liability cause of action (see generally doc. 45).
As argued by defendant Layton, the plaintiff fails to allege what “operations” of Layton were inherently dangerous. See Werner v. Upjohn Co., Inc., 628 F.2d 848, 858 (4th Cir. 1980) (observing generally that the “elements of both [negligence and strict liability] are the same” except that for negligence, the plaintiff must show a breach of a duty of due care by the defendant while for strict liability, a plaintiff must demonstrate “unreasonable] danger[ ]”). As noted, the plaintiff alleges only that Layton provided professional consulting services to defendant Adams Scrap in preparing the Bureau of Air Quality permit application and “provided false or misrepresented information in the air quality permit application” that allowed Adams Scrap to receive the permit to operate the sweat furnace (doc. 17, amend. comp. ¶¶ 5, 18-19, 54; doc. 17-1 at 34-42). However, she does not allege Layton had anything to do with the operations of the Adams Scrap facility itself. Here, the facts alleged by the plaintiff in the amended complaint are insufficient “'to raise a right to relief above the speculative level'” and “'to state a claim to relief that is plausible on its face'" for strict liability against defendant Layton. Robinson, 551 F.3d at 222 (quoting Twombly, 550 U.S. at 555, 570). Based upon the foregoing, defendant Layton's motion to dismiss should be granted as to this cause of action.
Nuisance and Trespass
The plaintiff alleges in her amended complaint that all the defendants are liable to her under a cause of action for nuisance because the release of hazardous air pollutants and other harmful substances have interfered with the use and enjoyment of her property and caused her serious medical injuries (doc. 17, amend. comp. ¶¶ 63-68). She also alleges that all the defendants are liable to her under a cause of action for trespass because hazardous waste and other harmful substances have happened on to her property and deprived her of her right to enjoy her property, have damaged her property and substantially diminished its value, and have deprived her of her fundamental right to be free from invasions of her body and private residence by “corporate chemicals” (id. ¶¶ 85-87).
“'The traditional concept of a nuisance requires a landowner to demonstrate that the defendant unreasonably interfered with his ownership or possession of the land.'” FOC Lawshe Ltd. P'ship v. Int'l Paper Co., 574 S.E.2d 228, 231 (S.C. Ct. App. 2002) (quoting Silvester v. Spring Valley Country Club, 543 S.E.2d 563, 566 (S.C. Ct. App. 2001)). “Nuisance is a substantial and unreasonable interference with the plaintiff's use and enjoyment of his land.” Id. In South Carolina, “a trespass is any interference with one's right to the exclusive, peaceable possession of his property.” Ravan v. Greenville Cnty., 434 S.E.2d 296, 306 (S.C. Ct. App. 1993) (citations omitted). “The distinction between trespass and nuisance is that trespass is any intentional invasion of the plaintiff's interest in the exclusive possession of his property, whereas nuisance is a substantial and unreasonable interference with the plaintiff's use and enjoyment.” Id. (citation omitted).
Defendant Layton argues that the plaintiff has failed to sufficiently allege claims against it for either nuisance or trespass (doc. 26 at 9-10). The plaintiff does not provide any argument in response to defendant Layton's arguments in support of dismissal of the nuisance and trespass causes of action (see generally doc. 45).
As noted, in her factual allegations, the plaintiff alleges that Layton provided professional consulting services to defendant Adams Scrap in preparing the Bureau of Air Quality permit application and “provided false or misrepresented information in the air quality permit application” that allowed Adams Scrap to receive the permit to operate the sweat furnace (doc. 17, amend. comp. ¶¶ 5, 18-19, 54; doc. 17-1 at 34-42). The plaintiff has not alleged how Layton is responsible for the release of hazardous air pollutants, hazardous waste, or other harmful substances on to her property, and there is no allegation that defendant Layton at anytime had any hand in the operations, maintenance, or control of the recycling facility or anything emanating from it. See FOC Lawshe Ltd. P'ship, 574 S.E.2d at 232 (explaining that the “appropriate analysis” for determining the sufficiency of a nuisance cause of action in that case was whether the defendant had “complete control over the land” and whether the alleged nuisance “necessarily results from the ordinary use of the lands” (citations omitted)). Furthermore, “[f]rom their earliest inception through the present day, the actions of trespass and nuisance have been limited to one's interest in property, rather than providing any protection to one's person.” Babb v. Lee County Landfill SC, LLC, 747 S.E.2d 468, 472 (S.C. 2013). In addition, “South Carolina adheres to the traditional rule requiring an invasion by a physical, tangible thing for a trespass to exist, and accordingly, hold that odors cannot give rise to a trespass claim.” Id. at 476. Accordingly, based upon the foregoing, the undersigned recommends that defendant Layton's motion to dismiss be granted as to the trespass and nuisance causes of action.
Constructive Fraud
The plaintiff alleges in the constructive fraud cause of action that the defendants “provided false or misrepresented information that the sweat furnace was safe and would be operated in accordance with State and Federal laws”; “provided false or misrepresented information to allow Adams Scrap Recycling to receive the air permit to operate the sweat furnace which emitted harmful and unlawful emissions of Dioxins, Furans, and other hazardous air pollutants” that caused the plaintiff's medical issues and other damages; made false representations to the media that the sweat furnace would “surpass any minimum requirements by far" regarding emission limits; made false statements to concerned community members regarding operation of the sweat furnace; falsified furnace and afterburner records; and acted with a reckless disregard as to the truth or falsity of their representations (doc. 17, amend. comp. ¶¶ 69-77). The plaintiff further alleges that she was unaware of the falsity of the defendants' representations; she relied on the truth of the defendants' representations; the defendants' violations of federal, state, and local laws, regulations, and guidelines are evidence of the falsity of their representations; and she has suffered damages as a result of the defendants' misrepresentations (id. ¶¶ 78-81).
As noted in Warner v. Lexington Medical Center,
Under South Carolina law, a complaint is fatally defective if it fails to allege all nine elements of fraud. Ardis v. Cox, 431 S.E.2d 267, 269 (S.C. Ct. App. 1994). Those nine elements include: (1) a representation; (2) its falsity; (3) its materiality; (4) either knowledge of its falsity or a reckless disregard of its truth of falsity; (5) intent that the representation be acted upon; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on its truth; (8) the hearer's right to rely thereon; and (9) the hearer's consequent and proximate injury. Id. For a claim of constructive fraud, a plaintiff must establish all elements except intent. Id.C. A. No. 3:17-cv-1936-JFA-PJG, 2018 WL 4560565, at *1 (D.S.C. Feb. 22, 2018), R&R adopted by 2018 WL 2948012 (D.S.C. June 13, 2018). Furthermore, as noted above,
A plaintiff alleging fraud is held to a higher standard and “must state with particularity the circumstances” constituting the fraud. Fed.R.Civ.P. 9(b). The circumstances of the fraud are “the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentations and what he obtained thereby.” Weidman v. Exxon Mobil Corp., 776 F.3d 214, 219 (4th Cir. 2015) (internal quotation marks omitted).County of Dorchester, SC v. AT&T Corp., 407 F.Supp.3d 561, 565 (D.S.C. 2019).
In a case removed from state court, such as this one:
This court . . . must apply the Federal Rules to matters of procedure, including dismissal due to Plaintiff's failure to state an adequate claim for relief. See Fed.R.Civ.P. 81(c)(1) (“These rules apply to a civil action after it is removed from a state court”); see also Patterson v. Whitlock, 392 Fed.Appx. 185, 187 n.4 (4th Cir. 2010). Therefore, [the plaintiff's] claims must be evaluated under the standards expressed within Fed.R.Civ.P. 12(b)(6), which governs the dismissal of actions for failure to state a claim for relief. In addition, the court must look to Fed.R.Civ.P. 9(b), which imposes a heightened pleading standard on claims alleging fraudulent conduct. See, e.g., N. Am. Cath. Educ. Programming Found., Inc. v. Cardinale, 567 F.3d 8, 13 (1st Cir. 2009) (“Rule 9(b)'s heightened pleading standard applies to state law fraud claims asserted in federal court.”).Sanders v. Domingo, C. A. No. 3:21-cv-2415-JMC, 2022 WL 173891, at *3 (D.S.C. Jan. 18, 2022).
Defendant Layton argues that the plaintiff has failed to sufficiently allege a claim against it for constructive fraud (doc. 26 at 10-13). The plaintiff does not provide any argument in response to defendant Layton's arguments in support of dismissal of the constructive fraud cause of action alleged against it (see generally doc. 45).
The plaintiff does not state with particularity in the amended complaint the content of any alleged fraudulent statement by defendant Layton. Rather, she attached to the amended complaint the permit application prepared by Layton on behalf of Adams Scrap for submission to the Bureau of Air Quality, and, thus, she leaves it to the court and defense counsel to figure out what information within that application is allegedly fraudulent, which clearly does not meet the requirements of Rule 9(b). Moreover, in an action for fraud, “[t]he fraudulent representation must relate to a present or pre-existing fact and it cannot ordinarily be based upon an unfulfilled promise to perform in the future or statements as to future events.” Bishop Logging Co. v. John Deere Indus. Equip. Co., 455 S.E.2d 183, 187 (S.C. Ct. App. 1995). As noted, the plaintiff's factual allegations against defendant Layton concern solely the preparation and submission of the 2018 Bureau of Air Quality permit application in which the plaintiff alleges defendant Layton “provided false or misrepresented information” that allowed Adams Scrap to receive the permit to operate the sweat furnace (doc. 17, amend. comp. ¶¶ 5, 18-19, 54, 71; doc. 17-1 at 34-42). The representations within the permit application state, in pertinent part, “[t]he proposed project,” “Adams Scrap Recycling will meet . . .,”and “Adams Recycling plans to melt . . .” (doc. 17-1 at 34-42), which are clearly predictions and statements as to future events and actions to be taken by defendant Adams Scrap. The facts alleged by the plaintiff in the amended complaint are insufficient “'to raise a right to relief above the speculative level'” and “'to state a claim to relief that is plausible on its face'" for constructive fraud against defendant Layton. Robinson, 551 F.3d at 222 (quoting Twombly, 550 U.S. at 555, 570). Based upon the foregoing, defendant Layton's motion to dismiss should be granted as to this cause of action pursuant to Rules 9(b) and Rule 12(b)(6).
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that defendant Layton's motion to dismiss (doc. 26) be granted. The plaintiff's factual allegations in the amended complaint are insufficient to support her theories of legal liability against defendant Layton, and there is no indication in the plaintiff's response (doc. 45) that there are other relevant facts that were not considered here that might be helpful to her claims. As the plaintiff cannot cure the defects in her amended complaint by again amending her complaint, the undersigned recommends that the district court decline to automatically give the plaintiff leave to amend her complaint again and grant defendant Layton's motion to dismiss the claims against it for failure to state a claim upon which relief can be granted.
Because the undersigned finds that the plaintiff's causes of action against defendant Layton should be dismissed as discussed above, defendant Layton's remaining argument regarding the statute of limitations will not be addressed (see doc. 26 at 13-15).
As noted above, the plaintiff alleges additional facts in her response that were not alleged in her amended complaint regarding the negligence cause of action (doc. 45 at 5-6). However, even if the court allowed the plaintiff to again amend her complaint to allege those additional facts, they do nothing to save her causes of action.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Suite 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).