Waste Management of Louisiana, L.L.C. v. River Birch, Inc. et al

Filing 232

ORDER and REASONS: ORDERED that 221 Motion for Writ of Habeas Corpus ad testificandum is GRANTED. FURTHER ORDERED that the Clerk of Court is instructed to issue a Writ of Habeas Corpus Ad Testificandum to the Warden of Federal Correctional Institution Texarkana to produce the body of C. RAY NAGIN before this Court on the 11th day of May, 2017 at 10:00 for Oral Deposition in the above entitled case. Signed by Magistrate Judge Karen Wells Roby on 4/13/2017. (cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WASTE MANAGEMENT OF LOUISIANA,
LLC
VERSUS
RIVER BIRCH, INC. ET AL

CIVIL ACTION
NO: 11-2405
SECTION: “N” (4)

ORDER AND REASONS
Before the Court is Joint Motion and Incorporated Memorandum for Writ of Habeas
Corpus Ad Testificandum (R. Doc. 221) filed by Plaintiff, Waste Management of Louisiana,
LLC, and defendants River Birch, Inc., Highway 90 LLC, Frederick Heebe, and Albert J. Ward
seeking a writ of habeas corpus ad testificandum be issued by the Court to bring Priosner C. Ray
Nagin to the United States Courthouse for the Eastern District of Louisiana to sit for an oral
deposition. For the following reasons, the motion is GRANTED.
I.

Background
This action was filed in the District Court on September 23, 2011. R. Doc. 1. Waste

Management of Louisiana, LLC (“Plaintiff”) alleges that the Defendants have engaged in a longrunning conspiracy to limit and exclude competition for landfill disposal services in and around
New Orleans, Louisiana. R. Doc. 140, p. 1. The Defendants in this action are: River Birch, Inc.,
the owner and operator of River Birch landfill; Highway 90 LLC, who owns Highway 90 landfill;
Frederick Heebe, the owner of Shadow Lake Management, Co., which is the parent corporation of
River Birch, Inc.; and Albert Ward, who is the father-in-law of Heebe, and former President of
River Birch, Inc. and Manager of Highway 90 LLC (collectively “Defendants”). In particular, the
Plaintiff states that it suffered direct injury as a result of the Defendants actions in at least two
instances: the premature closure of the Chef Menteur landfill in 2006 as part of a scheme to transfer
more Hurricane Katrina clean-up debris to River Birch’s landfill; and the efforts to prematurely

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oust the Plaintiff as operator of the Jefferson Parish landfill as part of a scheme to transfer the
Parish’s municipal solid waste to River Birch landfill under an exclusive 25-year contract. Id. at
p. 2. As such, the Plaintiff has alleged two counts of violations under Federal Racketeer Influenced
and Corrupt Organizations (“RICO”) Sections 1962(c) and Section 1962(d). Id. at p. 39-42.
A.

Chef Menteur Landfill Claims

For purposes of the subject motion, the Plaintiff’s allegations against the Defendants in
connection with the Chef Menteur landfill are particularly relevant. The Plaintiff alleges that
following the devastation wrought by Hurricane Katrina in August of 2005, one of the first steps
in the rebuilding process was the clearing and disposing of the massive amounts of waste and
debris from vegetation and structures damaged by Katrina and the ensuing floods. R. Doc. 140, at
p. 12. As part of that effort, in February 2006, then-Mayor Ray Nagin executed an Emergency
Disaster Cleanup Site Request authorizing the Plaintiff to operate the Chef Menteur landfill. Id.
The request suggested that the landfill would ultimately operate for twelve months, or the duration
of the clean-up effort. Id. at p. 13. However, in July of 2006, Mayor Nagin announced that he
would not renew his emergency authorization of the Chef Menteur landfill, which the Plaintiff
alleges “effectively killed the Chef Menteur landfill” and resulted in the landfills closure in August
of 2006. Id. at 23-24.
The Plaintiff further alleges that the closure of the Chef Menteur landfill resulted from the
Defendants RICO violations. In particular, the Plaintiff alleges that at least two RICO predicate
activities demonstrate that the Defendants were engaged in a pattern of racketeering activity that
led to the Plaintiff’s harm: 1) the bribery of Henry Mouton; and 2) the bribery of Ray Nagin. Id.
at p. 13-21. First, the Plaintiffs allege that starting as early as 2003 the Defendants or others at
their behest began bribing Mouton to use his position and influence to further the commercial

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interests of the Defendants. Id. at p. 14. During 2005 and 2006, the Plaintiff further alleges that the
Defendants bribed Mouton specifically for the purpose of using his position as a Louisiana
Department of Wildlife and Fisheries Commissioner to oppose the approval, permitting, and/or
operation of competing landfills to dispose of Katrina-related waste, including the Chef Menteur,
Old Gentilly, and Two Rivers landfills. Id. Mouton allegedly used his influence to contact a
number of public officials—including persons at the Environmental Protection Agency, the
Federal Bureau of Investigation, the United States Attorney’s Office, United States Senators, and
others—to spread misinformation and seek their assistance in stopping other landfills from
competing under the guise of environmental concerns. Id. at p. 15. Mouton also allegedly funneled
$24,000 in bribes on behalf of the Defendants to other public officials during April and May of
2006. Id.
In May of 2011, Mouton plead guilty to multiple counts of bribery, conspiracy, and lying
to federal agents; and, in the factual summary from that case, Mouton proffered that he conspired
to shutter the competition with “Co-Conspirator A” and used the status and legitimacy of his office
to successfully influence decision makers to stop the proposed Two Rivers landfill and to attempt
to influence decision makers to shut down the Old Gentilly landfill. Id. at 14. The Plaintiff avers
that “Co-Conspirator A” is Defendant Heebe. Id. at p. 3. However, the Court also notes that the
Chef Menteur landfill was not listed nor discussed in the factual statement connected to that
criminal case. R. Doc. 176-4. Moreover, the truthfulness of Mouton’s statements in his plea
agreement are hotly contested by the Defendants.
Second, the Plaintiff also alleges that the Defendants bribed Ray Nagin. In April and May
of 2006, Mayor Nagin was engaged in a run-off election against then-Lieutenant Governor Mitch
Landrieu. The Plaintiff alleges that shortly before the election the Defendants began providing

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illicit financial support through multiple shell corporations to the cash-strapped Nagin campaign.
Id. at p. 17. Plaintiff further avers that these contributions were made with the specific intent to
advance the Defendant’s commercial interests and influence Mayor Nagin in the performance of
his duties. Id. For example, on May 11, 2006, Mayor Nagin temporarily closed the Chef Menteur
site for additional testing; soon thereafter four shell corporations allegedly connected to the
Defendants made $5,000 contributions to Mayor Nagin’s campaign in alleged violation of
Louisiana law. Id.at p. 17-18. As a result of these and other allegedly illegal contributions, the
Plaintiff argues that Mayor Nagin reversed his stance on the Chef Menteur landfill and withdrew
his emergency authorization of the site. Id. at p. 19. Similarly, in 2014, Mayor Nagin was convicted
on twenty counts of bribery, conspiracy, and wire fraud. Id. at p. 20.
B.

Motion for Writ of Habeas Corpus Ad Testificandum

At this time, both the Plaintiff and the Defendants have filed the instant motion seeking to
have Nagin brought to the United States Courthouse for the Eastern District of Louisiana to sit for
an oral deposition. R. Doc. 221. The Court had previously authorized the Parties to take Nagin’s
deposition pursuant to Federal Rule of Civil Procedure 30(a)(2)(B). R. Doc. 216. Following that
authorization, the Parties consulted with the Bureau of Prison to find a mutually agreeable date for
the deposition. R. Doc. 221, p. 1. Once a date was selected, the Parties served a Subpoena to Testify
at a Deposition in a Civil Action to Nagin through his Counselor Matthew Allensworth and noticed
the deposition for March 15, 2017 at 8:00 a.m. at the Federal Correctional Institution—Texarkana,
4001 Leopard Drive, Texarkana, Texas 75501. R. Doc. 221-2.
When counsel for the Parties arrived in Texarkana, Texas for the deposition, Allensworth
informed counsel at 6:45 a.m. the morning of the deposition that the Warden of the Texarkana
Federal Correctional Institution would not permit the attorneys or the court reporter to enter the

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facility because Nagin did not consent to having his deposition taken. R. Doc. 221, p. 1-2. When
the Parties and Court Reporter arrived at the facility at 8:00 a.m., the Warden again refused to
allow them on the premises. R. Doc. 221-3, p. 2. As such, the Parties convened at the lobby of the
Fairfield Inn in Texarkana, Texas to conduct a proces verbal. R. Doc. 221-4, p. 3. During the
process verbal, it was indicated that Nagin made clear he would not participate despite the fact
that he had been served a subpoena pursuant to this Court’s order. Id. at p. 3-4.
Therefore, the Parties have filed the instant motion for Writ of Habeas Corpus Ad
Testificandum to bring Nagin to the United States Courthouse for the Eastern District of Louisiana
to sit for an oral deposition. R. Doc. 221. The Parties argue that Nagin possesses information
material to these allegations, his testimony is essential in resolving the issues, and that his ten year
sentence makes a continuance impractical. Id. at p. 3.
II.

Standard of Review
Through issuance of the Writ of Habeas Corpus Ad Testificandum, the Court “has the

power to procure a prisoner's presence and testimony.” Latiolais v. Whitley, 93 F.3d 205, 208 (5th
Cir. 1996) (citing Ballard v. Spradley, 557 F.2d 476, 480 (5th Cir. 1977)); Conwill v. Greenberg
Taurig, L.L.P., No. 11–0938, 2012 WL 5288749, at *1 (E.D. La. Oct. 24, 2012). This authority is
rooted 28 U.S.C. § 2241(c)(5) and Federal Rule of Civil Procedure 81(a)(4). Conwill, 2012 WL
5288749, at *1. Moreover, the Court has the authority to issue the writ extraterritorially. ITEL
Capital Corp. v. Dennis Min. Supply Equip., Inc., 651 F.2d 405, 406-07 (5th Cir. Unit B 1981).
The Court may also a Writ of Habeas Corups Ad Testificandum for the purpose of taking an oral
deposition. Hasso v. Retail Credit Co., 326 F. Supp. 1179 (D. Del. 1971).

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The decision to issue a writ of habeas corpus ad testificandum is within the “sound
discretion of the district court.” Latiolais, 93 F.3d 205 at 208. When considering the issuance of a
Writ of Habeas Corpus Ad Testificandum, the Court must consider:
(1) whether the prisoner's presence will substantially further the resolution of the
case; (2) the security risks presented by the prisoner's presence; (3) the expense of
the prisoner's transportation and safekeeping; and (4) whether the suit can be stayed
until the prisoner is released without prejudice to the cause asserted.
Conwill, 2012 WL 5288749, at *1 (citing Ballard, 557 F.2d at 480). Additionally, when the
prisoner at question has not filed the writ, “considerations such as whether the district court
properly weighs the interest of the inmate in presenting his case in person, versus the interest of
the state in maintaining the inmate's incarceration, do not necessarily come into play.” Id.
III.

Analysis
The Plaintiff and the Defendants have filed the instant motion seeking to have Nagin

brought to the United States Courthouse for the Eastern District of Louisiana to sit for an oral
deposition. R. Doc. 221. As an initial matter, the Court notes that the Parties’ request for a Writ of
Habeas Corpus Ad Testificandum for the pre-trial oral deposition of a non-party prisoner witness
in a civil action appears to be a relatively novel request, but not completely unheard of. See Hasso
v. Retail Credit Co., 326 F. Supp. 1179 (D. Del. 1971); In Re Rothstein Rosenfeldt Adlter, P.A.,
No. 11-61338, 2011 WL 3903567 (S.D. Fla. Sept. 6, 2011) (discussing issuance of Writ of Habeas
Corpus Ad Testificandum for pretrial deposition). While the issuance of this writ under these
circumstances might be rare or exceptional, in consideration of the four factors outlined by the
Fifth Circuit, the Court believes that the Writ of Habeas Corpus Ad Testificandum should be issued
at this time.
For the first factor, Nagin’s testimony would substantially further the resolution of the case
given his role in the Plaintiff’s claims and the Defendant’s alleged RICO scheme. Certainly, the
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Parties to this suit believe that his testimony is important to this action, and the allegations of the
alleged bribery of Nagin by the Defendants underscore the importance of his testimony. While
courts have looked to alternative means to secure the testimony such as depositions or videodepositions in place of the physical presence of the prisoner, see, e.g., Conwill, 2012 WL 5288749,
at *1, the Court opines that alternatives to the physical presence of Nagin are inappropriate at this
time. The Court has previously authorized the deposition (R. Doc. 216), and the Parties attempted
to take the deposition after serving Nagin with a subpoena under Federal Rule of Civil Procedure
45 issued by this Court. R. Doc. 221-1, p. 1; R. Doc. 221-2. However, both Nagin and the Warden
at the Texarkana Federal Correctional Institution refused to allow the deposition to go forward. R.
Doc. 221-1, p. 1-2. Even further, the Parties were denied entrance on the premises to conduct the
proces verbal. R. Doc. 221-3, p. 2. While the Court could require the Parties to attempt to enforce
the subpoena in the District of compliance under Federal Rule of Civil Procedure 45(g), the
undersigned is unconvinced those steps would achieve a different result given Nagin’s refusal to
obey the previously issued subpoena and the Warden’s refusal to honor that subpoena as well. As
such, the Court believes that requiring Nagin to physically appear in the Courthouse of the Eastern
District of Louisiana would help effectuate that deposition. As such, factor weighs in favor of
issuing the writ.
Turning to the second factor, the Parties argue that while the transportation of Nagin to the
Eastern District of Louisiana might raise logistical issues these concerns are always present when
considering a Writ of Habeas Corpus Ad Testificandum. R. Doc. 221, p. 3 (citing Conwill, 2012
WL 5288749, at *1 (“security and cost concerns are always at issue in the transfer of a prisoner”)).
Additionally, the Parties argue that they are unaware of any security concerns. Id. The Court agrees
to this extent and does not contemplate any security risks.

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Third, considering the cost expense of Nagin’s transportation and safekeeping, the Court
notes the Fifth Circuit has determined that “[o]nce the district court has determined that the
prisoner's presence is essential, the possibility that a lack of transportation funds or personnel will
develop is no justification for refusing to issue the writ.” Ballard, 557 F.2d at 481; see also
Williams v. Beauregard Parish, No. 08-355, 2014 WL 1030042 at *1-2 (W.D. La. Mar. 17, 2014).
Certainly, as discussed above, Nagin’s testimony is essential and that requiring his presence here
is the most efficient way to secure that testimony. As such, that need outweighs any concerns about
the expense of transportation and safekeeping.
Fourth, the Court also agrees that a continuance is impractical as Nagin is currently serving
a ten-year sentence. As such the fourth factor weighs in favor of issuing the writ. Therefore, the
Court grants the motion.
As a final note, the Court will order the Clerk of Court to issue the writ to Warden of the
Texarkana Federal Correctional Institution as the custodian of Nagin. See Pennsylvania Bureau of
Corr. v. United States Marshals Serv., 474 U.S. 34, 39 (1985) (finding statutory authority for
issuance of writ of habeas corpus ad testificandum “expressly commands the custodian to bring
his prisoner to the court, but extends this duty to no other”).
IV.

Conclusion
Accordingly,
IT IS ORDERED that the Plaintiff and Defendants' Joint Motion and Incorporated

Memorandum for Writ of Habeas Corpus Ad Testificandum (R. Doc. 221) is GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court is instructed to issue a Writ of
Habeas Corpus Ad Testificandum to the Warden of Federal Correctional Institution Texarkana to
produce the body of C. RAY NAGIN before this Court on the 11th day of May, 2017 at 10:00

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a.m. for an oral deposition in the above-entitled case with a certified court reporter in the
undersigned United States Magistrate Judge’s Courtroom located at 500 Poydras Street, Room
B-431, New Orleans, Louisiana and thereafter returned to the Federal Correctional Institution
Texarkana to the Warden of said institution, or one of his authorized deputies when the deposition
is completed.
New Orleans, Louisiana, this 13th day of April 2017.

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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