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PODS Enterprises, LLC v. Almatis, Inc.

United States District Court, W.D. Pennsylvania

December 27, 2016

ALMATIS, INC., Defendant.


          ROBERT C. MITCHELL United States Magistrate Judge.

         Plaintiff, PODS Enterprises, LLC (“PODS”), brings this action against Defendant, Almatis, Inc. (Almatis), alleging Pennsylvania common law claims of private nuisance, trespass and trespass to chattel. Plaintiff contends that bright white foreign particulates (dust) entered its storage facility from Defendant's neighboring storage facility and was deposited on its customers' storage containers, thereby causing damages to the contents.

         Presently before the Court is Defendant's motion to dismiss or strike Plaintiff's demands for attorney's fees. For the reasons that follow, the motion will be granted.


         Plaintiff operates a storage facility at 410 Riverport Drive, Leetsdale, Pennsylvania, which consist of approximately 35, 100 square feet in an industrial building located in a multi-tenant real property development known as Leetsdale Industrial Park. Defendant is the occupant of 501 W. Park Road in Leetsdale, located adjacent to the PODS Property. (Am. Compl. ¶¶ 1, 3-4.)[1] Beginning on or about September 7, 2015, Plaintiff notice dust accumulating in its storage facility. The dust was deposited on both the exterior of the storage containers and on the interior of numerous PODS' customers' storage containers, causing damage to the contents. PODS was informed by Tony Rosenburger, a landlord representative of Leetsdale Industrial Park, that the dust was caused by Plaintiff's neighboring tenant, Defendant Almatis. (Am. Compl. ¶¶ 5-6.)

         On or about September 22, 2015, PODS received its first customer complaint regarding dust on the contents that were stored in the PODS containers, citing concerns about the presence of the bright white dust and its potential health effects. Between September 23, 2015 and September 27, 2015, representatives from Almatis visited the PODS facility to investigate. These representatives acknowledged the dust and confirmed that it originated from Almatis' property. Plaintiff alleges that the cause of the dust accumulation is the improper or faulty ventilation and filtering system emitting excess aluminum oxide dust from Almatis' facility. (Am. Compl. ¶¶ 7-9, 12.)

         Plaintiff states that Almatis has made repeated representations that the dust problem was resolved. However, it alleges that the dust problem has worsened since approximately March or April 2016 and continues to this day. Plaintiff indicates that it has been forced to incur costs including, without limitation, the costs to clean the equipment and premises and relocate to another facility, only to incur additional costs upon returning to the property after misrepresentations by Almatis that the problem had been remedied. (Am. Compl. ¶¶ 13-14.)

         Procedural History

         Plaintiff commenced this action by filing a Complaint against Defendant in the Court of Common Pleas of Allegheny County on May 16, 2016. Count I alleged a claim of private nuisance. Count II alleged a claim of trespass. Count III alleged a claim of trespass to chattel. Count IV alleged a claim of tortious interference with economic and business relationships. Count V alleged a claim of negligent misrepresentation. Count VI alleged a claim of intentional misrepresentation. Count VII alleged a claim of negligence per se. Each claim sought over $35, 000 in damages.

         On June 30, 2016, Defendant removed the action to this Court on the basis of diversity jurisdiction in that: Plaintiff is a Florida limited liability company owned by the Ontario Teachers' Pension Plan (OTTP) and neither OTPP nor any members of PODS are incorporated or have a principal place of business in either Arkansas or Delaware; Defendant is a Delaware corporation with its principal place of business in Bauxite, Arkansas; and the amount in controversy exceeds the sum of $75, 000.00, excluding interest and costs. 28 U.S.C. § 1332(a). (Notice of Removal ¶¶ 9-27 & Exs. 3-6.)[2]

         On August 22, 2016, Defendant filed a partial motion to dismiss (ECF No. 4).[3] It moved to dismiss Counts IV, V, VI and VII and Plaintiff's request for attorney's fees. In response, Plaintiff filed an Amended Complaint on September 13, 2016 (ECF No. 13). The Amended Complaint eliminated Counts IV-VI. However, each of the three remaining counts still contains a request for “legal fees related to consumer, employee, and regulatory liability stemming from the Almatis Dust emissions.” (Am. Compl. ¶¶ 19(d), 24(d), 30(d).)

         On November 4, 2016, Defendant filed a motion to strike or dismiss Plaintiff's request for attorney's fees (ECF No. 25). On November 19, 2016, Plaintiff filed a brief in opposition (ECF No. 27). On November 30, 2016, Defendant filed a reply brief (ECF No. 28).

         Which Rule Applies

         A motion to dismiss under Rule 12(b)(6) is based on the argument that the allegations of a claim “fail[] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Rule 12(f) allows the court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). “While courts possess considerable discretion in weighing Rule 12(f) motions, such motions are not favored and will generally be denied unless the material bears no possible relation to the matter at issue and may result in prejudice to the moving ...

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