Fisher Construction, Inc. v. Veolia Water North America-South, LLC et al

Filing 55

ORDER denying 47 Motion for Summary Judgment. Signed by District Judge Carlton W. Reeves on 11/18/22. (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
FISHER CONSTRUCTION, INC.,
Plaintiff,
CAUSE NO. 3:21-CV-114-CWR-FKB

v.
VEOLIA WATER NORTH AMERICASOUTH, LLC,
Defendant.
ORDER

Before the Court is the defendant’s motion for summary judgment. Docket No. 47. On
review, the motion will be denied.
Pursuant to a written agreement effective January 28, 2017, municipal contractor
Veolia Water North America-South hired subcontractor Fisher Construction to “provide
hauling, land application and disposal of all processed bio-solids . . . generated at the City of
Jackson’s wastewater treatment facilities.” Docket No. 1-1 at 2.
The relationship quickly deteriorated. In a December 2017 complaint filed with the
City of Jackson’s “Equal Business Opportunity Review Committee” (EBORC), Fisher accused
Veolia of “operat[ing] in bad faith.” Docket No. 47-4 at 1. The EBORC held a hearing “limited
to whether Veolia complied with its EBO requirements.” Id. The EBORC concluded that
Veolia had complied with its equal opportunity requirements and closed the matter. Id. at 2.

Veolia then filed its own grievance with the EBORC. In it, Veolia sought permission
to substitute another subcontractor in Fisher’s place. Docket No. 47-5. Fisher did not appear,
and the EBORC approved the substitution. Id.
This litigation followed.
Fisher commenced this suit in state court in January 2021 asserting breach of contract,
fraud, negligence, and other causes of action against Veolia. Docket No. 1-1. Veolia removed
the matter here, invoking this Court’s diversity jurisdiction. Docket No. 1. This Court denied
Fisher’s motion to remand. Docket No. 8. The parties subsequently engaged in discovery,
which is nearly complete.
In the present motion, Veolia argues that the action must be dismissed because Fisher
did not file a bill of exceptions as outlined in Mississippi Code § 11-51-75. The statute
provides, in relevant part:
Any person aggrieved by a judgment or decision of the board of supervisors
of a county, or the governing authority of a municipality, may appeal the
judgment or decision to the circuit court of the county in which the board of
supervisors is the governing body or in which the municipality is located. A
written notice of appeal to the circuit court must be filed with the circuit clerk
within ten (10) days from the date at which session of the board of supervisors
or the governing authority of the municipality rendered the judgment or
decision. . . .
Miss. Code Ann. § 11-51-75.
On its face, it is not obvious why § 11-51-75 would or should apply to this action. This
suit is between two companies, not a company and a governing authority.1 No “county[] or .

In its Answer, Veolia never referred to, invoked, or even claimed that the provisions of § 11-51-75 applied.
In fact, it admitted that the Agreement in dispute is one between Veolia and Fisher, Docket No. 3 at 3, that
jurisdiction and venue are properly with this Court, id. at 2, and that through the Agreement, the parties
waived their right to a jury trial in case a dispute arose, id. at 6.
1

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. . governing authority of a municipality” has been named as a defendant or otherwise joined
in this action. Id. We are far from the usual setup of § 11-51-75 litigation. See, e.g., City of
Madison v. Shanks, 793 So. 2d 576 (Miss. 2000); S. Cent. Turf, Inc. v. City of Jackson, 526 So. 2d
558 (Miss. 1988).2
Veolia nevertheless argues that Fisher disagrees with the EBORC’s first decision,
failed to appeal it within 10 days, and is now unlawfully trying to circumvent the exclusive
remedy provided in § 11-51-75. The first EBORC decision, however, was expressly limited to
whether Veolia was satisfying its equal opportunity obligations to the City of Jackson. It was
not a trial on the merits of the parties’ obligations to each other.
The EBORC’s second decision further confirms the limited nature of the forum. It
notes that the EBORC declined to review exhibits regarding “Breach of Exclusivity” and
“Non-Payment of Subcontractor,” “as these matters are beyond the scope of the EBORC.”
Docket No. 47-5 at 1. The second decision then “declined to consider the allegations of
noncompliant equipment, because there are remedies available to the parties under the
sludge hauling agreement.” Id. The “LEGAL REMEDIES” section of that agreement
contemplated litigation in the First Judicial District of Hinds County, not proceedings in the
EBORC. Docket No. 47-3 at 9.
Veolia presses that § 11-51-75 is an exclusive remedy. That is true in many state-law
contexts.3 See A-1 Pallet Co. v. City of Jackson, 40 So. 3d 563, 569 (Miss. 2010). It also is true

2 Relatedly, it is not clear that EBORC is a final governing authority within the scope of the statute. See
Shanks, 793 So. 2d at 580 (“This Court has identified the following as municipal authorities within the
meaning of § 11–51–75: the mayor and board of aldermen, city council, or other such form of government.”).
Veolia argues that EBORC was a mayoral “designee.” The parties have not pointed the Court to controlling
authorities on this delegation question, though, and the Court declines to rule in the first instance.
3 Note that § 11-51-75 does not and cannot limit federal suits filed under 42 U.S.C. § 1983. See Griggs v.
Chickasaw Cnty., Mississippi, 930 F.3d 696, 703 (5th Cir. 2019).

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when an aggrieved contractor seeks to challenge a Mayoral veto. See Warnock & Assocs., LLC
v. City of Canton, 328 So. 3d 1254, 1264 (Miss. Ct. App. 2021). That does not, however, mean
that all breach of contract claims related to municipal contracting—or even all breach of
contract claims against municipalities—must be channeled through the statute. As the
Mississippi Court of Appeals put it in a decision last year, even when relief is sought against
a municipality, an aggrieved party has “a right to both challenge the Mayor’s veto in an
appeal under section 11-51-75 and also file a separate claim for breach of contract and
damages.” Id. (citing Falco Lime Inc. v. Mayor and Aldermen of City of Vicksburg, 836 So. 2d 711,
720 (¶¶36-39) (Miss. 2002)).
For these reasons, the Court is unpersuaded that Fisher’s causes of action against
Veolia are barred by § 11-51-75. The motion is therefore denied.
SO ORDERED, this the 18th day of November, 2022.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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