Savannah Oaks Condominium Association, Inc. v. Waste Management, Inc.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In Support

N.D. Ga.February 17, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION SAVANNAH OAKS CONDOMINIUM ASSOCIATION, INC., on behalf of itself and all others similarly situates, Plaintiff, v. WASTE MANAGEMENT, INC., Defendant ) ) ) ) ) ) CIVIL ACTION FILE NO. ) ) 1:17-CV-330-SCJ ) ) ) ) DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Defendant Waste Management, Inc. (“Defendant”) files this 1 Motion to Dismiss for Failure to State a Claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff Savannah Oaks Condominium Association, Inc. fails to state a claim for relief against this Defendant. Each of the Plaintiff’s causes of action fail to meet the requirements of Rule 12(b)(6). In support of this Motion, Defendant submits its accompanying Memorandum of Law. For the reasons stated in the 1 By filing this Motion, Waste Management, Inc. does not waive, and expressly preserves, its right to assert a defense based upon lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). A separate motion addressing the personal jurisdiction issue has been filed on this same date. Case 1:17-cv-00330-SCJ Document 6 Filed 02/17/17 Page 1 of 4 2 Memorandum, Defendant respectfully requests the Court grant the requested relief and all other relief this Court deems just and proper. This 17 th day of February, 2017. 3344 Peachtree Road, NE, Suite 2400 Atlanta, Georgia 30326 (404) 876-2700 (telephone) (404) 875-9433 (facsimile) ddial@wwhgd.com npanayo@wwhgd.com WEINBERG, WHEELER, HUDGINS, GUNN & DIAL, LLC /s/ Nicholas P. Panayotopoulos David A. Dial Georgia Bar No. 220329 Nicholas P. Panayotopoulos Georgia Bar No. 560679 Attorneys for Defendant Waste Management, Inc. Case 1:17-cv-00330-SCJ Document 6 Filed 02/17/17 Page 2 of 4 3 RULE 7.1D CERTIFICATE OF TYPE, FORMAT AND FONT SIZE Pursuant to Local Rule 7.1D of the United States District Court for the Northern District of Georgia, the undersigned certifies that the foregoing submission to the Court was computer-processed, double-spaced between lines, and prepared with 14-point Times New Roman font. This 17 th day of February, 2017. 3344 Peachtree Road, NE, Suite 2400 Atlanta, Georgia 30326 (404) 876-2700 (telephone) (404) 875-9433 (facsimile) WEINBERG, WHEELER, HUDGINS, GUNN & DIAL, LLC /s/ Nicholas P. Panayotopoulos David A. Dial Georgia Bar No. 220329 Nicholas P. Panayotopoulos Georgia Bar No. 560679 Attorneys for Defendant Waste Management, Inc. Case 1:17-cv-00330-SCJ Document 6 Filed 02/17/17 Page 3 of 4 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing pleading has been served by electronic filing and/or by depositing a true and correct copy of same in the U.S. Mail, proper postage affixed thereto, addressed to counsel of record as follows: E. Adam Webb, Esq. Matthew C. Klase, Esq. G. Franklin Lemond, Jr., Esq. Webb, Klase & Lemond, LLC 1900 The Exchange, S.E., Suite 480 Atlanta, Georgia 30339 Adam@WebbLLC.com Matt@WebbLLC.com Franklin@WebbLLC.com Wayne Charles, Esq. Wayne Charles, PC 395 Highgrove Drive Fayetteville, Georgia 30215 Wc115@bellsouth.net This 17 th day of February, 2017. 3344 Peachtree Road, NE, Suite 2400 Atlanta, Georgia 30326 (404) 876-2700 (telephone) (404) 875-9433 (facsimile) WEINBERG, WHEELER, HUDGINS, GUNN & DIAL, LLC /s/ Nicholas P. Panayotopoulos David A. Dial Georgia Bar No. 220329 Nicholas P. Panayotopoulos Georgia Bar No. 560679 Attorneys for Defendant Waste Management, Inc. Case 1:17-cv-00330-SCJ Document 6 Filed 02/17/17 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION SAVANNAH OAKS CONDOMINIUM ASSOCIATION, INC., on behalf of itself and all others similarly situated, Plaintiff, v. WASTE MANAGEMENT, INC., Defendant ) ) ) ) ) ) CIVIL ACTION FILE NO. ) ) 1:17-CV-330-SCJ ) ) ) ) DEFENDANT’S BRIEF IN SUPPORT OF ITS MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 1 of 33 i TABLE OF CONTENTS Table of Contents ........................................................................................................ i Table of Authorities .................................................................................................. ii STATEMENT OF FACTS .............................................................................. 4 ARGUMENT AND CITATION OF AUTHORITY ...................................... 7 I. Plaintiff’s Breach of Contract Claim Fails As a Matter of Law ...................... 7 A. Plaintiff’s Breach of Contract Claim Is Barred by the Express and Unambiguous Terms of the Agreement ................................................ 7 B. Plaintiff’s Breach of Contract Claim Is Barred Under the Voluntary Payment Doctrine ................................................................................ 10 II. Plaintiff’s Claim for Breach of the Duty of Good Faith and Fair Dealing Fails Because It Has not Alleged a Viable Breach of Contract .................... 13 III. Plaintiff Fails to State a Claim for Declaratory Judgment ............................ 15 IV. Plaintiff Fails to State a Claim for Money Had and Received ...................... 19 V. Plaintiff’s Claim for Unjust Enrichment Is also Barred Because an Express Contract Exists Between the Parties and Under the Voluntary Payment Doctrine ......................................................................................................... 20 CONCLUSION .............................................................................................. 24 Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 2 of 33 ii TABLE OF AUTHORITIES Page(s) CASES Am. Casual Dining, LP v. Moe’s Sw. Grill, LLC, 426 F. Supp. 2d 1356 (N.D. Ga. 2006) ............................................................... 14 Am. Gen. Life and Acc. Ins. Co. v. Ward, 509 F. Supp. 2d 1324 (N.D. Ga. 2007) ............................................................... 20 Atlanta Gas Light Co. v. Aetna Cas. & Sur. Co., 68 F.3d 409 (11th Cir. 1995) .............................................................................. 17 Automatic Sprinkler Corp. of Am. v. Anderson, 243 Ga. 867 (1979) ............................................................................................. 14 Baghdady v. Cent. Life Ins. Co., 224 Ga. App. 170 (1996) .................................................................................... 20 Bankston v. RES-GA Twelve, LLC, 334 Ga. App. 302 (2015) .................................................................................... 14 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................ 7, 13, 15, 16 Braddy v. Morgan Oil Co., Inc., 183 Ga. App. 157 (1987) .................................................................................... 18 Brooks v. Blue Cross Blue Shield of Fla., Inc., 116 F.3d 1364 ....................................................................................................... 4 Chemin v. State Farm Ins. Co., 226 Ga. App. 702 (1997) .................................................................................... 12 City of Summerville v. Sellers, 82 Ga. App. 361 (1950) ...................................................................................... 18 Conley v. Gibson, 355 U.S. 41 (1957) ................................................................................................ 7 Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 3 of 33 iii Cotton v. Med-Cor Health Information Solutions, 221 Ga. App. 609 (1996) .............................................................................. 12, 22 Crook v. Foster, 333 Ga. App. 36 (2015) ...................................................................................... 21 CS-Lakeview at Gwinnett, Inc. v. Simon Prop. Grp., Inc., 283 Ga. 426 (2008) ............................................................................................... 8 Daniels v. Wells Fargo Bank, N.A., Case No. 1:14-CV-2640-LMM, 2014 WL 12493322 (N.D. Ga. Dec. 2, 2014) ....................................................................................................... 17 Eisenberg v. Standard Ins. Co., Case No. 09-cv-80199, 2009 WL 3667086 (S.D. Fla. Oct. 26, 2009) ................................................................................................................... 17 Ginsberg v. Termotto, 175 Ga. App. 265 (1985) .................................................................................... 22 Hollifield v. Monte Vista Biblical Gardens, Inc., 251 Ga. App. 124 (2001) .................................................................................... 22 In re Atlas Roofing Corp. Chalet Shingle Products Liability Litigation, Case No. 1:13-CV-2195-TWT, 2014 WL 3360233 (N.D. Ga. July 9, 2014) ............................................................................................................... 16 Incredible Investments, LLC v. Fernandez-Rundle, 984 F. Supp. 2d 1318 (S.D. Fla. 2013) ............................................................... 17 Ins. Co. of N. Am. v. Kyla, Inc., 193 Ga. App. 555 (1989) .................................................................................... 12 Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941) .............................................................................................. 8 Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 4 of 33 iv Monitronics Int’l, Inc. v. Veasley, 323 Ga. App. 126 (2013) (Georgia courts are “required to construe agreements in a manner that respects the parties’ sacrosanct freedom of contract.”) ........................................................................................... 8 Morrell v. Wellstar Health Sys., Inc., 280 Ga. App. 1 (2006) ........................................................................................ 14 National Freight, Inc. v. Consolidated Container Company, LP, 166 F.Supp.3d 1320, 1329 .................................................................................... 8 NEC Technologies v. Nelson, 267 Ga. 390 (1996) ............................................................................................... 8 OnBrand Media v. Codex Consulting, Inc., 301 Ga. App. 141 (2009) .................................................................................... 14 Pacific W., Inc., v. LandAmerica Credit Servs., Inc., Case No. 1:05-cv-0895, 2007 WL 1970870 (N.D. Ga. June 29, 2007) ................................................................................................................... 20 Pinnacle Benning LLC v. Clark Realty Capital, LLC, 314 Ga. App. 609 (2012) .................................................................................... 19 Piper Aircraft, Inc. v. Czech Sport Aircraft, A.S., Case No. 12-cv-14107, 2015 WL 11988973 (S.D. Fla. Aug. 5, 2015) ................................................................................................................... 17 Quiller v. Barclays Am./Credit, Inc., 727 F.2d 1067 (11th Cir. 1984) .......................................................................... 11 Regional Pacesetters v. Halpern Enters., 165 Ga. App. 777 (1983) .................................................................................... 21 Robbins v. Scana Energy Mktg., Inc., Case No. 1:08-CV-640-BMM, 2008 WL 7724171 (N.D. Ga. June 13, 2008) ............................................................................................................. 11 Rod’s Auto Fin. v. Fin. Co., 211 Ga. App. 63 (1993) ...................................................................................... 12 Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 5 of 33 v Roofing & Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982 (11th Cir. 1982) .............................................................................. 8 Scott v. ING Clarion Partners, LLC, Case No. 1:06-CV-1843-RLV, 2007 WL 1391386 (N.D. Ga. May 7, 2007), aff’d, No. 07-12407, 2008 WL 185537 (11th Cir. Jan 23, 2008) ................................................................................................................... 13 State Highway Dep’t v. Ga. S. & Fla. R. Co., 216 Ga. 547 (1961) ............................................................................................. 18 Stratford Holding, LLC v. Fog Cap Retail Investors, LLC, Case No. 1:11-cv-3463, 2014 WL 11517829 (N.D. Ga. Sept. 25, 2014) ................................................................................................................... 17 Stuart Enters., Int’l, Inc. v. Peykan, 252 Ga. App. 231 (2001) .................................................................................... 14 Taylor v. Powertel, Inc., 250 Ga. App. 356 ................................................................................................ 19 Telescripps Cable Co. v. Welsh, 247 Ga. App. 282 (2000) .............................................................................. 12, 13 Thomas v. T & T Straw, Inc., 254 Ga. App. 194 (2002) ...................................................................................... 8 Travelers Casualty and Surety Co. v. Stewart, Case No. 1:14-cv-837, 2015 WL 11233187 (N.D. Ga. Jan. 5, 2015) ................ 17 Twin Oaks Assoc. v. DeKalb Venture, 190 Ga. App. 854 (1989) .................................................................................... 12 Venture Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429 (7th Cir. 1993) ................................................................................ 4 Vernon v. Assurance Forensic Accounting, Inc., 333 Ga. App. 377 (2015) .................................................................................... 19 Yeazel v. Burger King Corp., 241 Ga. App. 90 (1999) ...................................................................................... 12 Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 6 of 33 vi RULES Fed. R. Civ. P. 8 ................................................................................................. 15, 16 Fed. R. Civ. P. 8(a)(2) ................................................................................................ 7 Fed. R. Civ. P. 12(b)(6) ........................................................................................ 7, 11 STATUTES 28 U.S.C. § 2201(a) ........................................................................................... 16, 17 Georgia’s Declaratory Judgment Act, O.C.G.A. § 9-1-4, et. seq. ........................... 18 O.C.G.A. § 13-1-13 .................................................................................................. 11 Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 7 of 33 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION SAVANNAH OAKS CONDOMINIUM ASSOCIATION, INC., on behalf of itself and all others similarly situated, Plaintiff, v. WASTE MANAGEMENT, INC., Defendant ) ) ) ) ) ) CIVIL ACTION FILE NO. ) ) 1:17-CV-330-SCJ ) ) ) ) DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM In this putative class action, Plaintiff Savannah Oaks Condominium Association Inc. (“Plaintiff” or “Savannah Oaks Inc.”), a Georgia corporation, seeks the return of charges volitionally paid to Defendant Waste Management, Inc. (“WMI”) 1 in exchange for waste disposal services pursuant to the terms of a 1 Plaintiff’s Complaint does not accurately describe its relationship with WMI. The contract at issue simply identifies Waste Management, Inc. as the one whose “affiliates and subsidiaries” would be providing all of the services contemplated under the Agreement (as referenced on the top of page 3 of the Agreement). WMI’s Georgia affiliate, whose Georgia address is the only one on the Agreement, (see, page 1 of 5 of the Agreement) performed all services, invoiced and collected all payments, and conducted all communications under the contract, and a sales representative of WMI’s Georgia subsidiary signed the Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 8 of 33 2 written service agreement. That service agreement, entered as part of an arms- length commercial transaction between two corporate entities, established the initial frequency and amount of services, as well as the initial monthly base charges and additional fees applicable to the agreed upon service level. It also set an initial term of three years, but gave Plaintiff a right to terminate early when WMI imposed certain price increases not previously agreed upon. The agreement not only specified the detailed terms under which fees and charges could be increased without the additional consent of Plaintiff, but it allowed for further adjustment beyond the enumerated terms subject to Plaintiff’s right to terminate the contract before its term. Now, having received the full benefit of collection services under that agreement for over three years, Plaintiff seeks the retroactive return of its payments for such services, contending that WMI improperly increased its charges in amounts and for reasons beyond those permitted by contract. Plaintiff does not dispute that it was notified of every charge on monthly invoices; that Plaintiff paid every invoice and to this day still pays its bills; or that contract. Moreover, Plaintiff fails to mention that WMI’s Georgia subsidiaries serviced Savannah Oaks Inc. for approximately two decades before the 2012 contract under other agreements naming WMI’s Georgia subsidiary as the relevant party. Nevertheless, for the purpose of this motion, this prior course of dealings- which only bolster WMI’s voluntary payment and breach of contract defenses- need not be addressed. Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 9 of 33 3 Plaintiff declined to exercise its termination right under the contract. Rather, Plaintiff simply claims that the fees are “in violation of the contract.” As set forth below, each of Plaintiff’s claims is barred as a matter of law:  The unambiguous terms of the agreement contradict Plaintiff’s breach of contract claim, as it explicitly provided several mechanisms for monthly base charges and fees to be adjusted over the life of the contract. Moreover, because Plaintiff-voluntarily and with knowledge of all material facts- paid, and to this day, after having hired counsel and filed this suit, still pays each invoice, its claims are barred under the voluntary payment doctrine;  Because Plaintiff fails to allege a viable claim for breach of contract, its claim for violation of the implied duty of good faith and fair dealing necessarily fails;  Because both parties acknowledge that an enforceable contract governs this dispute, Plaintiff cannot assert claims for unjust enrichment or money had and received, which may only be brought in the absence of a contract; and  Plaintiff’s declaratory judgment claim is impermissibly vague and falls far short of alleging a plausible claim of giving WMI “fair notice” of its claim, and is duplicative of its breach of contract claim. Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 10 of 33 4 Because each of Plaintiff’s claims is legally insufficient, the Complaint should be dismissed in its entirety. STATEMENT OF FACTS Savannah Oaks Inc., a condo association incorporated in Georgia, contends that it contracted with WMI in December 2012 for trash removal services. (Compl., ¶¶ 1,6) (the “Agreement” or “Contract”). 2 Pursuant to the Agreement, WMI’s affiliates and subsidiaries collect two containers of waste from Plaintiff weekly and charge a monthly fee for each container, along with assorted fees and surcharges. Agreement, (Ex. A); (Compl., ¶¶ 7-9). The Agreement provides that, in addition to a base monthly charge for waste removal services, Plaintiff would pay other fees and surcharges, including fuel, environmental, and potential overage fees. Section 4 of the Agreement gives WMI “the right to increase the Charges payable by Customer during the [three year] Term:” 2 Plaintiff did not attach the Agreement to its Complaint, but instead cherry picks parts of certain provisions. The Agreement is attached hereto as Exhibit “A.” This Court may consider the document attached to this Motion to Dismiss because Plaintiff refers to it “in the complaint and th[e] document [is] central to the plaintiff’s claim.” Brooks v. Blue Cross Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997 (citing, Venture Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)). Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 11 of 33 5 (a) for any changes or modifications to, or differences between, the actual equipment and services provided by Company to Customer and the agreed upon Equipment/Service specifications on the first page, (b) any change in the composition of the Waste Materials or if the average weight per yard of Customer’s Waste Materials exceeds the amount specified on the first page; (c) for any increase in or other modification to its fuel or environmental cost recovery charge; (d) to cover any increases in disposal and/or third party transportation costs; (e) to cover increased costs due to uncontrollable circumstances, including, without limitation, changes in local, state or federal laws or regulations, imposition of taxes, fees or surcharges or acts of God such as floods, fires, hurricanes and natural disasters; and (f) no more often than annually from the Effective Date (or if specified on the first page, Customer’s Last API Date) for increases in the Consumer Price Index plus four percent of the then current Charges. (Agreement, Ex. A., Section 4). Section 3 of the Agreement makes clear that those specified price adjustment terms listed in Section 4 are not meant as an exclusive or exhaustive listing. It provides that if the charges are increased for reasons “other than as set forth in Section 4 below, Customer shall have the right to terminate this Agreement by written notice to the Company[.]” (Agreement, Ex. A., Section 3) (Emphasis added). In other words, if the charges were increased for reasons other than as set forth in Section 4, Plaintiff could immediately and unilaterally terminate the Agreement. Further, the Agreement provided that “[a]bsent such termination, the increased charges shall be binding and enforceable against Customer under this Agreement for the remaining Term.” Id. (Emphasis added). Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 12 of 33 6 Plaintiff does not dispute that it agreed to all of these express provisions of the Agreement. Nor does it dispute that it was provided the services contracted for under the Agreement on a monthly basis, and received monthly invoices for those services. It also does not contend that it ever sought to invoke its termination rights under Section 3. Rather, Plaintiff contends that WMI breached the terms of the Agreement and the covenant of good faith by using “its powers under the contract” to raise rates and add fees in a manner that violated the parties’ understanding and intent (Compl., ¶ 55). More specifically, Plaintiff contends that there was a breach because prices were raised more often than annually and by more than the annual increase CPI-based adjustment (CPI +4%). (Compl., ¶ 39). Further, Plaintiff alleges that its rates for trash removal were raised five times, and it was charged “improper fees” in violation of the contract. (Compl., ¶¶ 14-23; 39- 42). Plaintiff further contends that WMI breached its contract because the base charge increases caused the fuel and environmental surcharge-which is calculated as a percentage of the base charge-to increase, and otherwise changed the terms of those surcharges in a manner not tied to increased fuel and/or environmental recovery costs. Id. at ¶43. Moreover, Plaintiff alleges that it was charged other fees in violation of the Agreement, including a Regulatory Cost Recovery charge, an Administrative Fee, a container Fee and an Overage Fee. (Compl., ¶¶ 44-47). Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 13 of 33 7 Finally, Plaintiff alleges that it “will continue to suffer harm” as it continues, to this day, to pay the invoiced amounts. (Compl., ¶ 34). Plaintiff claims it did not cancel the contract or stop paying because it believes there is risk in doing so. (Compl., ¶ 25). Plaintiff filed this action on December 29, 2016 in the Superior Court of Fulton County, alleging clams for breach of contract, violation of the implied duty of good faith and fair dealing, unjust enrichment, money had and received, and for declaratory relief. Plaintiff seeks to bring its claims on behalf of a nationwide class of other customers of WMI. (Complaint, ¶ 26). WMI timely removed the case to this Court on January 27, 2017. ARGUMENT AND CITATION TO AUTHORITIES. This Court may dismiss a pleading for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Fed. R. Civ. P. 8(a)(2) requires that a pleading “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). In Ashcroft v. Iqbal, the Supreme Court further refined this requirement by holding that “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 14 of 33 8 Thus, to satisfy the pleading standard “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The complaint must include “allegations plausibly suggesting (not merely consistent with)” the plaintiff's entitlement to relief. Id. at 557. I. Plaintiff’s Breach of Contract Claim Fails As a Matter of Law A. Plaintiff’s Breach of Contract Claim Is Barred by the Express and Unambiguous Terms of the Agreement Georgia has long “recogniz[ed] and protect[ed] the freedom of parties to contract.” 3 Thomas v. T & T Straw, Inc., 254 Ga. App. 194, 195 (2002) (quoting, NEC Technologies v. Nelson, 267 Ga. 390, 396(4) (1996)); accord Monitronics Int’l, Inc. v. Veasley, 323 Ga. App. 126, 134 (2013) (Georgia courts are “required 3 This Court, sitting in diversity, determines which state’s laws to apply by reference to the forum state’s choice of law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); Roofing & Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 991 (11th Cir. 1982). The Agreement contains a choice of law provision that states that it “shall be construed in accordance with the law of the state in which the services are provided.” (Agreement, Ex. A, § 10(d)). Under Georgia law, contractual choice-of-law provisions are enforced “unless application of the chosen law would be contrary to the public policy or prejudicial to the interests of this state.” National Freight, Inc. v. Consolidated Container Company, LP, 166 F.Supp.3d 1320, 1329 n.3 (N.D. Ga. 2015) (citing, CS- Lakeview at Gwinnett, Inc. v. Simon Prop. Grp., Inc., 283 Ga. 426 (2008)). Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 15 of 33 9 to construe agreements in a manner that respects the parties’ sacrosanct freedom of contract.”). Here, Plaintiff’s central allegation-that the Agreement “only allowed one increase [to the base charge] per year . . . limited to the Consumer Price Index (“CPI”) plus 4%,” (Compl., ¶ 39), and that certain of the fees it was assessed were not permitted under the Agreement-are both undercut by the plain language of the Agreement. Plaintiff entered in a commercial service contract at arms-length. The Agreement explained, in detail, each party’s rights and obligations, including the prospective price adjustment mechanisms available to the service provider. These provisions expressly permitted increases in fees and charges under specific circumstances. (Agreement, Ex. A, § 4). Under Section 4, the service provider “reserve[d] the right to increase the Charges payable by Customer during the Term” for six enumerated reasons, which include any changes in equipment or services, increases in fuel or environmental recovery costs, and increases in the Consumer Price Index. The Agreement also provided for a catch-all mechanism whereby prices could increase “other than as set forth in Section 4,” which would trigger Plaintiff’s termination right. Under the Agreement: “absent such termination, the Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 16 of 33 10 increased charges shall be binding and enforceable against Customer for the remaining Term.” (Agreement, Ex. A, § 3). Plaintiff, which continues to pay as invoiced, does not allege that it invoked its right to terminate the Agreement or that it disputed or challenged the charges it paid for waste removal services during the life of the Agreement. Its belated belief that it struck a bad deal is not a substitute for allegations of breach. In other words, the Agreement allowed for the flexibility of other additional proposed charges, but in such cases, Plaintiff gained the ability to invoke competitive discipline on that proposed pricing, including early termination of the Agreement. Plaintiff’s challenges to the fees it was charged are without merit for additional reasons. For example, the Fuel and Environmental charges were expressly permitted under the Agreement. (Agreement, Ex. A, p. 1 of 6) (“A fuel surcharge and environmental cost recovery charge calculated as a percentage of the Charge(s), will be included on your invoice.”) And the Administrative Fee was also listed as a potential charge to be expected (Agreement, Ex. A, Section 4) (“Company also reserves the right to charge Customer additional fees if the following additional services are provided to Customer: Administrative Fee[.]) Put simply, Plaintiff received, and continues to receive, the benefit of waste services, pays its invoices as charged, and now seeks the retroactive return of the Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 17 of 33 11 fees voluntarily paid for those services over three years and counting. The Agreement, by its plain language, permitted the fees, charges, and price increases Plaintiff paid. And Plaintiff never availed itself of the Agreement’s termination clause. 4 It cannot obtain the benefit of its bargain with WMI in the form of years of waste removal services for amounts invoiced, only to turn around and dispute the amounts charged based on a self-serving and erroneous interpretation of the parties’ contract. B. Plaintiff’s Breach of Contract Claim Is Barred Under the Voluntary Payment Doctrine Even assuming that the price increases alleged by Plaintiff exceeded those expressly authorized in the Agreement, the voluntary payment doctrine precludes Plaintiff from bringing its claim for breach of contract. Pursuant to O.C.G.A. § 13- 1-13: 4 Plaintiff alleges that it “was not able to cancel the contract without enormous risk” due to the alleged liquidated damages provision in the Agreement. (Compl., ¶ 25). However, the Liquidated Damages provision in Section 7 of the Agreement expressly excludes terminating under the provisions of Section 3. (“In the event Customer terminates this Agreement prior to the expiration of the Term for any reason other than as set forth in Section 3[.]”) (Emphasis added). Moreover, Plaintiff never alleges that it disputed the charges or otherwise inquired as to whether the price increases it now complains of would have triggered Section 7’s right of termination. Plaintiff simply tacks on an after-the-fact justification for its continued use of the services that accords with its current claims. Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 18 of 33 12 [p]ayments of claims made through ignorance of the law or where all the facts are known and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party are deemed voluntary and cannot be recovered unless made under an urgent and immediate necessity therefor or to release person or property from detention or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule prescribed in this Code section. 5 Under the voluntary payment doctrine, “the party seeking recovery must prove that the payment was not voluntarily made because certain material facts were not known at the time of payment or a valid reason existed for failure to determine the truth.” Ins. Co. of N. Am. v. Kyla, Inc., 193 Ga. App. 555, 556 (1989); Rod’s Auto Fin. v. Fin. Co., 211 Ga. App. 63 (1993). In Telescripps Cable Co. v. Welsh, 247 Ga. App. 282 (2000), the plaintiffs alleged that late charges assessed by a cable company for failure to make timely payments were unenforceable penalties. In reversing the trial court’s denial of a motion to dismiss, the Court of Appeals held that the applicable service agreement expressly provided that a late fee would be assessed if payment was not timely. 5 While the voluntary payment doctrine is generally an affirmative defense, it may be properly considered on a Motion to Dismiss. Quiller v. Barclays Am./Credit, Inc., 727 F.2d 1067, 1069 (11th Cir. 1984) (“[A] complaint may be dismissed under Rule 12(b)(6) when its own allegations indicate the existence of an affirmative defense, so long as the defense clearly appears on the face of the complaint.”) (citations omitted); Robbins v. Scana Energy Mktg., Inc., Case No. 1:08-CV-640-BMM, 2008 WL 7724171 (N.D. Ga. June 13, 2008). Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 19 of 33 13 Each of the plaintiffs was aware of this, yet failed to make a timely payment, and then paid the late fee. Id. at 284; see also Cotton v. Med-Cor Health Information Solutions, 221 Ga. App. 609, 611 (1996) (dismissing class action complaint prior to certification, finding that where no evidence of mistake of fact, voluntary payment doctrine barred claim made through an unexcused ignorance of the law); Yeazel v. Burger King Corp., 241 Ga. App. 90, 99 (1999) (recovery barred where payments were made voluntarily with knowledge of all of the facts); Chemin v. State Farm Ins. Co., 226 Ga. App. 702, 704 (1997) (voluntary payment doctrine bars recovery where plaintiff fails to show mistake of fact or law); Twin Oaks Assoc. v. DeKalb Venture, 190 Ga. App. 854, 856 (1989) (recovery barred where payment of prepayment penalty was not legally required); Scott v. ING Clarion Partners, LLC, Case No. 1:06-CV-1843-RLV, 2007 WL 1391386 (N.D. Ga. May 7, 2007), aff’d, No. 07-12407, 2008 WL 185537 (11th Cir. Jan 23, 2008) (dismissing class action complaint based on voluntary payment doctrine). The facts here fall squarely within the voluntary payment doctrine. As in Telescripps, the increased charges Plaintiff voluntarily paid over a period of years were expressly set out in the Agreement. Plaintiff makes no claim of “misplaced confidence, artifice, deception, or fraudulent practice;” considering Plaintiff continues to make voluntary payments to this date, after having filed the Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 20 of 33 14 Complaint, any such allegations of deception do not pass the Supreme Court’s plausibility standards. Twombly, 550 U.S. at 557. Plaintiff also fails to allege that the payments were “made under urgent necessity or to prevent the improper seizure of or to secure the release of person or property.” Plaintiff also does not allege that facts were unknown at the time it made the payments. Indeed, it was fully aware of the terms of its Agreement and the charges it received on invoices, yet voluntarily paid the fee increases. II. Plaintiff’s Claim for Breach of the Duty of Good Faith and Fair Dealing Fails Because It Has not Alleged a Viable Breach of Contract Claim Under Georgia law, while “[e]very contract implies a covenant of good faith and fair dealing in the contract’s performance and enforcement, . . . the covenant cannot be breached apart from the contract provisions it modifies and therefore cannot provide an independent basis for liability.” OnBrand Media v. Codex Consulting, Inc., 301 Ga. App. 141, 147 (2009) (footnote and punctuation omitted). In other words, there is no claim for breach of the duty of good faith and fair dealing “where a party to a contract has done what the provisions of the contract expressly give him the right to do.” Automatic Sprinkler Corp. of Am. v. Anderson, 243 Ga. 867, 868 (1979). Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 21 of 33 15 To state a claim for violation of the implied duty of good faith and fair dealing, “a plaintiff must set forth facts showing a breach of an actual term of an agreement. General allegations . . . not tied to a specific contract provision are not actionable.” Am. Casual Dining, LP v. Moe’s Sw. Grill, LLC, 426 F. Supp. 2d 1356, 1370 (N.D. Ga. 2006); accord Morrell v. Wellstar Health Sys., Inc., 280 Ga. App. 1, 5 (2006) (“there is no independent cause of action for violation of the covenant apart from breach of an express term of the contract.”); Bankston v. RES- GA Twelve, LLC, 334 Ga. App. 302, 304 (2015) (where breach of contract claim dismissed, claim for breach of the implied duty of good faith and fair dealing also properly dismissed); Stuart Enters., Int’l, Inc. v. Peykan, 252 Ga. App. 231, 234 (2001) (where no breach of contract existed, claim for breach of implied covenant of good faith and fair dealing could not stand). Plaintiff alleges that WMI breached its duty of good faith and fair dealing under the Agreement by “using its powers under the contract to raise rates and add fees in a manner that violated the parties’ understanding and intent.” (Compl., ¶55). Plaintiff’s vague allegation that the contract’s express provisions are not in keeping with the spirit of the contract cannot form the basis of a claim for breach of good faith under Georgia law, and to the extent Plaintiff relies on the same allegations of contractual breach as discussed above, it fails for the same reasons. Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 22 of 33 16 As set forth above, the provisions of the contract expressly allowed for the fees that Plaintiff voluntarily paid, but now claims are wrongful because of some “understanding” that contradicts the Agreement’s express terms.. Plaintiff cannot use the implied covenant of good faith and fair dealing as an independent basis for liability. III. Plaintiff Fails To State a Claim for Declaratory Judgment In Count Three, Plaintiff seeks a declaratory judgment under the theory that “[c]ertain provisions [of the Agreement] are not [sic] be enforceable for one or more reasons, such as lack of consideration, illusoriness, unconscionability, lack of mutuality, violations of law, and violations of public policy.” (Compl., ¶ 58). This single, conclusory allegation fails to meet the pleading standards of Fed. R. Civ. P. 8 and set forth in Twombly and Iqbal. Plaintiff is required to give WMI “fair notice” of its claim. Further, it must include allegations that plausibly show its entitlement to relief. Twombly, 550 U.S. at 557. Conclusory allegations are insufficient to survive dismissal. Davila, 326 F. 3d at 1185. Plaintiff’s entire declaratory judgment claim is premised upon a single allegation that “certain” provisions of the Agreement are unenforceable for one or more of a plethora of reasons. This vague and conclusory allegation does not enumerate what provisions of the Agreement it contends are “unenforceable” and merely cites a generic string Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 23 of 33 17 of potential grounds for such unenforceability. Put short, Plaintiff leaves WMI and this Court to guess what contractual provisions it claims are subject to any of the plethora of defenses Plaintiff indiscriminately heaves against the wall in Count Three. 6 Plaintiff’s claim for declaratory judgment also fails because it would result in an improper “advisory” opinion by this Court. The Declaratory Judgment Act provides in relevant part: “In a case of actual controversy within its jurisdiction, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). 7 The Act is limited to actual cases or controversies. Atlanta Gas Light 6 While Plaintiff has not alleged a claim for injunctive relief, in paragraph 36 of its Complaint, Plaintiff alleges that WMI has “acted or refused to act on grounds generally applicable to the class,” making “final injunctive relief” appropriate. (Compl., ¶ 36). As with Plaintiff’s claim for declaratory relief, this vague reference to injunctive relief also falls far short of meeting the pleading standards of Fed. R. Civ. P. 8 and set forth in Twombly and Iqbal. Moreover, to the extent Plaintiff does seek the equitable remedy of an injunction, its claim fails because it has an adequate remedy at law in the form of money damages. See, In re Atlas Roofing Corp. Chalet Shingle Products Liability Litigation, Case No. 1:13-CV- 2195-TWT, 2014 WL 3360233, *2-3 (N.D. Ga. July 9, 2014) (dismissing plaintiff’s claim for injunctive relief as implausible under Twombly, where plaintiff failed to allege that it lacked an adequate remedy at law, and money damages would fully compensate plaintiff). Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 24 of 33 18 Co. v. Aetna Cas. & Sur. Co., 68 F.3d 409, 414 (11th Cir. 1995). At the outset, the Complaint is devoid of any allegation of any “case or controversy” between the parties. A claim for declaratory judgment also fails “where the plaintiff also alleges a sufficient and related breach of contract claim.” Piper Aircraft, Inc. v. Czech Sport Aircraft, A.S., Case No. 12-cv-14107, 2015 WL 11988973, *2 (S.D. Fla. Aug. 5, 2015). In Daniels v. Wells Fargo Bank, N.A., Case No. 1:14-CV-2640- LMM, 2014 WL 12493322, *2 (N.D. Ga. Dec. 2, 2014), the court adopted the magistrate’s recommendation to dismiss plaintiff’s claim for declaratory judgment where it was duplicative of his breach of contract claim. See also, Stratford Holding, LLC v. Fog Cap Retail Investors, LLC, Case No. 1:11-cv-3463, 2014 WL 11517829, *9 (N.D. Ga. Sept. 25, 2014) (declaratory relief not appropriate where breach of contract gives full relief) (citations omitted); Eisenberg v. Standard Ins. Co., Case No. 09-cv-80199, 2009 WL 3667086 (S.D. Fla. Oct. 26, 2009) (dismissing claim for declaratory judgment where court could construe terms of contract as needed on claim for benefits under insurance policy). 7 Where the state declaratory judgment law is procedural rather than substantive, the federal Declaratory Judgment Act should be applied, rather than state law. Incredible Investments, LLC v. Fernandez-Rundle, 984 F. Supp. 2d 1318, 1323-24 (S.D. Fla. 2013). Georgia’s Declaratory Judgment Act is procedural, not substantive. Travelers Casualty and Surety Co. v. Stewart, Case No. 1:14-cv-837, 2015 WL 11233187, *3 (N.D. Ga. Jan. 5, 2015). Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 25 of 33 19 Application of Georgia law leads to the same result. The purpose of Georgia’s Declaratory Judgment Act, O.C.G.A. § 9-1-4, et. seq., is to “settle and afford relief from uncertainty and insecurity with respect to rights, status and other legal relations.” The Georgia Supreme Court long ago recognized that the purpose of a declaratory judgment is to “permit determination of a controversy before obligations are repudiated or rights are violated.” State Highway Dep’t v. Ga. S. & Fla. R. Co., 216 Ga. 547, 548-49 (1961). Accordingly, under Georgia law an action for a declaratory judgment fails “where a simple action for breach of contract will give full and complete relief.” Braddy v. Morgan Oil Co., Inc., 183 Ga. App. 157, 158-59 (1987) (granting summary judgment on declaratory judgment claim where the question would be resolved by the outcome of the breach of contract claim). In City of Summerville v. Sellers, 82 Ga. App. 361, 361 (1950), the plaintiff petitioned for a declaratory judgment with respect to his rights under an alleged contract with defendant, but the court observed that the “only question” in the case was whether the defendant was “liable to the plaintiff for a breach of contract.” Id. According to the court, “[t]he mere existence of a controversy does not give rise to an action for a declaratory judgment.” Id. The court dismissed the petition because it “lack[ed] the essential ingredient of an alleged necessity for an adjudication to guide and protect Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 26 of 33 20 the plaintiff from uncertainty and insecurity with respect to future conduct.” Id.; see also, Pinnacle Benning LLC v. Clark Realty Capital, LLC, 314 Ga. App. 609, 613 (2012) (same). Plaintiff’s claim for breach of contract provides it the opportunity to pursue full and complete relief. The only real question in this case is whether there has been a breach of contract. The breach of contract claim necessarily resolves the claim for declaratory judgment, and issuing a declaration about the Agreement in addition to a judgment for breach of contract would result in an improperly issued advisory opinion. Because Plaintiff’s claim for declaratory judgment would be improper regardless of what facts Plaintiff may prove, it fails to state a claim upon which relief can be granted and should be dismissed. IV. Plaintiff Fails to State a Claim for Money Had and Received In Count Four of its Complaint, Plaintiff alleges a claim for money had and received, alleging that Waste Management “unlawfully billed and collected money to which it was not entitled.” (Compl., ¶ 61). Plaintiff further alleges that, under “principles of equity and good conscience” WMI should not be permitted to keep the money. Id. Under Georgia law, an action for money had and received is founded upon equitable principles that no party should enrich themselves at the expense of another. Vernon v. Assurance Forensic Accounting, Inc., 333 Ga. App. Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 27 of 33 21 377 (2015); Taylor v. Powertel, Inc., 250 Ga. App. 356, 359-60(2001) (“[a]n action for money had and received(,) although legal in form, is founded on the equitable principle that no one ought to unjustly enrich himself at the expense of another, and is a substitute for a suit in equity.”) However, such a cause of action only exists where no legal contract governs the parties’ rights. Baghdady v. Cent. Life Ins. Co., 224 Ga. App. 170, 171 (1996). In Baghdady, the plaintiff contended that he was entitled to recover insurance premiums paid under an insurance contract, on the ground that no coverage ever existed under the policy. The Court of Appeals affirmed the lower court’s dismissal of his claim, because a legal contract-the insurance policy- existed between the parties. The court held that the theory of money had and received was “not applicable to these facts.” Id.; accord Pacific W., Inc., v. LandAmerica Credit Servs., Inc., Case No. 1:05-cv-0895, 2007 WL 1970870, *4 (N.D. Ga. June 29, 2007) (“Plaintiff’s claim for money had and received is also precluded by the parties’ admittedly valid contract”); Am. Gen. Life and Acc. Ins. Co. v. Ward, 509 F. Supp. 2d 1324, 1330 (N.D. Ga. 2007) (dismissing claim for money had and received where it was not disputed that a contract existed between the parties). Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 28 of 33 22 There is no dispute here that a legal contract exists between the parties in this case. Indeed, as discussed above, Plaintiff acknowledges that its relationship with WMI was governed by an express, written contract. (Compl., ¶ 6). Accordingly, an action for money had and received is inapplicable to the facts of this case and Count V should be dismissed. V. Plaintiff’s Claim for Unjust Enrichment Is also Barred Because an Express Contract Exists Between the Parties and Under the Voluntary Payment Doctrine Plaintiff cannot maintain an equitable claim for unjust enrichment based on duties and conduct governed by a written contract. Indeed, the entire purpose of the unjust enrichment doctrine is to prevent a party from obtaining an undue benefit due to the absence of an express contract. Crook v. Foster, 333 Ga. App. 36, 39 (2015) (“Unjust enrichment is an equitable concept and applies when as a matter of fact there is no legal contract.”); Regional Pacesetters v. Halpern Enters., 165 Ga. App. 777 (1983) (“The theory of unjust enrichment applies when as a matter of fact there is no legal contract[.]”) (citations omitted). Plaintiff’s Complaint runs head first into this basic principle of law. As noted above, there is no dispute regarding the existence of an underlying express contract. Indeed, Plaintiff acknowledges that its claim for unjust enrichment is brought “only in the alternative” to its breach of contract claims. (Compl., ¶ 65). Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 29 of 33 23 Plaintiff’s own allegations as to the Agreement’s express terms applicable to the pricing conduct at issue forecloses an alternative claim based on “quasi-contract” equitable principles. Plaintiff alleges that “if parts of the contract are deemed void or unenforceable for any reason, then Plaintiff should be permitted to raise unjust enrichment in lieu of breach of contract.” Id. However, as noted above, Plaintiff has not adequately alleged that any of the Agreement is void or unenforceable. Moreover, the Agreement contains a severability clause, providing that a provision declared invalid or unenforceable “shall be severed from and shall not affect the remainder of this Agreement.” (Agreement, Ex. A, § 10(g)). Plaintiff’s claim for unjust enrichment also fails under the voluntary payment doctrine. Georgia courts have recognized that the voluntary payment doctrine applies with the same force to claims for unjust enrichment as it does to breach of contract claims. Hollifield v. Monte Vista Biblical Gardens, Inc., 251 Ga. App. 124, 131 (2001) (a party is not unjustly enriched by a voluntary payment); see also Cotton, 221 Ga. App. at 612 (1996) (“[A] party is not entitled to the recovery of restitutionary damages for unjust enrichment where there has been a voluntary payment of the money received.”); Ginsberg v. Termotto, 175 Ga. App. 265, 267 (1985) (plaintiff not entitled to damages for unjust enrichment where Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 30 of 33 24 payment was voluntary). Because Plaintiff voluntarily paid the charges under the terms of the Agreement for three years, it cannot now recover on a theory of unjust enrichment. CONCLUSION For the above-stated reasons, Waste Management, Inc. respectfully requests that the Court dismiss Plaintiff’s claims in their entirety. This 17 th day of February, 2017. 3344 Peachtree Road, NE, Suite 2400 Atlanta, Georgia 30326 (404) 876-2700 (telephone) (404) 875-9433 (facsimile) ddial@wwhgd.com npanayo@wwhgd.com WEINBERG, WHEELER, HUDGINS, GUNN & DIAL, LLC /s/ Nicholas P. Panayotopoulos David A. Dial Georgia Bar No. 220329 Nicholas P. Panayotopoulos Georgia Bar No. 560679 Attorneys for Defendant Waste Management, Inc. Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 31 of 33 25 RULE 7.1D CERTIFICATE OF TYPE, FORMAT AND FONT SIZE Pursuant to Local Rule 7.1D of the United States District Court for the Northern District of Georgia, the undersigned certifies that the foregoing submission to the Court was computer-processed, double-spaced between lines, and prepared with 14-point Times New Roman font. This 17th day of February, 2017. 3344 Peachtree Road, NE, Suite 2400 Atlanta, Georgia 30326 (404) 876-2700 (telephone) (404) 875-9433 (facsimile) WEINBERG, WHEELER, HUDGINS, GUNN & DIAL, LLC /s/ Nicholas P. Panayotopoulos David A. Dial Georgia Bar No. 220329 Nicholas P. Panayotopoulos Georgia Bar No. 560679 Attorneys for Defendant Waste Management, Inc. Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 32 of 33 26 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing pleading has been served by electronic filing and/or by depositing a true and correct copy of same in the U.S. Mail, proper postage affixed thereto, addressed to counsel of record as follows: E. Adam Webb, Esq. Matthew C. Klase, Esq. G. Franklin Lemond, Jr., Esq. Webb, Klase & Lemond, LLC 1900 The Exchange, S.E., Suite 480 Atlanta, Georgia 30339 Adam@WebbLLC.com Matt@WebbLLC.com Franklin@WebbLLC.com Wayne Charles, Esq. Wayne Charles, PC 395 Highgrove Drive Fayetteville, Georgia 30215 Wc115@bellsouth.net This 17 th day of February, 2017. 3344 Peachtree Road, NE, Suite 2400 Atlanta, Georgia 30326 (404) 876-2700 (telephone) (404) 875-9433 (facsimile) WEINBERG, WHEELER, HUDGINS, GUNN & DIAL, LLC /s/ Nicholas P. Panayotopoulos David A. Dial Georgia Bar No. 220329 Nicholas P. Panayotopoulos Georgia Bar No. 560679 Attorneys for Defendant Waste Management, Inc. Case 1:17-cv-00330-SCJ Document 6-1 Filed 02/17/17 Page 33 of 33 Case 1:17-cv-00330-SCJ Document 6-2 Filed 02/17/17 Page 1 of 6 Case 1:17-cv-00330-SCJ Document 6-2 Filed 02/17/17 Page 2 of 6 Case 1:17-cv-00330-SCJ Document 6-2 Filed 02/17/17 Page 3 of 6 Case 1:17-cv-00330-SCJ Document 6-2 Filed 02/17/17 Page 4 of 6 Case 1:17-cv-00330-SCJ Document 6-2 Filed 02/17/17 Page 5 of 6 Case 1:17-cv-00330-SCJ Document 6-2 Filed 02/17/17 Page 6 of 6