Ozier v. Lidl U.S. Operations, LLC

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WESLEY OZIER and IRVIE OZIER. Plaintiffs, v. LIDL U.S. OPERATIONS, LLC, Defendant.

Civil Action No. TDC-22-2396

United States District Court, D. Maryland

September 8, 2023

MEMORANDUM OPINION

THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE

Plaintiffs Wesley and Irvie Ozier have filed a civil action against Defendant Lidl U.S. Operations. LLC (“Lidl”) alleging statutory and common law tort claims arising from Lidl's construction and operation of a grocery store across the street from Plaintiffs' home. Pending before the Court is Lidl's Motion to Dismiss, which is fully briefed. Having reviewed the submitted materials, the Court finds that no hearing is necessary. See D. Md. Local R. 105.6. For the reasons set forth below. Lidl's Motion will be GRANTED IN PART and DENIED IN PART.

BACKGROUND

I. Factual Background

Plaintiffs are residents of a property ("the Ozier Property'') located on Woodmore North Boulevard in Bowie. Maryland, which they purchased in September 2012. In 2018. Lidl, a discount grocery retail chain, opened a store location at 13401 Annapolis Road in Bowie, Maryland, across the street from the Ozier Property.

According to Plaintiffs, during the construction of the new grocery store in 2017. the construction activities generated excessive noise and caused their home to shake. Over the next several months and into 2018. Plaintiffs lodged multiple complaints with various representatives of Lidl, including with the construction foreman at the job site. They also reported the noise and shaking to the Prince George's County Department of Permitting. Inspection, and Enforcement, the Office of the Bowie City Counsel, and other government officials and bodies. As of January 2018. the continuing disruptive noise frequently occurred between 2:00 a.m. and 5:00 a.m., the shaking of the house continued, and cracks began to appear in Plaintiffs' driveway. These effects from the construction of the store continued into and through the summer of 2018.

The new Lidl grocery store opened on September 12. 2018. Once the store opened, the streets around the Ozier Property became severely congested with traffic, and Lidl customers parked on streets in the neighborhood to access the Lidl store more easily, resulting in overcrowding of the streets and further traffic issues. At times, customers used Plaintiffs' driveway and front yard as a shortcut to get to and from the store. Mr. Ozier reported the parking issues to the Prince George County Police Department ("PGCPD”). On November 20, 2018. a suspected shoplifter was chased from the grocery store onto the Ozier Property. The shoplifter hid alongside the house and attempted to steal two bicycles from Plaintiffs. When Mr. Ozier reported this issue to a Lidl District Manager, the Lidl official laughed about it. and Lidl took no responsive action and adopted no measures to prevent future similar incidents.

In addition to the issue of individuals associated with Lidl entering onto the Ozier Property, the opening of the store brought additional noise disruptions. In December 2018. Mr. Ozier reported to a Lidl corporate representative that delivery' trucks had made a practice of idling for several hours during their delivery drop-off period in the late evenings and early mornings. Mr. Ozier made additional reports of this issue on multiple occasions from late 2018 through June 2019 and also reported it to Maryland State Delegate Erek Barron. The noise and disruption caused by Lidl delivery trucks idling through the night persisted up to the date of the filing of the Complaint.

Plaintiffs also contend that, since construction of the Lidl grocery store began and since its opening, Lidl has failed to take appropriate measures to control trash around the grocery store. Specifically, Plaintiffs state that the trash dumpsters for the grocery store are located close to the Ozier Property, which results in a constant foul smell during the summer that affects them in their home. Further, trash from the dumpster area has been blown onto their property, including their fenced-in backyard, and litter such as grocery bags and bottles have been left on the Ozier Property. Finally, they complain about the disruption caused when the large commercial trash trucks arrive to remove trash from the dumpsters between 3:00 a.m. and 6:00 a.m.

Plaintiffs' multiple attempts to resolve the noise and other issues with Lidl, including by filing complaints with corporate representatives and local government officers, resulted in a conference call on June 11, 2019 with representatives from the office of Prince George's County Council member Derrick Davis and the PGCPD. On that conference call. PGCPD Corporal Clagett, who had been aware of the matter since December 2018 and had previously told Plaintiffs that he would issue fines to Lidl for noise ordinance violations, told Plaintiffs that an investigation had concluded that Lidl was not in violation of any noise ordinances. According to Plaintiffs, however. Ms. Ozier had spoken to two inspectors w ho w ere part of the investigation, w ho told her that there were violations of noise ordinances. No results of that investigation have been produced.

II. Procedural History

Plaintiffs filed a Complaint in the Circuit Court for Prince George's County. Mary land which was removed to this Court. Plaintiffs have asserted six causes of action in the following numbered counts based on the conduct described above: (1) trespass; (2) private nuisance; (3) a violation of section 3-01(c) of the Environment Article of the Maryland Code, which authorizes the establishment of noise level limits, Md. Code Ann., Env't § 3-01(c) (LexisNexis 2013); (4) a violation of Section 14-124 of the Real Property Article of the Mary land Code, which defines a nuisance in Prince George's County, Md. Code Ann.. Real Prop. § 14-124 (LexisNexis 2013); (5) negligence; and (6) intentional infliction of emotional distress. Lidl has now filed a Motion to Dismiss all counts.

DISCUSSION

In its Motion. Lidl seeks dismissal of all claims pursuant to Federal Rule of Civil Procedure 12(b)(6). Specifically, it seeks dismissal on the grounds that (1) Lidl cannot be held liable for trespass by third parties, and Plaintiffs have failed to plead sufficient facts to show that Lidl intentionally allowed trash or odors to enter the Ozier Property; (2) the statutes upon which Counts 3 and 4 are predicated do not create a private right of action; and (3) Plaintiffs have failed to plead facts establishing the necessary elements of private nuisance, negligence, or intentional infliction of emotion distress.

I. Legal Standard

To defeat a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). the complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible when the facts pleaded allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'' Id. Legal conclusions or conclusory statements do not suffice. Id. The Court must examine the complaint as a whole, consider the factual allegations in the complaint as true, and construe the factual allegations in the light most favorable to the plaintiff. Albright v. Oliver. 510 U.S. 266, 268 (1994); Lambeth v. Bd. of Comm rs of Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005).

II. Trespass

In their trespass claim. Plaintiffs allege that Lidl has trespassed and continues to trespass onto their property by allowing customers or shoplifters to enter the Ozier Property, allowing trash to be blown onto their yard, and causing a constant smell on their property in the summertime. Lidl contends that it cannot be liable for the alleged trespass of third parties and that Lidl did not consciously intend to let trash blow onto the Ozier Property. Under Maryland law. "trespass is generally defined as an intentional or negligent intrusion upon or to the possessory interest in property of another.” Uthus v. Valley Mill Camp. Inc., 246 A.3d 1225. 1239 (Md. 2021) (quoting Litz v. Md. Dep t of Env 7,131 A.3d 923,936 (Md. 2016)). To prevail in a trespass action, plaintiffs must establish: “(1) an interference with a possessory interest in [their] property; (2) through the defendant's physical act or force against that property; (3) which was executed without [their] consent.” Id. To constitute a trespass, “it is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter.” Restatement (Second) of Torts § 158(a) cmt. I (Am. L. Inst. 1965); see Hanna v. ARE Acquisitions. LLC, 929 A.2d 892 897 (Md. 2007) (stating that one is subject to liability for a trespass when one intentionally causes a thing or a third person to enter land which is in the possession of another); see also Rudd v. Electrolux Corp. 982 F.Supp. 355, 370 (M.D. N.C. 1997) (stating that a defendant may be liable for a trespass when contaminants will, to a substantial certainty, reach the plaintiff s property). A defendant may be liable for trespass committed by a third party if the defendant “(1) commands or requests a third person enter another's property; or (2) by physical duress causes a third person to enter another's property.” CDS Family Trust v. Martin, No. 1:15-CV-02584-JMC, 2020 WL 7319269. at *3 (D. Md. Dec. 10. 2020) (quoting Restatement (Second) of Torts § 158(a) cmt. j). Without strictly adopting this standard, a Maryland court has also considered a trespass to potentially include "recklessly or negligently” causing a third party to trespass if it "causes harm to the land, to the possessor, or to a thing or a third person.” Montgomery v. Remsburg, 810 A.2d 14. 35 (Md. Ct. Spec. App. 2002) (quoting Restatement (...