JILLYN K. SCHULZE, Magistrate Judge.
Presently pending and ready for resolution are Defendant's motion to exclude experts, ECF No. 49, Defendant's motion for summary judgment, ECF No. 50, and Plaintiff's motion for summary judgment, ECF No. 75. No hearing is necessary. For the reasons set forth below, Defendant's motion to exclude experts will be denied, Defendant's motion for summary judgment will be granted in part and denied in part, and Plaintiff's motion for summary judgment will be granted in part and denied in part.
Plaintiff, I & G Investors, LLC, serves as General Partner of the Dunn family limited partnership (the Partnership), which owns an unimproved property in Accokeek, Maryland (the Property). George R. Dunn, Jr. is a managing member of I & G. Defendant, Michael M. Dunn, is a limited partner of the Partnership who operates Accokeek Sand & Gravel. Plaintiff's complaint alleges that in March, 2011, "the Partnership entered into a dumping agreement with Defendant whereby Defendant was authorized to dump 50 truckloads of clean fill dirt on the Property, in consideration for which Defendant was to pay the Partnership $1, 500.00." ECF No. 2 at 2. The complaint further alleges that Defendant breached this agreement by (1) failing to pay the Partnership $1, 500 for the authorized dumping; (2) dumping in excess of the allotted 50 truckloads; and (3) placing contaminated dirt on the property. Plaintiff seeks an injunction and compensatory damages.
Subsequently, Defendant filed a counterclaim, alleging that Plaintiff took several unauthorized actions on the Property, including dumping waste, permitting erosion and digging holes, which Defendant was required to remediate. ECF No. 10 at 1-2. The counterclaim seeks contribution for the remediation, compensatory damages, and an injunction. Defendant later amended the counterclaim, alleging that Plaintiff intentionally interfered with Defendant's current and prospective business relations. ECF No. 25-1.
II. Defendant's Motion for Summary Judgment.
Pursuant to Federal Rule of Civil Procedure 56(a), a summary judgment motion must show "that there is no genuine dispute as to any material fact" and that the moving party is "entitled to judgment as a matter of law." The moving party must support its assertions by "citing to particular parts of materials in the record" constituting admissible evidence. Fed.R.Civ.P. 56(c)(1)(A). "A complete failure of proof concerning an essential element... necessarily renders all other facts immaterial." havePower, LLC v. Gen. Elec. Co., 256 F.Supp.2d 402, 406 (D. Md. 2003). "Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence." Id. The court views all facts and reasonable inferences in the light most favorable to the opposing party. Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008).
A. Breach of Contract - Count I
Plaintiff alleges that "the Partnership entered into an agreement with Defendant whereby Defendant was authorized to dump 50 truckloads of clean fill dirt on the Property, in consideration for which Defendant was to pay the Partnership $1, 500.00." ECF No. 2 at 2. As mentioned earlier, Plaintiff claims that Defendant breached this contract by (1) failing to pay $1, 500 for the 50 loads of dirt; (2) dumping more than 50 loads of dirt; and (3) dumping contaminated materials on the Property. ECF No. 2 at 3. Defendant does not deny that he owes Plaintiff $1, 500 for dumping the 50 loads. See ECF No. 50 at 2 ("Michael respectfully requests that this motion [for summary judgment] be granted... on all I & G's claims except for the breach of contract claim seeking repayment of $1500.00.").
Defendant argues, however, that Plaintiff cannot show that he dumped in excess of 50 truckloads on the Property. ECF No. 50 at 5. Defendant's own answers to interrogatories admit that his agent "transported approximately 167 loads of structural fill dirt" to the Property. ECF No. 56-1 at 4. During a second job, "[r]oughly 1468 loads of fill dirt were transported... most of which was dumped at the farm." Id. Thus, there is evidence from which a reasonable jury could conclude that Defendant dumped in excess of 50 truckloads of dirt on the Property.
Defendant also asserts that Plaintiff cannot show that the Property was damaged because (1) Plaintiff's evidence of contamination is based on flawed expert opinions and (2) Plaintiff cannot show that the alleged contamination levels (a) present a danger to human health, (b) did not previously exist at the Property, or (c) were not caused by a third party. ECF No. 74 at 5. Defendant cites no authority for the proposition that Plaintiff must show that the contamination is a danger to human health. In addition, a plaintiff need not prove actual damages in a breach of contract action. See Taylor v. NationsBank, N.A., 365 Md. 166, 175 (2001) ("To prevail in an action for breach of contract, a plaintiff must prove that the defendant owed the plaintiff a contractual obligation and that the defendant breached that obligation. It is not necessary that the plaintiff prove damages resulting from the breach, for it is well settled that where a breach of contract occurs, one may recover nominal damages even though he has failed to prove actual damages."); Hooton v. Kenneth B. Mumaw Plumbing & Heating Co., 271 Md. 565, 572 (1974) ("Having implicitly concluded that [defendant] breached the contract, the court proceeded on the incorrect premise that a failure to prove damages compelled a dismissal of the case. It is firmly established by our prior decisions that where a breach of contract occurs, one may recover nominal damages even though he has failed to prove actual damages. Therefore, the application of this rule alone should have resulted in a denial of the motion to dismiss."). In any event, because the motion to exclude Plaintiff's experts will be denied, there will be evidence of damages.
Defendant's reply contains several additional arguments that were not included in his original summary judgment motion. "[T]he ordinary rule in federal courts is that an argument raised for the first time in a reply brief or memorandum will not be considered.'" Marshall v. James B. Nutter & Co., 816 F.Supp.2d 259, 264 (D. Md. 2011) (quoting Clawson v. FedEx Ground Package Sys., Inc., 451 F.Supp.2d 731, 735 (D. Md. 2006)). Nevertheless, the court will briefly address Defendant's new contentions.
First, Defendant claims that Plaintiff's contract claim is barred by the three year statute of limitations because his "activities at the property began decades before 2011." ECF No. 74 at 5. However, the alleged harm set forth in the complaint occurred in or about March, 2011. ECF No. 2 at 2. Plaintiff filed the lawsuit in the Circuit Court for Prince George's County on October 31, 2011, well within the limitations period. ECF No. 2.
Defendant next argues that Plaintiff cannot show that its damages did not result from third party dumping on the Property. This contention is speculative and thus not resolvable at the summary judgment stage. Finally, Defendant asserts that summary judgment must be granted on the claim regarding the excess dirt because the parties never "set a price for dumping excess dirt." ECF No. 74 at 5. That the agreement did not specify the exact damages that would result in the event of excess dumping does not mean that a fact finder cannot do so. Summary judgment will be denied with respect to Plaintiff's breach of contract claim.
B. Trespass - Count II
Defendant argues that Plaintiff's trespass claim cannot survive summary judgment because Defendant was given permission to enter the Property and a trespass can only occur when one enters a property without license or privilege. ECF No. 50 at 5. Defendant notes that Plaintiff "took no action to shut and lock a gate which allowed Michael to access the Property." ECF No. 74 at 6. However, once Defendant exceeded the authorized 50 load limit, he no longer had Plaintiff's consent to enter and dump dirt on the property. Permission to enter a property for one purpose is not permission to enter a property at will, for any purpose. Moreover, "[t]he determination of whether consent was given is a question of fact." Royal Inv. Group, LLC v. Wang, 183 Md.App. 406, 445 (2008); see also McDermott v. Hughley, 317 Md. 12, 27 (1989) (noting that whether consent in fact was given was properly a question for the jury's consideration). Thus, Defendant's claim that an unlocked gate constitutes consent must be resolved by a fact finder. Summary judgment will be denied with respect to Plaintiff's trespass claim.
C. Nuisance - Count III
Defendant contends that the nuisance claim cannot survive summary judgment because Plaintiff cannot demonstrate that the value of the Property was materially diminished. ECF No. 50 at 5. "To succeed on a nuisance claim, a plaintiff must establish an unreasonable and substantial interference with his or her use and enjoyment of his or her property, such that the injury is of such a character as to diminish materially the value of the property." Exxon Mobil Corp. v. Albright, 432 Md. 67, 172-73 (2013) (citations and quotations omitted). However, Plaintiff need not assign a dollar value to the loss. Gorman v. Sabo, 210 Md. 155, 162-63 (1956) ("A plaintiff who occupies a home is not limited to the recovery of the diminished rental value of it, but may be compensated for any actual inconvenience and physical discomfort which materially affected the comfortable and healthful enjoyment and occupancy of his home."). Defendant admittedly placed more than the authorized 50 loads of dirt on the Property. This evidence would enable a fact finder to determine that Plaintiff suffered an interference with its ordinary enjoyment of the Property.
Defendant also asserts, again for the first time in his reply brief, that he cannot be liable for nuisance because he "remediated damage to the property through his landscaping and trash removal activities." ECF No. 74 at 6. This contention, if true, does not protect Defendant against a claim of nuisance. Even if some of Defendant's conduct enhanced the Property, his other conduct could still interfere with the reasonable and comfortable enjoyment of the Property. See Susquehanna Fertilizer Co. v. Spangler, 86 Md. 562, 567 (1898) (noting that a nuisance may exist even though the alleged conduct may be useful to the public). Summary judgment will be denied with respect to Plaintiff's nuisance claim.
D. Negligence - Count IV
"In order to prevail on a claim of negligence in Maryland, a plaintiff must prove the existence of: (a) a duty owed by the defendant to the plaintiff, (b) a breach of that duty, and (c) injury proximately resulting from that breach." Barclay v. Briscoe, 427 Md. 270, 292 (2012) (citation omitted). Defendant's cursory argument that Plaintiff can prove no damages has already been rejected. Plaintiff has set out facts that would justify an award of damages for the alleged excess dirt and garbage on the Property. Summary judgment will be denied with respect to Plaintiff's negligence claim.
E. Strict Liability - Count V
Strict liability is imposed on a defendant when the alleged activity is abnormally dangerous. Gallagher v. H.V. Pierhomes, LLC, 182 Md.App. 94, 105 (2008). Maryland courts have adopted the Restatement (Second) of Torts when considering abnormally dangerous activities. Id. According to the Restatement, "[o]ne who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm." Restatement (Second) of Torts § 519 (1977). To determine what constitutes an abnormally dangerous activity, Maryland courts use the six-factor analysis laid out in section 520 of the Restatement. Gallagher, 182 Md.App. at 105. Those six factors are:
(a) existence of a high degree of risk of some harm to the person, land or ...