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

Filing 411

ORDER and REASONS denying 315 Motion for Partial Summary Judgment and granting in part and denying in part 341 Motion to Strike Exhibits, as stated within document. Signed by Chief Judge Kurt D. Engelhardt on 11/20/2017. (cc: Chief Magistrate Judge Karen Wells Roby) (cbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WASTE MANAGEMENT OF LOUISIANA, LLC

CIVIL ACTION

VERSUS

NO. 11-2405

RIVER BIRCH, INC.,
HIGHWAY 90, LLC,
FREDERICK R. HEEBE and
ALBERT WARD, JR.

SECTION "N" (4)

ORDER AND REASONS
Presently before the Court are the remaining portion of Defendants' motion for partial
summary judgment (Rec. Doc. 315) and Defendants' related motion to strike exhibits (Rec. Doc.
341) .1 The Court rules on the motions as stated herein.
I.

Summary Judgment Standard
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment

shall be granted "if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The materiality of
facts is determined by the substantive law's identification of which facts are critical and which facts
are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it
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On November 7, 2007, the Court granted the portion of the motion relative to Plaintiff's
request for an award of damages suffered as a result of Defendants' alleged efforts to divert waste streams
(including sewage, industrial, and Hurricane Katrina waste) away from the Jefferson Parish landfill. The
remainder of the motion, directed to Plaintiff's damage claims arising from the legal fees and expenses it
incurred in prior litigation with Jefferson Parish, remained under advisement until now. See Rec. Docs. 315
and 375.

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"might affect the outcome of the suit under the governing law." Id.
If the dispositive issue is one on which the nonmoving party will bear the burden of
proof at trial, the moving party may satisfy its summary judgment burden by merely pointing out
that the evidence in the record contains insufficient proof concerning an essential element of the
nonmoving party's claim. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986); see also Lavespere v. Liberty Mut. Ins. Co., 910 F.2d 167, 178 (5th Cir. 1990). Once the
moving party carries its burden pursuant to Rule 56(a), the nonmoving party must "go beyond the
pleadings and by [his] own affidavits, or by the 'depositions, answers to interrogatories, and
admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex,
477 U.S. at 324; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Auguster v. Vermillion Parish School Bd., 249 F.3d 400, 402 (5th Cir. 2001).
When considering a motion for summary judgment, the Court views the evidence in
the light most favorable to the nonmoving party, Gillis v. Louisiana, 294 F.3d 755, 758 (5th Cir.
2002), and draws all reasonable inferences in favor of that party. Hunt v. Rapides Healthcare
System, L.L.C., 277 F.3d 757, 764 (2001). Factual controversies are to be resolved in favor of the
nonmoving party, "but only when there is an actual controversy, that is, when both parties have
submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir.1994) (citations omitted). The Court will not, "in the absence of any proof, assume that the
nonmoving party could or would prove the necessary facts." See id. (emphasis in original) (citing
Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)).

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Although the Court is to consider the full record in ruling on a motion for summary
judgment, Rule 56 does not obligate it to search for evidence to support a party's opposition to
summary judgment. See Fed. R. Civ. P. 56(c)(3)("court need consider only the cited materials");
Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) ("When evidence exists in the summary
judgment record but the nonmovant fails even to refer to it in the response to the motion for
summary judgment, that evidence is not properly before the district court."). Thus, the nonmoving
party should "identify specific evidence in the record, and articulate" precisely how that evidence
supports his claims. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871
(1994). The nonmovant's burden, however, is not satisfied merely by creating "some metaphysical
doubt as to the material facts," "by conclusory allegations," by "unsubstantiated assertions," or "by
only a scintilla of evidence." Little, 37 F.3d at 1075. Rather, a factual dispute precludes a grant of
summary judgment only if the evidence is sufficient to permit a reasonable trier of fact to find for
the nonmoving party. Smith v. Amedisys, 298 F.3d 434, 440 (5th Cir. 2002).
With respect to summary judgment procedure, Rule 56(c) additionally provides:
Rule 56. Summary Judgment
***
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact
cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or
other materials;
or

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(B) showing that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible
Evidence. A party may object that the material cited to support or
dispute a fact cannot be presented in a form that would be admissible
in evidence.
(3) Materials Not Cited. The court need consider only the cited
materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used
to support or oppose a motion must be made on personal knowledge,
set out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters stated.
See Fed. R. Civ. P. 56.2
II.

RICO
The Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.

§1964(c), provides a private cause of action to “[a]ny person injured in his business or property by
reason of a violation of section 1962 of this chapter.” 18 U.S.C. § 1964(c). Section 1962, which
contains RICO's criminal provisions, makes it “unlawful for any person employed by or associated

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Rule 56 was amended in 2010 "to improve the procedures for presenting and deciding
summary judgment motions[.] See Fed. R. Civ. P. 56 advisory committee's note to 2010 Amendment. With
respect to Rule 56(c)(2), the Advisory Committee Notes for the 2010 Amendment explain:
Subdivision (c)(2) provides that a party may object that material cited to
support or dispute a fact cannot be presented in a form that would be
admissible in evidence. The objection functions much as an objection at
trial, adjusted for the pretrial setting. The burden is on the proponent to
show that the material is admissible as presented or to explain the
admissible form that is anticipated. There is no need to make a separate
motion to strike. If the case goes to trial, failure to challenge admissibility
at the summary-judgment stage does not forfeit the right to challenge
admissibility at trial.
Id.

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with any enterprise engaged in, or the activities of which affect, interstate . . . commerce, to conduct
or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of
racketeering activity.” 18 U.S.C. §1962(c). Conspiring to violate §1962(c) also is unlawful. Id.
at §1962(d).
An “enterprise” includes any individual, partnership, corporation, association, or
other legal entity, and any union or group of individuals associated in fact although not a legal
entity. 18 U.S.C. §1961(5). “‘[R]acketeering activity’ means (A) any act or threat involving murder,
kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in
a controlled substance or listed chemical . . . which is chargeable under State law and punishable by
imprisonment for more than one year. . . .” 18 U.S.C. §1961(1). “A ‘pattern of racketeering
activity’ requires at least two acts of racketeering activity . . . .” 18 U.S.C. §1961(5).
In Holmes v. Securities Investor Protection Corporation, 503 U.S. 258 (1992), the
Supreme Court set forth the standard of causation applicable to civil RICO claims. See Hemi Group,
LLC v. City of New York, N.Y., 559 U.S. 1 (2010) (citing Holmes, 503 U.S. at 268-74). Specifically,
to state a civil claim under RICO, the plaintiff is required to show that a RICO predicate offense “not
only was a ‘but for’ cause of his injury, but was the proximate cause as well.” Hemi Group, 559
U.S. at 8-9 (citing Holmes, 503 U.S. at 268). Proximate cause, which is evaluated in light of its
common-law foundations, requires “some direct relation between the injury asserted and the
injurious conduct alleged.” Id. at 9 (internal citations omitted). “A link that is ‘too remote,’ ‘purely
contingent,’ or ‘indirect’ is insufficient. Id. (citing Holmes, 503 U.S. at 271, 274).

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III.

Analysis
A. Motion to Strike
With their motion, Defendants ask the Court to strike Exhibits 7, 11, 12, 13, 14, 17,

18 and 40 to Plaintiff's memorandum in opposition (Rec. Doc. 334) to Defendants' motion for partial
summary judgment (Rec. Doc. 315). Having considered the parties' submissions, the remainder of
the record in this matter, and applicable law:
(1) The Court defers any ruling on the admissibility of Plaintiff's Exhibit 7, which
purports to be an April 27, 2004 memorandum authored by Dutch Connick, because the Court has
not considered that evidence in ruling on Defendants' motion for partial summary judgment.
Plaintiff is cautioned, however, that it will be required to overcome Defendants' several evidentiary
objections to the document's admissibility if it seeks to offer the document into evidence at trial.
(2) IT IS ORDERED that the motion is GRANTED relative to the two December
2004 newspaper articles that are Plaintiff's Exhibits 11 and 12. Although Plaintiff cites the residual
hearsay exception set forth in Federal Rule of Evidence 807 in support of its position, it is far from
evident that the articles (one authored by James Gill and one authored by Drew Broach) are "more
probative . . . than any other evidence that the proponent can obtain through reasonable means." See
Fed. R. Evid. 807(a)(3).
(3) IT IS ORDERED that the motion is DENIED as MOOT insofar as it objects
to Exhibits 13 and 14, which are Ronald Gagnet's original and supplemental reports, being offered
to support Plaintiff's now-dismissed waste diversion claim.
(4) IT IS ORDERED that the motion is DENIED as to Exhibits 17 and 18, which
are the affidavits of Marnie Winter and Rick Buller, to the extent that the motion seeks to exclude

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the affidavits, as well as the deposition testimony incorporated into them, in their entirety. The
Court defers any ruling on the admissibility of Ms. Winter's and Mr. Buller's statements regarding
their suspicions as this time, however, because the Court has not considered that evidence in ruling
on Defendants' motion for partial summary judgment.
(5) IT IS ORDERED that the motion is GRANTED relative to Exhibit 40, which
is the deposition testimony of Waste Management's 30(b)(6) representative, Gerard Sonnier. As
argued by Defendants, an adequate factual foundation for Mr. Sonnier's opinion testimony has not
been provided.
B. Motion for Partial Summary Judgment
The remaining aspects of Defendants' motion for partial summary judgment seek a
pre-trial determination that Plaintiff has failed to put forth sufficient evidence demonstrating that
(1) any Jefferson Parish public official with authority to terminate Plaintiff's contract with Jefferson
Parish was bribed; or (2) that the attorneys's fees incurred by Plaintiff, which are the basis of
Plaintiff's remaining RICO claims, were made necessary by any conduct of Defendants. Having
carefully considered the parties' voluminous evidentiary submissions, the remainder of the record
in this matter, and applicable law, the Court, on the instant showing made, is not adequately
convinced that Defendants are entitled to the summary relief sought with their motion. Accordingly,
IT IS ORDERED that the motion for partial summary judgment is DENIED.
In short, given the nature of the claims alleged and the elements in dispute, the Court
finds the competing evidence, albeit circumstantial, to be such that it should be presented to the trier
of fact for evaluation. This ruling, however, is of course without prejudice to Defendants' right to

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request judgment in its favor as a matter of law, pursuant to Rule 50(a) of the Federal Rules of Civil
Procedure, if warranted at the end of trial.
New Orleans, Louisiana, this 20th day of November 2017.
_________________________________
KURT D. ENGELHARDT
United States District Judge

Clerk to Copy:
Chief Magistrate Judge Karen Wells Roby

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