United States District Court, D. Nevada
For Ron Van Meter, Jody Van Meter, Plaintiffs: Jeffrey A. Dickerson, LEAD ATTORNEY, Jeffrey A. Dickerson, Reno, NV; Julie Cavanaugh-Bill, LEAD ATTORNEY, Cavanaugh-Bill Law Offices, LLC, Elko, NV.
For Wells, City Of, Jolene M. Supp, Defendants: Brent T. Kolvet, Thorndal Armstrong Delk, et al, Reno, NV; Kevin A. Pick, Thorndal, Armstrong, Delk, Balkenbush & Eisinger, Reno, NV.
ROBERT C. JONES, United States District Judge.
This case arises out of sewage backup up into a residence. Before the Court is a Motion for Summary Judgment (ECF No. 21) and a Motion to Reconsider (ECF No. 22). For the following reasons, the Court
grants the Motion for Summary Judgment and denies the Motion to Reconsider.
I. FACTS AND PROCEDURAL HISTORY
Plaintiffs Ron and Jody Van Meter have owned and resided at a house located at 356 Castle Street in Wells, Nevada since 1989. (Compl. 4, ECF No. 1). On October 19, 2011, Defendant City of Wells's (the " City" ) sewer line " failed to function as intended," and raw sewage " invaded" Plaintiffs' basement (the " first incident" ). ( Id. at 4--5). Plaintiffs contacted Trail 40 Corp., a plumbing company, to inquire into the reason for the sewage. ( Id. at 5). Trail 40 Corp. advised that " a defective City of Wells sewer line caused the sewage to backup into Plaintiffs' basement." ( Id. (emphasis omitted)). On October 24, 2011, Plaintiffs contacted Defendant Jolene M. Supp, the City Manager, and requested that the City clean up the mess and compensate Plaintiffs for the damage to their residence and personal belongings. ( Id. ). Supp declined both requests, so Plaintiffs cleaned up the raw sewage in their basement. ( Id. ). Defendants also did not take action to fix the defective sewer. ( Id. ).
On November 3, 2011, more raw sewage " physically invaded" Plaintiffs' basement from the same defective sewage line (the " second incident" ). ( Id. at 6). Plaintiffs contacted Supp and she again declined to compensate Plaintiffs and clean up the sewage. ( Id. ). The City still has not corrected the problem with the sewer. ( Id. ). As a result of the incident, and because the ventilation lines for the house are drawn from the basement, Plaintiffs' entire house smells like sewage. ( Id. ). Plaintiffs are deterred from cleaning up the sewage themselves because they are worried the sewer will just leak again. ( Id. at 7). They also allege that the sewer is a public improvement, and " [t]he disposing, transporting, and treating of raw sewage" concerns the whole community. ( Id. ). They allege that Plaintiffs have contributed more than their share to the public undertaking, and the City should compensate Plaintiffs for their trouble. ( Id. ).
Plaintiffs sued the City and Supp on nine nominal causes of action: (1) declaratory relief under 28 U.S.C. § § 2201 and 2202; (2) civil constitutional claims under 42 U.S.C. § 1983; (3) inverse condemnation under Article I § 8(6) of the Nevada Constitution (against the City); (4) negligence; (5) intentional infliction of emotional distress; (6) trespass; (7) breach of implied contract (against the City); (8) private nuisance (against the City); and (9) respondeat superior (against the City). ( See id. at 9--14). Defendants moved to dismiss. The Court dismissed the first and ninth claims, as well as the second through eighth claims insofar as they arose out of Defendants' failure to inspect the sewage pipes before the first incident, without leave to amend. The Court refused to dismiss the second through eighth claims insofar as they arose out of Defendants' failure to clean up the sewage, compensate Plaintiffs, and repair the sewage pipe after the first incident. Defendants have now moved for summary judgment, and Plaintiffs have asked the Court to reconsider the earlier dismissals.
II. LEGAL STANDARDS
A court must grant summary judgment when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient ...