REGGIE B. WALTON, District Judge.
The plaintiffs bring this action alleging injuries arising from "exposure to the agrochemical Mancozeb," a fungicide used to treat bananas on plantations in Ecuador
According to the plaintiffs, although Mancozeb is "highly effective" at curtailing "sigatoka negra" or "black banana," a "fungal plague that can wipe out an entire crop" of bananas, it is also "highly toxic to humans." Am. Compl. ¶ 2 (alleging that due to its toxicity, the United States government temporarily banned Mancozeb's use, but now "permit[s its] use under extremely restricted conditions"). The plaintiffs contend that they have suffered "a variety of serious health problems, including cancer, respiratory problems, neurological problems, sterility, and birth defects," all directly "attributable to excessive and unlawful exposure to Mancozeb." Id. ¶ 1. Comprised of five groups—(1) pilots who fumigated with Mancozeb, (2) ground crews employed by fumigation companies, (3) banana plantation workers, (4) other individuals who were knowingly exposed to Mancozeb, and (5) the Municipality of Pueblo Viejo—the plaintiffs seek "compensatory and punitive damages," "equitable relief including medical monitoring and environmental cleanup," "costs of suit," and disgorgement "of the [d]efendants' profits from their unlawful activity," as well as
The plaintiffs overriding theory of their case is that all the defendants named in their amended complaint
It is undisputed that the CropLife Defendants neither "manufacture any crop protection or pest control products themselves, nor . . . engage in the application or use of the products developed and manufactured by their members," Defs.' Mem. at 4; see generally Am. Compl., and therefore the plaintiffs' theory of liability against these defendants is premised upon their alleged "business decision to promote the use of Mancozeb in Ecuador," Am. Compl. ¶ 305 (emphasis added). Specifically, the plaintiffs charge that the CropLife Defendants' efforts to promote the use of Mancozeb give rise to seven common law causes of action,
The CropLife Defendants respond that the plaintiffs' allegations have "no basis in reality," because, as trade associations, the CropLife Defendants "have nothing to do with either Ecuador or [M]ancozeb."
II. CHOICE OF LAW
As an initial matter, the Court must address the plaintiffs' position that they are seeking to hold the CropLife Defendants liable under both domestic law and "the laws of Ecuador." See, e.g., Am. Compl. ¶ 363 ("[t]he acts described herein constitute battery, actionable under the laws of the District of Columbia, the laws of the United States and the laws of Ecuador"); id. ¶ 366 ("[t]he acts described herein constitute assault, actionable under the laws of the District of Columbia, the laws of the United States and the laws of Ecuador"). When the choice of law is disputed in a diversity action, this Court applies the choice of law rules of the District of Columbia in making that determination. Doe v. Roe, 841 F.Supp. 444, 446 (D.D.C.1994).
III. STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether a complaint has properly stated a claim upon which relief may be granted. Woodruff v. DiMario, 197 F.R.D. 191, 193 (D.D.C. 2000). For a complaint to survive a Rule 12(b)(6) motion, Federal Rule of Civil Procedure 8(a) requires that it provide only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Although Rule 8(a) does not require "detailed factual allegations," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a plaintiff is required, to provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation," Ashcroft v. Iqbal, ____ U.S. ____, ____, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009), in order to "give the defendant fair notice of what the claim is and the grounds on which it rests," Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal citation, quotation marks and alteration omitted). Thus, while "detailed factual allegations are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to adequately assert grounds showing entitlement to relief, a plaintiff must furnish more than labels and conclusions or a formulaic recitation of the elements of a cause of action." Hinson ex rel. N.H. v. Merritt Educ. Ctr., 521 F.Supp.2d 22, 27 (D.D.C.2007) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955) (internal quotation marks and alterations omitted). Or, as the Supreme Court more recently stated, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). A complaint alleging facts which are "`merely consistent with' a defendant's liability.. . `stops short of the line between possibility and plausibility of `entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Moreover, "[a] dismissal with prejudice is warranted only when a trial court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir.1996) (internal quotation marks and citations omitted) (emphasis in original). Finally, in evaluating a Rule 12(b)(6) motion, "[t]he complaint must be liberally construed in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged," Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir. 1979) (quotation marks and citations omitted), and the Court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the Court] may take judicial notice," E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997) (footnote omitted). In sum, although the Court must accept the plaintiffs' factual allegations as true, any conclusory allegations are not entitled to an assumption of truth and even those allegations pled with factual support need only be accepted to the extent that "they plausibly give rise to an entitlement to relief." Iqbal, 129 S.Ct. at 1950. And, dismissal for failure to state a claim is "proper when . . . the court finds that the plaintiffs have failed to allege all the material elements of their cause of action." Taylor v. FDIC, 132 F.3d 753, 761 (D.C.Cir.1997).
IV. LEGAL ANALYSIS
The plaintiffs allege that the CropLife Defendants are liable under seven theories
A. The Plaintiffs' Theories of Direct Liability 9
With respect to the plaintiffs' claims in their amended complaint alleging liability against the CropLife Defendants arising directly from their alleged actions (i.e. battery, assault, trespass, fraud, negligent supervision, nuisance, and strict liability), all of these claims must be dismissed under Federal Rule of Civil Procedure 12(b)(6).
1. The Intentional Tort Claims
In attempting to assert claims for battery, assault, and trespass, the plaintiffs have failed to plead that the CropLife Defendants intended to commit these acts, rendering each of these claims legally unsustainable.
a. The Plaintiffs' Claims for Battery (Count I)
The plaintiffs argue that by "causing the excessive and unlawful use of Mancozeb in Ecuador" the defendants "committed acts which resulted in harmful or offensive contact with the bodies of the . . . proposed classes [of the plaintiffs]." Am. Compl. ¶ 362. They further allege that these contacts were committed without their consent causing them to sustain injuries and therefore "constitute battery, actionable under the laws of the District of Columbia." Id. ¶¶ 362-63. In response, the CropLife Defendants argue that the plaintiffs have fail to adequately allege the elements of a battery. Specifically, the CropLife Defendants assert that, despite the requirement that "intent to bring about bodily contact is `one of the essential elements of the tort of battery,'" the "[p]laintiffs fail to allege that [the CropLife Defendants] acted with intent to cause bodily contact."
A claim for battery is actionable only if the plaintiff has alleged that the defendant has committed (a) "harmful or offensive contact with a person," which, (b) "result[s] from an act intended to cause that person to suffer such a contact." Person
Although the plaintiffs allege that the "[d]efendants committed acts which resulted in harmful or offensive contact," they do not allege that the CropLife Defendants acted with any intent to commit such contact. See Am. Compl. ¶ 362. While it is appropriate for a court to infer the element of intent from the circumstances as alleged in a complaint, Gonzales v. Carhart, 550 U.S. 124, 155, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) ("It is true that intent to cause a result may sometimes be inferred if a person `knows that that result is practically certain to follow from his conduct.'" (citation omitted)), in the this case there are no factual allegations in the amended complaint upon which to base such an inference. Moreover, the notion that the CropLife Defendants acted with the requisite intent cannot be easily reconciled with the plaintiffs' overall allegation that the CropLife Defendants' motivation in promoting Mancozeb was to "increase revenues from the sale of bananas," Am. Compl. ¶ 6; see Evans-Reid v. District of Columbia, 930 A.2d 930, 937 (D.C. 2007) (relying upon the Restatement (Second) of Torts); Madden, 307 A.2d at 757 (same); Restatement (Second) of Torts § 18 (2009) ("In order that the actor may be liable . . . [for intending to cause a harmful or offensive contact], it is necessary that an act be done for the purpose of bringing about a harmful or offensive contact or an apprehension of such contact to another or to a third person or with knowledge that such a result will, to a substantial certainty, be produced by his act. It is not enough to make the act intentional that the actor realize that it involves any degree of probability of a harmful or offensive contact or an apprehension of such contact, less than a substantial certainty that it will so result." (emphasis added)). Indeed, this acknowledged motivation by the CropLife Defendants is entirely inconsistent with personal intent on their part to commit battery on the plaintiffs. Accordingly, the plaintiffs have not sufficiently stated a claim of direct liability for battery against the CropLife Defendants, and this component of their claim must be dismissed.
b. The Plaintiffs' Claim for Assault (Count II)
The plaintiffs assert that the defendants, in "spraying or exposing all of the [p]laintiffs with toxic poison repeatedly and across a period of indefinite time," were responsible for causing the plaintiffs "to be apprehensive that [the d]efendants would subject them to imminent batteries and/or intentional invasions of their rights." Am. Compl. ¶ 365. Therefore, the plaintiffs allege that the defendants' conduct demonstrated "a present ability to subject [the plaintiffs] to an immediate, intentional, offensive and harmful touching" to which the plaintiffs "did not consent," and accordingly the defendants' acts "constitute assault." Am. Compl. ¶¶ 365-66. In response, the CropLife Defendants argue that the plaintiffs do not state a claim for assault because the plaintiffs neither "allege intent on the part of [CropLife A] or [CropLife I] to place [the p]laintiffs in apprehension of an immediate battery," nor identify "any conduct on the part of [CropLife A] or [CropLife I] that resulted in [the p]laintiffs' apprehension of an immediate contact with Mancozeb." Defs.' Mem. at 9-10.
In the District of Columbia, defendants are subject to liability for assault if "(a) [they] act intending to cause a harmful or offensive contact . . ., or an imminent apprehension of such a contact, and (b) the other [party] is thereby put in such imminent apprehension." Rogers v. Loews L'Enfant Plaza Hotel, 526 F.Supp. 523, 529 (D.D.C.1981). An actor will not be held liable for assault for negligent or reckless behavior lacking the requisite intent to commit an assault. See Jackson v. District of Columbia, 412 A.2d 948, 955 n. 15 (D.C.1980). Also, an "essential element of . . . assault is . . . intentional putting another in apprehension" and absent such an allegation a complaint is "clearly deficient." See Madden, 307 A.2d at 757 (emphasis added).
The plaintiffs again fail to plead intent as the basis for finding direct liability for the assault claims lodged against the CropLife Defendants, an omission that renders the pleading of the assault claim against them incomplete. Even accepting all the allegations in the complaint as true, the plaintiffs simply never allege that the CropLife Defendants either intended to cause a harmful or offensive contact with the plaintiffs, or intentionally caused the plaintiffs to be placed in apprehension of such contact. Am. Compl. ¶¶ 364-66. Further, just because the plaintiffs were in fact subjected to such apprehension does not alone give rise to a viable assault claim, as the plaintiffs are required to plead that the apprehension was the result of an act intended by a defendant to cause such apprehension. See Madden, 307 A.2d at 757. Absent such an allegation, the plaintiffs' claims amount at most to allegations of negligent or reckless behavior, which clearly fall short of assault. See Jackson, 412 A.2d at 955 n. 15. For these reasons, the plaintiffs have failed to state a claim for assault based on direct liability and this aspect of their assault claim must be dismissed.
c. The Plaintiffs' Claim for Trespass (Count VI)
Some of the plaintiffs assert claims against the CropLife Defendants for "excessive and unlawful spraying of Mancozeb
In the District of Columbia, the tort of trespass is comprised of two elements: (1) an "intentional intrusion of a person or thing upon property" that (2) "invades and disrupts the owner's exclusive possession of that property." Daily v. Exxon Corp., 930 F.Supp. 1, 2 (D.D.C. 1996). With respect to the requirement of pleading intent on behalf of the CropLife Defendants, the plaintiffs need not allege that these defendants had "specific intent to invade unlawfully the property of another;" however, the plaintiff must allege some form of "volition, i.e. a conscious intent to do the act that constitutes the entry upon someone else's . . . property." Nat'l Tel. Coop. Ass'n v. Exxon Corp., 38 F.Supp.2d 1, 12 (D.D.C.1998) (citation omitted). Trespass, however, is not a "strict-liability formulation," and it is not enough "that the defendant intentionally do some act that ultimately results in harm to property." Id. Instead, the defendant "must intend 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." Id. (emphasis added). As to the second element, although under the traditional formulation of trespass "any invasion[,] regardless of how insignificant[, would] constitute a trespass," in modern jurisprudence this historic principle has been "pragmatically modified" in light of "an increasing number of trespass claims [being] brought based on invisible, microscopic invasions of toxins or contaminants." Id. at 15. Indeed, most courts, including those of the District of Columbia, require a plaintiff alleging trespass based on particle deposits, such as the pesticide usage alleged here, to "prove actual harm to the property." Id. (noting that the standard has "similar dimensions of nuisance law," i.e. "requiring an actual showing of harm or interference with land"); accord John Larkin, Inc. v. Marceau, 184 Vt. 207, 959 A.2d 551, 554-555 (2008) (discussing development of "modern" trespass theory, and adopting requirement of physical damage to property); see also Satterfield v. J.M. Huber Corp., 888 F.Supp. 1567, 1572 (N.D.Ga.
Here, the plaintiffs having failed to adequately plead either of the two prongs of the tort of trespass, they cannot maintain their claim for trespass. The plaintiffs' theory of trespass is explicitly premised on the assertion that the act resulting in the trespass was the "excessive and unlawful spraying of Mancozeb," which contaminated the plaintiffs' land with a toxic chemical. Am. Compl. ¶¶ 380-83. Thus, in order to state a claim for trespass under this theory based on direct liability, the plaintiffs were required to allege that CropLife A or CropLife I intentionally sprayed Mancozeb and, that as a "immediate or inevitable consequence" of these acts, actionable claims of trespass were committed. See Nat'l Tel., 38 F.Supp.2d at 12. In this case, the plaintiffs only generally state that the "defendants" acted in an "intentional" manner in spraying Mancozeb. Am. Compl. ¶ 382. To the extent that this allegation concerns the CropLife Defendants, it is merely a recital of an element of the cause of action pled without any factual support, as nowhere in the amended complaint do the plaintiffs allege, or even remotely suggest, that the CropLife Defendants ever personally sprayed Mancozeb in Ecuador (or, for that matter, anywhere else). See generally Am. Compl. To the contrary, to the extend that the amended complaint alleges that the CropLife Defendants had any role in any purported scheme involving Mancozeb, it was in the capacity of promoting or lobbying for its legality to facilitate its use by other entities. See, e.g., Am. Compl. ¶¶ 3, 303. For this reason, the plaintiffs cannot establish the first element of their trespass claim—"an intentional intrusion of a . . . thing upon property," Daily, 930 F.Supp. at 2—in regards to the CropLife Defendants. See Dine v. W. Exterminating Co., No. 86-CV-1857, 1988 WL 25511, at *9 (D.D.C. Mar. 9, 1988) (finding defendant did not commit an act of trespass by selling pesticide to a third party, who, in turn, applied it to plaintiff's land, because the defendant did not "directly cause a physical invasion of [the] plaintiff's" land) (emphasis added).
Moreover, the plaintiffs do not adequately allege actual harm to their land, having neglected to provide any factual support for the conclusory assertions that the plaintiffs' property is now "contaminat[ed].. . with a toxic chemical," Am. Compl. ¶ 381, and that the plaintiffs'"use and enjoyment" of the property has been "substantial[ly and] unreasonabl[y] interfere[d]" with, id. ¶ 392. The Supreme Court has made clear that "[t]hreadbare recitals of the elements of a cause of action.. . do not suffice," Iqbal, 129 S.Ct. at 1949, and the allegation here, lacking in any actual factual assertions, is similarly insufficient to support the plaintiffs' trespass claim.
2. The Plaintiffs' Claim for Fraud (Count III)
Regardless of which theory of fraud liability the plaintiffs are alleging, they have not plead, inter alia, the claim with the requisite level of particularity mandated by Federal Rule of Civil Procedure 9(b), and the Court is thus required to grant the
a. The Fraudulent Concealment Doctrine
In their amended complaint, the plaintiffs allege that the defendants "fraudulently concealed the risks of Mancozeb" with knowledge that their representations would be "relied upon" by the plaintiffs, and because the plaintiffs did "rel[y] upon [the defendants'] representations and adjust[ed] their use of these chemicals" based on those representations, the defendants are liable for "fraudulent concealment." Am. Compl. ¶¶ 368-69 (emphasis added). The CropLife Defendants respond that the plaintiffs' fraudulent concealment claim should be dismissed because it is not an actionable theory of liability under the law of the District of Columbia. Defs.' Mem. at 11. The CropLife Defendants are correct in that the plaintiffs cannot maintain a claim under this theory of liability.
Fraudulent concealment is an equitable doctrine employed to "toll the running of [an applicable] statute of limitations" where a defendant is alleged to have improperly concealed the existence of a cause of action. See William J. Davis, Inc. v. Young, 412 A.2d 1187, 1191 (D.C. 1980) (noting that to invoke the doctrine of fraudulent concealment "the defendant must have done something of an affirmative nature designed to prevent discovery of the cause of action"); see also Firestone, 76 F.3d at 1209; Richards v. Mileski, 662 F.2d 65, 70 (D.C.Cir.1981) (noting that "[u]nder the law of the District of Columbia, fraudulent concealment requires that the defendant commit some positive act tending to conceal the cause of action from the plaintiff"). Thus, because no allegations related to any applicable statutes of limitations have been raised by the plaintiffs, it is evident that their claim for "fraudulent concealment" must be dismissed for this reason alone.
b. The Plaintiffs' Compliance with the Particularity Requirement Mandated by Rule 9(b)
Considering the Court's obligation to liberally construe the plaintiffs' amended complaint when challenged by a motion to dismiss, the Court assumes that the plaintiffs must have intended to assert a claim for fraudulent misrepresentation, a form of fraud, see Pls.' Opp'n at 20 n. 12 (stating that the "[p]laintiffs' allegations would also state a claim for fraudulent misrepresentation"); see also Am Compl. ¶ 368 (alleging that the defendants "intentionally misrepresented.. . the risks of Mancozeb," knowing "that the representations made
Under District of Columbia law, an allegation of fraud must include the following essential elements: "(1) a false representation, (2) concerning a material fact, (3) made with knowledge of its falsity, (4) with the intent to deceive, and (5) upon which reliance is placed." In re Estate of McKenney, 953 A.2d 336, 341 (D.C.2008). A complaint alleging fraud must also "meet the requirements of Rule 9(b) of the Federal Rules of Civil Procedure," Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans Inc., 525 F.3d 8, 22 (D.C.Cir.2008), which requires that "the circumstances constituting fraud . . . [be] stated[ed] with particularity," Fed.R.Civ.P. Rule 9(b). In this Circuit, "the circumstances that the claimant must plead with particularity include matters such as the time, place, and content of the false misrepresentations, the misrepresented fact, and what the opponent retained or the claimant lost as a consequence of the alleged fraud." Chelsea Condo. Unit Owners Ass'n v. 1815 A. St., Condo. Group, LLC, 468 F.Supp.2d 136, 146 (D.D.C.2007); see United States ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 1256 (D.C.Cir.2004) (noting that Rule 9(b) requires a complaint to set forth the "time, place and content of the false misrepresentations, the fact misrepresented and what was retained or given up as a consequence of the fraud" as well as to "identify[ing the] individuals allegedly involved in the fraud" (citations omitted)). "Unless . . . a complaint . . . pleads with particularity [a] defendant's alleged fraudulent representations . . . [, the plaintiff] will not be permitted to" maintain the claim. United States ex rel. Fisher v. Network Software Assocs., 227 F.R.D. 4, 11 (D.D.C.2005). This requirement is imposed because to permit a fraud claim to go forth on less specific allegations would permit "`the discovery of unknown wrongs,' which Rule 9(b) seeks to prevent." Id. (quoting Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1279 n. 3 (D.C.Cir.1994)). Accordingly, Rule 9(b) both "discourages the initiation of suits brought solely for their nuisance value" and "guarantee[s] all defendants sufficient information to allow for preparation of a response." Williams, 389 F.3d at 1256 (citations and alterations omitted).
Upon review of the plaintiffs' amended complaint, the Court concludes for several reasons that their allegations of fraud do not satisfy the heightened pleading requirements of Rule 9(b). First, the amended complaint fails to adequately identify with specificity the defendants responsible for allegedly fraudulently misrepresenting the dangers of Mancozeb. See Bates v. Nw. Human Servs., Inc., 466 F.Supp.2d 69,
Further, the plaintiffs do not adequately "specify what [fraudulent] statements were made [by the CropLife Defendants] and in what context." Intex Recreation Corp. v. Team Worldwide Corp., 390 F.Supp.2d 21, 24 (D.D.C.2005). Although plaintiffs need not "allege every fact pertaining to every instance of fraud.. ., defendants must be able to defend against the charge and not just deny that they have done anything wrong," Williams, 389 F.3d at 1259 (citation and quotation marks omitted). Here, the plaintiffs offer virtually no facts pertaining to any alleged fraudulent misrepresentations, beyond the generalized allegations that all the defendants knew of the "human health hazards associated with Mancozeb, yet concealed these risks from [the p]laintiffs." Am. Compl. ¶ 370. Such generalized claims fail to adequately describe the fraudulent conduct the defendants are being charged with committing or explain "the role [that any of the] individual [defendants] played in the alleged fraud." Williams, 389 F.3d at 1259. Moreover, the plaintiffs allege an "open-ended time span" as to when the fraud occurred, id. at 1257, asserting only that it was "particularly after 2005" when the defendants allegedly "provided [the] false and misleading information," Am. Compl. ¶ 5; see also id. ¶¶ 368-70. This "fail[s] to give the [CropLife Defendants] sufficient information to allow for preparation of a response" with an appreciation of when these alleged fraudulent misrepresentation may have occurred, and such an open-ended timeframe of several years fails to properly narrow the allegations to a timeframe with sufficient specificity as required by Rule 9(b). Williams, 389 F.3d at 1257 (citation and quotation marks omitted).
c. The Exceptions to the Requirements of Rule 9(b)
Arguing in the alternative, the plaintiffs posit that should the Court find that the plaintiffs' fraudulent misrepresentation allegations do not satisfy the requirements Rule 9(b), the plaintiffs are entitled to rely upon an exception to the pleading requirement imposed by that Rule due to their lack of access to the information upon which their claim is based. Pls.' Opp'n at 21. They predicate this position on the fact that the CropLife Defendants'"internal documents are . . . not publicly available," and therefore, "there [was] simply no means of providing accurate and specific information regarding dates and times" of the alleged fraudulent misrepresentations. Id. And "where the precise details are in the exclusive control of the defendant," the plaintiffs opine that "an exception to pleading fraud with specificity exists." Id.
The plaintiffs are correct that a court, in its discretion, may find that pleadings based on "information and belief," as opposed to being based on factual allegations, may be sufficient where it can be shown that "`the necessary information lies within the defendants' control.'" Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1279 n. 3 (D.C.Cir.1994) (citation omitted); Williams, 389 F.3d at 1258 (noting that "this circuit provides an avenue for plaintiffs unable to meet the particularity standard because defendants control the relevant documents-plaintiffs in such straits may allege lack of access in the complaint"). This exception, however, still must be "construed consistent with the purposes of Rule 9(b)," i.e. it is not intended to allow "the filing of a complaint as a pretext [used to] discover unknown wrongs." Kowal, 16 F.3d at 1279 n. 3. Accordingly, the doctrine is only available to a plaintiff when the information needed to make factual allegations is "peculiarly within the knowledge of the opposing party," Kowal v. MCI Commc'ns Corp., No. 90-CV-2862, 1992 WL 121378, at *6 (D.D.C. May 20, 1992) (emphasis added), and in order to invoke the doctrine a plaintiff is required to make "an allegation that the necessary information lies within the defendant's control, and . . . such allegations must also be accompanied by a statement of the facts upon which the allegations are based," Kowal, 16 F.3d at 1279 n. 3.
Here, the plaintiffs first raise the doctrine of lack of access in their opposition to the defendants' motion, never relying on this exception in their amended complaint. See generally Compl.; Pls.' Opp'n at 21-22. To the extent the plaintiffs can provide factual support for their position that the information necessary for them to support a claim of fraudulent concealment is particularly within the CropLife Defendants' control, then the plaintiffs are required to "so state[,] and [also] identify the facts upon which [this] allegation is founded." See In re Newbridge Networks Sec. Litig., 926 F.Supp. 1163, 1173 (D.D.C. 1996). Absent the requisite "statement of the facts upon which the allegations [of denial of access] are based," the plaintiffs have not adequately pled facts upon which
3. The Plaintiffs' Claim for Negligent Supervision (Count V)
The plaintiffs seek to hold the CropLife Defendants liable under the theory of negligent supervision, asserting that these defendants "had the authority to supervise, prohibit, control, and/or regulate the application standards for Mancozeb," could have prevented Mancozeb from being used, and knew that in not preventing its utilization the plaintiffs would "suffer the injuries described [in the Complaint]." Am. Compl. ¶¶ 377-78. And because the defendants allegedly failed to exercise due care in "supervise[ing], prohibit[ing], control[ing] or regulat[ing] their employees and/or agents," or in "mak[ing any] appropriate investigations into the possible negative impact on the" plaintiffs, the CropLife Defendants are liable for the injuries they allegedly sustained. Id. ¶ 379. The CropLife Defendants respond that not only have the plaintiffs failed to state a claim of negligent supervision because they fail to allege "that any [CropLife A] or [CropLife I] employees were ever present in Ecuador," but that they have also failed to allege that "employees [of the CropLife Defendants] behaved in a dangerous or incompetent manner and that [the CropLife Defendants] failed to adequately supervise them." Defs.' Mem. at 16.
In order to state a claim for negligent supervision, the plaintiffs must plead that: "(1) [the defendants'] employees behaved in an incompetent manner; (2) [the defendants] had actual or constructive knowledge of this incompetent behavior; and (3) despite having this actual or constructive knowledge, [the defendants] failed to adequately supervise [their] employees."
Here, it is unclear from the plaintiffs' amended complaint who it was that the CropLife Defendants failed to adequately supervise, see generally Am. Compl. ¶¶ 374-79 (vaguely stating that all the defendants failed to supervise their "employees and/or agents"), but even if the plaintiffs had identified any such individual, the remainder of their negligent supervision allegations lack the requisite factual basis necessary for them to maintain their claim on this theory, see Pls.' Opp'n at 18-19. The plaintiffs acknowledge that to "state a claim for negligent supervision" they must first "show that [the CropLife Defendants] knew or should have known that their agents, contractors, or employees behaved in a dangerous or otherwise incompetent manner." Id. at 19. The plaintiffs first suggest that the CropLife Defendants can be held liable for the "negligent supervision of [CropLife Ecuador]," a defendant located in Ecuador, but the plaintiffs do not also allege that CropLife Ecuador was either of the CropLife Defendants' contractor or employee. Id. The Court must presume then that the plaintiffs' allegation is premised on the theory that CropLife Ecuador is the agent of the CropLife Defendants, but, as addressed below, the plaintiffs fail to adequately allege facts that would establish the existence of an agency relationship with either defendant. Thus, the plaintiffs have not adequately alleged that the CropLife Defendants had a duty to supervise anyone who allegedly caused the plaintiffs' injury, including CropLife Ecuador.
The plaintiffs also contend that the CropLife Defendants can be held liable for the negligent supervision of "any other CropLife employee or contractor, who . . . misleadingly promoted the use of Mancozeb," Pls.' Opp'n at 19; however, such a "scant factual allegation" fails to satisfy the pleading requirements of the Federal Rules of Civil Procedure because it does not provide the defendants with sufficient specificity to accord them the ability to properly defend themselves, Bryant v. U.S. Gov't, 527 F.Supp.2d 137, 142 (D.D.C. 2007); see also Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (reiterating that the complaint must contain a "`short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the.. . claim is and the grounds upon which it rests'"). Accordingly, the Court must dismiss the plaintiffs' negligent supervision claim lodged against the CropLife Defendants.
4. The Plaintiffs' Claim for Public Nuisance, Private Nuisance and Nuisance Per Se (Count VIII)
a. The Plaintiffs Have Failed to Adequately Allege Any Right Common to the General Public which the CropLife Defendants Interfered With
The Resident and Municipality plaintiffs assert that the defendants sprayed "excessive and unlawful amounts of Mancozeb on the property of the Resident Plaintiffs and the Municipality," resulting in the "contamination of plaintiffs' lands with a toxic
In the District of Columbia," `a public nuisance is an unreasonable interference with a right common to the general public.'" Nat'l Tel., 38 F.Supp.2d at 13 (quoting B & W Mgmt., Inc. v. Tasea Inv. Co., 451 A.2d 879, 881 (D.C.1982)). A plaintiff bringing such a claim must at minimum identify a violation of some common public right, i.e. "damage to property, damage to human health, or damage to anything remotely approximating a `right common to the general public.'" See id.; see also B & W Mgmt., 451 A.2d at 881 (noting that public nuisance claims also traditionally covered "a variety of minor criminal offenses that interfered, for example, with the public health, safety, morals, peace, or convenience"); Tucci v. District of Columbia, 956 A.2d 684, 696 n. 11 (D.C. 2008) (noting that "some examples of public nuisances include storing explosives in the middle of a city or maintaining a pond in which malarial mosquitoes are breeding"). If a plaintiff fails to allege interference with a common public right, a court is justified in dismissing a case for failure to state a claim. See Nat'l Tel., 38 F.Supp.2d at 13-14 (dismissing plaintiff's public nuisance claim when the only interference alleged by the plaintiff was diminution in market value of its property, which the court found to be an "insular claim ... [that] touches upon no right common to the general public") (citation omitted).
Here, the plaintiffs merely recite the elements of a public nuisance claim without providing any factual support for
b. The Plaintiffs Have Failed to Adequately Allege that the CropLife Defendants are Neighboring Landowners
The plaintiffs are pursing their private nuisance claim based on their status as residents of Ecuador and an Ecuadorian municipality. Am. Compl. ¶¶ 384-94. The CropLife Defendants argue that the plaintiffs cannot maintain their private nuisance claim against them because "only an adjacent property owner may bring an action for [a private] nuisance," and the plaintiffs "do not allege that [CropLife A] or [CropLife I] is a neighbor to any [of the plaintiffs]." Defs.' Mem. at 21-22. For the following reasons, the CropLife Defendants have the stronger position.
Distinct from a public nuisance claim, a private nuisance claim "is a substantial and unreasonable interference with private use and enjoyment of one's land ... [,]for example, by interfering with the physical condition of the land, disturbing the comfort of its occupants, or threatening future injury or disturbance." B & W Mgmt., 451 A.2d at 882.
c. The Plaintiffs Have Failed to Adequately Allege that the Use of Mancozeb Constitutes Nuisance Per Se
The plaintiffs, who as noted are pursing their nuisance claims based on their status as residents of Ecuador and an Ecuadorian municipality, also argue that "[r]egardless of whether [the d]efendants' conduct creates a common law nuisance," the defendants are nonetheless liable for nuisance per se, because their acts were in "violation
A principle that has application in both the civil and criminal context, nuisance per se is defined as "a structure or activity which is a nuisance at all times and under any circumstances." Harris v. United States, 315 A.2d 569, 572 n. 9 (D.C. 1974). Once a plaintiff has provided proof of such an "act or the existence of [such a] structure," the tort of nuisance has been established "as a matter of law." Id. Here, the plaintiffs fall far short of stating a claim for nuisance per se.
Contrary to the plaintiffs' interpretation of the case law, Pls.' Opp'n at 23-24, nuisance per se does not necessarily arise every time a law is violated, see Tucci, 956 A.2d at 697 n. 13 (finding that "violations of local ordinances do not translate into ... [nuisance] per se under the common law"); B & W Mgmt., 451 A.2d at 882 n. 7 (noting that "[a] zoning violation does not constitute a `nuisance per se'"). Moreover, in attempting to plead a claim for nuisance per se solely on the grounds that a statutory standard of care was violated, the plaintiffs have failed to set forth the correct standard for nuisance per se, see Am. Compl. ¶ 393, i.e., that the defendants' activities constitute "a nuisance at all times and under any circumstances," Tucci, 956 A.2d at 697 n. 13. Indeed, as the CropLife Defendants correctly note, the plaintiffs argue that it was only the defendants' "improper discharge, release, and spraying of a toxic chemical" that resulted in the purported nuisance, Am. Compl. ¶ 392 clearly implying that the spraying of Mancozeb is not a nuisance under all circumstances. (emphasis added); see Defs.' Mem. at 23. Thus, the plaintiffs have not alleged the requisite facts to support a claim for nuisance per se, and accordingly, the claim must be dismissed as requested by the CropLife Defendants.
5. The Plaintiffs' Strict Liability Claim (Count IX)
Finally, the plaintiffs attempt to impose strict liability on the CropLife Defendants on the grounds that the "handling, use, storage, disposal and/or spraying of ... Mancozeb constitutes an ultra hazardous and/or abnormally dangerous activity." Am. Compl. ¶ 396. And the plaintiffs theorize that because "[a]s a direct and proximate result of such activity ... the [p]laintiffs have suffered damages[,] ... [the d]efendants are strictly liable for these damages." Id. ¶ 398. The CropLife Defendants respond that although the plaintiffs allege that the "handling, use, storage, disposal and/or spraying of" Mancozeb is an abnormally dangerous activity "for which strict liability should be imposed," the plaintiffs fail to "allege that [CropLife A] or [CropLife I] handle, use, store, dispose of, or spray [M]ancozeb," a
The District of Columbia Court of Appeals has recognized the common law doctrine of strict liability when a party is alleged to have engaged in abnormally dangerous activities, see District of Columbia v. Beretta U.S.A., Corp., 940 A.2d 163, 171 n. 5 (D.C.2008) (citation omitted), i.e. "activities that are dangerous in themselves and to injuries that result directly from the dangerous activity,"
Unlike the detonation of explosives, the plaintiffs offer no allegations indicating why using Mancozeb constitutes an abnormally dangerous activity. Indeed, they simply recite the elements that are necessary to establish a cause of action for strict liability, i.e., the "handling, use, storage, disposal and/or spraying of ... Mancozeb constitutes an ultra hazardous and/or abnormally dangerous activity." Am. Compl. ¶ 396. Without more, the plaintiffs' allegations do not "raise a right to relief above the speculative level," Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955, and thus their strict liability claim must be dismissed for that reason, see Delahanty, 564 A.2d at 761 (indicating that the activity must be one that is dangerous in and of itself); see also Nat'l Tel., 38 F.Supp.2d at 8 (finding the storing of gasoline not to be an abnormally dangerous activity, because "[u]like archetypical abnormally dangerous activities such as blasting, there is no evidence to suggest `that [the dangers posed by the storage of
B. The Plaintiffs' Theories of Vicarious Liability
The plaintiffs also allege vicarious liability on the part of the CropLife Defendants (i.e. liability based on the legal principles of aiding and abetting, agency, and conspiracy). In the District of Columbia, none of the three theories gives rise to an independent cause of action; rather, liability under each is reliant upon derivative tortious activity and therefore must be premised on some underlying tort. See Ali v. Mid-Atl. Settlement Servs., Inc., 640 F.Supp.2d 1, 9 (D.D.C.2009) (granting the defendant summary judgment on the plaintiff's conspiracy and aiding and abetting claims upon dismissal of underlying tort of fraud); Burnett v. Al Baraka Inv. and Dev. Corp., 274 F.Supp.2d 86, 105 (D.D.C.2003) (noting that "[l]iability for aiding and abetting, or for conspiracy, must be tied to a substantive cause of action"). As discussed above, because the plaintiffs have failed to adequately state an actionable claim for any tortious activity by the CropLife Defendants, the plaintiffs' vicarious liability theories cannot be maintained. And even presuming for the sake of argument that the plaintiffs' had adequately alleged any underlying tortious activity, their theories of vicarious liability still could not be maintained against the CropLife Defendants.
1. The Plaintiffs' Aiding and Abetting Theory
The plaintiffs allege that "[i]n accomplishing the objective of selling large quantities of Mancozeb in Ecuador ... all of the Defendants[, including the CropLife Defendants,] ... aided and abetted" in actions that resulted in the plaintiffs' injuries. Am. Compl. ¶ 359. Although the plaintiffs do not develop this theory of liability further in their amended complaint, in their opposition to the CropLife Defendant's motion for dismissal, the plaintiffs clarify that the underlying tortious activity upon which derivative liability is attached flows from their claims for "assault, battery, trespass, nuisance, and strict liability."
a. Recognition of Aiding and Abetting as an Actionable Claim in the District of Columbia
Both parties rely upon the District of Columbia Circuit's decision in Halberstam v. Welch, 705 F.2d 472 (D.C.Cir.1983), for their conflicting positions as to whether aiding and abetting is an actionable theory of vicarious liability in the District of Columbia. Pls.' Opp'n at 9-11; Defs.' Mem. at 13-14. This reliance may be misplaced. Although the Halberstam Court reasoned that that the "existence of the civil conspiracy action [in the District] suggests a high probability that the legal rationale underlying aiding-abetting would also be accepted," it was also careful to note that that "[t]he separate tort of aiding-abetting has not yet, to our knowledge, been recognized explicitly in the District." See 705 F.2d at 479. Since the decision in Halberstam was rendered, it remains unclear whether the District of Columbia Court of Appeals will recognize a claim of aiding and abetting. See Flax v. Schertler, 935 A.2d 1091, 1107-08 (D.C.2007) (noting the enduring "uncertainty" as to whether courts in the District of Columbia "would recognize any claim for aiding and abetting a tort"). Indeed, in Flax, the District of Columbia Court of Appeals rejected the plaintiff's allegation of attorney malpractice based on her former attorney's failure to bring an aiding and abetting claim in an earlier case due to "[t]he uncertainty" as to whether it would even recognize aiding and abetting, which the Court found "significantly (if not fatally) undermine[d] any claim that the Lawyers were negligent in failing to bring such a claim." Id. at 1108.
There does not appear to be case law in the District of Columbia that explicitly recognizes aiding and abetting as an actionable theory of liability. Pls.' Opp'n at 9-11; Defs.' Mem. at 13-14. Although other members of this Court have at times embraced aiding and abetting as a theory of civil liability, it has typically occurred in situations where a plaintiff's attempt to
In sum, the status of aiding and abetting as an actionable theory in the District of Columbia remains uncertain, see Flax, 935 A.2d at 1107-08, and, as such, it is unclear whether this Court, which has jurisdiction based on diversity, should embrace the doctrine. However, because it is unlikely that the allegations in the amended complaint are sufficient to give rise to an actionable claim under the theory, it is unnecessary for the Court to address the question.
b. Survivability of the Plaintiffs' Aiding and Abetting Claim if it is Actionable in the District of Columbia 32
Assuming that aiding and abetting is an actionable theory upon which civil liability in the District of Columbia can be based, to survive a motion to dismiss the plaintiffs must have adequately pled the three essential elements of civil aiding and abetting. See Burnett, 274 F.Supp.2d at 104-05. Those elements include: "(1) a wrongful act causing an injury by a party aided by the defendant; (2) the defendant's knowledge of his role as part of an overall illegal or tortious activity at the time that he provided assistance; and (3) the defendant's knowing and substantial assistance in the principal violation." Ungar, 211 F.Supp.2d at 99 (quoting Halberstam, 705 F.2d at 477).
The plaintiffs have not adequately plead that the CropLife Defendants knowingly or substantially assisted a principal defendant in the commission of any tortious activity, and accordingly, their aiding and abetting theory of liability cannot be maintained. As just noted, in order to state a
Moreover, the plaintiffs also fail to adequately plead that the CropLife Defendants provided "substantial assistance in the principal violation." Ungar, 211 F.Supp.2d at 99 (emphasis added). Although the plaintiffs allege that the CropLife Defendants aided in the misrepresentation concerning Mancozeb's health hazards, they "have not [alleged how providing this purported] ... assistance" to the other defendants, i.e., lobbying,
2. The Plaintiffs' Agency Theory of Liability
The plaintiffs advance two theories of agency liability, urging that the CropLife Defendants can be held liable as: (1) the agents of their member companies, co-defendants in this case, and (2) principals of CropLife Ecuador. Pls.' Opp'n at 15. As to their first theory of agency liability, the plaintiffs assert that the CropLife Defendants, "on behalf of [their] individual members that produce and market Mancozeb..., acted as agents for [their member companies,] ... creating and implementing the unlawful scheme to promote, market and utilize Mancozeb." Am. Compl. ¶¶ 305-06. As to their second theory, the plaintiffs allege that the CropLife Defendants "used their subsidiary entity in Ecuador, CropLife Ecuador, as its agent and/or alter-ego to serve as the representative voice for the promotion and sale of Mancozeb." Am. Compl. ¶ 307. In response, the CropLife Defendants argue that the plaintiffs "have failed to raise a plausible inference that an agency relationship exists between [CropLife A] or [CropLife I] and other defendants." Defs.' Mem. at 31. Specifically, the CropLife Defendants argue that any allegation of their control advanced by the plaintiff "is speculative, conclusory, and implausible," and as such does not satisfy the requisite pleading standard. Id. at 32.
In the District of Columbia, the determination of whether an agency relationship exists turns on several factors, including "(1) the selection and engagement of the servant, (2) the payment of wages, (3) the power to discharge, (4) the power to control the servant's conduct, (5) and whether the work is part of the regular business of the employer." District of Columbia v. Hampton, 666 A.2d 30, 38 (D.C.1995) (citation omitted). Of these factors, the "`determinative factor' is usually the ... right to control an employee in the performance of a task and in its result." Id. at 38-39; see also Giles v. Shell Oil Corp., 487 A.2d 610, 611 (D.C.1985) (stating that the "determination of the existence of [an agency] relationship basically turns upon one of these factors: control."). Indeed, "[i]t is a fundamental principle of hornbook agency law that an agency relationship arises only where the principal `has the right to control the conduct of the agent with respect to matters entrusted to him.'" Carswell v. Air Line Pilots Ass'n Int'l, 540 F.Supp.2d 107, 122 (D.D.C.2008) (quoting Restatement (Second) of Agency § 14 (1958)); see also Restatement (Third) of Agency § 1.01 (2006) (stating that an agency relationship is the "fiduciary relationship that arises when [a principal] manifests assent to [an agent] that the agent shall act on the principal's behalf and subject to the principal's control").
The first agency argument advanced by the plaintiffs—that the CropLife Defendants served as the agents of their member companies—is not actually an argument premised upon agency liability as set
As to the plaintiffs' second theory—that the CropLife Defendants were principals and defendant CropLife Ecuador was their agent
Ultimately, the plaintiffs assert nothing more than allegations that are "`merely consistent with' [CropLife Ecuador's] liability," which alone does not allow this Court "to draw the reasonable inference that" CropLife Ecuador was ever subject to the control of the CropLife Defendants, in theory or in practice. Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Because the plaintiffs have failed to adequately plead the essential element of control, their claim that the CropLife Defendants are liable under agency principles must be dismissed.
3. The Plaintiffs' Theory of Conspiracy Liability
The plaintiffs allege that the CropLife Defendants, along with other defendants, "conspired to provide false and misleading information to the public, the government of Ecuador, and those involved in the application of Mancozeb on banana plantations, regarding the dangers of the
In order to survive a motion to dismiss for failure to state a claim of civil conspiracy under District of Columbia law, a complaint must allege with some factual support: "`(1) an agreement between two or more persons; (2) to participate in an unlawful act, or in a lawful act in an unlawful manner; and (3) an injury caused by an unlawful overt act performed by one of the parties to the agreement (4) pursuant to, and in furtherance of, the common scheme.'" Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 738 (D.C.2000) (citation omitted). The question of whether a conspiracy theory has been adequately pled often turns upon the existence of an agreement, which is the "essential element of a conspiracy claim," Graves v. United States, 961 F.Supp. 314, 320 (D.D.C.1997), and in pleading that a defendant entered into an agreement the "plaintiff must set forth more than just conclusory allegations of [the] agreement...." Brady v. Livingood, 360 F.Supp.2d 94, 104 (D.D.C.2004) (citing Graves, 961 F.Supp. at 321). Here, although the plaintiffs allege the existence of an agreement, this allegation is not buttressed with any factual support, rendering the pleading deficient.
In sum, stripped of its factual and legal conclusions, the plaintiffs' amended complaint paints a maze from which it cannot be discerned with whom the plaintiffs are alleging the CropLife Defendants conspired, when the alleged agreement was reached, and what particular activity was the object of the conspiracy. See generally Am. Compl. Similar to the amended complaint that the Supreme Court in Twombly deemed deficient, the amended complaint here "mentions no specific time, place, or person involved in the alleged conspiracies," resulting in the CropLife Defendants having "no clue" as to how they "supposedly agreed ... [to an] illicit agreement." 550 U.S. at 565 n. 10, 127 S.Ct. 1955. Despite the plaintiffs' efforts to have their conspiracy theory stand on conclusory allegations alone, the case law is clear that merely asserting the existence of an agreement without providing any facts "suggesting that the defendants were acting in concert in furtherance of a shared goal" renders a complaint deficient.
For the foregoing reasons, the plaintiffs have failed to state a claim under which the CropLife Defendants could be held liable, under either a theory of direct or vicarious liability, and thus the CropLife Defendants' motion to dismiss must be granted in full. However, the claims are dismissed without prejudice, Andrx Pharms., Inc. v. Biovail Corp. Int'l, 256 F.3d 799, 807 (D.C.Cir.2001) (stating that motion seeking dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) should only be granted with prejudice when the Court determines, as a matter of law, that "the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency."), and therefore if the plaintiffs are able to remedy the deficiencies found by the court consistent with the foregoing analysis, they are welcomed to attempt to do so pursuant to Federal Rule of Civil Procedure 15.