Waste Mgmt. of La., LLC v. River Birch, Inc.

• Decision Date: 31 March 2014
• Docket Number: CIVIL ACTION NO. 11-2405
• Parties: WASTE MANAGEMENT OF LOUISIANA, LLC v. RIVER BIRCH, INC., HIGHWAY 90, LLC, FREDERICK R. HEEBE, and ALBERT WARD, JR.
• Court: U.S. District Court — Eastern District of Louisiana

WASTE MANAGEMENT OF LOUISIANA, LLC v. RIVER BIRCH, INC., HIGHWAY 90, LLC, FREDERICK R. HEEBE, and ALBERT WARD, JR.

CIVIL ACTION NO. 11-2405

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SECTION "N" (4)

Dated: March 31, 2014

ORDER AND REASONS

Presently before the Court is the "Motion to Dismiss under Rule 12(b)(6)" filed by Defendants River Birch, Inc. and Highway 90, LLC (Rec. Doc. 71), which seeks dismissal of Counts IV, V, and VI of Plaintiff Waste Management of Louisiana, LLC's amended complaint (Rec. Doc. 10).¹ IT IS ORDERED that the motion is GRANTED to the extent stated herein.

BACKGROUND

In this suit, Plaintiff alleges that it "directly (and FEMA and the citizens of greater New Orleans as a necessary consequence) suffered injuries as a result of the corrupt and anti-competitive tactics employed by Defendants to satisfy their greed following the devastation of New Orleans caused by Hurricane Katrina." See Rec. Doc. 89, p. 2. Specifically, Plaintiff contends that Defendants conspired with Henry Mouton, former Commissioner of the Louisiana Department of Wildlife and Fisheries, certain former Jefferson Parish officials, Shadowlake Management, Inc., andother unnamed persons, to eliminate competition from other New Orleans area landfills relative to the collection and disposal of debris from Hurricane Katrina and with respect to municipal waste disposal in Jefferson Parish. Based on these allegations, Plaintiff has asserted claims against Defendants under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§1962(c) and (d) (Counts I and II); the Louisiana Unfair Trade Practices and Consumer Protection Law, La. R.S. 51:1401, et seq. (hereinafter and commonly referred to as "LUTPA")(Count III); the Louisiana Antitrust Law, La. R.S. 51:121, et seq. (Counts IV-VI); and Louisiana Civil Code article 2324 (Count VII). At issue for purposes of the instant motion are Plaintiff's Louisiana antitrust claims (Counts IV, V, and VI).

LAW AND ANALYSIS

Rule 8 of the Federal Rules of Civil Procedure requires that complaints provide a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. Proc. 8(a)(2). Although a complaint does not need "detailed factual allegations, . . . more than labels and conclusions are necessary, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and quotations omitted); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Similarly, in evaluating motions to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986); see also Iqbal, 556 U.S. at 678 ("tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'"Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557); see also Christopher v. Harbury, 536 U.S. 403, 416 (2002) (elements of a plaintiff's claim(s) "must be addressed by allegations in the complaint sufficient to give fair notice to a defendant").

Further, to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Facial plausibility exists "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (emphasis added). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Factual allegations that are "merely consistent with a defendant's liability, stop short of the line between possibility and plausibility of entitlement to relief," and thus are inadequate. Id. (internal quotations omitted). Rather, a complaint's allegations "must make relief plausible, not merely conceivable, when taken as true." United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 186 (5th Cir. 2009); see also Twombly, 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).").

"Determining whether a complaint states a plausible claim for relief" is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679 (internal citations omitted). See also Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (degree of required specificity depends on context, i.e., the type of claim at issue). And, in evaluating motions to dismiss filed under Rule 12(b)(6), the Court "must accept all well-pleaded facts as true, and . . . view them in the light most favorable to theplaintiff." Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir.), cert. denied, 476 U.S. 1159 (1986). Further, "[a]ll questions of fact and any ambiguities in the controlling substantive law must be resolved in the plaintiff's favor." Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001). Nevertheless, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - "that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 678 (quoting Fed. Rule Civ. P. 8(a)(2)).

I. C&D Landfills

Plaintiff's antitrust claims regarding "C&D landfills" focus on Defendants' alleged conduct regarding the Chef Menteur landfill, particularly including former Mayor Nagin's eventual withdrawal of the emergency authorization that temporarily had allowed it to accept enhanced C&D (construction and debris) waste after Hurricane Katrina. For essentially the reasons stated by Defendants in their memoranda (Rec. Docs. 79-1 and 94), the Court finds Plaintiff's antitrust claims relative to C&D landfills barred by the Noerr-Pennington immunity doctrine.

Although the Louisiana Supreme Court's opinion in Astoria Entertainment, Inc., v. DeBartolo, 12 So. 3d 956, 967 (La. 5/22/09) utilized rather broad language in concluding that the Noerr-Pennington doctrine did not immunize the defendants' alleged illegal conduct (bribery and corruption)from civil liability, ² the Astoria Court's holding is limited solely to non-antitrustclaims. See Astoria, 12 So. 3d at 958, 959, n. 7, and 964-67; Capital House Preservation Company, LLC v. Perryman Consultants, Inc., 47 So.3d 408, 421 (La. App. 1 Cir. 8/28/09)("Louisiana Supreme Court found . . . the case fell outside of the scope of the antitrust laws"), writ denied, 27 So.3d 856 (La. 2/23/10), cert. denied, 131 S. Ct. 104 (2010). Given that Louisiana courts treat federal courts analyses of the virtually identical provisions of the Sherman Act, 15 U.S.C. §1, et seq., as persuasive authority,³ the Court is not convinced that the Louisiana Supreme Court, if addressing a Louisiana antitrust claim, would diverge from the approach previously taken by this Court, relative to bribery, in addressing federal antitrust claims.⁴ SeeBartholomew v. Bail Bonds Unlimited, Inc., No. 05-4165, 2007 WL 1063338,*1-4 (E.D. La. 4/5/07) (Duval, J.) (Noerr-Pennington immunity applied to Sherman Act claim despite alleged bribery of government actors by defendants); Astoria Entertainment, Inc., v. DeBartolo, 159 F. Supp. 2d 303, 324-25 (E.D. La. 8/22/01) (Duval, J.) ("parties who. . . bribe the government for government action favorable to them cannot be prosecuted under the [federal] antitrust laws even when the intent of the parties is corrupt"); see also City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 367, 382-84 (1991) (although the plaintiff alleged that city council members "received advantages made possible by [the defendant's] monopoly," Supreme Court rejected the existence of a conspiracy exception to Noerr-Pennington doctrine including one limited to those involving an element of unlawfulness (such as bribery)).

Further, as Defendants argue, given the accomplishment of their alleged goal - former Mayor Nagin's withdrawal of the emergency enhanced C&D authorization for the Chef Menteur landfill - the "sham exception" to the Noerr-Pennington doctrine is inapplicable. See, e.g. Astoria, 12 So.3d at 965 (where defendants "achieved favorable results [from Riverboat Gaming Commission] as a result of their actions. . . their endeavors were, by definition, not baseless"; thus, sham exception not applicable); see also Professional Real Estate Investors, In c. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 61 n. 5 (1993)("winning lawsuit is by definition a reasonable effort at petitioning for redress and therefore not a sham"). Accordingly, Defendants' motion is granted relative to Plaintiff's antitrust claims regarding C&D landfills.

II. MSW Landfills

A. Noerr-Pennington Doctrine

Plaintiff's antitrust claims regarding "MSW landfills" focus on Defendants' alleged conduct relative to municipal waste disposal in Jefferson Parish, particularly Defendants' purported efforts to obtain an exclusive waste disposal contract and to bring about the early termination of Plaintiff's landfill contract such that Defendant River Birch's contract would become effective. See Amended Complaint (Rec. Doc. 10), ¶¶ 9-12, 52-73, and 79-80. The applicability of the Noerr-Pennington doctrine to Defendants' conduct relative to MSW landfills, as opposed to C&D landfills, is not as straightforward. Furthermore, although the parties' analyses of this issue are helpful, neither side's...