Jefferson Parish Consolidated Garbage District No. 1 et al v. Waste Management of Louisiana, L.L.C. et al

Filing 234

ORDER & REASONS granting 186 Motion to Dismiss Second Amended and Supplemental Counterclaim. Signed by Judge Ivan L.R. Lemelle. (lag, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JEFFERSON PARISH CONSOLIDATED GARBAGE
DISTRICT NO. 1, ET AL.

* CIVIL ACTION
*
*
VERSUS
* NO. 09-6270
*
WASTE MANAGEMENT OF LOUISIANA, L.L.C., ET AL. * SECTION “B”(4)

ORDER and REASONS

Before the Court is River Birch, Inc.’s (“River Birch”),
Motion to Dismiss Second Amended and Supplemental Counterclaim
(Rec. Doc. No. 186). Defendant, Waste Management of Louisiana, LLC
(“Waste Management”) has filed an opposition thereto.

(Rec. Doc.

No. 191).1 After reviewing the record and applicable law, for the
reasons pronounced below,
IT IS ORDERED that River Birch’s Rule 12(B)(1) Motion to
Dismiss Second Amended and Supplemental Counterclaim (Rec. Doc. No.
186) is GRANTED.

Cause of Action and Facts of Case:

1

Consolidated Garbage District No. 1 of the Parish of
Jefferson and the Parish of Jefferson through the Jefferson
Parish Council (“the Parish”) also filed opposition thereto.
(Rec. Doc. No. 192). It adopted the legal arguments presented by
Waste Management in its Opposition Memorandum (Rec. Doc. No.
191).
1

This case arises from an allegedly invalid bidding process for
a waste disposal contract.
River Birch bid for and won a waste disposal contract with
Jefferson

Parish,

but

the

contract

was

contingent

upon

the

termination of Jefferson Parish’s current contract with Defendant
Waste Management. (Rec. Doc. No. 186-1 at 2). On August 21, 2009,
Jefferson Parish filed a petition for declaratory judgment under
the Annual Appropriation Dependency Clause, recognizing that it
still owed Waste Management fees for services rendered, but that it
should reserve the right to terminate the contract if it failed to
appropriate money for the continuation of the contract. (Rec. Doc.
No. 1-2 at 2).
Waste Management filed a counterclaim, seeking to declare
invalid Jefferson Parish’s waste disposal contract with River
Birch. (Rec. Doc. No. 186).

Waste Management is not a party to

Jefferson Parish’s contract with River Birch. (Id.). Additionally,
according to River Birch, Waste Management did not submit a bid in
response to Jefferson Parish’s request for proposals, which led to
the River Birch contract.

(Id. at 186-1 at 3).

River Birch

contends that Waste Management challenged the River Birch/Jefferson
Parish contract because it was allegedly prepared in bad faith and
that the Parish entered into the contract without adhering to
Parish ordinances.
Waste

(Id.).

Management

contends

that

2

Jefferson

Parish’s

First

Supplemental and Amended Complaint (Rec. Doc. No. 76) states that
Jefferson Parish wanted to terminate its landfill contract with
Waste Management because it wanted to effectuate a 25-year contract
for similar, less-expensive waste disposal services with River
Birch.

(Rec. Doc. No. 191 at 2).

According to Waste Management, the River Birch/Jefferson
Parish contract requires that Jefferson Parish sue Waste Management
to terminate the existing Waste Management contract.

(Id.). Waste

Management obtained deposition testimony from Jefferson Parish
officials

which

allegedly

revealed

the

improper

resulted in River Birch receiving the contract.

process

that

(Id. at 3).

On March 13, 2011, Jefferson Parish filed a Motion to Join a
Necessary and Indispensable Party, asserting River Birch is a
necessary party to Waste Management’s Amended Counterclaim.

(Rec.

Doc. No. 144).
Law and Analysis

A. Motion to Dismiss Standard:
The burden of proof for a Rule 12(b)(1) motion to dismiss is
on the party asserting jurisdiction.

McDaniel v. United States,

899 F. Supp. 305, 307 (E.D. Tex. 1995). Accordingly, the plaintiff
constantly bears the burden of proof that jurisdiction does in fact
exist. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th
Cir. 1980). “‘To survive a motion to dismiss, a complaint must

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contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.’” Gonzalez v. Kay,
577 F.3d 600, 603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009)) (internal quotation marks omitted). “A
claim has facial plausibility when the pleaded factual content
allows

the

court

to

draw

the

reasonable

inference

that

the

defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct.
at 1940. “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).”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation
marks, citations, and footnote omitted).

B. Waste Management’s Standing:
It is well established that federal courts may only hear cases
and controversies, and a central part of a case or controversy is
standing.

ASARCO Inc. v. Kadish, 490 U.S. 605, 613 (1989). A

person may not generally assert the right of others, as a party
must have a “personal stake in the outcome of the controversy . .
. .” Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985)
(citations omitted).
Here, Waste Management does not have federal standing. First,
given the suspended status of the River Birch/Jefferson Parish
contract, Waste Management cannot have standing to invalidate the

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contract. Section 36 of the River Birch/Jefferson Parish contract
states, in pertinent part:

If a final judgment is not rendered by December 31,
2009, declaring that upon an event of non-appropriation
under the Annual Appropriation Dependency Clause, or in
light of contractual breaches by Waste Management, that
the Kelvin Landfill Time Contract may be terminated by
the Parish with no liability for any claims, costs or
expenses of Waste Management, including but not limited
to lost future profits or construction costs, and that
Waste Management is obligated at its expense to install
final cover in accordance with the Time Contract
provisions and the LDEQ permit over cells in Phase IIIA
and IIB in which Waste Management has placed waste,
then the implementation and commencement date of this
Time Contract will be postponed until the earlier of
the following events:
a) A “final judgment” has been rendered declaring that
the Time Contract between the Parish and Waste
Management may be terminated under the Annual
Appropriation Dependency Clause or in light of
contractual breaches by Waste Management, and that in
the event of such termination the Parish has no
obligation to Waste Management except for payment of
disposal fees which have been earned prior to the
termination date, and that Waste Management is
responsible for installation of final cover, at Waste
Management’s expense, over Phase IIIA and IIIB cells in
which Waste Management has placed solid waste; or
b) The Parish and Waste Management voluntarily
terminate the existing Kelvin Landfill Time Contract on
terms and conditions acceptable to both parties.

(Rec. Doc. No. 191-1 at 31). Thus, unless the Court issues a
judgment terminating the current Waste Management/Jefferson Parish

5

contract or until Waste Management and Jefferson Parish mutually
decide to terminate their contract, River Birch’s contract will not
activate.

(Rec. Doc. No. 76 at 3-4.). The River Birch contract is

wholly contingent upon some affirmative action being taken with
regard to the Waste Management/Jefferson Parish contract. (Id.).
Currently, Waste Management’s potential legal right to invalidate
has not ripened.2

Waste Management does not have a concrete

“personal stake in the outcome” of the controversy, as of yet.
Phillips Petroleum, 472 U.S. at 804. Moreover, Waste Management is
not a party to the River Birch/Jefferson Parish contract,3 nor did
it bid for the contract at issue.
Second, it is not clear how long the River Birch contract will
be of issue.

Parish President John Young stated that the Parish’s

policy is to end the River Birch contract at all costs.4

Thus, it

appears that the River Birch contract issue may become moot.
Accordingly, IT IS ORDERED that River Birch’s Rule 12(B)(1)

2

While it is worth noting that per Alliance for Affordable Energy v.
Council of City of New Orleans, 677 So. 2d 424 (La. 1996), Waste Management
could have taxpayer standing to challenge unlawful actions by a public body,
this is a moot point because there is no concrete controversy as the River
Birch/Jefferson Parish contract is in a suspended state.
3

Although it is possible to be a non-party to a contract and still have
a valid legal interest in the controversy, see e.g., Municipal Employees Ret.
Sys. v. Office of Rural Dev., 676 So.2d 835, 837 (La. Ct. App. 1996), the
immediate case is no such instance.
4

See Paul Rioux, Jefferson Parish Council Approves Partial Settlement
in Waste Management Lawsuit and Vows to End River Birch Contract, New Orleans
Times-Picayune, April 6, 2011, available at
http://www.nola.com/politics/index.ssf/2011/04/jefferson_parish_council_appro_
2.html.

6

Motion to Dismiss Second Amended and Supplemental Counterclaim
(Rec. Doc. No. 186) is

GRANTED,

without prejudice to timely

reconsideration if circumstances warrant same in the near future.
New Orleans, Louisiana, this 13th day of October, 2011.

UNITED STATES DISTRICT JUDGE

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