Hernandez et al v. Dedicated Tcs, Llc, et al

MOTION to Dismiss for Failure to State a Claim

E.D. La.May 8, 2017

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA JOENDEL HERNANDEZ, ET AL., CIVIL ACTION Plaintiffs VERSUS NO. 16-3621 c/w 17-46 DEDICATED TCS, L.L.C., ET AL., SECTION: “E”(5) Defendants Applies to: No. 16-3621 MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6) Defendants Bulk Resources/Louisiana, LLC (“Bulk Louisiana”) and Bulk Resources, Inc. (“Bulk Inc.”) request that this Court dismiss the claims brought by Plaintiffs, Joendel Hernandez and Anthony Duckworth (“Plaintiffs”)1 in their Second Supplemental and Amending Complaint (“Second Supplemental Complaint”) pursuant to Federal Rule of Civil Procedure 12(b)(6). • The claims against Bulk Louisiana should be dismissed because, as acknowledged by plaintiffs in the related Stack lawsuit, Bulk Louisiana has no connection to the incident at the Port of New Orleans that gave rise to the suit.2 • Plaintiffs’ allegation that Bulk Louisiana contracted with Bulk Inc. to clean Arkema’s tank cars and then hired Dedicated TCS, LLC (“Dedicated”) to do that job is belied by the contracts referenced by Plaintiffs in the Second Supplemental Complaint. These contracts establish that Bulk Louisiana had nothing do with the incident at the Port. • The claims against Bulk Inc. should be dismissed because the contracts referenced by Plaintiffs and produced in Stack prove that Bulk Inc. had no custody of the site 1 This Court has consolidated two related cases, Hernandez, et al. v. Dedicated TCS, LLC, et al., No .16-3621 and Stack, et al. v. Dedicated TCS, LLC, et al., No. 17-46. The plaintiffs in the two cases have filed separate supplemental and amending complaints, thus this Motion to Dismiss relates to the claims made by the Hernandez Plaintiffs. 2 See Rec. Doc. 78-1, pp. 1-2. Case 2:16-cv-03621-SM-JCW Document 87 Filed 05/08/17 Page 1 of 2 2 where the tank cars were cleaned and, as such, no duty to provide a safe work place to Plaintiffs.3 Accordingly, Bulk Louisiana and Bulk Inc. request that the Court grant their Motion and dismiss the Plaintiffs’ claims against them with prejudice. Respectfully submitted, /s/ James M. Garner ___________________________________ JAMES M. GARNER #19589 CHRISTOPHER T. CHOCHELES#26848 EMILY E. ROSS #34739 SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Suite 2800 New Orleans, LA 70112 Telephone: 504.299.2100 Facsimile: 504.299.23100 ATTORNEYS FOR BULK RESOURCES LOUISIANA/LLC and BULK RESOURCES, INC. CERTIFICATE OF SERVICE I hereby certify that on May 8, 2017, I electronically filed the foregoing with the clerk of the United States District Court for the Eastern District of Louisiana, using the CM/ECF system, which will automatically send a notice of electronic filing to all counsel of record. /s/ James M. Garner ______________________________ JAMES M. GARNER 3 See Ngueyn v. Weston, 2009-0571 (La. App. 4 Cir. 9/9/2000), 20 So. 3d 548); Graubarth v. French Market Corp., 2007-0416 (La. App. 4 Cir. 10/24/2007), 970 So. 2d 660, 662. Case 2:16-cv-03621-SM-JCW Document 87 Filed 05/08/17 Page 2 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA JOENDEL HERNANDEZ, ET AL., CIVIL ACTION Plaintiffs VERSUS NO. 16-3621 c/w 17-46 DEDICATED TCS, L.L.C., ET AL., SECTION: “E”(5) Defendants Applies to: No. 16-3621 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6) Defendants Bulk Resources/Louisiana, LLC (“Bulk Louisiana”) and Bulk Resources, Inc. (“Bulk Inc.”) request that this Court dismiss the claims brought by Plaintiffs, Joendel Hernandez and Anthony Duckworth (“Plaintiffs”)1 in their Second Supplemental and Amending Complaint (“Second Supplemental Complaint”) pursuant to Federal Rule of Civil Procedure 12(b)(6). • The claims against Bulk Louisiana should be dismissed because, as acknowledged by plaintiffs in the related Stack lawsuit, Bulk Louisiana has no connection to the incident at the Port of New Orleans that gave rise to the suit.2 • Plaintiffs’ allegation that Bulk Louisiana contracted with Bulk Inc. to clean Arkema’s tank cars and then hired Dedicated TCS, LLC (“Dedicated”) to do that job is belied by the contracts referenced by Plaintiffs in the Second Supplemental Complaint. These contracts establish that Bulk Louisiana had nothing do with the incident at the Port. • The claims against Bulk Inc. should be dismissed because the contracts referenced by Plaintiffs and produced in Stack prove that Bulk Inc. had no custody of the site 1 This Court has consolidated two related cases, Hernandez, et al. v. Dedicated TCS, LLC, et al., No .16-3621 and Stack, et al. v. Dedicated TCS, LLC, et al., No. 17-46. The plaintiffs in the two cases have filed separate supplemental and amending complaints, thus this Motion to Dismiss relates to the claims made by the Hernandez Plaintiffs. 2 See Rec. Doc. 78-1, pp. 1-2. Case 2:16-cv-03621-SM-JCW Document 87-1 Filed 05/08/17 Page 1 of 11 2 where the tank cars were cleaned and, as such, no duty to provide a safe work place to Plaintiffs.3 Accordingly, Bulk Louisiana and Bulk Inc. request that the Court grant their Motion and dismiss the Plaintiffs’ claims against them with prejudice. I. Background In their original and First Supplemental and Amending Complaint, Plaintiffs alleged that on or about October 8, 2015, as employees of Dedicated TCS, L.L.C. (“Dedicated”), they were “assigned to clean a tank car at [Dedicated’s] facility located at 7500 Terminal Road in the Port of New Orleans, Jordan Road Facility.”4 Plaintiffs further alleged that the tank car contained hazardous and/or toxic chemical vapors and that they were not given a breathing apparatus to ensure their ability to breathe upon entering the tank car.5 According to Plaintiffs, they lost consciousness after entering the tank car and have sustained damages as a result of that incident.6 Plaintiffs filed suit against both Dedicated and Arkema, Inc., which allegedly failed to properly label the contents of the tank car.7 In a March 3, 2017 decision, this Court granted Dedicated’s 12(b)(6) motion to dismiss, finding that Plaintiffs’ claims against Dedicated were barred by the Louisiana Workers’ Compensation Act.8 Five days later, Plaintiffs filed the Second Supplemental Petition to add claims against Bulk Inc. and Bulk Louisiana. 3 See Ngueyn v. Weston, 2009-0571 (La. App. 4 Cir. 9/9/2000), 20 So. 3d 548); Graubarth v. French Market Corp., 2007-0416 (La. App. 4 Cir. 10/24/2007), 970 So. 2d 660, 662. 4 Complaint, Rec. Doc. 1, ¶ IV. 5 See id. ¶ ¶ V, VI. 6 See id. ¶ ¶ VII, X, XI, XII, XIII. 7 See id., ¶ 10. 8 Rec. Doc. 58. Case 2:16-cv-03621-SM-JCW Document 87-1 Filed 05/08/17 Page 2 of 11 3 In the Second Supplemental Complaint, Plaintiffs asserted that (1) Arkema contracted with Bulk Inc. to clean Arkema’s tank cars at the Port of New Orleans (the “Port”), (2) Bulk Inc. contracted with Bulk Louisiana to clean Arkema’s cars at the Port, and (3) Bulk Inc. and Bulk Louisiana “hired Dedicated to clean the tank car.”9 Plaintiffs then alleged that Bulk Inc. and Bulk Louisiana were liable for hiring Dedicated “with a known record of safety violations” and for “failing to monitor and supervise the work to ensure that the tank cars were cleaned safely.”10 The Second Supplemental Complaint specifically referenced a contract between Arkema and Bulk, Inc., a contract between Bulk Inc. and Bulk Louisiana, and an action by Bulk Inc. and Bulk Louisiana to hire Dedicated. One month later, plaintiffs in the consolidated Stack lawsuit filed an amended Complaint that actually attached the documents referenced by Plaintiffs in Hernandez. These documents demonstrate that Bulk Inc. contracted with Arkema to, inter alia, clean Arkema’s tank cars.11 Bulk Inc. contracted with the Port of New Orleans to lease land at the Port to conduct operations, including the cleaning services for Arkema, Inc.12 Bulk Inc. then contracted with Dedicated for Dedicated to operate the premises that Bulk Inc. leased from the Port.13 Bulk Louisiana has no connection to the tank-cleaning operations performed by Dedicated at the Port. Indeed, 9 See Second Supplemental Complaint, pp. 2-3 [Rec. Doc. 61]. 10 See id., p. 3. 11 See Transloading Agreement, attached as Exhibit D to Rec. Doc. 1 in Stack, et al. v. Dedicated TCS, LLC, et al., No. 17-46. 12 See Lease, attached as Exhibit C to Rec. Doc. 1 in Stack, et al. v. Dedicated TCS, LLC, et al., No. 17-46. 13 See Operating Agreement, attached as Exhibit 1. Case 2:16-cv-03621-SM-JCW Document 87-1 Filed 05/08/17 Page 3 of 11 4 plaintiffs in Stack, who initially named Bulk Louisiana as a defendant, substituted Bulk Inc. for Bulk Louisiana so that the “correct entity” could be named.14 II. Law and Argument a. Motion to Dismiss burden of proof Federal Rule of Civil Procedure 12(b)(6) requires a court to dismiss a complaint that “fails to state a claim upon which relief can be granted.”15 The court must determine if “there are sufficient factual allegations to make the complaint’s claim plausible.”16 To establish facial plausibility, “[f]actual allegations must be enough to raise a right to relief above the speculative level.”17 The plaintiff must identify, therefore, both a cognizable legal theory and specific, non- speculative factual allegations to support its claim.18 Moreover, where “‘a complaint omits facts that, if they existed, would clearly dominate the case, it seems fair to assume that those facts do not exist.’”19 Further, Louisiana law applies to this case as it is a “long-recognized principle that federal courts sitting in diversity ‘apply state substantive law and federal procedural law.’”20 On a Rule 12(b) (6) motion, a court can “consider materials outside a complaint when a plaintiff’s “factual allegations are expressly linked to --- and admittedly dependent up – a 14 Rec. Doc. 78-1, p. 2. 15 FED. R. CIV. P. 12(b)(6). 16 In re Pool Prods. Distrib. Mkt. Antitrust Litig., 988 F. Supp. 2d 696, 713 (E.D. La. 2013); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Torch Liquidating Trust ex rel. Bridge Assocs. L.L.C. v. Stockstill, 561 F.3d 377, 384 (5th Cir. 2009). 17 Twombly, 550 U.S. at 555. 18 5B CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 at 544-48 (3d ed. 2004). 19 General Cable Indus., Inc. v. Zurn Pex, Inc., 561 F. Supp. 2d 653, 658 (E.D. Tex. 2006) (quoting McGregor v. Industrial Excess Landfill, Inc., 856 F.2d 39, 43 (6th Cir. 1988)) (other quotations omitted). 20 Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 559 U.S. 393, 417 (2010) (citing Hanna v. Plumer, 380 U.S. 460, 465 (1985)). Case 2:16-cv-03621-SM-JCW Document 87-1 Filed 05/08/17 Page 4 of 11 5 document . . . . . that document effectively merges into the pleadings and the trial court can review it in deciding a motion to dismiss.”21 Here, Plaintiffs reference contracts between Arkema, Bulk Inc., Bulk Louisiana, and Dedicated regarding the operation of tank car cleaning facility at the Port. Bulk Inc. and Bulk Resources can, therefore, reference the actual contracts that governed the cleaning of tank cars at the Port at the time of the October 8, 2015 incident in this motion. b. Plaintiffs cannot state a claim against Bulk Louisiana because Bulk Louisiana has no connection to this matter. Bulk Louisiana has no connection to the parties in this case or the incident itself. As explained in Dedicated’s Notice of Removal filed in the related Stack v. Dedicated case, Bulk Inc. entered into a lease with the Port of New Orleans (“Lease”) whereby Bulk Inc. leased “a parcel of ground totaling approximately 25,936 square feet of land located on Terminal Road” from the Port in order to conduct operations at the Port, including operations for Arkema, Inc.22 In connection with those operations and its Lease with the Port, Bulk Resources, Inc. contracted with Arkema, Inc. to clean tank cars, among other services.23 Employees of Dedicated actually cleaned the tank cleaning work on Arkema’s tank cars. Bulk Louisiana has on connection whatsoever to the tank cleaning activities that gave rise to this suit. In its Notice of Removal in Stack, Dedicated removed the case based diversity jurisdiction because Bulk Louisiana was improperly joined.24 The Stack Plaintiffs requested 21 Simonet v. Smithkline Beecham Corp., 506 F.Supp.2d 77, 81, n. 1 (D. Puerto Rico, 8/3/2007); see also Manhatten Telecommunications Corp., Inc. v. Dialamerica Marketing, Inc., 156 F.Supp.2d 376, 382, n. 5 (S.D. N.Y., 7/31/2001). 22 See Lease, attached as Exhibit C to Rec. Doc. 1 in Stack, et al. v. Dedicated TCS, LLC, et al., No. 17-46. 23 See Transloading Agreement, attached as Exhibit D to Rec. Doc. 1 in Stack, et al. v. Dedicated TCS, LLC, et al., No. 17-46. 24 See Case No. 17-46, Rec. Doc. 1. Dedicated later amended its Notice of Removal to include the places of citizenship of the members of the various LLCs and companies at issue, thus ensuring that even if Bulk Louisiana was properly joined, which it was not, diversity citizenship still exists. Case 2:16-cv-03621-SM-JCW Document 87-1 Filed 05/08/17 Page 5 of 11 6 jurisdictional discovery, which the Court granted. After the jurisdictional discovery was complete, the Stack Plaintiffs essentially admitted that they erroneously named Bulk Louisiana, as they filed an amended Complaint that substituted Bulk Inc. for Bulk Louisiana.25 In particular, the Stack Plaintiffs sought leave to “amend and supplement their complaint to substitute the correct entity,” Bulk, Inc.26 In sum, Bulk Louisiana has no connection to the incident that gave rise to this suit. It requests, therefore, that this Court grant this motion and dismiss Plaintiffs’ claims against Bulk Louisiana with prejudice. c. Bulk Inc. should be dismissed because it did not have custody or control over the premises. As against Bulk Inc., Plaintiffs allege that, in Arkema’s contract with Bulk, Inc., Bulk Inc. agreed to ensure certain safety measures were followed at the Port.27 Plaintiffs allege that Bulk Inc. negligently failed to ensure those safety measures and negligently failed to monitor and supervise the work Dedicated performed.28 Plaintiffs cannot, however, state a valid claim against Bulk Inc. because the very contracts attached by Plaintiffs prove that Bulk Inc. had no custody or control over the property at the Port at the tank cleaning activities occurred. The general rule in Louisiana is that the “owner or person having custody of immovable property has a duty to keep such property in reasonably safe condition.”29 Bulk Inc. does not have “custody” of the property at the Port because it contractually gave Dedicated complete control 25 See Rec. Doc. 78-1. 26 Id., p. 2 (emphasis added). 27 See Rec. Doc. 61, ¶ XVIII. 28 See id., ¶ XXI. 29 Smith v. The Runnels Schools, Inc., 2004-1329 (La. App. 1 Cir. 3/24/2005), 907 So. 2d 109, 112. Case 2:16-cv-03621-SM-JCW Document 87-1 Filed 05/08/17 Page 6 of 11 7 and custody of the premises. The test for determining if a person has “custody” over property is (1) whether the person bears such a relationship as to have the right of direction or control over the thing and (2) what, if any, kind of benefit the person derives from the thing.”30 Dedicated had full supervisory control of the tank cleaning work performed on the site. Bulk Inc. never had a right of direction or control over the work performed by Dedicated. Bulk Inc. entered into a lease with the Port of New Orleans whereby Bulk Inc. leased land from the Port in order to conduct operations at the Port, including operations for Arkema, Inc.31 Specifically, Arkema contracted with Bulk Inc. for Bulk Inc. to clean Arkema’s tank cars.32 Bulk Inc. then contracted with Dedicated for Dedicated to operate a tank cleaning business on the premises that Bulk Inc. leased from the Port.33 The Operating Agreement between Dedicated and Bulk Inc. provided that Dedicated, not Bulk Inc. had control and custody of the premises throughout the term of the Operating Agreement. Specifically, the Operating Agreement provided that: • “Operator [Dedicated] desires to independently operate an industrial tank trailer wash facility at Bulk’s facility.”34 • “Operator shall, at all times, keep the Facility in a neat, clean, and orderly condition.”35 30 See Marshall v. Air Liquide-Big Three, Inc., 2011-0990 (La. App. 4 Cir. 9/7/2012), 107 So. 3d 13, 39. 31 See Lease, attached to Rec. Doc. 1 in Stack, et al. v. Dedicated TCS, LLC, et al., No. 17-46. 32 See Transloading Agreement, attached to Rec. Doc. 1 in Stack, et al. v. Dedicated TCS, LLC, et al., No. 17-46. 33 See Operating Agreement, attached as Exhibit 1. 34 Id., p. 1 (emphasis added). 35 Id., §4A. Case 2:16-cv-03621-SM-JCW Document 87-1 Filed 05/08/17 Page 7 of 11 8 • “Operator shall perform all maintenance and repair, including, without limitation, sweeping, snow removal, trash removal, replacing light bulbs, clearing closed drains,” and several other maintenance and repair tasks.”36 • “Operator covenants and agrees that, at the expiration the agreement, it shall quit and surrender the Facility with all the improvements thereon in as good a state and condition as the same were at the Commencement Date.”37 • Bulk was not permitted access to the Facility unless it scheduled such access and Bulk was not permitted to “materially interfere with Operator’s operation of the Facility.”38 • Bulk had the right to inspect the facility, but only upon three business days written notice to Dedicated to determine compliance with applicable environmental laws.39 • “Operator shall conduct its activities on the Facility in material compliance with all applicable statutes, ordinances, regulations, orders and requirements of any governmental authority, agency, or instrumentality.”40 • “Operator shall have the right to paint, install lighting or decorations, or install signs . . . on or about the Facility or any part thereof.”41 • Dedicated was responsible for “all taxes levied or assessed against personal property, furniture or fixtures placed by Operator in the Facility.”42 • At the expiration of the Operating Agreement, Dedicated had the responsibility to “surrender” the premises to Bulk Inc.43 36 Id. 37 Id., §4B (emphasis added). 38 Id., §4D. 39 Id., §9C. 40 Id., §6A. 41 Id., §8A. 42 Id., §10A. 43 Id., §13A. Case 2:16-cv-03621-SM-JCW Document 87-1 Filed 05/08/17 Page 8 of 11 9 These provisions establish that Dedicated, not Bulk Inc. had custody and control of the premises, not Bulk Inc. Indeed, at the conclusion of the agreement, Dedicated would “surrender” its control of the premises to Bulk Inc. Based on these provisions, Louisiana law shows that Plaintiffs do not have a valid claim against Bulk Inc. In Nguyen v. Weston, the Louisiana Fourth Circuit Court of Appeal considered a case in which a welder employed by BV Weston Construction was injured at a facility owned by Sundown Energy, L.P.44 Sundown was sued by the welder as the owner of the property on which the welder was injured. The court found that “where the property owner has delegated the supervision and control over the property to an independent contractor, it retains no legal duty to provide a safe workplace for workers on the property.”45 Because Sundown delegated supervision and control of its facility to an independent contractor, the court held that it was not liable for the welder’s injuries.46 Similarly, in Graubarth v. French Market Corp., Plaintiff filed suit against French Market Corporation (“FMC”) after he struck his head at the top of a door frame while working at a show at the Jean Lafitte National Historical Park.47 FMC leased the Jean Lafitte National Historical Park to the General Services Administration, a federal agency. Plaintiff filed suit against FMC, arguing that FMC, as lessee of the premises, was liable for creating the defect. The court analyzed whether FMC’s status as lessee meant that it had custody or control of the premises sufficient to establish a premises liability claim. The court stated that courts have previously determined that 44 2009-0571 (La. App. 4 Cir. 9/9/2000), 20 So. 3d 548. 45 Id. at 553 (emphasis added). 46 Id. at 553-54. 47 2007-0416 (La. App. 4 Cir. 10/24/07), 970 So. 2d 660, 662. Case 2:16-cv-03621-SM-JCW Document 87-1 Filed 05/08/17 Page 9 of 11 10 custody will “not be shared or transferred” (as between lessee and/or lessor) where there is a “limited ability to inspect the premises [and] a limited access to enter the premises.”48 In that case, the Louisiana Fourth Circuit held that, because FMC (1) lacked access to the entire property, (2) could only enter at reasonable times with approval of the authorized Government representative, and (3) had no control over the daily affairs, FMC did not have the right of direction or control over the premises and thus was not liable.49 As in Graubarth, here, Bulk Inc. has a limited ability to inspect and access the premises at the Port. Under the contract, Bulk Inc. must schedule access and give three days’ notice for certain inspections. Moreover, just as in Nguyen, Bulk Inc. has delegated the supervision, direction, and control of the property to Dedicated and Bulk Inc. had no right to control or direct Dedicated’s work or workers. Thus, Louisiana law interprets the contract between Bulk Inc. and Dedicated to mean that Bulk Inc. had no custody or control over the premises at the Port. For this reason, Plaintiffs have no valid cause of action against Bulk Inc. Accordingly, Bulk Louisiana and Bulk Inc. request that this Court grant the 12(b)(6) motion and dismiss the claims asserted against them, with prejudice. Respectfully submitted, /s/ James M. Garner ___________________________________ JAMES M. GARNER #19589 CHRISTOPHER T. CHOCHELES#26848 EMILY E. ROSS #34739 SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Suite 2800 New Orleans, LA 70112 Telephone: 504.299.2100 Facsimile: 504.299.23100 48 Id. at 664. 49 Id. Case 2:16-cv-03621-SM-JCW Document 87-1 Filed 05/08/17 Page 10 of 11 11 ATTORNEYS FOR BULK RESOURCES LOUISIANA/LLC and BULK RESOURCES, INC. CERTIFICATE OF SERVICE I hereby certify that on May 8, 2017, I electronically filed the foregoing with the clerk of the United States District Court for the Eastern District of Louisiana, using the CM/ECF system, which will automatically send a notice of electronic filing to all counsel of record. /s/ James M. Garner ______________________________ JAMES M. GARNER Case 2:16-cv-03621-SM-JCW Document 87-1 Filed 05/08/17 Page 11 of 11 OPERATING AGREEMENT This operating agreement (`Agyeemenr) is made s y and betweetvettlk-Reseurees, 101 Convention Center Drive, Suite 850, Las 'Veg ,NV 89109, a Nevada corporation (`Bulk") and Dedicated Trailer Cleaning, LLC aloe). WHEREAS, Bulk has a facility at the Port of Ne Orleans, 7501 Terminal. Road New Orleans, LA ('Facility') and; WHEREAS;-Operator desires to independently operate an industrial tank trailer wash facility at Bulk's facility, and Bulk desires to contact with Operator for the operation of such a service, on terms and conditions set forth herein. NOW, 'THEREFORE, in consideration of the rout al covenants set forth herein, Bulk and Operator hereby agree as follows: 1. Term. A. The initial term of this Agreement shall b for a period of-sixty-(60) months commencing on the Commencement Dat and continuing for sixty (60) months thereafter. Unless otherwise indicated, the "Agreement Term" refers to the initial term of this Agieement, as extended, rene ed or earlier terminated in accordance with the terms hereof. B. "Commencement:Date" shall meanNovez aber 1, 2008. 3. Utilities. Operator shall pay all normal user charges for ties used by operator ornthefacility directly to the applicable utility and shall maintai an account with each such utility in its own name. 4. Maintenance,. Repair, Equipment and Improver ents. A. Operator shall, at all times, keep the Facilil in a neat, clean and orderly condition. Operator shall perform all maintenance'and repair, including; without limitation, sweeping, snow removal, trs.sh removal, replacing light bulbs, clearing r nr "7 11-ri Il "nriAirt ‘inr,rt !'4 7'7!1 An II lova DEDICATED 001524 EXHIBIT 1 Case 2:16-cv-03621-SM-JCW Document 87-2 Filed 05/08/17 Page 1 of 7 closed drains, daily janitorial services, sae drain inlet maintenance and repair, rolling and sliding door maintenance and repair, electrical maintenance and repair, and all other improvements -contained in eimildings -or-the Facility, and shall be responsible for security in and around the acility. Operator shall be liable, at its own expense, to make all repairs to windo s, irrespective of cause and damage. Operator's obligations hereunder shall be to maintain and repair the Facility in the condition they were in on the Commencenient Date, Subject to normal wear and tear, casualty and condemnation. B. Operator covenants and agrees that; at the xpiration of the Agreement, it shall quit and surrender the Facility with all the mprovements thereon in as good a state and conditienis. the same were at the Commencement Date, subject to normal wear and tear, casualty and corniertion, C. Operator shallpnavide,allequipment nece aryfortitepropertentefficient operation of the Facility, such as tractors, orklifts and chassis. • D. Bulk, its contractors, invitees.,-and•theirreapective employees shall have the right of access to the Facility to determine, the sate of maintenance and repair, Bulk shall schedule such access, to the extent re sanably possible, so as not to materially interfere with Operator's opera on of the Facility. 6. Compliance with Law. A. Operator shall conduct its activities on the Facility in material compliance with all applicable statutes, ordinances, regulations, Orders and requireMents-efany governmental authority, agency or instrurn+ality. Nothwitkistanding the foregoing or any other proViSion of this Agreement, crate s obligations to comply-with statutes., ordinances, regulations, orders and equirements which relate to the handling, disposing and discharging of haz ous substances or which relate to environmental matters in general shall be g veined by the provisions of Section hereof rri otn$7i.bridl C•=1,1 NJet"C•NA 1.1-1e1C1 fV1 II AC0.1 DEDICATED 001525 Case 2:16-cv-03621-SM-JCW Document 87-2 Filed 05/08/17 Page 2 of 7 S. Signs. A. Operator shall have the right to paint, install lighting or decorations, or install any signs, window or door lettering or advertis. g media of any type on or about the Facility or any part thereof. 9. Environmental Provisions. A. Operator hereby agrees that (1) no activity s I be conducted on the Facility that will generate any Ha7ardous Substances, exept for activities that are part of the ordinary course of Operator's business acti ities and in material compliance with applicable laws and regulations (the "Perini ed Activities") ; (ii) the Facility shall not be used in any manner for the storage o any Hazardous Substances except for the storage of such materials, in accordance with applicable law, that are used or generated in the ordinary course of Operato 's business (the "permitted Materials"), provided such Permitted Mat als are properly stored in a manner and location meeting all Environmental Laws (a hereinafter defined); (iii) no portion of the Facility will be used as a landfill or d p; and (iv) Operator shall not cause the Facility to be in violation of any Enviro ental Laws. If Operator, after receiving thirty (30) days prior written noti from Tenant or Landlord fails to comply with any of the covenants in this S ion 9 (A), or fails to comply with any Environmental Law in its operations on the acility, Bulk, at Operator's sole expense, may take all actions which Tenant and Landlord determines ate necessary or appropriate to cause such compliance. eve-4 nteto7i.wrqo onevurignomi 'Ulna CiA77A O1 I1 nom DEDICATED 001526 Case 2:16-cv-03621-SM-JCW Document 87-2 Filed 05/08/17 Page 3 of 7 B. Operator shall obtain all permits, licenses entity or authority required to conduct its b part or step in performance thereof, reqeire C. Bulk shall have the righttoinspect the Faci d approvals of any governmental body, siness operations at the Facility, or any by such Environmental Laws. ityetiperethreek3) business days prior written notice to Operator (except in the case of emergencies), to. determine compliance with the Environmental Laws pTovided-thatsuchinspection does not, except in. emergencies, occur more than four (4) times in any calendar year and without three (3) business days prior written notice to Operator. In undertaking any such inspections, Bulk shall cooperate with the Operator to the extent necessary to maintain Operator's security procedures, but such procedures may not prevent or unnecessarily interfere with such inspection. D. Operator hereby agrees to indemnify Bulk and its parent companies, subsidiaries, affiliates„ employees, agents, officers and di ectors and to hold Bulk harmless of, from and against any and all expenses, loss s,,eostsefittesepenalties, liabilities (including, without limitation, reasonable a meys fees) suffered or incurred by Bulk and its employees, agentseofficers and•dir' eetemby-reason of Operator's breach of any of the provisions of this Secti n 9. Notwithstanding the foregoing, Operator shall have no liability for, and-Bul -shaginderanify and hold Operator and its parent companies, subsidiaries, affiliates, employees, agents, officers and directors harmless from and against, any and all losses, costs, fines, penalties, liabilities or expense (including reasonable attorneys' fees) suffered or incurred by Operator or its employees, agents, officers or directors to the extent they relate to the arise from the presence of any Hazardo Substance in, on or about any portion of the Facility existing prior toehaOperator s occupancy of the Facility or occupancy of any part of the Facility not oe upied by Operator prior to the Commencement Date or•eausedby any I-I dous Substances Activity (whether permitted or unpermitted) by any person en ty other than Operator, its parent companies, subsidiaries, affiliates, employ , agents and invitees. E. The term "Environmental Laws" as used he in shall mean all present and future laws, statutes, ordinances, rules, regulations orders, and determinations of any governmental authority, pertaining to health protection of the environment, natural resources, conservation, wildlife, waste management, Hazardous Materials Activities, and pollution, applicable to Opel tor's operations at the Facility, including, without limitation, the Comprehe sive Environmental Response, Compensation and Liability Act of 1980, as ended by the Superfund Amendments and Reauthorization Act of 19 6, 42 U.S.C. 6901, et seq., the Federal Water Pollution Control Act, 33 U.S.C. 125 , et seq., the Clean Air Act, 42 U.S.C. 7401, et seq., the Toxic Substances Control et, 15 U.S.C. 26014-et-seq., the Occupational Safety and Health Act of 1970 as amended,29 U.S.C. 651, et seq., and the Emergency Planning and Communit Right-to-Know Act, 42 U.S.C. 11001, et seq., as all of the same may have een and hereafter be amended, and all rules and regulations, promulgated thereund r. F. The term "Hazardous Substances" as used • this Agreement shall mean any chemical, waste, byproduct, pollutant, con rant, compound product, substance or other material 9i0 that is hazardous or tox c or (ii) the exposure to, or manufacture, possession, presence, use, yen ration, storage, transportation, 01C17/4,010 eN1.1AINC.M kl-letitt 6ra"..7/1 OP I I 11CO.1 DEDICATED 001527 Case 2:16-cv-03621-SM-JCW Document 87-2 Filed 05/08/17 Page 4 of 7 treatment, release, emission, dischargei.disposal, abatement, cleanup, removal, remediation or handling of which, is prohibited, controlled or regulated by any Environmental Law, including, without limitation, asbestos, polycholorinated byplienls, and petroleum (including crude oil or any fraction therof). G. The term "Hazardous Substances Activity" used in this Agreement shall mean any manufacture, possession, use, generatio storage, transportation, treatment, release, disposal, abatement, cleanup, remo at, remediation or handling of any Hazardous Substances. 10. Taxes. A. Operator shall be liable for all taxes levied r assessed against personal property, furniture or fixtures placed, by Operator in e Facility, and if any such taxes for which Operator is liable are in any way levied or assessed against the Bulk. Operator shall pay to Bulk upon demand th t part of such taxes for which Operator is primarily liable hereunder. 11. Rights Upon Default. A. If Operator shall be in default in the paymerht of any revenues under this Agreement (without regard to notice thereof from Bulk), or if Operator shall be in default of any other obligations under this Agreement for a period of thirty (30) days after written notice from Bulk to Operator, then Bulk may, in addition to any rights or remedies available to Bulk at law r in equity, terminate this Agreement upon written notice to Operator and expel rator anti remove all Operator's property therefromiand-Operator shall re in liable for the amount of all revenues accruing prior to such date of termination. I any default by Operator (except nonpayment of Fees) cannot reasonably be emedied within thirty (30) days after notice of default but Operator shall commence promptly to cure the same and thereafter prosecute the curing thereof with diligence, then Operator shall have additional time as shall be reasonably nixes y to remedy such default before this Agreement can be terminated or other rem y enforced by Bulk, provided that such remedy or cure is commenced within aid thirty (30) day period and is thereafter diligently pursued to completion. Operator acknowledges and agrees that it has no interest in real property with regard to the Facility or the property. 12. FArly Termination. A. Bulk acknowledges that the Operator shall any construction modifications or improv result of changes in the building codes, Drcr and development authorities. B. Operator shall have the right, upon written Agreement prior to the expiration of the e unable to obtain, after good faith, reasonabl ot be responsible for accomplishing ents necessitated to the pmmises as a antes, zoning, fire codes or planning lice to Bulk, to terminate this ent Agreement Term if Operator is efforts to do so, Bulk's agreement to 7/4,pio 'NMI rwv,t rte.-10%—n I %I9 flt, .. 1 1 Ank I DEDICATED 001528 Case 2:16-cv-03621-SM-JCW Document 87-2 Filed 05/08/17 Page 5 of 7 provide the modifications or improvements required under Section 12 (A), above, in the timeframe required by the responsible government agency. 13. Surrender of the Premises. A. At the expiration or earlier termination of e Agreement Term, Operator shall peaceably and quietly lave and surrender ssession-of the Facility to Tenant in the condition it was required to maintain th Facility throughout the Agreement Term. Operator shall proceed termination o expiration of this Agreement to remove from the Facility all personal property, equipment, furnishings and trade fixtures placed by it on, to or in the Facilityir Any damage caused by such removal shall be promptly repaired by Operator at its expense. 14, Notices. A. Any notice or other communication required to be given either party (i) shall be in writing and either hand delivered, delivered by eburier, transmitted by telecopier (fax), mailed by registered-or-certified mail or by national overnight postage prepaid. (ii) shall be effective on the date of actual receipt, and (iii) shall be sent to the parties at the following addre es or at such other addresses as either Party may from time to time notify the other: As to Operator: Dedicated Trailer Cleaning, LLC 7501 Terminal Road New Orleans, LA 70160 As to Bulk: Bulk Resources, Inc, 101 Convention Center Drive, Suite 850 I,Ra Vegas, NV 89109 IS. Severability. A. If any clause or provision of this Agreeme t is illegal, invalid. or unenforceable under future present or future laws effective during the Agreement Term, then and in that event, the remainder of this Agreem nt shall not be affected thereby, end, in lieu of each clause or provision of this 1 se that is illegal, invalid or .... unenforceable, thereshall be added as a pat of this lease a-clause orprotrision as similar in terms to such illegal, invalid or enforceable or provision as may be possible and be legal, valid and enforceable. Each covenant and agreement contained in this Agreement shall be construed as a separate and independent covenant or agreement. Nei Mai 71.6010 O'rIn1.10-1^C,IN.1 1-1/10 di 0.711 Aft 1 / Af1A1 DEDICATED 001529 Case 2:16-cv-03621-SM-JCW Document 87-2 Filed 05/08/17 Page 6 of 7 IBulk R sources, Inc. "Nkil 1.11110 16. Legal Proceedings. A. Bulk and Operator hereby waive, to the ext nt not-prohibited by law, the right to a jury trial in any action or proceeding between Bulk and Operator or their successors arising out of this Agreement or Operator's occupancy of the Facility or Operator's right to occupy same. 17. Rights and Remedies. A. The failure of either party to enforce any of its rights under this Agreement on a particular occasion shall not be construed as a waiver of the right of either party to exercise those rights on any subsequent occasion. The specific remedies to which Bulk or Operator may resort under this Agreement axe cumulative in addition to all other available legal and equtable rights and remedies. All rights, remedies and obligations under this Agreement shall survive the expiration or termination of this Agreement and Operator's surrender of the Facility to Bulk. 18. Succession. A. All the terms, covenants and conditions of this Agreement and any extension, amendment or modification to this Agreement shall inure to the benefit of and be binding upon the respective heirs, administrators, successors and permitted assigns of the parties to this Agreement. 19. Right of First Refusal. A. In the event that Bulk receives any offette thereof, at any time during the term of this written notice to Operator of such offeroan -thePacility,-er-any portion greernent, Bulk Tenant shall give Operator shall-have-the right to purchase the Facility on terms similar to the terms of any such offer. Operator may exercise such right only by notifying Bulk in writing of its election to do so within thirty (30) days after Operator's receipt of Bulk's notice. dl C":7t1 I AOKI IN WITNESS WHEREOF, each party h executed as of the date set forth above: TNESS: caused this Agreement to be 'ler Cleaning, LELC (Operator) 1 'd 01017/4%010 DEDICATED 001530 Case 2:16-cv-03621-SM-JCW Document 87-2 Filed 05/08/17 Page 7 of 7 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA JOENDEL HERNANDEZ, ET AL., CIVIL ACTION Plaintiffs VERSUS NO. 16-3621 c/w 17-46 DEDICATED TCS, L.L.C., ET AL., SECTION: “E”(5) Defendants Applies to: No. 16-3621 NOTICE OF SUBMISSION PLEASE TAKE NOTICE that Defendants Bulk Resources/Louisiana, LLC (“Bulk Louisiana”) and Bulk Resources, Inc. (“Bulk Inc.”), will bring their Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) before the Honorable Susie Morgan at the United States District Courthouse, 500 Poydras Street, New Orleans, Louisiana 70130, on June 14, 2017, at 10 a.m. Respectfully submitted, /s/ James M. Garner ___________________________________ JAMES M. GARNER #19589 CHRISTOPHER T. CHOCHELES#26848 EMILY E. ROSS #34739 SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Suite 2800 New Orleans, LA 70112 Telephone: 504.299.2100 Facsimile: 504.299.23100 ATTORNEYS FOR BULK RESOURCES LOUISIANA/LLC and BULK RESOURCES, INC. Case 2:16-cv-03621-SM-JCW Document 87-3 Filed 05/08/17 Page 1 of 2 2 CERTIFICATE OF SERVICE I hereby certify that on May ___, 2017, I electronically filed the foregoing with the clerk of the United States District Court for the Eastern District of Louisiana, using the CM/ECF system, which will automatically send a notice of electronic filing to all counsel of record. /s/ James M. Garner ______________________________ JAMES M. GARNER Case 2:16-cv-03621-SM-JCW Document 87-3 Filed 05/08/17 Page 2 of 2