949 F.2d 1384 (5th Cir. 1991), 90-4639, American Waste & Pollution Control Co. v. Browning-Ferris, Inc.

Docket Nº:90-4639.
Citation:949 F.2d 1384
Party Name:AMERICAN WASTE & POLLUTION CONTROL COMPANY, Plaintiff-Appellant, v. BROWNING-FERRIS, INC., Defendant-Appellee.
Case Date:December 23, 1991
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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949 F.2d 1384 (5th Cir. 1991)



BROWNING-FERRIS, INC., Defendant-Appellee.

No. 90-4639.

United States Court of Appeals, Fifth Circuit

December 23, 1991

Rehearing Denied Jan. 29, 1992.

John G. Torian, II, Bert Wilson, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, La., for plaintiff-appellant.

Harry S. Hardin, III, Judith V. Windhorst, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for defendant-appellee.

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Appeal from the United States District Court for the Western District of Louisiana.

Before BROWN, JOHNSON and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

In this Louisiana diversity action, American Waste & Pollution Control Company appeals the district court's Fed.R.Civ.P. 12(b)(6) dismissal, contending that it has stated claims for both tortious interference with contract and violation of the Louisiana Unfair Trade Practices and Consumer Protection Law, La.Rev.Stat.Ann. § 51:1401, et seq. (West 1987) (UTPCPL). We AFFIRM.


In January 1990, American Waste brought suit against Browning-Ferris, Inc. (BFI), seeking damages for the two foregoing claims and unjust enrichment. The complaint alleged that: the Jefferson Davis Parish Sanitary Landfill Commission was created in 1984 to construct and operate the parish landfill; in early 1987, the Commission began the process of receiving bids for the operation of the landfill, which was under construction; although bid specifications were submitted to several operators, including American Waste and BFI, American Waste was the only bidder; in November 1987, the Commission entered into a long-term agreement with American Waste, which included conditions to be satisfied by the Commission before the agreement became effective; the Commission and American Waste entered into an interim agreement to allow American Waste to operate the site, pending implementation of the long-term agreement; and after entering into the interim agreement, and in reliance on the long-term agreement, it further developed, and otherwise operated, the landfill and, in conjunction with the Commission, prepared permit modifications which were submitted to, and in part later ratified by, the Department of Environmental Quality.

American Waste further alleged that in January 1989, BFI, with knowledge of the contract between American Waste and the Commission, submitted proposals to the Commission for the operation of the landfill; and that in 1989, while American Waste and the Commission were negotiating amendments to their agreements and American Waste was operating the landfill, BFI also "offered substantial sums of money and other incentives to the COMMISSION in order to induce the COMMISSION to completely repudiate its agreement and contractual relations with AMERICAN WASTE."

The complaint further alleged that: the long-term and interim agreements had "been the subject of litigation between the Jefferson Davis Parish Police Jury, the COMMISSION, the Town of Welsh and AMERICAN WASTE"; in May 1989, a Louisiana court "held that the agreements were invalid," because they "required the COMMISSION to turn over the day to day control over the landfill to AMERICAN WASTE without unanimous consent of the governmental bodies which [made] up the COMMISSION"; this ruling was contrary to the agreements, which state that the Commission was to maintain such day-to-day control; and in July 1989, after the state court removed American Waste, the Commission entered into an agreement with BFI to operate the landfill.

In count one of its complaint, American Waste alleged that BFI's actions "constitute[d] an intentional, unjustified and improper interference with contractual relations"; and that, as a result of this interference, the Commission breached its agreements with American Waste, causing injury to American Waste. American Waste also alleged that BFI was unjustly enriched at the expense of American Waste as a result of the intentional interference.

In the second count, American Waste alleged that during the pendency of the state litigation, the parties to it had reached an informal settlement agreement in January 1989; and that BFI, "with full knowledge that American Waste and the COMMISSION were negotiating amendments to their existing agreements, intentionally offered substantial sums of money,

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in excess of [$5 million], and other incentives to the COMMISSION in order to induce the COMMISSION to withdraw from these settlement negotiations and to completely repudiate its agreement and contractual relations with AMERICAN WASTE," causing the settlement to fail.

In the third count, American Waste alleged that BFI's conduct violated the UTPCPL.

Pursuant to Rule 12(b)(6), BFI moved to dismiss the complaint for failure to state a claim upon which relief can be granted. The magistrate judge issued a report and recommendation that (1) Louisiana law did not recognize BFI's conduct as actionable under its law of intentional interference with contract, because the Louisiana case which had recently recognized the doctrine, 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228 (La.1989), and the cases following it, did not extend the doctrine to the facts as alleged by American Waste; (2) BFI's actions did not provide a cause of action under the UTPCPL, because the alleged wrongful conduct did not constitute a statutory unfair trade practice; and (3) American Waste could not bring a claim for unjust enrichment, because it had not alleged all of the elements for that cause of action and the claim, if any, would lie against a party other than BFI. 1

In response to the recommendation, American Waste filed objections and a supporting memorandum in district court, to which BFI responded. "[A]fter an independent review of the record and a de novo determination of the issues," the district court held that the findings in the recommendation were correct and dismissed the action.


Of course, in reviewing a Rule 12(b)(6) dismissal, the court must accept as true all well-pleaded averments and view them in the light most favorable to the plaintiff. Moreover, "we may uphold ... [a Rule 12(b)(6) dismissal] only if it appears that no relief could be granted under any set of facts that could be proved consistent with the allegations." Baton Rouge Bldg. & Constr. Trades Council v. Jacobs Constructors, Inc., 804 F.2d 879, 881 (5th Cir.1986) (citation omitted). And, as recently held by the Supreme Court, we "review de novo a district court's determination of state law." Salve Regina College v. Russell, 499 U.S. ----, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991). 2

"When presented with an unsettled point of state law, our role under Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), is to determine how the [Louisiana] Supreme Court would resolve the issue if presented to it." Coatings Mfrs., Inc. v. DPI, Inc., 926 F.2d 474, 479 (5th Cir.1991). In addition, "[w]hen making an Erie-guess in the absence of explicit guidance from the state courts, we must attempt to predict state law, not to create or modify it." United Parcel Serv., Inc. v. Weben Indus., Inc., 794 F.2d 1005, 1008 (5th Cir.1986) (citing Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 396-98 (5th Cir.1986) (en banc)). "[W]e are not free to fashion new theories of recovery under Louisiana law." Pittman v. Dow Jones & Co., 834 F.2d 1171, 1171 (5th Cir.1987).


In Spurney, the Louisiana Supreme Court recognized a very narrow cause of action for tortious interference with contracts. The Louisiana World Exhibition, Inc. (LWE), contracted with 9 to 5 Fashions to supply uniforms for the fair employees. After the fair, 9 to 5 was unable to collect under the contract, because

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LWE was in bankruptcy. 9 to 5 sued Spurney, CEO of LWE, alleging that he had damaged 9 to 5 by intentional and negligent interference that hindered its performance of the contract.

Initially, the court noted that 9 to 5 wanted it "to recognize an action that it has refused to allow since 1902, viz., an action for tortious interference with a contractual relationship." 538 So.2d at 231. In addressing the issue, the court noted:

It is the basic policy of our law that every act whatever of man that causes damages to another obliges him by whose fault it happened to repair it. La.Civ.Code art. 2315. The framers conceived of fault as a breach of a preexisting obligation for which the law orders reparation, when it causes damage to another, and they left it to the courts to determine in each case the existence of an anterior obligation which would make an act constitute fault. 2 M. Planiol, Treatise on the Civil Law, Part 1, §§ 863-865 (1959); Pitre v. Opelousas General Hosp., 530 So.2d 1151 (La.1988).

538 So.2d at 231 (emphasis added). Pursuant "to these basic principles," the court held

that, in light of modern empirical considerations and the objectives of delictual law, an officer of a corporation owes an obligation to a third person having a contractual relationship with the corporation to refrain from acts intentionally causing the company to breach the contract or to make performance more burdensome, difficult or impossible or of less value to the one entitled to performance, unless the officer has a reasonable justification for his conduct.

Id. (emphasis added).

The court noted that its holding was "derived from the contemporary doctrine of interference with contractual relations existing in other jurisdictions," which it found "consistent with civilian delictual principles and implemental of present day moral, social and economic values." Id. at 231-32. Noting the distinction between...

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