Waste Mgmt. of La., L.L.C. v. Parish of Jefferson Through the Jefferson Parish Council

• Citation: 947 F.Supp.2d 648
• Decision Date: 03 June 2013
• Docket Number: Civil Action No. 13–226.
• 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

947 F.Supp.2d 648

WASTE MANAGEMENT OF LOUISIANA, L.L.C.

v.The PARISH OF JEFFERSON through the JEFFERSON PARISH COUNCIL.

Civil Action No. 13–226.

United States District Court, E.D. Louisiana.

June 3, 2013.

Miles Paul Clements, Benjamin Melvin Castoriano, Heather A. McArthur, Frilot L.L.C., New Orleans, LA, for Plaintiff.

Thomas P. Anzelmo, McCranie, Sistrunk, Metairie, LA, Deborah Cunningham Foshee, Jefferson Parish Attorney's Office (Elmwood), Harahan, LA, Lou Anne Milliman, McCranie, Sistrunk, New Orleans, LA, for Defendant.

ORDER AND REASONS

MARTIN L.C. FELDMAN, District Judge.

Before the Court is the defendant's Rule 12(b)(6) motion to dismiss plaintiff's amended complaint. For the reasons that follow, the motion is DENIED.

Background

The malicious prosecution lawsuit before this Court arises from highly public 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. Waste Management's charges, and prior litigation history are necessarily presented here in detail:

Pursuant to their Landfill Contract, Waste Management 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. The term of the Landfill Contract, which is based on the Expansion Area's capacity, has not expired.

In early 2009 Jefferson Parish requested that Waste Management consent to the early termination of the Landfill Contract. At first, Waste Management agreed to terms suggested by the Parish. Later, however, the Parish demanded still more concessions from Waste Management. Jefferson Parish also threatened to sue Waste Management if it did not agree to early termination on its terms; specifically, Jefferson Parish threatened to sue Waste Management and to assert various claims for tens of millions of dollars in damages. Jefferson Parish added that it could seek early termination of the Landfill Contract under the contract's Annual Appropriation Dependency Clause, a funding provision.

When Waste Management refused to agree to the additional concessions demanded by Jefferson Parish, on August 21, 2009 Jefferson Parish filed in state court a petition for declaratory judgment and for damages against Waste Management. Jefferson Parish sought, among other things,¹ a declaration as to its right to early terminate the contract under the Annual Appropriation Dependency Clause, which provided in part:

The continuation of this Agreement is contingent upon the appropriation of funds by the Jefferson Parish Council for the continued operation and maintenance of the Expansion Area. If the Council fails to appropriate sufficient monies to provide for the continuation of this Agreement, the Agreement shall terminate on the last day of the fiscal year for which funds were appropriated.

Invoking the funding clause, the Parish sought a declaratory judgment that “in the event the Parish Council decides not to appropriate funds for the fiscal year 2010 for continuation of the Landfill Contract, the Landfill Contract shall be deemed terminated without penalty or expense to the Parish....”

Travelers Casualty and Surety Company of America, which was sued as Waste Management's surety, removed the early termination lawsuit to another Section of this Court on September 14, 2009. On July 22, 2010 Jefferson Parish filed an amended complaint, in which it admitted that it had a pending landfill contract with a competing waste services provider, River Birch, Inc., which, the Parish said, would result in “substantial savings”. It was for this stated reason that Jefferson Parish claimed it sought to terminate the Landfill Contract and instead contract with River Birch. Jefferson Parish sought a declaration that:

if the Parish Council does not appropriate funds for fiscal year 2011 for continuation of the Landfill Contract with Waste Management in order to take advantage of the substantial annual savings available to the Parish by contracting with River Birch, Inc. and Highway 90, LLC to provide disposal services in lieu of continuing to operate the Parish landfill under contract with Waste Management, then the Landfill Contract between the Parish and Waste Management is terminated effective January 1, 2011 without penalty or expense to the Parish except for tipping fees earned by Waste Management prior to the termination date.

Notwithstanding the Parish's claim that it would enjoy substantial savings by contracting with River Birch, the Parish apparently had no information to support its claim that it would save any money by contracting with River Birch. In fact, Jefferson Parish officials were aware that contracting with River Birch might even be more costly. Jefferson Parish was also aware that a claim that it would save money by contracting with a competitor for the same services was not a valid and good faith exercise of the Landfill Contract's appropriation dependency clause, which is an emergency provision.² Nonetheless, Jefferson Parish pursued, in bad faith, it was claimed, its lawsuit against Waste Management to prematurely terminate the Landfill Contract.

In fact, it was and remains seriously submitted, the reason Jefferson Parish sued Waste Management, despite knowing that no factual or legal basis existed for its claim, was politics: to pursue a long-standing agenda by Jefferson Parish's former top public officials to have the Parish enter into a long-term waste disposal contract with River Birch, no matter what the cost and involving now-disgraced public officials. Waste Management's sordid story continues.

In late 2008, former Parish President Aaron Broussard, former Chief Administrative Officer Tim Whitmer, and former Parish Attorney, Tom Wilkinson, are said to have devised a plan that they believed would result in River Birch being awarded a long-term waste disposal contract with Jefferson Parish. Against the advice of the Parish's Environmental Affairs Department, Broussard and Whitmer revised and broadened an originally narrow bid Request for Proposals to intentionally solicit a proposal from River Birch that would divert 100% of Jefferson Parish's waste away from the Parish Landfill to the River Birch Landfill. Next, once River Birch responded with a proposal as anticipated, Broussard, Whitmer, and Wilkinson hand-picked an Evaluation Committee that would exclude any member of the EnvironmentalAffairs Department and, instead, include Wilkinson and another member of the Parish Attorney's office. Weeks after receiving the River Birch proposal, the Evaluation Committee recommended to the Parish Council that it approve the River Birch proposal due to “significant savings.” The Parish approved the River Birch proposal for contract negotiation and, in June 2009, entered into a 25–year contract with River Birch, which required closure of the Jefferson Parish Landfill, a valuable Parish asset.³

The River Birch contract contained a provision that rendered its commencement contingent upon the Parish either (a) obtaining an agreement from Waste Management to early terminate its contract or (b) the Parish obtaining a court judgment stating that it may terminate its contract with Waste Management. Thus, when Waste Management did not agree to early termination of its contract with the Parish, the Parish filed its August 2009 lawsuit against Waste Management in furtherance of its plan to effectuate its contract with River Birch. Soon thereafter, in an attempt to conceal the relationship between the River Birch contract and the lawsuit against Waste Management, Whitmer attempted, it was charged, to manipulate the Parish budget and falsify budgetary information such that it would appear that there were “insufficient funds” for the continuation of the Waste Management contract; this would allow the Parish to invoke the appropriation dependency clause and, thereafter, allow the Parish to cancel its contract with Waste Management effective January 1, 2010.

Things began to unravel. In January 2010 Broussard and Whitmer resigned amidst allegations of corruption and impropriety; Wilkinson resigned in March 2010. Thereafter, guilty pleas were entered to federal criminal charges. Despite this and against the advice of its own Environmental Affairs Department, Jefferson Parish continued its termination litigation against Waste Management. Even after it filed its amended complaint in mid–2010, in which Jefferson Parish disclosed its contractual relationship with River Birch and that relationship to the Waste Management litigation, and even after it had approved a budget that included funding for the 2010 Landfill Contract with Waste Management, Jefferson Parish continued to press the appropriateness of its use of the appropriation dependency clause on the basis of funding and cost savings to terminate Waste Management. All these very inflammatory points animated the prior litigation.

In late 2010 Waste Management continued to defend against Jefferson Parish's lawsuit, including taking depositions of Parish officials. In bringing to light the lack of basis for the Parish's claim against it, even the Parish's own Environmental Affairs Department acknowledged that (1) the Parish never had any information to support the claim that the Parish would save money by contracting with River Birch, and that (2) the Parish's proposed use of the appropriation dependency clause to save money would not constitute a proper use of that clause.

In January 2011 an independent consultant confirmed that the River Birch contract would in fact cost, not save, the Parish money. Specifically, the report stated that...