Parker v. Scrap Metal Processors, Inc.

• Decision Date: 24 October 2006
• Docket Number: No. 05-16904.,05-16904.
• Parties: Quebell P. PARKER, Sandra Skypek, Charles Parker, individually, as attorneys in fact for Quebell Parker, and in the name of Quebell Parker, Plaintiffs-Appellants, v. SCRAP METAL PROCESSORS, INC., A Georgia corporation, L.B. Recycling, Inc., A Georgia corporation, J. Wayne Maddox, individually and as the successor in interest to L.B. Recycling, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 733

468 F.3d 733

Quebell P. PARKER, Sandra Skypek, Charles Parker, individually, as attorneys in fact for Quebell Parker, and in the name of Quebell Parker, Plaintiffs-Appellants, v. SCRAP METAL PROCESSORS, INC., A Georgia corporation, L.B. Recycling, Inc., A Georgia corporation, J. Wayne Maddox, individually and as the successor in interest to L.B. Recycling, Inc., Defendants-Appellees.

No. 05-16904.

United States Court of Appeals, Eleventh Circuit.

October 24, 2006.

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Holly Page Cole, Donald D. Stack, Martin Arthur Shelton, Stack & Associates, P.C., Atlanta, GA, for Plaintiffs-Appellants.

Kerry F. Nelson, Barbara H. Gallo, Scott E. Hitch, Balch & Bingham, LLP, Daniel Herbert Sherman, IV, Epstein Becker & Green, P.C., Atlanta, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH, PRYOR and FAY, Circuit Judges.

FAY, Circuit Judge:

Quebell Parker and her children, Sandra Skypek and Charles Parker ("plaintiff"), appeal the district court's denial of her Motion to Show Cause as to why Scrap Metal Processors, Inc. ("SMP") and J. Wayne Maddox (together: "defendant"), have failed to comply with this Court's order in Parker v. Scrap Metal Processors, Inc., 386 F.3d 993 (11th Cir.2004), to obtain a solid waste handling permit and to implement a legally sufficient Storm Water Pollution Prevention Plan ("SWPPP"). Additionally, this Court ordered a retrial as to damages only, on plaintiff's state tort claims. Rather than conduct the retrial, the district court dismissed the case for lack of subject-matter jurisdiction pursuant to 28 U.S.C. § 1367(c), which the plaintiff also appeals. For the reasons set forth below, we reverse as to the dismissal for lack of subject-matter jurisdiction and the denial of the motion to show cause with regard to obtaining a solid waste handling permit. However, we affirm, without prejudice, the district court's denial of the motion to show cause as to the implementation of the SWPPP.

I. BACKGROUND

Plaintiff's family has owned the property at 9144 Washington Street, Covington, Georgia ("Parker property") for approximately fifty years. The adjacent property, at 8194 Washington Street ("defendant property"), has had a junkyard/scrap metal yard operating on it since the 1960s or 1970s. J. Wayne Maddox took over the junkyard and scrap metal yard operation in or about 1990, and acquired ownership of the property in 1994.

Plaintiff filed this action on April 10, 2002, against defendant and its predecessors in interest, alleging negligence, negligence per se, nuisance, trespass, violations of the Clean Water Act ("CWA") 33 U.S.C. §§ 1251-1386, the Resource Conservation and Recovery Act ("RCRA") 42 U.S.C. §§ 6901-6992k, and various state environmental statutes.

On August 8, 2003, after a jury trial, the Northern District of Georgia entered judgment in favor of plaintiff on all counts. Defendant was ordered to pay a total of $1 million in damages to the plaintiff, and pay civil fines for its CWA and RCRA violations to the government. Defendant was further ordered to implement a Storm Water Pollution Prevention Plan, and to obtain a solid waste handling permit from the Georgia Environmental Protection Division ("EPD").

The defendant appealed the district court's findings of liability under the CWA and the RCRA, as well as the award of damages. Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1000 (11th Cir. 2004). On September 28, 2004, this Court upheld the findings of liability based upon the CWA and the RCRA, but reversed the damages award because the district court did not instruct the jury that damages were only recoverable by a party that owned or occupied the Parker property during the relevant time period. Id. at 1018. Although Mrs. Parker's children were included in the damage award, they did not own or occupy the Parker property during the relevant time period. Accordingly, this Court ordered the district court hold a new trial on damages. Id. at 1019.¹ On remand the plaintiffs sought damages as to Mrs. Parker only.

On September 6, 2005, the district court ordered the parties to submit briefs addressing whether the court should exercise subject-matter jurisdiction over the remaining state law damage claim. On September 23, 2005, plaintiffs submitted their motion to require defendants to show cause as to why the district court should not hold defendants in contempt for failing to comply with its August 8, 2003 order. Plaintiffs alleged the defendants had failed to implement a legally sufficient SWPPP and had not obtained a solid waste handling permit, as per the orders of the district court and this Court.

On December 13, 2005, the district court entered an order denying the plaintiff's motion to show cause. The district court reasoned: (1) under RCRA, defendants are deemed to have a permit-by-rule and do not need any other solid waste handling permits; and (2) under the CWA, plaintiffs failed to provide clear and convincing evidence that defendants were in violation of the district court's order to develop and implement a legally sufficient SWPPP.

The district court also declined to exercise subject-matter jurisdiction over the new trial on damages, dismissing the action without prejudice, so it could be refiled in Georgia State Court. This appeal followed.

II. STANDARD OF REVIEW

There are three issues presented on appeal:

I. Whether the district court erred in denying plaintiff's motion to show cause as to why defendant had not obtained a solid waste handling permit.

II. Whether the district court erred in denying plaintiff's motion to show cause as to why defendant had not implemented a legally sufficient Storm Water Pollution Prevention Plan.

III. Whether the district court erred in declining to exercise supplemental jurisdiction over the new trial on damages.

We review the district court's denial of the plaintiff's motion to show cause for abuse of discretion. In re Newton, 718 F.2d 1015, 1022 (11th Cir.1983); United States v. Hayes, 722 F.2d 723, 725 (11th Cir.1984). A defendant's present ability to comply with a court order is subject to the clearly erroneous standard of review. United States v. Roberts, 858 F.2d 698, 701 (11th Cir.1988); Citronelle-Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297, 1301 (11th Cir.1991); Combs v. Ryan's Coal Co., Inc., 785 F.2d 970, 983 (11th Cir.1986); Fed.R.Civ.P. 52(a).

We review the district court's decision not to exercise supplemental jurisdiction for abuse of discretion. Ingram v. School Bd. of Miami-Dade County, 167 Fed.Appx. 107, 108 (11th Cir.2006) (citing Lucero v. Trosch, 121 F.3d 591, 598 (11th Cir.1997) ("As a practical matter, the district court is in the best position to weigh the competing interests set forth in § 1367(c) and [United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)] in deciding whether it is appropriate to exercise supplemental jurisdiction.")). Both parties agree that the district court had power to exercise subject-matter jurisdiction under 28 U.S.C. § 1367(a).

III. ANALYSIS

Plaintiff argues the district court erred when it denied plaintiff's motion to show cause as to why defendant should not be held in contempt for violating the district court's order to obtain a solid waste handling permit, and to implement a legally sufficient SWPPP. Plaintiff further argues the district court erred when it dismissed plaintiff's case. We consider each of these issues in turn.

A. Solid Waste Handling Permit

On August 8, 2003, the district court found defendant in violation of the RCRA, and ordered that defendant take "all reasonable steps to obtain a solid waste handling permit from the director of the EPD." On appeal, this Court upheld the district court's finding of liability under the RCRA and affirmed the district court's order requiring the obtaining of a solid waste handling permit. Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1012 (11th Cir.2004). Because we concluded in that case the defendant must apply for and obtain a solid waste handling permit, we now briefly review the analysis for that decision.

The RCRA allows approved states to implement and enforce its provisions. 42 U.S.C.A. § 6926(b). Georgia received approval to do so in 1979, and enacted the Comprehensive Solid Waste Management Act ("SWMA"), Ga.Code Ann. §§ 12-8-20 through 12-8-59.2, to regulate solid and hazardous waste. Under the SWMA, a person generally must obtain a permit to handle solid waste. Parker, 386 F.3d at 1011, citing Ga.Code. Ann. § 12-8-24.

Because the scrap metal and other materials on defendant's property were found to be within Georgia's broad definition of solid waste, defendant was required to have a solid waste handling permit unless an exception to the permit requirement applied. Parker, 386 F.3d at 1011. Defendant contended the materials on the property were actually "recovered materials,"² making the SMP facility a "recovered materials processing facility,"³ eliminating the need for a solid waste handling permit because the SWMA excludes recovered materials from the definition of solid waste. Ga.Code Ann. § 12-822(33); Ga. Comp. R. & Regs. r. 391-3-4-.04(7)(a).

However, even "recovered materials," require a solid waste handling permit if they are "accumulated speculatively." Parker, 386 F.3d at 1012, citing Ga. Comp. R. & Regs. r. 391-3-4-.04(7)(b). To prove materials are not accumulated speculatively, defendant would have to show "during the preceding 90 days the amount of material that is recycled, sold, used, or reused equals at least 60 percent by weight or volume of the material received during that 90-day period and 60 percent by weight or volume of all material proviously (sic) received and not recycled, sold, used, or reused and carried forward into that 90-day period." Ga. Comp. R. & Regs. r. 391-3-4-.04(7)(c). The district...