Barker Bros. Waste v. Dyer County Legislative Body, 95-2942-GA.
| Decision Date | 16 January 1996 |
| Docket Number | No. 95-2942-GA.,95-2942-GA. |
| Citation | 923 F. Supp. 1042 |
| Parties | BARKER BROTHERS WASTE, INC.; Northwest Tennessee Disposal Corporation; Donna Parish; Regina Marshall; Lloyd Smith; and Linda Smith, Plaintiffs, v. DYER COUNTY LEGISLATIVE BODY; and the following individual Commissioners, in their capacity as Elected Officials: William Cloar; Ralph Henson; Richard Hill; John Holden; Johnny Jenkins; Barry Ladd; Milton Magee; Roland Morris; Terry McCreight; Willie Reasons and Joe Swafford; and Browning-Ferris Industries of Tennessee, Inc., Defendants. |
| Court | U.S. District Court — Western District of Tennessee |
COPYRIGHT MATERIAL OMITTED
Michael G. McLaren and Buckner Wellford, Thomas Hendrix Harvey Johnson & Mitchell, Memphis, TN, for Plaintiff.
Thomas L. McAllister, Harris Shelton Dunlap & Cobb, Memphis, TN, for Defendant Browning-Ferris Industries.
Russell E. Reviere, Rainey Kizer Butler Reviere & Bell, Jackson, TN, for Defendant Dyer County Legislative Body.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case arises out of the award of a contract for residential non-hazardous waste service in Dyer County, Tennessee. Plaintiffs, who include an unsuccessful bidder for the contract, seek a declaratory judgment and sue pursuant to 42 U.S.C. § 1983, alleging two claims under the United States Constitution — that defendant Dyer County Legislative Body (Dyer County) violated the Commerce Clause and the Due Process Clause of the Fourteenth Amendment. Plaintiffs also allege that Dyer County violated various Tennessee statutes regulating competitive bidding processes and exclusive franchises, specifically T.C.A. §§ 5-14-101 et seq., 6-2-201(12), and 5-1-118. The relief sought includes a declaratory judgment, a preliminary injunction and money damages.
Pursuant to Federal Rule of Civil Procedure 65(a)(2), and upon agreement of the parties, the court consolidated the disposition of plaintiffs' motion for preliminary injunction with the disposition on the merits. A hearing on the motion was held December 14, 1995. Subsequent to the hearing, the parties submitted additional briefs. For the following reasons, the court denies plaintiffs' motion for a preliminary injunction. The court also finds that plaintiffs' constitutional claims are without merit and that plaintiffs' state law claims should be dismissed for lack of jurisdiction.
The primary plaintiff in this action is Barker Brothers Waste, Inc., a Tennessee corporation whose parent corporation is Continental Waste Industries, a Delaware corporation. Barker Brothers, for the last four years, has collected residential and commercial non-hazardous solid waste in Dyer County, Tennessee. During this time, Barker Brothers has disposed of the solid waste collected in Dyer County in a landfill owned by the Northwest Tennessee Disposal Corporation and located outside of Troy, Tennessee in Obion County. Northwest Tennessee Disposal Corporation is also a plaintiff in this action.1
Defendant Dyer County Legislative Body (Dyer County) is the governing legislative entity for Dyer County, Tennessee. Defendant Browning-Ferris Industries of Tennessee, Inc. (BFI) is a Tennessee corporation engaged in the waste hauling and disposal industries.
In August of 1995, Dyer County solicited bids for the provision of residential non-hazardous solid waste service (including hauling and disposal) for all county residents not located within the City of Dyersburg.2 The solicitation offered to the successful bidder an exclusive contract to service solid waste within the county. The county's purpose in contracting out solid waste service was to ensure compliance with a state mandate requiring counties to have collection available to ninety percent of their residents by January 1, 1996.3
Prospective contractors submitting bids were required to specify one of two waste disposal options. Option One was that "all refuse collected for disposal by the Contractor shall be hauled to the City of Dyersburg's landfill at 2550 Sorrell's Chapel Road." It is undisputed that the City of Dyersburg's landfill is a government-owned landfill, owned and operated by the city. Option Two provided for disposal at any other site designated by the prospective contractor. A prospective contractor wishing to utilize a landfill under Option Two was required to provide detailed information regarding that landfill's permits, licenses, and environmental violations, if any. Under the explicit terms of the bid solicitation, a contractor was permitted to submit two bids, one under each disposal option.
In addition to designating a disposal site, prospective contractors were required to present to the county a wide variety of information, including insurance and performance bond verification, a certified financial statement, evidence of good standing under the laws of Tennessee, an inventory of relevant equipment, a list of past and pending civil and criminal liabilities, proposed fee schedules, and descriptions of additional services available (i.e., recycling, public education, customer relations, and waste convenience centers). Dyer County's bid solicitation identified the criteria upon which it would award the contract:
Selection of the Contractor will not be based solely on price. The bids will be evaluated according to the following criteria: (a) ... Competency of Bidder; (b) proposed Disposal Sites(s); (c) proposed fee schedule; (d) overall benefit to the county; and (e) any other factors deemed relevant by the County.
Plaintiff Barker Brothers submitted a bid under Option Two, designating Northwest Tennessee's landfill in Obion County. Barker Brothers' bid included a monthly fee proposal of $12.36. In addition, its proposal referred to current customer satisfaction and growth rates within Dyer County, as well as current and future recycling capabilities. Defendant BFI submitted a bid under Option One. BFI's bid proposal included a monthly fee of $12.57. In addition, BFI offered a comprehensive educational program and recycling capabilities. Defendant BFI also offered to open an office in the county and employ local residents.
Subsequent to the submission of bids, the Conservation and Environment Committee of the Dyer County Legislative Body recommended that the full Legislative Body accept the bid of BFI. Notes from one committee meeting, dated August 23, 1995, indicate concern with Barker Brothers' record of environmental violations. On that same occasion, the notes reflect some discussion that the county should award its contract to a trash hauler willing to use the Dyersburg landfill in order to "keep trash in county, reduce costs, and increase volume." In a committee meeting on August 30, Barker Brothers offered to amend its bid proposal to include the Dyersburg landfill option. The record, while vague, seems to indicate that the committee felt it improper to accept a bid amendment. The committee voted to recommend BFI.
On September 11, 1995, the Dyer County Legislative Body voted to award the waste contract to BFI. The minutes from that meeting indicate that some members of the Legislative Body were concerned with keeping "the Dyersburg landfill viable." There was also discussion of Barker Brothers' violations of environmental regulations. The final vote was 11 to 8.
Barker Brothers has over 21,000 customers (18,000 residential, 3000 commercial) throughout Tennessee. It will lose 1560 customers as a result of the contract award to BFI.
Although Barker Brothers argues that the Dyer County action will harm its good will, there is no evidence in the record to support this assertion. In fact, the proof suggests that Barker Brothers' relationship with other counties and cities is exemplary and unlikely to be affected by Dyer County's action.4
Barker Brothers and Northwest Tennessee Disposal Corporation now sue, alleging that the bidding process violated the Commerce Clause of the United States Constitution. As part of its complaint, plaintiffs allege that the bidding process was a front for "an undisclosed political agenda ... to award the bid only to a hauler which would take the waste to the City Landfill." As such, plaintiffs contend, the bidding process constitutes a discriminatory and unreasonable "flow control" measure, designed to prevent the export of a local commodity and in violation of the constitutional prohibition against local economic protectionism.
In support of its theory, plaintiffs point to the testimony of Molly Williams, a member of the Conservation and Environment Committee at the time the service contract was awarded to BFI and a member of the Legislative Body during the time that the bid specifications were drafted. Williams conceded in her deposition that members of the Legislative Body were concerned with maintaining volume at the city landfill. Furthermore, plaintiffs point out, the minutes from the Legislative Body's September 11, 1995 meeting explicitly indicate that the county was concerned with the economic viability of the city landfill and was aware that the volume of waste generated by the county would help ensure the landfill's viability by providing a reliable source of income through "tipping" fees imposed upon that waste.5
Plaintiffs also rely heavily on a Solid Waste Management Plan for Crockett, Dyer and Gibson Counties.6 The management plan articulates, as one of many future alternatives, the possibility that the Dyersburg City Landfill could opt to become a regional landfill, in which case the counties, in order to finance a regional landfill, would attempt to control the flow of their wastes to that site.7 Finally, plaintiffs point out that Barker Brothers' bid was lower than BFI's, indicating, according to plaintiffs, that the county intended only to award a contract to a contractor willing to use the city landfill.
Defendants question all of plaintiffs' inferences. First, defendants note that Williams specifically testified...
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