Waste Management of Louisiana, L.L.C. v. Jefferson Parish

Filing 17

ORDER & REASONS denying without prejudice 6 Motion to Dismiss for Failure to State a Claim. FURTHER ORDER that Waste Management must file its amended complaint within 7 days. Signed by Judge Martin L.C. Feldman on 3/27/2013. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WASTE MANAGEMENT
OF LOUISIANA, L.L.C.

CIVIL ACTION

v.

NO. 13-226

THE PARISH OF JEFFERSON
THROUGH THE JEFFERSON PARISH COUNCIL

SECTION "F"

ORDER AND REASONS
Before the Court is the Jefferson Parish's Rule 12(b)(6)
motion to dismiss.

For the reasons that follow, the motion is

DENIED without prejudice, to be reasserted once Waste Management
files its amended complaint.
Background
This

malicious

prosecution

lawsuit

arises

from

prior

litigation in which Jefferson Parish pursued claims against Waste
Management in an effort to terminate the parties' landfill contract
early so that Jefferson Parish could instead contract with River
Birch. Waste Management contends that Jefferson Parish pursued its
lawsuit against it for years, even though it knew that its claims
against Waste Management were factually and legally baseless.
I.
A.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state

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a claim upon which relief can be granted.

Such a motion is rarely

granted because it is viewed with disfavor.

See Lowrey v. Tex. A

& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."

Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed.R.Civ.P. 8).

"[T]he

pleading standard Rule 8 announces does not require 'detailed
factual allegations,' but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation."
Bell

Atl.

Corp.

v.

Twombly,

550

U.S.

Id. at 678 (citing

544,

555

(2007)).

In

considering a Rule 12(b)(6) motion, the Court “accepts ‘all wellpleaded facts as true, viewing them in the light most favorable to
the plaintiff.’” See Martin K. Eby Constr. Co. v. Dall. Area Rapid
Transit, 369 F.3d 464 (5th Cir. 2004) (quoting Jones v. Greninger,
188 F.3d 322, 324 (5th Cir. 1999)).
B.
Rule 15 of the Federal Rules of Civil Procedure allows a party
to amend its pleading "as a matter of course within...21 days after
service of a motion under Rule 12(b)."

Fed.R.Civ.P. 15(a)(1)(B).

"In all other cases, a party may amend its pleading only with the
opposing party's written consent or the court's leave.

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The court

should freely give leave when justice so requires."

Fed.R.Civ.P.

15(a)(2).
II.
To state a claim for the tort of malicious prosecution under
Louisiana law, a plaintiff must allege facts supporting these
essential elements:
(1)
(2)
(3)
(4)
(5)
(6)

the commencement or continuance of an original
criminal or civil judicial pleading;
its legal causation by the present defendant
against plaintiff who was defendant in the original
proceeding;
its bona fide termination in favor of the present
plaintiff;
the absence of probable cause for such proceeding;
the presence of malice therein; and
damages conforming to legal standards resulting to
plaintiff.

Hibernia Nat'l Bank of New Orleans v. Bolleter, 390 So.2d 842 (La.
1980).
Jefferson Parish seeks to dismiss Waste Management's malicious
prosecution lawsuit on the ground that Waste Management has not and
cannot allege the third element -- that there was a bona fide
termination of the underlying lawsuit in favor of Waste Management.
In its opposition papers, Waste Management disputes that is has
failed to plead the favorable termination element, but nonetheless
notes: "[T]o the extent the Court deems it necessary, Waste
Management

should

be

permitted

to

amend

its

Complaint

to

incorporate [facts concerning a state court judgment that nullified
a competing contract], and to plead that in the Consent Judgment

3

with River Birch, Jefferson Parish admitted that it could never
succeed in the underlying suit it filed against Waste Management."
The parties vehemently dispute the contours of the favorable
termination element.
dispute premature.

But the Court finds resolution of this
With respect to the favorable termination

element, Waste Management alleges in its complaint only that
"Jefferson Parish filed a motion for voluntary dismissal with
prejudice...and it was not until...two and a half years after
Jefferson Parish originally filed suit against Waste Management[]
that the matter was dismissed with prejudice."
Court

is

permitted

to

consider

documents

Even though the

referenced

in

the

complaint and matters of which it may take judicial notice when it
considers a Rule 12(b)(6) motion to dismiss,1 the Court is not
obligated to construct additional factual allegations that may or
may not support an element of a particular claim.

But, here, the

Court need not do so because Waste Management has requested the
opportunity to amend its complaint to make additional factual
allegations concerning the favorable termination element.

It is

not too late to allow Waste Management to attempt to cure its

1

“When reviewing a motion to dismiss, a district court
‘must consider the complaint in its entirety, as well as other
sources ordinarily examined when ruling on Rule 12(b)(6) motions to
dismiss, in particular, documents incorporated into the complaint
by reference, and matters of which a court may take judicial
notice.”
Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir.
2011)(quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007)).
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defective pleading.

In fact, Waste Management may amend its

complaint as a matter of course "within 21 days after service of a
motion under Rule 12(b)...."

Fed.R.Civ.P. 15(a)(1)(B).

Accordingly, IT IS ORDERED: that the defendant's motion to
dismiss is DENIED without prejudice, to be reasserted once Waste
Management files its amended complaint.

IT IS FURTHER ORDERED:

that Waste Management must file its amended complaint within seven
days.

New Orleans, Louisiana, March 27, 2013

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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