Marcas, L.L.C. v. Bd. of Cnty. Comm'rs of St. Mary's Cnty.

• Court: U.S. District Court — District of Maryland
• Writing for the Court: WILLIAM CONNELLY
• Citation: Marcas, L.L.C. v. Bd. of Cnty. Comm'rs, 977 F.Supp.2d 487 (D. Md. 2013)
• Decision Date: 25 July 2013
• Docket Number: Civil Action No. WGC–07–196.
• Parties: MARCAS, L.L.C., Plaintiff, v. BOARD OF COUNTY COMMISSIONERS OF ST. MARY'S COUNTY, Defendant.

977 F.Supp.2d 487

MARCAS, L.L.C., Plaintiff,

v.BOARD OF COUNTY COMMISSIONERS OF ST. MARY'S COUNTY, Defendant.

Civil Action No. WGC–07–196.

United States District Court, D. Maryland.

July 25, 2013.

Thomas M. DiBiagio, Timothy K. Halloran, McKenna Long and Aldridge LLP, Washington, DC, Garth Edmond Beall, McNamee Hosea Jernigan Kim Greenan and Lynch, PA, Greenbelt, MD, for Plaintiff.

Warren N. Weaver, Dale B. Garbutt, Emily A. Daneker, Merrilyn E. Ratliff, Thomas Johns Whiteford, Thurman W. Zollicoffer, Jr., Whiteford Taylor and Preston LLP, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

WILLIAM CONNELLY, United States Magistrate Judge.

In the Memorandum Opinion and Order of September 28, 2011 this Court denied the Board of County Commissioners of St. Mary's County's (hereinafter “the County”) motion for partial summary judgment and granted in part and denied in part Marcas, L.L.C.'s (hereinafter “Marcas”) motion for partial summary judgment. ECF Nos. 107–108. On February 2, 2012 Marcas moved for leave to file a Third Amended Complaint which the County opposed. On April 16, 2012 the Court granted Marcas' motion. The Third Amended Complaint consisted of twelve (12) counts. Marcas later moved for partial summary judgment regarding its takings claims. After a motions hearing, the Court dismissed Counts XI and XII on December 28, 2012. See ECF No. 153. Pending before the Court and ready for resolution are the County's motion for partial summary judgment (seeking judgment as to Counts IV, V, VIII, IX and X) [ECF No. 159] and Marcas' cross-motion for partial summary judgment (seeking judgment as to Counts I, VI and VII) [ECF No. 163]. No hearing is deemed necessary and the Court now rules pursuant to Local Rule 105.6 (D.Md. 2011).

BACKGROUND

The Court outlined the factual background in detail in the Memorandum Opinion of September 28, 2011. ECF No. 107 at 2–52; see Marcas, L.L.C. v. Board of County Comm'rs, 817 F.Supp.2d 692, 696–730 (D.Md.2011). Other facts pertinent to the resolution of the cross-motions for partial summary judgment shall be discussed below.

STANDARD OF REVIEW

A motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In other words, if there clearly exist factual issues “that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party,” then summary judgment is inappropriate. Anderson, 477 U.S. at 250, 106 S.Ct. 2505;see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir.1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.1950). The moving party bears the burden of showing that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(a); Pulliam Inv. Co., 810 F.2d at 1286 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979)).

When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir.1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. “[A] complete failure of proof concerning an essential element ... necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548.

On those issues where the nonmoving party will have the burden of proof, it is that party's responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. However, “ ‘[a] mere scintilla of evidence is not enough to create a fact issue.’ ” Barwick v. Celotex Corp., 736 F.2d 946, 958–59 (4th Cir.1984) (quoting Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 632 (E.D.N.C.1966), aff'd,388 F.2d 987 (4th Cir.1967), cert. denied,390 U.S. 959, 88 S.Ct. 1039, 19 L.Ed.2d 1153 (1968)). There must be “sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 (citations omitted).

When faced with cross-motions for summary judgment, the Court must consider “each motion separately on its own merits to determine whether either of the parties deserve judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.2003) (internal quotation marks omitted). The Court applies the same standard of review. Monumental Paving & Excavating, Inc. v. Penn. Mfrs.' Ass'n Ins. Co., 176 F.3d 794, 797 (4th Cir.1999) (citing ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42, 45 n. 3 (4th Cir.1983) (“The court is not permitted to resolve genuine issues of material fact on a motion for summary judgment—even where ... both parties have filed cross motions for summary judgment.”) (emphasis omitted), cert. denied,469 U.S. 1215, 105 S.Ct. 1191, 84 L.Ed.2d 337 (1985)).

DISCUSSION

A. The County's Motion for Partial Summary Judgment

1. The operation of St. Andrew's Landfill—governmental or proprietary?

The County moves for summary judgment on Count IV (Interference with Businessor Economic Relationship) and Count V (Strict Liability for Abnormally Dangerous or Ultrahazardous Activity). In the Memorandum Opinion of September 28, 2011 the Court deferred ruling on these two counts because there was insufficient information in the record concerning whether the County's operation of St. Andrew's Landfill was governmental or proprietary. See ECF No. 107 at 72–73. “The record in this case must be supplemented with information about the fees collected in relation to the expenses incurred for operating St. Andrew's Landfill.” Id. at 72.

In support of its motion for partial summary judgment, the County has submitted the affidavit of George A. Erichsen, the County's Director of the Department of Public Works and Transportation (“DPW & T”). Mr. Erichsen has held his position since approximately December 1997 or January 1998. St. Andrew's Landfill (presently closed) was operated by DPW & T.

Mr. Erichsen reviewed the revenues, expenses and debt services for the County's municipal solid waste, rubble and recycling operations from 1986 to the end of fiscal year 2012.¹ The County does not maintain revenue and expense information for its municipal solid waste, rubble and recycling operations before 1986. ECF No. 159–8 at 2 (Erichsen Aff. ¶ 3). The breakout of revenues, expenses and debt service between 1986 and 2012, per Mr. Erichsen's affidavit, is as follows:

ECF No. 159–8 at 2–9 (Erichsen Aff. ¶¶ 4–30). For each fiscal year Mr. Erichsen concludes by declaring, “This does not include consideration of the administrative overhead expenses, vehicle maintenance, equipment replacement, utilities, or any related capital project expenditures that did not result in additional debt service.”

Historically, the collection and disposal of garbage by a municipality is considered a governmental rather than a private function. The assessment of a fee for materials deposited at a landfill does not automatically mean the landfill is a private function. In Tadjer v. Montgomery County, the Court of Appeals of Maryland noted, when assessing a government operated landfill which charges a fee,

If ... the income was not adequate to maintain the landfill or if this income were barely adequate to cover expenses, we would agree that this landfill operation was a governmental function. On the other hand, if the income derived was in an amount substantially in excess of the County's expenses for rent, operation and the like, so that the landfill was a real moneymaking proposition, it would be a proprietary function.

300 Md. 539, 549–50, 479 A.2d 1321, 1326 (Md.1984), superseded by statute on other grounds as recognized in Flaherty v. Weinberg, 303 Md. 116, 136, 492 A.2d 618, 628 (1985). Although between 1986 and 2012 there were five years when DPW & T operated the County's municipal solid waste, rubble and recycling operations at a surplus, for the vast majority of those 27 years, these facilities operated in the red. In its opposition Marcas notes the County began shutting down St. Andrew's Landfill in 1997. “According to the County's Declaration of George Erichsen, during the ten years prior to 1997, the County made a ‘surplus' from the Landfill five times—or 50% of the time. During the five years prior to 1997, the County made a surplus four times—or 80% of the time.” ECF No. 163–1 at 41 (citations omitted). In the Memorandum Opinion of September 28, 2011, the Court noted, “[t]he County discontinued waste disposal in Cells 1, 2 and 4 in November 1997 and discontinued waste disposal in Cell 3 in February 1999. In June 2001 the disposal of rubble was discontinued.” ECF No. 107 at 2. In its reply the County states the data presented by Mr. Erichsen is not skewed as Marcas contends. “[L]ong before landfilling operations ceased at St. Andrews Landfill, the County was regularly and substantially subsidizing its operations. Moreover, the County's ongoing costs for the Landfill are very real and must be a part of any consideration as to whether the Landfill was operated as a profit-making enterprise.” ECF No. 168 at 20 (citation omitted).

In reviewing Mr. Erichsen's affidavit the Court notes Mr. Erichsen did not identify the cost of operating the St. Andrew's Landfill exclusively. The costs and revenues include all municipal solid waste, rubble and recycling operations for St. Mary's County as...