WASTE MANAGEMENT OF LOUISIANA v. River Birch, Inc.
| Decision Date | 10 April 2019 |
| Docket Number | No. 18-30139,18-30139 |
| Parties | WASTE MANAGEMENT OF LOUISIANA, L.L.C., Plaintiff–Appellant v. RIVER BIRCH, INCORPORATED; Albert J. Ward, Jr.; Frederick R. Heebe; Highway 90, L.L.C., Defendants–Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Patrick A. Talley, Jr., Attorney, Jeremy Thomas Grabill, Phelps Dunbar, L.L.P., New Orleans, LA, Harry Alston Johnson, III, Phelps Dunbar, L.L.P., Baton Rouge, LA, James Granger Kress, Daniel Starck, Baker Botts, L.L.P., Washington, DC, for Plaintiff-Appellant.
Thomas More Flanagan, Camille Elise Gauthier, Flanagan Partners, L.L.P., New Orleans, LA, for Defendants-Appellees RIVER BIRCH, INCORPORATED and HIGHWAY 90, L.L.C.
Robert Alan Kutcher, Esq., Nicole Sophia Tygier, Wagar Richard Kutcher Tygier & Luminais, L.L.P., Metairie, LA, for Defendant-Appellee ALBERT J. WARD, JR.
William P. Gibbens, Esq., Joelle F. Evans, Kyle D. Schonekas, Schonekas, Evans, McGoey & McEachin, L.L.C., New Orleans, LA, for Defendant-Appellee FREDERICK R. HEEBE.
Before DAVIS, COSTA, and OLDHAM, Circuit Judges.
This appeal challenges the district court’s order granting partial summary judgment in favor of Defendants River Birch, Inc., Albert Ward, Frederick Heebe and Highway 90, L.L.C (hereinafter sometimes collectively referred as "River Birch"). Plaintiff Waste Management alleged that Defendants bribed former New Orleans Mayor Ray Nagin to shut down a landfill opened in the city in the aftermath of Hurricane Katrina. Plaintiff was the operator of the shuttered landfill, and Defendants owned and operated competing landfills. Plaintiff alleged that the closure of its Chef Menteur landfill caused it to lose business that accrued to the benefit of its competitor, the River Birch landfill. On summary judgment, the district court concluded that the Rule 56 evidence presented no jury question regarding the essential causation element to Plaintiff’s civil action under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) and (d). Specifically, the district court, without considering whether Defendants’ $ 20,000 campaign contribution was a bribe, held that the summary judgment evidence failed to create a genuine issue of material fact to allow a jury to find that this payment was the but for and proximate cause of Nagin’s decision to shut down Plaintiff’s landfill at Chef Menteur Highway.
Upon careful review of the summary judgment record, however, we disagree. We are persuaded that the evidence, which is primarily circumstantial in nature, is sufficient for a jury to make positive findings on both Plaintiff’s claim that the $ 20,000 payment to Nagin was a bribe and that the bribe was causally related to Nagin’s action in shuttering the Chef Menteur landfill. We therefore vacate the district court’s judgment and remand this case for further proceedings.
In August 2005, after the passage of Hurricane Katrina, which devastated large portions of New Orleans, there was an urgent need for additional landfill capacity in which to deposit the extensive waste. Given the scope of the damage, Mayor Ray Nagin1 declared a state of emergency on August 31, 2005 and renewed that emergency declaration fifteen times. The final renewal was issued on November 3, 2006, and it expired thirty days later.
In November 2005, Waste Management submitted a proposal to open a landfill on Chef Menteur Highway in New Orleans East. Although authorization for such a landfill would ordinarily require a conditional use permit from the New Orleans City Council, Mayor Nagin believed that the city had an immediate need for additional landfill capacity. On February 9, 2006, Nagin, pursuant to his emergency declaration, issued Executive Order CRN 06-03 to suspend provisions of the comprehensive zoning ordinance for six months to authorize the construction and operation of a landfill at the Chef Menteur location. The City of New Orleans then entered into a written agreement with Waste Management to open the landfill; this agreement, however, did not mention an end date. On February 14, 2006, Nagin submitted an emergency disaster cleanup site request for approval to the Louisiana Department of Environmental Quality ("LDEQ") to open the landfill at Chef Menteur for "the duration of the Hurricane Katrina disaster cleanup efforts, at this time estimated to be 12 months." It is uncontested that Nagin had authority to extend the six-month suspension of the zoning ordinance at least until his emergency powers expired on December 3, 2006.
Mayor Nagin’s order authorizing the landfill was not well-received by residents of New Orleans East or by the City Council. On April 6, 2006, the City Council passed a resolution condemning Nagin’s February 9 executive order based on community opposition to the Chef Menteur landfill.
Around this time, Mayor Nagin was engaged in a hotly contested campaign for re-election. A runoff was scheduled for May 20, 2006. Two weeks before the runoff election, Mayor Nagin called Defendant Ward and asked for a campaign contribution. Ward discussed this request with Heebe, and they decided to make a $ 20,000 contribution through four shell corporations established by Defendants—each donating $ 5,000.2 The contribution was made on May 16, 2006. According to Nagin, however, he did not remember the conversation with Ward and was not aware of the contribution. Nagin was subsequently re-elected mayor.
On July 13, 2006, Nagin announced in a court affidavit—in a lawsuit secretly financed by Defendants—that he would not extend his February 9 executive order authorizing the Chef Menteur landfill and would allow it to expire on August 14, 2006. On August 14, the City sent a cease and desist letter to Waste Management, ordering the closure of the landfill.
Waste Management filed the instant RICO action in September 2011. In its first amended complaint, Plaintiff alleged that Defendants bribed Henry Mouton,3 a former commissioner for the Louisiana Department of Wildlife and Fisheries, to influence Nagin to shut down the Chef Menteur landfill. The district court dismissed the claims without prejudice because the amended complaint did not allege how Mouton’s conduct was the but for and proximate cause of Nagin’s decision.
Waste Management next filed a second amended complaint, alleging that (1) Mouton’s lobbying and (2) Defendants’ campaign contribution to Nagin led to the landfill’s closure. On March 27, 2015, the district court dismissed the action insofar as the alleged bribery of Mouton was concerned. But the court did not dismiss the claims based on allegations concerning the $ 20,000 campaign contribution to Nagin.
In its third amended complaint, Waste Management included all of the factual allegations regarding the Defendants’ conduct with respect to both Mouton and Nagin. Defendants filed another motion to dismiss and a motion to strike the allegation relating to Mouton’s role in the scheme to shut down the landfill. The district court denied their motions. Over a year of discovery then followed, including depositions of Mouton and Nagin.
After discovery, Defendants moved for partial summary judgment, arguing that Plaintiff failed to establish that the campaign contribution to Nagin constituted bribery. Defendants further argued that, even if it was bribery, it was not the but for and proximate cause of Nagin’s decision to close down the Chef Menteur landfill. The district court agreed and dismissed Plaintiff’s RICO claims, stating that "the circumstantial evidence on which Waste Management relies is far too speculative and conclusory to permit a reasonable trier of fact to find the requisite causal connection." We now consider the issues presented in this appeal below.
Before examining the summary judgment evidence, we briefly address Waste Management’s appeal of the district court’s March 27, 2015 order granting Defendants’ Rule 12(b)(6) motion, which dismissed Plaintiff’s suit "insofar as those claims are predicated on Defendants’ alleged bribery of Mouton." We review the district court’s grant of a motion to dismiss de novo.4 Dismissal is appropriate when the plaintiff has failed to allege "enough facts to state a claim to relief that is plausible on its face."5
Here, Plaintiff’s second amended complaint alleges that Mouton—who pled guilty to accepting bribes from Defendants for attempting to close down other landfills—was also bribed by Defendants to assist in persuading Nagin to shutter the Chef Menteur landfill. According to Plaintiff, this scheme was "part of a well-orchestrated campaign to unlawfully and unfairly influence the approval, permitting, and operations of the River Birch Defendants’ landfill competitors." Based on the pleadings, we find that the second amended complaint alleged a plausible claim of Mouton’s involvement in the instant case. The allegations, if true, warrant relief under RICO.6 We therefore vacate the district court’s Rule 12(b)(6) ruling insofar as it precludes consideration of Defendants’ alleged bribery of Mouton and his efforts to further Defendants’ alleged scheme to shutter the Chef Menteur landfill.
On appeal, Defendants argue that Plaintiff failed to put forth competent evidence that their $ 20,000 campaign contribution to Nagin’s re-election campaign was a bribe under Louisiana law, and even if it was a bribe, it did not cause Nagin to shutter the Chef Menteur landfill.
We consider the district court’s grant of Defendants’ motion for summary judgment dismissing Plaintiff’s RICO claims against Defendants. We review this de novo,7 and we apply the same criteria employed by the district court.8 "Summary judgment is proper only when it appears that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law."9 "On...
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