Matiella v. Murdock Street LLC

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CHARLES MATIELLA,

Plaintiff,

Case No. 21-cv-2112 (GMH)

v.

MURDOCK STREET LLC, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

This action “concerns whether the construction of a condominium building damaged the

townhouses on an adjacent property owned by the Plaintiff, Charles Matiella.” Matiella v. Mur-

dock St., LLC, No. 21-cv-2112, 2024 WL 3967367, at *1 (D.D.C. Aug. 28, 2024) (footnote omit-

ted) [hereinafter Matiella II]; see also Matiella v. Murdock St., LLC, No. 21-cv-2112, 2023 WL

4684854, at *1 (D.D.C. July 21, 2023) [hereinafter Matiella I]. Plaintiff alleges causes of action

for negligence and trespass against the owner of the adjacent property, Murdock Street, LLC; the

two companies who operated as the general contractor and developer for the construction of the

condominium building, EWORA, LLC, and IFG Group, LLC; and two subcontractors, City Con-

crete Corporation and Luis Construction, Inc. This Memorandum Opinion and Order resolves

each Defendant’s motion for summary judgment. 1 For the following reasons, the motions for

1

The documents most relevant to this Memorandum Opinion and Order are: (1) Luis Construction’s motion for sum-

mary judgment and supporting papers (including papers submitted in reply), ECF No. 195 and ECF No. 196 through

ECF No. 196-4; (2) Murdock Street’s motion for summary judgment and supporting papers (including papers submit-

ted in reply), ECF No. 198 through ECF No. 198-8 and ECF No. 219; (3) EWORA and IFG’s motion for summary

judgment and supporting papers (including papers submitted in reply), ECF No. 199 through ECF No. 199-45, ECF

No. 203, and ECF No. 217; (4) City Concrete’s motion for summary judgment and supporting papers (including papers

submitted in reply), ECF No. 200 through ECF No. 200-6 and ECF No. 222; and (5) Plaintiff’s omnibus opposition

to the preceding motions for summary judgment and supporting papers, ECF No. 215 through ECF No. 215-2. The

page numbers cited herein are those assigned by the Court’ s CM/ECF system.

summary judgment of Murdock Street, Ewora and IFG, City Concrete, and Luis Construction are

granted.

I. BACKGROUND

A. Factual Background 2

In 2014, real estate firm The Warrenton Group submitted architectural drawings to the

District of Columbia Board of Zoning Adjustment for a proposed six-story mixed-use building

with 27 residential units at 3619 Georgia Ave., NW (the “Georgia Avenue Property”). See ECF

No. 203 at 2, 6. The Warrenton Group commissioned a subsurface exploration and geotechnical

engineering analysis, which was completed by ECS Mid-Atlantic on February 3, 2016. See ECF

No. 199-41. In October of that year, the then-owner of the property obtained a permit to raze the

existing two-story structure on the property. See ECF No. 199-40. Demolition began in July 2017.

See ECF No. 215-1 at 15, ¶ 5. On September 25, 2017, Murdock Street acquired the Georgia

Avenue Property. See ECF No. 199-31. EWORA, a limited liability company that Fatih Guner

owned along with another individual, was the original general contractor on the project; at some

point thereafter, Guner substituted his own company, IFG, as the general contractor. See ECF No.

199-44 at 15, 19–20. In October 2017, EWORA hired City Concrete to perform construction

activities on the Georgia Avenue Property, including underpinning, shoring, and pouring concrete

slabs for the cellar floor, ground floor through sixth floor, and the roof floor. See ECF No. 199-

33. There is a dispute as to whether City Concrete performed excavation activities at the site. See

ECF No. 215-1 at 14, ¶ 2. City Concrete, in turn, contracted with Luis Construction to complete

2

Except where noted, the facts below are undisputed (or deemed undisputed) either because they have been admitted

in Plaintiff’s response to Defendants’ statements of material facts or because they appear in the record without con-

tradiction from other evidence in the record.

2

sheeting and shoring work pursuant to plans provided by City Concrete. 3 See ECF No. 215-1 at

16, ¶ 2. Construction was to commence in December 2017. See ECF No. 199-32 at 3. City

Concrete completed its underpinning work by February 6, 2018. See ECF No. 215-1 at 14–15, ¶

4. Luis Construction commenced and completed its sheeting and shoring work between the end

of February 2018 and the beginning of March 2018. See id. at 16, ¶ 2. City Concrete completed

all foundation work on September 14, 2018. See id. at 14–15, ¶ 4.

A third-party inspection and engineering firm, FMC & Associates (“FMC”), provided pe-

riodic inspection reports on the construction in 2018 and 2019. See ECF No. 199-43; ECF No.

215-2 at 52. FMC noted some issues with the construction in 2018. Specifically, according to a

November 2021 internal email among personnel in the District of Columbia Department of Con-

sumer and Regulatory Affairs (“DCRA”), “reports and email correspondence” from FMC reflected

that Murdock Street and IFG were notified by the firm to “brace the party wall to prevent lateral

movement” in June 2018; that “[s]oil at the party wall by the stairs collapsed” in June 2018 and

soil under the sidewalk collapsed in July 2018; and that “[l]ack of bracing and sheeting and shor-

ing” at Plaintiff’s property “seems to be the cause of new structural cracks” in the wall shared

between the two properties observed in November 2018. ECF No. 215-2 at 52. FMC’s reports

from August and September 2019—the only ones in the record—indicate that construction was

then being “performed in accordance with project specifications and approved drawings,” see ECF

No. 199-43 at 2, 7, 11, 14, 18.

Meanwhile, Plaintiff noticed damage to his property in July 2017, shortly after demolition

on the Georgia Avenue Property began. See ECF No. 215-1 at 15, ¶ 5. The bulk of the damage

Plaintiff attributes to construction on the Georgia Avenue Property occurred between April 1,

3

“Sheeting and shoring supports the exposed sides of [an] excavation. Underpinning is the support and stabilization

of adjacent buildings from below.” Levy v. Schnabel Found. Co., 584 A.2d 1251, 1252 (D.C. 1991).

3

2018, and August 5, 2018. See id. at 11–12. In May 2018, Plaintiff retained an engineering firm

to review the progress of construction on the Georgia Street Property and report on how it would

affect Plaintiff’s property. See id. at 17, ¶ 3; ECF No. 217 at 2, ¶ 3. The May 25, 2018, report

authored by engineer Robert A. Wixson opined in relevant part that

[t]he excavation support for the new construction has not been properly installed.

Since there is no backfill between the lagging boards and the adjacent earth the wall

is not properly confining the soil below [Plaintiff’s] front and rear yards. This has

compromised the stability of [Plaintiff’s] front walk and the columns that support

the second floor deck. . . .

The height of the temporary sheeting wall is greater than normal for an unbraced

wall. In similar fashion given the height of the underpinning it is common to place

temporary lateral shoring to brace the underpinning during construction.

ECF No. 199-3 at 1–2. He recommended getting the shoring and sheeting engineer to the site to

propose remedial work to stabilize Plaintiff’s front walk and stairs and to verify that the sheeting

wall was installed “per the permit set of plans”; informing “the structural engineer of record for

the underpinning” of settlement in Plaintiff’s basement so a determination as to whether “the con-

tingency shoring details for the underpinning should be implemented” and whether “lateral shoring

is required for the underpinning during construction and if it has been properly installed.” 4 Id.

at 2. Wixson emailed his report to the DCRA. See ECF No. 215-1 at 17, ¶ 5; ECF No. 217 at 3,

¶ 5.

During the month of June 2018, Plaintiff corresponded with DCRA representatives regard-

ing damage to his property allegedly caused by construction at the Georgia Avenue Property. See

generally ECF No. 215-1 at 17–18, ¶¶ 6–10; ECF No. 217 at 3, ¶¶, 6–10. 5 The DCRA issued a

4

Wixson has not been designated as an expert in this case. See ECF No. 215-1 at 3–4, ¶ 6. The report and testimony

of Plaintiff’s only expert, Timothy Galarnyk, has been excluded. See Matiella v. Murdock St. LLC, No. 21-cv-2112,

2025 WL 2298614, at *15 (D.D.C. Aug.8, 2025) [hereinafter Matiella IV].

5

The correspondence between June 2018 and November 2021 noted in these following paragraphs is cited in Plain-

tiff’s statement of additional undisputed facts in opposition to EWORA and IFG’s motion for summary judgment.

See ECF No. 17–25, ¶¶ 6–54. In their response, EWORA and IFG “do not dispute the existence of the

4

stop work order on the Georgia Avenue Property on June 20, 2018. See ECF No. 215-2 at 6.

Around that same time, Murdock Street retained its own engineer, Dennis Anibaba, to oversee the

stabilization of the construction site. See ECF No. 215-1 at 18, ¶ 11; ECF No. 217 at 4, ¶ 11.

During the month of July, there was correspondence among Plaintiff, Anibaba, and representatives

from the DCRA about remediation to stabilize the site, damage to Plaintiff’s property, and repairs

that the builder performing construction on the Georgia Street Property would make to Plaintiff’s

property. See ECF No. 215-1 at 18–20, ¶¶ 13–24; ECF No. 217 at 4–8, ¶¶ 13–24. The stop work

order was lifted on August 1, 2018. See ECF No. 215-1 at 20, ¶ 25; ECF No. 217 at 8, ¶ 25.

In November 2018, Plaintiff emailed personnel at DCRA to report additional damage to

his property. See ECF No. 215-1 at 21, ¶ 27; ECF No. 217 at 8–9, ¶ 27; see also ECF No. 215-2

at 52. In early January 2019, Plaintiff emailed IFG principal Guner to remind him to send reme-

diation plans to Plaintiff’s engineer. See ECF No. 215-1 at 21, ¶ 29; ECF No. 217 at 9, ¶ 29. A

DCRA employee also emailed Guner that same day about incomplete remediation work at the

Georgia Avenue Property. See ECF No. 215-1 at 21–22, ¶¶ 31–32; ECF No. 217 at 9–10, ¶¶ 31–

32. Wixson, the engineer Plaintiff hired, sent Plaintiff a new report dated January 2, 2019, which

Plaintiff forwarded to Guner, Murdock Street engineer Alibaba, and DCRA personnel, among oth-

ers. See ECF No. 199-37. That report outlined damage on Plaintiff’s property, including damage

to the stairs and front walk and cracks in walls and floors, which Wixson opined were due to

settlement of the foundation caused by the construction at the Georgia Avenue Property, including

underpinning of the wall closest to the construction site. See ECF No. 199-38 at 1–2. After a

meeting among Plaintiff, Wixson, and Anibaba on February 6, 2019, to discuss remediation, the

correspondence,” but sometimes object to statements made in the correspondence as hearsay and note that no individ-

ual included in such correspondence has been designated as an expert in this litigation. See, e.g., ECF No. 217, ¶¶ 6,

9, 10, 13. As will be seen, it is unnecessary to address these objections.

5

three developed remediation plans over the course of the next few months. See ECF No. 199-39.

It appears that there was some delay on acquiring permits for the remedial underpinning work. In

June 2019, Guner asked Charles Whitescarver at DCRA to expedite the permits; in August 2019,

Plaintiff emailed Whitescarver asserting that his “home [was] getting more unsafe with every pass-

ing rain” and asking what needed to be done to get approval for the remedial underpinning plans;

Guner also asked Whitescarver to “intervene.” ECF No. 215-2 at 24–25. DCRA reviewed the

plans in November 2019. See ECF No. 215-1 at 23, ¶ 44; ECF No. 217 at 12, ¶ 44.

Apparently, the plans were approved. The record includes an email chain from April 2020

through September 2020 including Plaintiff, Wixson, Anibaba, one or more representatives from

City Concrete, and others, discussing the monitoring and remediating the damage to Plaintiff’s

property, as well as concerns about its slow progress. See ECF No. 215-2 at 34–46. On March

17, 2021, Plaintiff emailed Guner and Whitescarver stating that “damage [to his property] contin-

ues to happen.” ECF No. 215-1 at 25, ¶ 53; ECF No. 217 at 13, ¶ 53. In November 2021, an

internal DCRA email reviewed “reports and email correspondence” from third-party inspection

and engineering firm FMC noting that Murdock Street and IFG were notified by the firm to “brace

the party wall to prevent lateral movement” in June 2018; that “soil at the party wall by the stairs

collapsed” in June 2018 and soil under the sidewalk collapsed in July 2018; and that “[l]ack of

bracing and sheeting and shoring” at Plaintiff’s property “seems to be the cause of new structural

cracks” in the party wall observed in November 2018. ECF No. 215-2 at 52.

B. Relevant Procedural History

This case has a lengthy and somewhat complicated procedural history; the relevant events

are outlined here. Plaintiff filed this action on August 6, 2021, against Murdock Street alleging

negligence and trespass and seeking injunctive relief requiring it to, among other things, cease

6

construction activity on the Georgia Avenue Property. See Matiella I, 2023 WL 4684854, at *1.

In January 2023, the Court granted leave for Plaintiff to file an amended complaint alleging, as

relevant here, causes of action for negligence and trespass against Murdock Street, EWORA, IFG,

and City Concrete. See ECF No. 50, ¶¶ 66–78, 87–99, 108–120, 129–141.

1. Matiella I

EWORA, IFG, and City Concrete filed motions to dismiss the amended complaint assert-

ing, among other things, that the claims against them were barred by the statute of limitations and

that Plaintiff had failed to state a claim for negligence or trespass. See Matiella I, 2023 WL

4684854, at *4–5. The Court granted the motions in part and denied them in part. See id. at *1.

Specifically, the Court found that those Defendants had not shown that the allegations in the

amended complaint “‘conclusively’ demonstrate[d] that Plaintiff’s claims are time barred using

the traditional accrual rule,” by which a claim accrues when the injury occurs and that, even if they

had done so, “it would be improper to dismiss on limitations grounds because whether to apply

the discovery rule or continuing tort doctrine in this case raises questions of fact not properly

adjudicated at [such an] early stage of the litigation.” Id. at *7 (quoting Toggas v. Wachovia Mortg.

FSB, No. 19-cv-3407, 2020 WL 3103966, at *6 (D.D.C. June 11, 2020)); see also Matiella II,

2024 WL 3967367, at *5. It further found that Plaintiff had stated a claim for negligence directly

against each of the moving Defendants and against EWORA and IFG based on City Concrete’s

negligence. Matiella I, 2023 WL 4684854, at *9–12. As to the trespass claims, the Court ruled

that Plaintiff had failed to state a claim for trespass related to the “movement of soil” caused by

the construction on the Georgia Avenue Property; however, finding that the District of Columbia

“would follow the ‘modern’ theory and recognize that a trespass can occur where intangible inva-

sions, such as ‘noise, gas emissions, or vibration intrusions,’ have caused serious ‘physical

7

damage’ to property,” the Court ruled that Plaintiff had stated a claim for trespass based on the

intangible intrusion of vibrations from allegedly negligent construction work. Id. at *12–15 (quot-

ing Goldstein v Exxon Mobil Corp., No. 17-cv-2477, 2023 WL 3667757, at *5 (C.D. Cal. Feb. 27,

2023)).

2. Matiella II

In January 2024, again with leave of Court, Plaintiff filed a second amended complaint,

which was “substantially the same” as the prior complaint but added counts of negligence and

trespass against Luis Construction. Matiella II, 2024 WL 3967367, at *6. Each of the Defendants

filed motions attacking the second amended complaint. See id. at *1. As to the statute of limita-

tions, the Court first calculated the dates by which Plaintiff’s claims would have to have accrued

in order to be timely, a task complicated by “a series of orders entered by the Chief Judge of the

D.C. Superior Court” that “tolled D.C. Code statutes of limitations between March 18, 2020, and

March 31, 2021, inclusive,” due to the COVID-19 pandemic. Id. at *8 & nn 7–10. That calcula-

tion, proposed by EWORA and IFG without contradiction from any other party, see id. at *9 n.10,

resulted in the following findings: Plaintiff’s claims against Murdock Street are timely only if they

accrued between “July 23, 2017, through March 31, 2018, or “on or after August 6, 2018”; Plain-

tiff’s claims against EWORA, IFG, and City Concrete are timely only if they accrued on or after

January 18, 2020; and Plaintiff’s claims against Luis Construction are timely only if they accrued

on or after December 20, 2020. Id. at *10–12. However, the Court once again found that it could

not “determine based only on the pleadings that no injury occurred during the limitations period”

and therefore could not “say that th[e] claims are conclusively time-barred.” Id. at *13. The Court

also rejected the Defendants’ various arguments that Plaintiff had failed to state claims for negli-

gence or trespass, which included contentions that the Court incorrectly held that the District of

8

Columbia Court of Appeals would recognize a claim of trespass based on intangible incursions.

See id. at *14–18.

3. Matiella III

In May 2024, Plaintiff filed a motion for partial summary judgment on its negligence claim

against Luis Construction, urging two theories: negligence per se and res ipsa loquitur. See

Matiella v. Murdock St. LLC, No. 21-cv-2112, 2025 WL 689177, at *1–2 (D.D.C. Mar. 4, 2025)

[hereinafter, Matiella III]. He maintained that (1) because Luis Construction did not have a District

of Columbia contractor’s license, its work on the Georgia Avenue Property violated various D.C.

statutes and regulations and therefore constituted negligence per se and (2) the damage to Plain-

tiff’s property “is not the kind that ordinarily occurs without someone’s negligence, was caused

by an instrumentality within Luis Construction’s exclusive or joint control, and it is not due to any

action or contribution by Plaintiff,” such that “the requirements for res ipsa loquitur are satisfied.”

Id. at *2–*4 (citation modified) (quoting the record). The Court denied the motion. With respect

to the first contention, the Court found that Plaintiff’s negligence per se argument foundered on a

“fundamental point: Luis Construction was not required to have a D.C. license for the work it did”

on the Georgia Avenue Property because it was a subcontractor and, as such, excepted from the

licensure requirement. Id. at *3. On the second, it found that Plaintiff had failed to “demonstrate

that the occurrence is one where a layperson can infer negligence ‘as a matter of common

knowledge,’” and failed to point to “evidence that would allow the Court to determine what caused

the damage alleged or which of the many defendants, if any, ‘most probably’ caused it.” Id. at *4

(first quoting Crenshaw v. Washington Metro. Area Transit Auth., 731 A.2d 381, 383 (D.C. 1999);

and then quoting Bell v. May Dep’t Stores Co., 866 F.2d 452, 455 (D.C. Cir. 1989)). Accordingly,

9

Plaintiff had not met his burden to adduce facts establishing the elements of res ipsa loquitur. See

id. The motion was thus denied in full. 6 See id. at *5.

4. Matiella IV and Subsequent Events

Finally, in conjunction with the filing of the summary judgment motions at issue here, all

Defendants joined in a motion to exclude the testimony and opinions of Plaintiff’s single expert,

Galarnyk. See Matiella IV, 2025 WL 2298614, at *1. The Court found that, although Galarnyk

was qualified to offer expert testimony (and was not barred from doing so by D.C. Code §§ 47-

2853.133(a)(3) and 47-2853.131), see id. at *4–7, his testimony and opinions were nonetheless

inadmissible, principally because he had not established that they were reliable under the standard

of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. Galarnyk

clearly relied on “his years of experience—or, perhaps, experience along with training and educa-

tion—in construction and related fields” to form his opinion, but he “fail[ed] to explain how that

experience, training, and education ‘lead to the conclusion reached, why they are a sufficient basis

for the opinion, and how they are reliably applied to the facts.’” Matiella IV, 2025 WL 2298614,

at *8 (citation modified) (quoting Fed. R. Evid. 702 advisory committee’s note to 2000 amend-

ments). Additionally, some opinions were also inadmissible because they constituted legal con-

clusions or would be unhelpful to the triers of fact. See id. at *13–15. In short, the Court excluded

Galarnyk from providing opinions or testifying at trial. See id. at *15. The Court further set a

status conference to discuss further proceedings. See id. At that status conference on September

17, 2025, the Court sought the parties’ input on whether the Court should entertain supplemental

6

Plaintiff filed a second motion for partial summary judgment seeking a ruling that Luis Construction is liable for

negligence under the same two theories, that the undisputed facts establish that it is liable for trespass, and that

EWORA, IFG, and City Concrete are vicariously liable for Luis Construction’s torts. See ECF No. 201. That motion

is denied in a Memorandum Opinion and Order issued contemporaneously with this one.

10

briefing in light of the exclusion of Plaintiff’s expert. See Minute Entry (Sep. 17, 2025). All

parties elected to stand on the briefing as it then existed.

II. LEGAL STANDARD

Summary judgment is appropriate when the moving party demonstrates 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. Fed. R. Civ. P. 56(a). “A fact is material if it ‘might affect the outcome of the suit under

the governing law,’ and a dispute about a material fact is genuine ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’” Steele v. Schafer, 535 F.3d 689,

692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Ini-

tially, the moving party has the burden of demonstrating the absence of a genuine dispute as to any

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met

this burden, the non-moving party must designate “specific facts showing that there is a genuine

issue for trial.” Id. at 324.

It is well established that “[c]redibility determinations, the weighing of the evidence, and

the drawing of legitimate inferences from the facts are jury functions, not those of a judge at sum-

mary judgment.” Barnett v. PA Consulting Grp., Inc., 715 F.3d 354, 358 (D.C. Cir. 2013) (quoting

Pardo-Kronemann v. Donovan, 601 F.3d 599, 604 (D.C. Cir. 2010)). Indeed, a court’s role in

deciding a summary judgment motion is not to “determine the truth of the matter, but instead [to]

decide only whether there is a genuine issue for trial.” Id. (quoting Pardo-Kronemann, 601 F.3d

at 604). Where the material facts are not in dispute, entry of summary judgment is appropriate if

the moving party has shown it is entitled to judgment as a matter of law. See, e.g., Mylan Labs.,

Inc. v. Thompson, 332 F. Supp. 2d 106, 116 (D.D.C. 2004) (citing Fed. R. Civ. P. 56(c)).

11

III. DISCUSSION

There are four motions for summary judgment at issue in this Memorandum Opinion. As

a whole, they present two main arguments: (1) that Plaintiff has failed to provide competent expert

testimony necessary to establish a prima facie case of negligence and trespass and (2) that Plain-

tiff’s claims are largely barred by the statute of limitations. Because those are dispositive of all

claims at issue, the Court need not and does not address any of the parties’ subsidiary arguments.

A. Prima Facie Case

1. Negligence

“The plaintiff in a negligence action bears the burden of proof on three issues: the applica-

ble standard of care, a deviation from that standard by the defendant, and a causal relationship

between that deviation and the plaintiff’s injury.” Williams v. Aviles, No. 20-cv-931, 2022 WL

2643559, at *5 (D.D.C. July 8, 2022) (quoting Toy v. District of Columbia, 549 A.2d 1, 6 (D.C.

1988)); see also District of Columbia v. Carmichael, 577 A.2d 312, 314 (D.C. 1990) (“[I]n any

negligence action, ‘the plaintiff must establish by competent evidence a standard of care; that the

defendant violated that standard; and that such violation proximately caused injury to the plain-

tiff.’” (citation modified) (quoting Hughes v. District of Columbia, 425 A.2d 1299, 1302 (D.C.

1981))). “When the standard of care is ‘so distinctly related to some science, profession, or occu-

pation as to be beyond the ken of the average lay juror,’ the plaintiff must prove with expert testi-

mony both the standard of care and that the defendant failed to adhere to it.” Williams, 2022 WL

2643559, at *5 (quoting Night & Day Mgmt., LLC v. Butler, 101 A.3d 1033, 1039 (D.D.C. 2014)).

Similarly, expert testimony may be required to establish causation. See, e.g., Hargraves v. District

of Columbia, 134 F. Supp. 3d 68, 95 (D.D.C. 2015) (“In order to prevail on a negligence cause of

action, the plaintiff must prove, using expert testimony on the standard of care, ‘the applicable

12

standard of care, a deviation from that standard by the defendant, and a causal relationship between

that deviation and the plaintiff's injury.’” (quoting Hill v. Metropolitan African Methodist Episco-

pal Church, 779 A.2d 906, 908 (D.C. 2001))). Whether to require expert testimony on an issue is

within the trial court’s discretion. 7 See, e.g. District of Columbia v. Tulin, 994 A.2d 788, 795

(D.C. 2010).

At issue here are allegations that Defendants negligently performed excavation work, in-

cluding installation of a “soldier pile and lagging retaining wall” without “walers, rakers or cross-

bracing” or “backfill in the space behind [the] lagging,” Matiella I, 2023 WL 4684854, at *2, and

installed underpinning without “shoring to brace [it] during construction,” ECF No. 199-3 at 2. 8

Murdock Street argues that, to make out a prima facie case of negligence against any Defendant,

Plaintiff must offer expert testimony. See ECF No. 198-1 at 5–10. Precedent confirms that. For

example, the plaintiffs in Levy, much like Plaintiff here, alleged that the developers of property

adjacent to theirs engaged in negligent excavation practices, such as inadequate sheeting, shoring,

and underpinning, which caused twisting and cracking of the structure on the plaintiffs’ property.

584 A.2d at 1252. The D.C. Court of Appeals found it “undisputedly true” that “the subject

7

Courts have found that, under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), District of Columbia law on the issue

of whether expert testimony is required applies in diversity cases where District of Columbia law supplies the rule of

decision. See Burke v. Air Serv Int’l, Inc., 775 F. Supp. 2d 13, 19–20 (D.D.C. 2011); see also Briggs v. Washington

Metro. Area Transit Auth., 481 F.3d 839, 843, 845–46 (D.C. Cir. 2007) (stating that, “[b]ecause it is undisputed that

D.C. tort law controls the disposition of this case, the duty of this court ‘is to achieve the same outcome [that] would

result if the District of Columbia Court of Appeals considered this case’” and looking to D.C. law to determine that

expert testimony was required in a negligence case (second alteration in original) (quoting Novak v. Capital Mgmt. &

Dev. Corp., 452 F.3d 902, 907 (D.C. Cir. 2006))).

8

As explained in Matiella I, “[a] soldier pile retaining wall system generally consists of piles, which are vertical steel

or concrete beams installed at specific spacing intervals to hold ‘lagging,’ which are wood or concrete planks placed

horizontally between the piles. Together, the piles and lagging form a wall to retain soil as an excavation proceeds”;

“[w]alers, rakers, and crossbracing are all methods of supporting the wall of an excavation. A waler is a beam that

runs parallel to the face of the retaining wall to distribute the pressure evenly. A raker is a beam that supports the wall

diagonally from the ground inside the excavation,” and “[c]rossbracing involves diagonal bracing to provide internal

stability to existing rectangular frames.” 2023 WL 4684854, at *2 nn.2–3. As noted above, sheeting and shoring

supports the exposed sides of an excavation and underpinning supports and stabilizes adjacent buildings from below.

See note 3, supra.

13

presented [was] so distinctly related to some science, profession, or occupation, as to be beyond

the ken of a lay juror,” so that the plaintiffs were required to “prove the applicable standard of care

and a deviation therefrom by expert testimony.” Id. at 1255. In Massengale v. Washington Met-

ropolitan Area Transit Authority, the plaintiff alleged that negligent excavation by the transit au-

thority “caused considerable shaking to his [adjacent] property” and damaged its structures. 983

F. Supp. 210, 215 (D.D.C. 1997). The court found that the plaintiff had failed to establish negli-

gence because he offered no expert testimony on the standard of care, breach, or causation:

The plaintiff produced no evidence of the standard of care to be exercised by one

engaged in the construction of a subway line. Nor did he prove that a breach by the

defendant of the applicable standard caused him damage. His sole contention is

that he felt a vibration while standing on his property which he attributed to [the

defendant’s] pounding of reinforcing rods into the ground. [The plaintiff] never

proffered himself as an expert in construction. His opinion as to the causal rela-

tionship between the pounding he experienced and the collapse of the roof of his

building carries no evidentiary weight.

Id. The Court thus has no trouble determining that the negligent conduct alleged here did not

“occur in a context ‘within the realm of common knowledge and everyday experience,’” and there-

fore “expert testimony is . . . required for the plaintiff to meet [his] burden.” Williams, 2022 WL

2643559, at *5 (quoting Night & Day Mgmt., 101 A.3d at 1038–39). Plaintiff does not appear to

contend otherwise: He asserts that his “expert[’s] testimony confirms that Defendants’ breaches of

duty directly caused harm to [his] property” and “counters Defendants’ assertions that their actions

complied with industry standards and were not causally connected to Plaintiff’s injuries.” 9 ECF

No. 215 at 12–13 (emphasis added).

9

Plaintiff also asserts that “Defendants’ failure to comply with statutory licensing requirements, the inherently dan-

gerous nature of their construction activities, and the progressive damage observed over time all underscore the need

for these factual issues to be resolved by a jury.” ECF No. 215 at 13. Plaintiff has twice argued that Luis Construction

was required to have a District of Columbia general contractors license and its failure to procure one rendered its work

on the Georgia Avenue Property negligent per se. See ECF No. 170; ECF No. 201. As noted, the Court rejected that

argument in Matiella III and again in an opinion issued contemporaneously with this one see Section I.B.3 & note 6

supra. Assuming without deciding that the construction work Defendants engaged in at the Georgia Avenue Property

could be considered inherently dangerous, the Court finds the question irrelevant here. Plaintiff has cited no authority

14

Rule 26(a) of the Federal Rules of Civil Procedure governs expert testimony in federal

court. The rule requires a litigant to “disclose to the other parties the identity of any witness it may

use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705,” which address

the testimony of expert witnesses. Fed. R. Civ. P. 26(a)(2)(A); see also Fed. R. Evid. 702, 703,

705. Where the witness is “one retained or specially employed to provide expert testimony in the

case,” the disclosure “must be accompanied by a written report” that includes, among other things,

“a complete statement of all opinions the witness will express and the basis and reasons for them,”

the facts and data on which those opinions are based, and the witness’s qualifications. Fed. R. Civ.

P. 26(a)(2)(B). If the witness is not “one retained or specially employed to provide expert testi-

mony in the case,” a written expert report is not required, but the disclosure still must state “the

subject matter on which the witness is expected to present [expert] evidence” and “a summary of

the facts and opinions to which the witness is expected to testify.” Id. 26(a)(2)(B), (C). Where a

party fails to follow the mandates of Rule 26(a), “the party is not allowed to use that information

or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was sub-

stantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).

Rule 37(c)(1) “gives teeth” to the disclosure requirements of Rules 26(a) and (e).

It is a “self-executing, automatic sanction,” designed to “provide a strong induce-

ment for disclosure of material that the disclosing party would expect to use as

evidence, whether at trial, at a hearing, or on a motion, such as one under Rule 56.”

This is true even when its operation effectively forfeits the non-disclosing party’s

“entire cause of action or defense.”

to suggest that, where a defendant engages in performance of inherently dangerous work (as opposed to “abnormally

dangerous” activities, for which there may be strict liability see Restatement (Second) of Torts, §§ 519, 520), a plaintiff

is absolved from establishing the standard of care, which here requires expert testimony. Rather, performance of

inherently dangerous work can be the basis for an exception to the general rule that one who engages an independent

contractor is not liable for injuries caused by the work of that contractor. See, e.g., Matiella II, 2024 WL 3967367, at

*13 n.18; Levy v. Currier, 587 A.2d 205, 209 (D.C. 1991). Similarly, whether there was “progressive damage ob-

served over time,” ECF No. 215 at 13, does not alter Plaintiff’s responsibility to establish his prima facie case.

15

Lewter v. United States, No. 10-cv-2390, 2012 WL 13034849, at *7 (S.D. Cal. Aug. 10, 2012)

(emphasis omitted) (citations omitted) (first quoting Yeti by Molly, Ltd. v. Deckers Outdoor Corp.,

259 F.3d 1101, 1107 (9th Cir. 2001); and then quoting Fed. R. Civ. P. 37 advisory comm. notes to

1993 amendment; and then quoting Yeti by Molly, 259 F.3d at 1106). “Federal courts apply this

rule strictly and require the exclusion of undisclosed evidence absent harmless error or substantial

justification.” Hovsepian v. State Farm Mut. Auto. Ins. Co., No. 09-cv-8929, 2011 WL 13213900,

at *11 n.112 (C.D. Cal. Jan. 12, 2011); see also, e.g., Daniels v. District of Columbia, 15 F. Supp.

3d 62, 72 (D.D.C. 2014) (“Under Rule 37, the sanction of exclusion of a witness is automatic and

mandatory unless the party to be sanctioned can show that its violation was either substantially

justified or harmless.” (citation modified) (quoting Elion v. Jackson, 544 F. Supp. 2d 1, 6 (D.D.C.

2008))); Wannall v. Honeywell Int’l, 292 F.R.D. 26, 35–36 (D.D.C. 2013) (excluding an expert

not disclosed prior to summary judgment briefing), aff’d, 775 F.3d 425 (D.C. Cir. 2014). “The

proponent of the evidence bears the burden of showing that the failure to disclose the evidence

was substantially justified or is harmless.” Atlanta Channel v. Solomon, No. 15-cv-1823, 2020

WL 1984296, at *12 (D.D.C. Apr. 27, 2020)); see also Wannall, 775 F.3d at 429–30 (noting, in

an opinion affirming the district court’s exclusion of a late-disclosed expert report in connection

with summary judgment, that among the “‘harms’ that disclosure deadlines are intended to pre-

vent” are “requiring either the reopening of discovery (and possibly delaying trial) or denying [the

opposing party] the opportunity to cross-examine” the undisclosed expert).

Plaintiff offers no admissible expert testimony. He disclosed a single expert—Galarnyk.

See ECF No. 215-1 at 3–4, ¶ 6 (Plaintiff admitting that he “retained Timothy Galarnyk as his sole

expert in this case”). This Court has found Galarnyk’s testimony and opinions inadmissible. See

Section I.B.4, supra; see also Matiella IV, 2025 WL 2298614, at *7–15. Plaintiff asserts that the

16

“structural engineer’s report prepared by Robert Wixson in May 2018 corroborates [Galarnyk’s]

findings, attributing soil movement, settlement, and masonry cracks to faulty excavation and shor-

ing practices” and that “[m]onitoring reports submitted to the Department of Consumer and Reg-

ulatory Affairs in November 2021 confirm ongoing structural deficiencies, such as cracks and soil

erosion, tied to the same inadequate construction techniques.” ECF No. 215 at 15. But neither

Wixson nor the authors of those monitoring reports—who are not identified in the record before

the Court, see ECF No. 215-2 at 52—were designated as experts under either Rule 26(a)(2)(B) or

26(a)(2)(C). Not surprisingly, given the absence of required disclosures, it does not appear that

any of those individuals were deposed during discovery, which is now closed. The fact that

Wixson’s report and the monitoring reports were produced in discovery is irrelevant: “Here, it was

Plaintiff’s burden to comply with th[e] requirements [of Rule 26(a)(2)] in accordance with the

schedule set by the Court. It was not . . . Defendant[s’] burden to sift through [his] document

productions and assume that certain documents would become the subject of expert testimony.”

Jones v. NVR Incorporation, No. 20-cv-453, 2022 WL 951338, at *10 (D.D.C. Mar. 29, 2022),

aff’d, No. 22-7064, 2023 WL 4678759 (D.C. Cir. July 21, 2023). And Plaintiff makes no attempt

to establish that his failure to disclose them was substantially justified or harmless. Exclusion of

such opinions is therefore “automatic and mandatory under Rule 37(c)(1).” Musser v. Gentiva

Health Servs., 356 F.3d 751, 757 (7th Cir. 2004); see also, e.g., Jones, 2022 WL 951338, at *10

(“Plaintiff has failed to demonstrate that her failure to timely disclose expert witnesses in accord-

ance with Rule 26(a)(2) was substantially justified or harmless. Therefore, she is barred from us-

ing these witnesses or any accompanying ‘reports’ as evidence in response to Defendant’s motion

for summary judgment.”); Montoya v. Jeffreys, 565 F. Supp. 3d 1045, 1058 (N.D. Ill. 2021) (find-

ing that a party who failed to disclose experts under Rule 26(a) and “ma[de] no effort to meet its

17

burden” to show substantial justification or harmlessness had “forfeit[ed] the point . . . on sum-

mary judgment”). Accordingly, Plaintiff cannot make out a prima facie case of negligence, be-

cause he cannot establish, “using expert testimony . . . , ‘the applicable standard of care, a devia-

tion from that standard by the defendant, and a causal relationship between that deviation and the

plaintiff’s injury.’” Hargraves, 134 F. Supp. 3d at 95 (quoting Hill, 779 A.2d at 908 (D.C. 2001)).

That failure is fatal to his negligence claim against each Defendant.

2. Trespass

The lack of expert evidence also fells Plaintiff’s trespass claim. Plaintiff alleges that “vi-

brations caused by Defendants’ negligent excavation and shoring practices . . . resulted in struc-

tural damage to Plaintiff’s property.” ECF No. 215 at 13. This Court has held that, to make out a

claim for trespass based on intangible incursions like vibrations, Plaintiff must show that they

caused serious physical damage to his property. See Matiella I, 2023 WL 4684854, at *15. More,

the Court already put Plaintiff on notice that the question of whether vibrations from construction

caused the damage to plaintiff’s property will “likely require a construction engineer or similar

expert to testify.” Matiella II, 2024 WL 3967367, at *17. And, tellingly, Plaintiff relies on the

(now excluded) report of Galarnyk to establish causation for the trespass claim, as well. See ECF

No. 215 at 14. The view that expert testimony is necessary here is supported by decisions from

courts in this district and elsewhere. As noted above, in Massengale, the plaintiff asserted that the

construction of a subway line near his home—specifically, the “pounding of reinforcing rods into

the ground”—“caused considerable shaking to his property and consequential damage.” 983

F. Supp. at 215. The Court found that the plaintiff could not establish causation without expert

testimony. See id.; see also Holy Name of Jesus Roman Catholic Church v. N.Y.C. Transit Auth.,

28 A.D.3d 520, 521 (N.Y. App. Div. 2006) (finding that the plaintiff’s failure to submit expert

18

evidence that vibration from the subway caused property damage required dismissal). Similarly,

in Hoffman v. Vulcan Materials Co., the court found that the plaintiffs’ trespass claim “that the

shocks and vibrations from defendant’s blasting ha[d] damaged their homes” could not survive

summary judgment where they “ha[d] not introduced any expert testimony as to the cause of that

damage.” 91 F. Supp. 2d 881, 888–89 (M.D.N.C. 1999); cf. Trull v. Car.-Va. Well Co., 142 S.E.2d

622, 624 (N.C. 1965) (finding the plaintiffs had not established that vibrations from drilling on

their property were the “physical cause of the damage to [their] house” where there was no evi-

dence that the vibrations were “responsible for the sudden opening of walls and ceiling” or “suffi-

cient to cause the damage” and no evidence as to whether the strength of the house’s foundation

or condition of the earth underneath was “such that even normally harmless vibrations would

cause” damage).

This case is not like those in which courts have found expert opinion unnecessary to prove

that damage was caused by vibration. For example, in Hiser v. XTO Energy, Inc., the plaintiff

claimed that vibrations from the defendant’s drilling of a gas well on adjacent property caused

damage to her home. No. 11-cv-517, 2012 WL 3542009, at *1 (E.D. Ark. Aug. 14, 2012). The

court determined that testimony that the plaintiff, as well as guests who stayed in her home, “felt

vibrations and heard her house ‘crackle’ when [the] drill was in use” was sufficient to create a

genuine issue of material fact on the issue of causation. Id. at *3. In Legendre v. Boh Brothers

Construction Co., the court found that if “a plaintiff is physically present (with such presence being

corroborated) and his home vibrates and shakes to such an extent that cracks and damage imme-

diately appear, and the vibration is readily recognizable as emanating from the negligent use of

construction machinery,” the plaintiff has presented sufficient proof of causation—but even so

suggested that in cases with other factual circumstances expert testimony may well be “necessary

19

to establish causation.” 268 So.2d 514, 518 (La. Ct. App. 1972). Here, there is no similar evi-

dence. Indeed, Plaintiff testified at his deposition that, although he had lived next to the Georgia

Avenue Property continuously since October 31, 2001 (except for a “short period” in “2020 or

2021”), he felt vibrations traceable to the construction only once, on September 29, 2017, or there-

abouts, when workers demolished a wall from the previous structure on the Georgia Avenue Prop-

erty. ECF No. 199-13 at 26, 147–50. He specifically acknowledged that he did not feel “[his]

house or [his] building move at any other time.” Id. at 165. He further concedes that the bulk of

the damage to his property occurred in the Spring and Summer of 2018. See ECF No. 215-1 at

11–12 (asserting the statement that the “alleged defects to [Plaintiff’s] property that he contends

were caused by construction activities occurring next door . . . occurred generally between April

1, 2018 and August 5, 2018” is “undisputed”). That is, Plaintiff has admitted that he did not feel

vibrations from the work that he claims caused the damage to his property—“excavation and shor-

ing” work, ECF No. 215 at 13, such as Luis Construction “inserting rebar into the foundation” in

2018, ECF No. 201 at 4; ECF No. 215-1 at 16, ¶ 2. That is a far cry from the evidence of repeated

experiences of vibrations and accompanying contemporaneous aural or visual manifestations of

cracking that the courts in Hiser and Legendre found sufficient to create an issue of fact as to

causation in the absence of expert testimony. Indeed, here, like in Trull, the number of potential

explanations for the damage to Plaintiff’s property other than vibrations from Defendants’ con-

duct—including, for example, an “extraordinary rain event[ ]” in May 2018, as opined by the ex-

pert designated by Murdock Street, EWORA, and IFG, see ECF No. 201-2 at 985–86—indicate

that without expert guidance a lay factfinder would have to engage in mere speculation to deter-

mine causation. See, e.g., Washington v. Wash. Hosp. Ctr., 579 A.2d 177, 181 (D.C. 1990) (“The

purpose of expert opinion testimony is to avoid jury findings based on mere speculation or

20

conjecture.”). And, significantly, Plaintiff nowhere counters the argument that determining

whether vibrations from excavation and shoring work on the Georgia Avenue Property caused

damage requires expert testimony. See ECF No. 198-1 at 7. Instead, as noted above, he relies on

the opinion testimony of Galarnyk, which the Court has found inadmissible, in part because it is

not reliable. See ECF No. 215 at 14.

Considering this case law (including the Court’s earlier opinion in Matiella II), Plaintiff’s

admissions, and his failure to argue that causation can be proved without expert testimony, the

Court finds that whether vibrations from the excavation and shoring on the Georgia Avenue Prop-

erty caused damage to Plaintiff’s property is “beyond the ken of the average lay juror” and there-

fore requires evidence from an expert. Williams, 2022 WL 2643559, at *5 (quoting Night & Day

Mgmt., 101 A.3d at 1039). Because Plaintiff has none, he cannot establish causation. Defendants

are therefore entitled to summary judgment on Plaintiff’s trespass claim.

B. Timeliness

All Defendants other than Murdock Street contend that the claims against them are barred

by the statute of limitations. 10 See ECF No. 196 at 5–7 (brief of Luis Construction); ECF No. 199-

1 at 20–31 (brief of EWORA and IFG); ECF No. 200 at 5–11 (brief of City Concrete). Heeding

the D.C. Circuit’s caution that “courts should hesitate to dismiss a complaint on statute of limita-

tions grounds based solely on the face of the complaint,” this Court has twice denied motions to

dismiss on timeliness grounds in this case. Matiella II, 2024 WL 3967367, at *8 (citation omitted);

Matiella I, 2023 WL 4684854, at *6 (quoting Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.

10

Generally, a defendant must plead and prove that an action is untimely, and a court should not sua sponte raise a

statute of limitations defense. See, e.g., Maalouf v. Islamic Republic of Iran, 923 F.3d 1095, 1107–12 (D.C. Cir.

2019); see also, e.g., Kubichek v. Unlimited Biking Washington, D.C., LLC, 330 A.3d 1007, 1011–12 (D.C. 2025).

Accordingly, the Court does not address whether the claims against Murdock Street are time-barred.

21

Cir. 2016) (per curiam)). Along the way, the Court determined that claims against EWORA, IFG,

and City Concrete are timely if they accrued on or after January 18, 2020, and claims against Luis

Construction are timely if they accrued on or after December 20, 2020. See Matiella II, 2024 WL

3967367, at *10–12. Now, with the record fully developed, the Court finds that the claims against

each of those Defendants are time-barred. 11

1. The Discovery Rule

As then-District Judge Ketanji Brown Jackson explained in Kubicki ex rel. Kubicki v. Med-

tronic Inc., “A statute of limitations is the legislatively prescribed time period (usually a period of

years) within which an authorized legal claim must be filed. Claims that are brought beyond the

statutory time period are ordinarily barred.” 293 F. Supp. 3d 129, 157 (D.D.C. 2019) (citations

omitted). “It is well established that, ‘where the fact of an injury can be readily determined, a

claim accrues for purposes of the statute of limitations at the time the injury actually occurs.’” Id.

at 158 (citation modified) (quoting Colbert v. Georgetown Univ., 641 A.2d 469, 472 (D.C. 1994)

(en banc)). However,

if the injury is not apparent, and/or if the causal link between tortious conduct and

injury is not immediately clear, District of Columbia courts apply the “discovery

rule,” which holds that the statute of limitations begins to run not on the date that

the injury happened, but “when the plaintiff has knowledge of (or by the exercise

of reasonable diligence should have knowledge of) (1) the existence of the injury,

(2) its cause in fact, and (3) some evidence of wrongdoing.

Id. (citation modified) (quoting Lee v. Wolfson, 265 F. Supp. 2d 14, 17 (D.D.C. 2003)). That is,

“[t]he District of Columbia Court of Appeals has made clear that, per the discovery rule, ‘the

11

No party argues that the negligence and trespass claims accrued at different times. This Court cleaves to “the

principle of party presentation,” i.e., that “the parties know what is best for them[] and are responsible for advancing

the facts and arguments entitling them to relief,” while the courts serve “as neutral arbiters of matters the parties

present.” Greenlaw v. United States, 554 U.S. 237, 243–44 (2008). Therefore, the Court does not address the possi-

bility that the two causes of actions might have different accrual dates and deems the parties to have forfeited any

argument that they do.

22

statute of limitation[s] for negligence begins to run at such time a prospective plaintiff gains in-

quiry notice that wrongdoing may be involved.’” Id. at 158 (second alteration in original) (quoting

Bussineau v. President & Dirs. of Georgetown Coll., 518 A.2d 423, 427–28 (D.C. 1986))). Alt-

hough “[t]he statute of limitations is an affirmative defense on which the defendant ultimately

bears the burden of proof,” at summary judgment “the plaintiff must point to specific evidence in

the record sufficient to justify the factfinder in finding the suit timely under the discovery rule.”

Radbod v. Moghim, 269 A.3d 1035, 1045 (D.C. 2022). “District of Columbia courts routinely

decide, on summary judgment, the date on which a cause of action accrues under the discovery

rule.” Nelson v. Am. Nat’l Red Cross, 26 F.3d 193, 198 (D.C. Cir. 1994).

Here, Plaintiff knew or should have known of the injury, its cause, and some evidence of

potential wrongdoing on May 25, 2018, at the latest. That is the date of Wixson’s report detailing

the existence of (1) “a large sink hole below [Plaintiff’s] front stairs” and (2) “settlement in [the]

basement slab at the West wall of [Plaintiff’s] home,” as well as (3) a lack of “backfill behind the

sheeting wall that support[ed] [Plaintiff’s] rear yard” and was adjacent to the columns supporting

his second floor deck; (4) a lack of “rakers, corner braces or tie backs to support the soldier piles

of the sheeting wall”; and (5) a lack of “rakers to brace underpinning during construction.” ECF

No. 199-3 at 1. Wixson concluded that the “excavation support for the new construction [at the

Georgia Avenue Property] ha[d] not been properly installed” and had “compromised the stability”

of the structures on Plaintiff’s property. Id. He recommended “temporary lateral shoring to brace

the underpinning,” remedial work by the sheeting and shoring engineer to stabilize Plaintiff’s front

walk and stairs, notification to the “structural engineer of record” about the basement settlement,

a report from “the contractor or special inspections engineer” regarding “the results from the mon-

itoring of the underpinning so that any movement of the West Wall of [Plaintiff’s residence] can

23

be quantified,” and verification from the “underpinning engineer” concerning whether “lateral

shoring is required for the underpinning during construction and if it has been properly installed.”

Id. at 1–2. Thus, Plaintiff knew as of May 25, 2018—over a-year-and-a-half before the earliest

day on which any claim against EWORA, IFG, and City Concrete could have accrued in order to

be timely and more than two years before the earliest day that a timely claim against Luis Con-

struction could have accrued—that the structural engineer he hired believed inadequate sheeting,

shoring, and underpinning related to the excavation at the Georgia Avenue Property was causing

damage to Plaintiff’s home.

Plaintiff maintains that he “reasonably relied on repeated assurances from contractors, en-

gineers, and regulatory authorities that the damage to his property was being monitored and ad-

dressed” but “[d]espite these assurances, the damage to [his] property persisted” until his “reliance

on these assurances . . . eroded” in March 2021. ECF No. 215 at 6. The Court fails to see how

that could establish he was unaware of the damage, its likely cause, and some evidence of wrong-

doing. Indeed, it confirms the opposite: it shows that he knew of the damage, believed it was

caused by the construction next door, and suspected tortious conduct. See Kubicki, 293 F. Supp.

3d at 157 (noting that a claim accrues and the statute of limitations begins to run when a plaintiff

knows or should have known of an injury, its cause, and some evidence of wrongdoing).

A major thrust of Plaintiff’s argument is that his claim did not accrue until he knew or

could reasonably have discovered “the full extent of the harm [and] the roles of Defendants Luis

Construction, EWORA, IFG, and City Concrete.” ECF No. 215 at 5–6. That is, he appears to

contend that the statute of limitations was tolled until he had notice of “the specific roles and

culpability” of those Defendants and of the full extent of the damage allegedly caused by them.

Id. at 6. That is not the law. See, e.g., Cevenini v. Archbishop of Washington, 707 A.2d 768, 771

24

(D.C. 1998) (rejecting the contention that a claim does not accrue until the plaintiff has “knowledge

of each essential element of [a] cause of action”). For example, “it is well established that, while

a plaintiff must ‘have knowledge of wrongdoing to commence the statute of limitations,’ he need

not ‘have certain knowledge of causation.’” Kubicki, 293 F. Supp. 3d at 160 (citation modified)

(first quoting Bussineau, 518 A.2d at 432 n.11; and then quoting Dawson v. Eli Lilly & Co., 543

F. Supp. 1330, 1334 (D.D.C. 1982)); see also id. at 158 (“[T]he statute of limitations will be

deemed to run even if the plaintiff does not fully comprehend the extent to which a potential de-

fendant may have caused the injury.”). Nor will the limitations period be tolled until “the full

extent of the wrongdoing is . . . known,” as long as a plaintiff “has reason to suspect that the de-

fendant did something wrong.” Wagner v. Sellinger, 847 A.2d 1151, 1154 (D.C. 2004); see also

Zorgani v. District of Columbia, No. 17-cv-2360, 2022 WL 1491133, at *5 (D.D.C. May 11, 2022)

(“Although a claim will not accrue until a plaintiff has ‘some evidence of wrongdoing,’ accrual is

not delayed merely because the plaintiff does not ‘have knowledge of the precise breadth or nature

of the tortious action.’” (quoting Brin v. S.E.W. Invs., 902 A.2d 784, 792 (D.C. 2006))).

Likewise, the statute of limitations is not tolled because the plaintiff has not yet “discovered

the proper party to sue.” Gardel v. SK&A Structural Eng’rs PLLC, 286 F. Supp. 3d 120, 127

(D.D.C. 2017). Rather, “when multiple defendants may be responsible for a plaintiff’s injuries,

the cause of action will accrue as to all defendants if a ‘reasonable plaintiff with knowledge of the

misconduct of one [defendant] would have conducted an investigation as to the other,’ and ‘that

investigation would, as a matter of law, have revealed some evidence of wrongdoing on the part

of the other defendant.’” 12 Id. (quoting Diamond v. Davis, 680 A.2d 364, 380 (D.C. 1996)); see

12

One court in this district applying District of Columbia law has gone further and asserted that a “plaintiff’s lack of

knowledge as to a defendant’s identity is irrelevant when he is fully aware of the alleged injury he sustained and

therefore alert to his cause of action.” Griffin v. Smith, No. 24-cv-36, 2025 WL 19000, at *4 (D.D.C. Jan. 2, 2025).

25

also Ramey v. Foxhall Urology, Chartered, 334 A.3d 141, 162 (D.C. 2025) (“[T]he discovery rule

is designed to ‘not give a plaintiff carte blanche to defer legal action indefinitely.’ Rather, the

discovery rule gives a plaintiff time to identify a plausible causal connection and then seek further

information after a suit is initiated, including ‘details of the wrongdoing’ that could be obtained in

discovery.” (quoting Brin, 982 A.2d at 794)). That is, Plaintiff did not need to know “the[] specific

roles [of EWORA, IFG, City Concrete, and Luis Construction] in excavation and shoring activi-

ties,” ECF No. 215 at 6–7, for his claims to have accrued. He merely needed to have information

that would motivate a reasonable person to make a reasonable inquiry that would reveal their in-

volvement. Plaintiff had that information from Wixson’s May 25, 2018, report, which identified

several potential causes of the damage to his building—i.e., the construction’s inadequate sheeting

and shoring, and underpinning—and alerted Plaintiff that different entities were likely involved—

i.e., the contractor, the structural engineer, the underpinning engineer. See ECF No. 199-3 at 2.

And Plaintiff admits that he learned the roles of the various players in depositions. See ECF No.

215 at 6. In Gardel, the court found that, where documents produced in discovery identified one

defendant and a deposition of that defendant revealed the involvement of a second defendant, a

reasonably inquiry by the plaintiff would have discovered their identities prior to the expiration of

the conventional limitations period. 286 F. Supp. 3d at 127. So it is here. Had Plaintiff made

reasonable inquiries after his claim accrued on May 25, 2018, he could have discovered the par-

ticipation of EWORA, IFG, City Concrete, and Luis Construction and asserted timely claims

against them. Thus, as in Gardel, the Court finds “that a reasonably diligent plaintiff could and

would have conducted additional investigation prior to filing suit, and he would have easily dis-

cerned some evidence of wrongdoing on the part of the named defendants.” 13 Id.

13

Plaintiff cites Commonwealth Land Title Insurance Co. v. KCI Technologies, Inc., 922 F.3d 459, 466 (D.C. Cir.

2019), for the proposition that “[t]he discovery rule is particularly relevant in construction cases, where the complex

26

Finally, Plaintiff’s suggestion that a cause of action does not accrue until the plaintiff

knows “the full extent of the harm,” ECF No. 215 at 8, has been rejected over and over. See, e.g.,

Deppner v. United States, No. 22-CV-680, 2023 WL 4930085, at *3 (D.D.C. Aug. 2, 2023)

(“[C]laim accrual does not require that the plaintiff know the full extent of her injury, only that she

has sufficient knowledge to bring a cause of action.”); Cevenini, 707 A.2d at 771 (“The fact that

the plaintiff did not initially comprehend the full extent of all possible sequelae does not matter,

for the law of limitations requires only that she have inquiry notice of the existence of a cause of

action[.]” (citation modified) (quoting Baker v. A.H. Robins Co., 613 F. Supp. 994, 996 (D.D.C.

1985); see also Nelson v. Am. Nat’l Red Cross, 26 F.3d 193, 197 (D.C. Cir. 1994) (collecting cases

applying D.C. law).

In short, the latest date by which Plaintiff had inquiry notice as to his claims against

EWORA, IFG, City Concrete, and Luis Construction was May 25, 2018. The discovery rule there-

fore does not render them timely.

2. The Continuing Tort Doctrine

An otherwise untimely claim might also be saved by the “continuing tort doctrine,” which

“allows recovery for extended harms that began outside of the applicable limitations period.”

Pleznac v. Equity Residential Mgmt., LLC, 320 F. Supp. 3d 99, 104 (D.D.C. 2018). “Under District

of Columbia law, the doctrine applies only where a plaintiff suffers ‘(1) a continuous and

web of contractors, subcontractors, and regulatory assurances may obscure the true cause and responsible parties.”

ECF No. 215 at 3–4. Commonwealth Land Title Insurance Co. concerned breach of contract and negligence claims

against two land title surveyors, one that failed to notice the existence of encroachment on property and one that failed

to notice the extent of the encroachment. 922 F.3d at 463. The district court declined to apply the discovery rule and

therefore granted motions to dismiss on timeliness grounds. See id. at 462. The D.C. Circuit found that the district

court had prematurely found the discovery rule inapplicable at the motion to dismiss stage because its application

depended on issues of fact. See id. at 466–68. That is, contrary to Plaintiff’s assertion, Commonwealth Land Title

Insurance Co. had nothing to do with a “complex web of contractors, subcontractors, and regulatory assurances . . . ob-

scur[ing] the true cause and responsible parties.” ECF No. 215 at 3–4. More, the court here did not resolve the statute

of limitations issue at the motion to dismiss stage but permitted discovery to go forward with respect to the issues the

defense raised.

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repetitious wrong, (2) with damages flowing from the act as a whole rather than from each indi-

vidual act, and (3) at least one injurious act . . . within the limitation period.’” Id. (alteration in

original) (quoting Beard v. Edmondson & Gallagher, 790 A.2d 541, 547–48 (D.C. 2002)). The

plaintiff bears the burden to establish those three requirements. See Bakeir v. Capital City Mortg.

Corp., 926 F. Supp. 2d 320, 337 (D.D.C. 2013); see also Lin v. United States, 690 F. App’x 7, 9

(D.C. Cir. 2017). However, “[o]nce a plaintiff is, or should be, aware of the injury, the rationale

for the continuous tort doctrine is inapplicable and the statute of limitations begins to run.” Lin,

690 F. App’x at 10 (citing Beard, 790 A.2d at 548); see also, e.g., Hendel v. World Plan Exec.

Council, 705 A.2d 656, 667 (D.C. 1997) (“[O]nce the plaintiff has been placed on notice of an

injury and the role of the defendants’ wrongful conduct in causing it, the policy disfavoring stale

claims makes application of the ‘continuous tort’ doctrine inappropriate.”). Thus, as with the dis-

covery rule, under the continuing tort doctrine a claim accrues and the statute of limitations “begins

to run once a plaintiff has inquiry notice of a potential cause of action.” Gray v. Staley, 140 F.

Supp. 3d 84, 87 (D.D.C. 2015) (quoting Jung v. Mundy, Holt & Mance, P.C., 372 F.3d 429, 433

(D.C. Cir. 2004)). As the discussion above establishes, see Section III.B.1, supra, Plaintiff’s

claims accrued on May 25, 2018, well outside of the applicable limitations periods.

To be sure, “in the case of a continuing tort, filing after the limitations period has run does

not mean that there can be no recovery”; rather, the plaintiff may recover “for injuries attributable

to the part of the continuing tort that was committed within the limitations period immediately

preceding the date on which suit is brought.” Jung, 372 F.3d at 433. However, Plaintiff has not

established a continuing tort:

For a claim to constitute a continuing tort, it must be “one that could not reasonably

have been expected to be made the subject of a lawsuit when it first occurred be-

cause its character as a violation did not become clear until it was repeated during

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the limitations period, typically because it is only its cumulative impact . . . that

reveals its illegality.”

Fla. Rock Props., Inc. v. Jemal’s Buzzards Point LLC, No. 18-cv-483, 2022 WL 4583523, at *10

(D.D.C. Aug. 20, 2020) (alteration in original) (quoting Keohane v. United States, 669 F.3d 325,

329 (D.C. Cir. 2012)). Plaintiff maintains that “the structural damage to Plaintiff’s property re-

sulted from Defendants’ collective failures in excavation, shoring, underpinning, and foundational

work. This conduct created a pattern of ongoing harm—including worsening cracks, soil settle-

ment, and structural instability—that persisted until at least 2021.” 14 ECF No. 215 at 9. Those

statements do not suggest, much less create a genuine issue of fact, that the alleged negligence and

trespass of EWORA, IFG, City Concrete, or Luis Construction “did not become clear until [they

were] repeated during the limitations period” and that the torts were revealed only by their “cumu-

lative impact.” Fla. Rock Props., 2022 WL 4583523, at *10 (quoting Keohane, 669 F.3d at 329).

At most, they indicate that damage continued into the limitations period and Defendants failed to

remedy it. That is insufficient, because “‘[t]he part of the continuing tort that was committed

within the limitations period’ preceding the filing of the suit cannot be the ‘lingering effect of an

unlawful act nor a defendant’s failure to right a past wrong,’ but must instead be ‘injurious acts.’”

Id. (quoting Lin, 690 F. App’x at 9–10). Plaintiff cites no evidence of an “injurious act” that

occurred within the limitations period. Indeed, he acknowledges that the work of City Concrete

and Luis Construction was completed in 2018. See ECF No. 215-1 at 14–15, ¶ 4; id. at 16, ¶ 2.

The evidence he cites in connection with EWORA and IFG consists of an email string about

14

Plaintiff’s insistence that the damage persisted until “at least 2021” appears to be based on his claim that “[m]oni-

toring reports from November 2021 (Exhibit 12) confirmed that inadequate shoring practices contributed to ongoing

structural instability, including new cracks in the walls.” ECF No. 215 at 9. That is a mischaracterization of the

record. Plaintiff’s exhibit 12 is, as described above, an internal DCRA email from November 2021 that attaches and

summarizes reports that third-party inspection and engineering firm FMC created in 2018. ECF No. 215-2 at 52. It

does not support Plaintiff’s claim that monitoring reports reflected damage occurring in 2021, or, more pertinently,

damage caused by conduct occurring in 2021.

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damage occurring in 2018 and 2019, see ECF No. 215-2 at 24–29, and an email outlining moni-

toring reports from 2018, see id. at 52; see also note 14, supra. None of those supports a finding

that one or more injurious acts occurred within the relevant limitations periods, which began on

January 18, 2020, for EWORA, IFG, and City Concrete, and on December 20, 2020, for Luis

Construction. 15 See Matiella II, 2024 WL 3967367, at *11–12.

Accordingly, Plaintiff has not established a continuing tort and his claims against EWORA,

IFG, City Concrete, and Luis Construction are therefore untimely.

15

Plaintiff cites John McShain, Inc. v. L’Enfant Plaza Properties, Inc., 402 A.2d 1222, 1231 n.20 (D.C. 1979), as

support for his assertion that, “[i]n construction-related damages, courts recognize continuous harm, such as progres-

sive structural instability or soil movement caused by negligent construction practices, as satisfying the criteria for a

continuous tort.” ECF No. 215 at 9. The cited footnote reads, in its entirety:

If the continuing tort has a cumulative effect, such that the injury might not have come about but for

the Entire course of conduct (E. g., a physical condition brought about by long-term medical treat-

ment), then all damages caused by the tortious conduct are recoverable even though some of the

conduct occurred outside the limitations period. Fowkes v. Pennsylvania R. Co., 264 F.2d 397, 398-

99 (3d Cir. 1959).

If, on the other hand, the continuing tort is of the type that causes a series of separate or recurrent

injuries, then only those damages stemming from conduct occurring within the limitations period

are recoverable.

John McShain, Inc., 402 A.2d at 1231 n.20. That is, it does not say what Plaintiff says it says. Indeed, John McShain

is not a case about negligent construction practices, but, rather, about “damages due to the delay in a construction

project occasioned by the defendant’s trespass.” Id. at 1223. The precursor case, L’Enfant Plaza East, Inc. v. John

McShain, Inc., was at least a case about a continuing tort, but all it held was that “a continuing unknown encroachment”

on property—specifically, a three-foot thick, 240-foot long concrete footing reinforced with steel that “ran along the

common boundary line” between two adjacent properties 23 feet below the surface and “extended 1½ to 3½ feet” onto

the plaintiff’s property—constitutes a “continuing trespass.” 359 A.2d 5, 6–7 (D.C. 1976). The case before the Court

is not about an unknown encroachment. And, as discussed above, Plaintiff has failed to point to any evidence of

tortious conduct that occurred within the statute of limitations.

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IV. CONCLUSION

For the foregoing reasons, it is hereby

ORDERED that the motions for summary judgment brought by Luis Construction, ECF

No. 195; Murdock Street, ECF No. 198; EWORA and IFG, ECF No. 199; and City Concrete, ECF

No. 200, are GRANTED and Plaintiff’s claims against each of them are dismissed.

SO ORDERED.

G. Michael

Date: December 10, 2025

Harvey

___________________________________

G. MICHAEL HARVEY

UNITED STATES MAGISTRATE JUDGE

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