Thompson v. Gammon

JAMES R. THOMPSON and CLIFFORD M. WEINER, Plaintiffs, v. DAPHNE GAMMON, MARTHA SCHUETZ,NANCY WALKER, JOHN DEWITT,CATHY DEWITT, and MARK F. REED, Defendants,andDAPHNE GAMMON, NANCY E. WALKER,and MARK F. REED, Counterclaimants, v. JAMES R. THOMPSON and CLIFFORD WEINER, Counterdefendants.

No. 12-CV-276 MCA/SMV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

September 29, 2014

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court on Plaintiff/Counter-Defendants James R. Thompson and Clifford M. Weiner's Motion to Dismiss Counterclaims of Defendant Gammon and Counterclaims of Defendant Walker. [Doc. 39] Upon consideration of the submissions, the relevant law and being otherwise fully informed in the premises, theCourt GRANTS-IN-PART the Motion with respect to Defendants' nuisance counterclaim. [Doc. 39] As Plaintiffs have withdrawn their Motion to Dismiss Defendants' remaining Counterclaims, the Court hereby DENIES AS MOOT Plaintiffs' Motion with respect to Counts III and IV. [Doc. 39]

I. BACKGROUND

This is an easement dispute. [Doc. 30, ¶¶ 16, 35; Doc. 36, ¶ 25; Doc. 37 ¶ 25] Plaintiffs seek a declaratory judgment stating, inter alia, that Defendants' claimed easement does not encumber Plaintiff Thompson's land and that Plaintiff Weiner has not obstructed any express easement, or that Defendants' express easement was abandoned. [Doc. 30, ¶ 35] Defendants Gammon and Walker have countersued, both alleging substantially the same facts and claims. [Doc. 36; Doc. 37] Plaintiffs now seek to dismiss in part Defendants' Counterclaims, and thus the Court takes the well-pleaded allegations of the Counterclaims as true for purposes of the Motion to Dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that a court must take as true all well pleaded factual allegations in a complaint).

Gammon and Walker allege that their respective properties, as well as Plaintiffs' properties, are accessed by "Walking Rain Road" (hereafter, the Road). [Doc. 36, ¶¶ 17-18; Doc. 37, ¶¶ 17, 18] Thompson, Weiner, Gammon and Walker are all members of the "Walking Rain Road Association." [Doc. 36, ¶ 19; Doc. 37, ¶ 19] In certain places the Road is contained within a 15 foot recorded easement burdening the properties of Weiner, Gammon and Walker. [Doc. 36, ¶ 20, ¶ 29; Doc. 37, ¶ 20, 29] However, at one point, the Road deviates from the recorded easement onto Thompson's property, "due tosteepness of the terrain." [Doc. 36, ¶¶ 20-22; Doc. 37, ¶¶ 20-22] Gammon has accessed her property using the Road, including where it crosses Thompson's property, for more than 14 years, and Walker has done the same for more than 10 years. [Doc. 36, ¶ 22; Doc. 37, ¶ 22]

In 2011, Thompson began constructing a wall and gate (or blockade, as Defendants allege) which blocks the Road and Gammon and Walker's access to their properties. [Doc. 36, ¶¶ 25, 42; Doc. 37, ¶¶ 25, 42] Also in 2011, Weiner began constructing landscaping which created a four foot drop in elevation in the easement of record. [Doc. 36, ¶¶ 25, 41; Doc. 37, ¶¶ 25, 41] Defendants claim that the drop in elevation and the blockade create "a danger to the traveling public and a foreseeable, unreasonable risk of harm to others," including Defendants. [Doc. 36, ¶¶ 41, 42; Doc. 37, ¶¶ 41, 42] Defendants also allege that Plaintiffs owe a duty of care to the general public, have "created an unreasonable risk of harm to the general and/or traveling public[,]" and have damaged Defendants. [Doc. 36, ¶¶ 43-45; Doc. 37, ¶¶ 43-45]

Defendants brought counter-claims against Plaintiffs on various grounds, including quiet title, trespass, ejectment, nuisance and injunctive relief. [Doc. 36; Doc. 37] Plaintiffs moved to dismiss the trespass, nuisance and ejectment counterclaims, but eventually withdrew their request to dismiss the trespass and ejectment counterclaims. [Doc. 39; Doc. 45, p. 1] Plaintiffs continue to seek dismissal of Defendants' nuisance counterclaim. [Doc. 45] Specifically, Plaintiffs distinguish between a public nuisance and a private nuisance, and argue that Defendants failed to allege facts sufficient to support either cause of action. [Doc. 39, pp. 3-5]

II. ANALYSIS

A court will dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). For decades, Rule 12(b)(6) motions were governed by a test taken from Conley v. Gibson, 355 U.S. 41, 45-46 (1957): a complaint was subject to dismissal pursuant to Rule 12(b)(6) only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Conley, 355 U.S. at 45-46) (internal quotation marks omitted). In Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007), the Court retired Conley's test, replacing it with a new standard: "to withstand a motion to dismiss, a complaint must have enough allegations of fact, taken as true, 'to state a claim to relief that is plausible on its face.'" Collins, 656 F.3d at 1214 (quoting Twombly, 550 U.S. at 570)). In applying this standard, a court accepts as true all "plausible, non-conclusory, and non-speculative" facts alleged in the plaintiff's complaint. Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir. 2011) (internal quotation marks and citation omitted). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. Moreover, "'a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim" that "'raise a right to relief above the speculative level.'" Collins, 656 F.3d at 1214 (quoting Twombly, 550 U.S. at 555). In short, in ruling on a 12(b)(6) motion, "a court should disregard all conclusory statements of law andconsider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the defendant is liable." Collins, 656 F.3d at 1214.

New Mexico recognizes distinct causes of action for public nuisance and private nuisance. Village of Los Ranchos de Albuquerque v. City of Albuquerque, 889 P.2d 185, 198-99 (N.M. 1994) (citing Restatement (Second) of Torts, § 821B, 821D, 822); City of Sunland Park v. Harris News, Inc., 124 P.3d 566, 577 (N.M. Ct. App. 2005) (cert. quashed, 141 P.3d 1280). A private nuisance is "an invasion of the private use and enjoyment of land, . . . or an invasion that affects a single individual or a determinate number of persons in the enjoyment of some private right not common to the public." Village of Los Ranchos, 889 P.2d at 198 (internal quotation marks and citations omitted). By contrast, a public nuisance "is an unreasonable interference with a right common to the general public." Id. (internal quotation marks and citations omitted). As set out in the Restatement of Torts:

(1) A public nuisance is an unreasonable interference with a right common to the general public.

(2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:

(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or

(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or

(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.

Restatement (Second) Torts, § 821(B).

With regard to a public nuisance, Plaintiffs argue that Defendants have not pleaded facts to establish that Plaintiffs' actions have affected "a considerable number of people or an entire community or neighborhood." Village of Los Ranchos de Albuquerque, 889 P.2d at 199. [Doc. 39, p. 4] Defendants do not clearly respond to this argument. [Doc. 41, pp. 6-7] Rather, Defendants largely argue that a nuisance claim does not require a physical invasion onto the claimant's property, and cite cases bearing no factual resemblance to the case at hand. [Doc. 41, pp. 6-7] See Caulkins v. Cox Estates, 792 P.2d 36, 38 (N.M. 1990) (considering, in an action for negligence, whether a landlord had the duty to maintain a fence around a playground to prevent child from wandering onto nearby interstate); Bober v. New Mexico State Fair, 808 P.2d 614, 620 (N.M. 1991) (recognizing that "an occupier of land has the duty to avoid creating an unreasonable risk of harm to persons outside the land, such as in an adjoining roadway" in a claim brought by an injured motorist exiting fairground to busy roadway); City of Sunland Park, 124 P.3d at 577-78, (distinguishing between types of nuisances and considering whether a truck sign, adult bookstore, and nude dancing were nuisances under any theory); Andrews v. Andrews, 88 S.E.2d 88, 92-93 (N.C. 1955) (concluding that the complaint stated a cause of action for private nuisance where the plaintiff alleged that the defendant intentionally attracted wild geese to his neighboring property knowing that the wild geese would feed on the plaintiff's crops); Ohio ex rel. Doner v. Zody, 958 N.E.2d 1235, 1238, 1244, (Ohio, 2011) (considering takings claims for property owners whose properties flooded as a result of redesigned dam spillway, and stating that lawfulconduct by a landowner on his or her own land which damages another's land may be considered a continuing trespass or nuisance); Hartford Fire Ins. Co. v. Gandy Dancer, LLC, 981 F.Supp.2d 981, 1019 (D.N.M. 2013) (considering whether insurer had duty to defend against nuisance allegation). While the Court agrees with the general proposition that a landowner can engage in lawful conduct on his or her own land which creates a nuisance for another landowner, this proposition does not answer Plaintiffs'...