Waste Mgmt. of La., L.L.C. v. Parish of Jefferson
Decision Date | 10 December 2014 |
Docket Number | Civil Action No. 13–226. |
Citation | 66 F.Supp.3d 761 |
Parties | WASTE MANAGEMENT OF LOUISIANA, L.L.C. v. The PARISH OF JEFFERSON through The JEFFERSON PARISH COUNCIL. |
Court | U.S. District Court — Eastern District of Louisiana |
Miles Paul Clements, Benjamin Melvin Castoriano, Heather A. McArthur, Frilot L.L.C., New Orleans, LA, for Waste Management of Louisiana, L.L.C.
Thomas P. Anzelmo, Lou Anne Milliman, McCranie, Sistrunk, New Orleans, LA, Deborah Cunningham Foshee, Jefferson Parish Attorney's Office, Harahan, LA, for Parish of Jefferson through Jefferson Parish Council.
ORDER AND REASONS
MARTIN L.C. FELDMAN, District Judge.
Before the Court are Jefferson Parish's motion for summary judgment on liability and, in the alternative, its motion for partial summary judgment on damages. For the reasons that follow, the motion for summary judgment on liability is DENIED and the motion for partial summary judgment on damages is GRANTED in part and DENIED in part.
This malicious prosecution lawsuit arises from earlier litigation in which Jefferson Parish sued Waste Management in an effort to early terminate the parties' Landfill Contract, so that Jefferson Parish could contract with another waste disposal services provider, River Birch. Waste Management now contends before this Court that Jefferson Parish pursued the prior lawsuit for years, even though it knew that its claims against Waste Management were factually and legally baseless. The record facts of this case, including prior litigation history, are necessarily presented here in detail.
Site” (the Landfill Contract), Waste Management of Louisiana, L.L.C.1 was to receive and dispose of waste for Jefferson Parish and also manage a portion of the Jefferson Parish Sanitary Landfill Site defined as the Expansion Area. In exchange, Jefferson Parish paid Waste Management a per-ton “tipping fee”.2 Additionally, Waste Management was also tasked with paying for the construction of all cells,3 as well as paying for placing a final cover on all the cells when they were filled and the contract had reached its term. Based on the Expansion Area's capacity, the term of the Landfill Contract was to expire when certain permitted areas of the landfill, known as Phase IIIA and IIIB, were filled with waste.
Continuation of the Landfill Contract was contingent upon annual appropriation of the requisite funds by the Parish, as set forth in the Annual Appropriation Dependency Clause (ADC), a key provision in the context of this lawsuit:
It is Waste Management's position that the contours of this provision first became of interest to Parish officials in 2004 because Parish officials wished to divert the Parish's waste disposal business from Waste Management to its competitor, River Birch.
In early 2004, James “Dutch” Connick, who at the time was a consultant and lobbyist for Waste Management, says he was contacted by then-Jefferson Parish Chief Administrative Officer Tim Whitmer. According to Connick, Whitmer said that then-Parish President Aaron Broussard was unhappy with Waste Management,4 had met with representatives of River Birch, and that he wanted River Birch to operate the Parish landfill.5 According to Connick, Whitmer told him that Broussard wanted him (Connick) to know that River Birch would hire him (Connick) as its consultant and registered lobbyist.6
Months later, on October 11, 2004 then-Jefferson Parish Attorney Tom Wilkinson wrote a nine-page opinion letter to the Council7 regarding the use of the ADC. The Parish Attorney wrote:
In so opining, Wilkinson acknowledged that, absent an unqualified non-appropriations clause, multi-year service contracts such as the Landfill Contract constitute a debt that must be approved by the State Bond Commission.8 In support of his conclusion that a duty of good faith is imposed on a public entity choosing to exercise a non-appropriations clause, Wilkinson cited “the only reported Louisiana decision”, All American Assurance Co. v. State, 621 So.2d 1129 (La.App. 1 Cir.1993), summarizing the case as follows:
Notably, applying this good faith requirement, Wilkinson opined:
If a change in the financial condition of the Garbage District occurs, such a change in financial status may justify exercise of the non-appropriations clause. On the other hand, attempting to exercise the non-appropriations clause under circumstances which simply result in a change in the identify of the contractor providing services, with no savings to the Parish, could open the Parish to legal challenges on the grounds no good faith basis existed for exercising the non-appropriations clause.
(emphasis added). Wilkinson also mentions in his opinion letter a non-binding writ opinion in which the Louisiana Fifth Circuit Court of Appeals, enforcing an identical ADC in a Parish contract, rendered judgment in favor of the Parish.9 Wilkinson emphasizes, in that case, “budgetary concerns were indisputably at the forefront of the Council's decision not to fund the contract.” Summing up:
At the Council's meeting two days later on October 13, 2004, a resolution to advertise a Request for Proposals for the Parish's waste disposal business was placed on the Council's agenda for the meeting, and Wilkinson made a presentation as to how the Waste Management contract could be terminated under the ADC. At the meeting, Council Chairman John Young expressed his skepticism at the use of the ADC under the circumstances; he was concerned that using the ADC would subject the Parish to a breach of contract lawsuit by Waste Management....
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...of which attorney's fees incurred in the underlying litigation are a component." Waste Mgmt. of Louisiana, L.L.C. v. Par. of Jefferson ex rel. Jefferson Par. Council , 66 F.Supp.3d 761, 778 (E.D. La. 2014) (citing Ross v. Sheriff of Lafourche Parish , 479 So.2d 506, 513–14 (La.App. 1 Cir.19......