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

MOTION for Partial Summary Judgment

E.D. La.December 6, 2016

2016.12.06.Heebe.MPSJ.2396.docx IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA WASTE MANAGEMENT OF LOUISIANA, LLC CIVIL ACTION NO. 2:11-cv-02405 VERSUS JUDGE KURT D. ENGELHARDT RIVER BIRCH, INC., HIGHWAY 90, LLC, MAGISTRATE ROBY FREDERICK R. HEEBE, and ALBERT J. WARD, JR. MOTION FOR PARTIAL SUMMARY JUDGMENT NOW COMES, defendant, Frederick R. Heebe, through undersigned counsel, who respectfully submits this Motion for Partial Summary Judgment. As shown in the Memorandum in Support accompanying this Motion, there are no disputed issues of material fact and partial summary judgment should be entered against plaintiff, Waste Management of Louisiana, LLC (“Waste Management”), dismissing all claims against Mr. Heebe related to the closure of the Chef Menteur Landfill. Because Waste Management cannot show that Executive Order CRN 06-03 was terminated as a result of defendant’s conduct, but rather expired by its own terms and due to Waste Management’s own conduct, summary judgment dismissing its claims regarding the Chef Menteur Landfill is warranted. Case 2:11-cv-02405-KDE-KWR Document 195 Filed 12/06/16 Page 1 of 2 2 WHEREFORE, defendant, Frederick R. Heebe, prays that, after due proceedings are had, this Motion be granted and a partial summary judgment rendered in his favor and against plaintiff, Waste Management, dismissing its claims regarding the Chef Menteur Landfill and for such other and further relief as is appropriate under the circumstances. Respectfully submitted, /s/ William P. Gibbens Kyle Schonekas, 11817 William P. Gibbens, 27225 Andrea V. Timpa, 29455 SCHONEKAS, EVANS, MCGOEY & MCEACHIN, L.L.C. 909 Poydras Street, Ste. 1600 New Orleans, Louisiana 70112 (504) 680-6050 kyle@semmlaw.com billy@semmlaw.com andrea@semmlaw.com Attorneys for Frederick R. Heebe CERTIFICATE OF SERVICE I hereby certify that on December 6, 2016, I electronically filed the foregoing pleading with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all counsel of record. /s/ William P. Gibbens William P. Gibbens Case 2:11-cv-02405-KDE-KWR Document 195 Filed 12/06/16 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA WASTE MANAGEMENT OF LOUISIANA, LLC CIVIL ACTION NO. 2:11-cv-02405 VERSUS JUDGE KURT D. ENGELHARDT RIVER BIRCH, INC., HIGHWAY 90, LLC, MAGISTRATE ROBY FREDERICK R. HEEBE, and ALBERT J. WARD, JR. MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT Defendant, Frederick R. Heebe, respectfully submits this Memorandum in Support of his Motion for Partial Summary Judgment. As is shown below, there are no disputed issues of material fact and partial summary judgment should be entered against the plaintiff, Waste Management of Louisiana, LLC (“Waste Management”), dismissing all claims against Mr. Heebe related to the closure of the Chef Menteur landfill. Because Waste Management cannot show that Executive Order CRN 06-03 was terminated as a result of the defendants’ conduct and because it is undisputed that the Executive Order expired by its own terms and due to Waste Management’s own conduct, summary judgment dismissing Waste Management’s claims regarding the Chef Menteur landfill is warranted. INTRODUCTION As one of its RICO predicate acts, Waste Management alleges that the defendants bribed Mayor Ray Nagin with campaign contributions to revoke the emergency zoning permit that Case 2:11-cv-02405-KDE-KWR Document 195-1 Filed 12/06/16 Page 1 of 13 2 allowed Waste Management’s Chef Menteur landfill to operate on a temporary basis, and that as a result the Chef Menteur landfill was closed. That predicate act is subject of this motion. Specifically, Waste Management contends that the defendants bribed Mayor Nagin with campaign contributions to “reverse course on his emergency approval of the Chef Menteur landfill” and revoke the emergency zoning permit that allowed the Chef Menteur landfill to operate on a temporary basis after Hurricane Katrina. Third Am. Compl., Rec. Doc. 140, ¶ 11. Contrary to Waste Management’s allegations, however, Mayor Nagin did not “reverse course” due to bribery by the defendants. In fact, Mayor Nagin did not reverse course at all. In order to operate the Chef Menteur landfill, Waste Management needed a permit from the City of New Orleans. On February 9, 2006, Mayor Nagin signed Executive Order CRN 06- 03 (the “Executive Order”), which temporarily suspended the provisions of the city’s Comprehensive Zoning Ordinance requiring a conditional use permit, in order to allow the Chef Menteur landfill to operate on a temporary basis. See Ex. “A-1.” The Executive Order expressly provided that it expired after six months, in August 2006: Id., p. 2. The Executive Order also provided that Waste Management would enter into an “Agreement with the City of New Orleans” concerning the landfill and that Waste Management “stated its plan to file a conditional use application with the City, including holding the appropriate neighborhood meetings.” Id., p. 1-2, 7th and 8th “Whereas” clauses. Waste Management and the City of New Orleans then entered into an agreement on February 14, 2006 (the “Agreement”), which provided that “[a]s required, Waste Management Case 2:11-cv-02405-KDE-KWR Document 195-1 Filed 12/06/16 Page 2 of 13 3 shall apply for a conditional use permit through the City Planning Commission.” See Ex. “B-1,” ¶ 5 (emphasis added). Waste Management, therefore, had six months from February 9, 2006 to obtain a conditional use permit before the Executive Order suspending the city’s Comprehensive Zoning Ordinance expired. However, Waste Management failed to act timely before the Executive Order expired under its own terms in August 2006 and the Comprehensive Zoning Ordinance went back into effect. Accordingly, the Chef Menteur landfill closed on August 14, 2006 after the Executive Order naturally expired and Waste Management failed to obtain a permit, not because of any “reversal” by Mayor Nagin. Any alleged wrongful acts by the defendants are neither the “but for” nor the “proximate cause” of the closure of the Chef Menteur landfill. For these reasons, partial summary judgment should be granted, dismissing Waste Management’s RICO claims against Mr. Heebe alleged in connection with the closure of the Chef Menteur landfill. FACTS I. PROCEDURAL BACKGROUND A. Waste Management’s claims have been narrowed by the Court. Waste Management filed its lawsuit in September 2011, in the midst of the federal government’s ill conceived, and ultimately abandoned, investigation into River Birch, Inc. In its original complaint, Waste Management mimicked the allegations in media reports about the government’s probe and incorporated the factual basis for Henry Mouton, a former Louisiana Wildlife and Fisheries Commissioner who pleaded guilty to bribery. Between 2011 and today, the Court has narrowed Waste Management’s claims, including dismissing the RICO allegations related to Henry Mouton. See Rec. Doc. 131, p. 6 (stating that Case 2:11-cv-02405-KDE-KWR Document 195-1 Filed 12/06/16 Page 3 of 13 4 Waste Management’s RICO claims are dismissed “insofar as those claims are predicated on Defendants’ alleged bribery of Mouton”). What began as a wide-ranging lawsuit alleging antitrust violations, civil conspiracy, unfair trade practices, and racketeering has been limited by the Court’s rulings on the defendants’ motions to dismiss and by Waste Management’s multiple amended complaints in response to those rulings. With respect to the Chef Menteur landfill, Waste Management originally contended that the defendants bribed Henry Mouton to cause Mayor Ray Nagin to withdraw a temporary emergency authorization that allowed the landfill to operate. However, Waste Management did not allege how Mr. Mouton was able to accomplish such a task, and the Court found that Waste Management failed to plead “sufficient facts to allow a reasonable inference, as opposed to mere speculation, that former Mayor Nagin’s withdrawal of Chef Menteur’s authorization was because of actions by Mouton, taken as a result of bribery allegedly attributable to defendants, rather than a mere coincidence.” Rec. Doc. 98, p. 6. Accordingly, the Court found that Waste Management “failed to state a viable RICO claim regarding the Chef Menteur Landfill” and dismissed it, subject to amendment. Id. Waste Management then filed an amended complaint, offering a wholly new RICO theory for the closing of the Chef Menteur landfill: that the defendants bribed Mayor Nagin with $20,000 in campaign contributions. Doc. 140, ¶ 11. Even assuming, however, that Waste Management could prove the bribery allegation, which is specifically denied, summary judgment is appropriate here because Waste Management lost its temporary authorization to operate the Chef Menteur landfill as a result of its own conduct and the expiration of the Executive Order. Case 2:11-cv-02405-KDE-KWR Document 195-1 Filed 12/06/16 Page 4 of 13 5 II. THE CHEF MENTEUR LANDFILL. The following facts relating to the Chef Menteur landfill are undisputed: Former Mayor Ray Nagin signed Executive Order CRN 06-03, on February 9, 2006, suspending certain sections of the New Orleans Comprehensive Zoning Ordinance (the “CZO”) to allow a construction and demolition landfill at 16600 Chef Menteur Highway. See Exh. “A- 1.” Under the Executive Order, certain provisions of the CZO were suspended “to facilitate the prompt permitting and operation of an [sic] construction and debris landfill to accommodate the urgent need for debris disposal in the City.” Id. The Executive Order, however, only provided for the temporary operation of the construction and demolition debris (“C&D”) Landfill at 16600 Chef Menteur Highway (the “Chef Menteur Landfill”). Specifically, the Executive Order allowed Waste Management to operate an unpermitted landfill for a maximum period of six months, during which time Waste Management was to file a conditional use application. See Exh. “A-1.” Executive Order CRN 06-03 reflects that Waste Management planned to file a conditional use application with the City, including holding the appropriate neighborhood meetings. Id. Executive Order CRN 06-03 then specified that its “provisions … shall be effective for a period of six months unless earlier rescinded by” Mayor Nagin “or by other operation of law.” Exh. “A-1,” § 4 (emphasis added). Thus, by its own terms, Executive Order CRN 06-03 was scheduled to expire six months from its inception on February 9, 2006. Id. In connection with the issuance of the Executive Order, Waste Management and the City of New Orleans entered into an Agreement on February 14, 2006, whereby Waste Management expressly agreed: Case 2:11-cv-02405-KDE-KWR Document 195-1 Filed 12/06/16 Page 5 of 13 6 Exh. “B-1,” para. 5 (emphasis added). Prior to the expiration of the Executive Order, Waste Management was required to apply for a conditional use permit and conduct neighborhood meetings under both the Executive Order and the Agreement. With a written authorization to operate that was valid for only six months and without applying for a conditional use permit, Waste Management began operations at the Chef Menteur landfill in April 2006. See Doc. 140, ¶ 43. On July 13, 2006, the City of New Orleans issued a press release announcing that Executive Order CRN 06-03 would expire on August 14, 2006; that the Executive Order “allowed for the use of the Chef Menteur Highway Landfill for six months”; and that former Mayor Nagin would “not extend, renew, reissue and/or reauthorize Executive Order CRN 06-03.” See Ex. “C-1.” On August 14, 2006, the City formally notified Waste Management that it must “cease and desist all operations” of the Chef Menteur landfill by August 15, 2006. See Ex. “A-2.” Specifically, the City stated that, “As required in the February 14, 2006, agreement between the City of New Orleans and Waste Management, Waste Management agreed to apply for a conditional use permit through the City Planning Commission.” Id. (emphasis added). The City further advised Waste Management: As stated previously, Mayor Nagin will not renew or extend Executive Order CRN 06-03. Moreover, there is no request for a conditional use permit from Waste Management pending before the City Planning Commission and/or the City Council. Considering the foregoing, your failure to adhere to the cease and desist order will be deemed a violation of the City of New Orleans Comprehensive Zoning Ordinance and the applicable provisions of the City Code. Id. (emphasis added). Waste Management did not timely comply with this requirement. Instead, Waste Management waited to file its conditional use permit application until August 14, 2006, Case 2:11-cv-02405-KDE-KWR Document 195-1 Filed 12/06/16 Page 6 of 13 7 after the Executive Order expired and more than a month after the City of New Orleans issued its press release announcing that the Executive Order would be allowed to expire. III. THIS LITIGATION. As a result of several rulings on motions to dismiss brought by the defendants, Waste Management filed its Third Amended Complaint on April 28, 2015, in which Waste Management alleges that the defendants engaged in illegal and tortious conduct which resulted in the “premature closure of the Chef Menteur Landfill….” Doc. 140, ¶ 4.1 Waste Management claims that the defendants took these actions in order to “to dominate the greater New Orleans landfill disposal markets by limiting competition.” Id., ¶¶ 136, 138, 141, 144. Based on these allegations, Waste Management asserts two counts of alleged violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962(c) and (d). Id., ¶¶ 134- 145.2 What Waste Management fails to acknowledge in its Third Amended Complaint is that Executive Order CRN 06-03, as well as the Agreement Waste Management executed with the City, never contemplated that Waste Management could operate on an “emergency” basis indefinitely or that the requirements of the CZO were suspended indefinitely. Rather, the governing documents specifically required Waste Management to apply for a conditional use 1 Waste Management claims that defendants funded an illegal “wide-ranging public opposition campaign”; made illegal bribes and campaign contributions to influence closure of the Landfill; and sponsored improper lawsuits and other alleged actions to “manufactur[e] the appearance of … public outcry and widespread opposition” to the Chef Menteur Landfill. Id., ¶¶ 44, 45, 46, 56, 57, 61, 72-74. For purposes of this Motion only, even if Waste Management could prove these allegations, which is denied, the documentary evidence indisputably establishes that to continue operation of the Chef Menteur Landfill, Waste Management was required to timely submit a conditional use application and obtain a conditional use permit which it failed to do. 2 Waste Management also attempted to assert a claim for civil conspiracy under Louisiana law. Id., ¶¶ 146-48. That claim was dismissed with prejudice on June 22, 2015. Doc. 152. Case 2:11-cv-02405-KDE-KWR Document 195-1 Filed 12/06/16 Page 7 of 13 8 permit and conduct neighborhood meetings through normal channels before expiration of the six month period. Because Waste Management failed to comply with the explicit terms of Executive Order CRN 06-03 and its contract with the City, there was no “premature closure” of the Chef Menteur landfill. Instead, the Executive Order granting Waste Management’s temporary authorization to operate terminated by its own language, both as a result of the expiration of the six month term and due to Waste Management’s failure to timely apply for a conditional use permit and conduct neighborhood meetings. Waste Management may not shift the blame for the expiration of the “emergency” operation period of the Chef Menteur Landfill to the defendants. There are no disputed issues of material fact as to the terms of the Executive Order limiting its effect to a six month period and requiring Waste Management to apply for a conditional use application and conduct neighborhood meetings. Therefore, Mr. Heebe is entitled to dismissal of all claims asserted against him in the Third Amended Complaint in connection with the Chef Menteur Landfill. LAW AND ARGUMENT I. SUMMARY JUDGMENT STANDARD. Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The assertion that a fact is not genuinely disputed must be supported by citation to “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). On summary judgment, the issue to be decided is: whether a fair minded [trier of fact] could return a verdict for the plaintiff on the evidence presented . . . [t]he mere existence of a Case 2:11-cv-02405-KDE-KWR Document 195-1 Filed 12/06/16 Page 8 of 13 9 scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the [trier of fact] could reasonably find for the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The movant bears the initial burden of showing the absence of a genuine issue of material fact, even when all reasonable doubts and inferences are resolved “in the light most favorable to the non-movant.” Aly v. City of Lake Jackson, 605 Fed.Appx. 260, 262 (5th Cir. 2015) (McKee v. City of Rockwall, 877 F.2d 409, 410 (5th Cir. 1989)). When summary judgment is sought on an issue for which the non-movant bears the burden of proof at trial, the movant may satisfy his burden of proof by “merely point[ing] to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). “Only when ‘there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party’ is a full trial on the merits warranted.” Id. (quoting Anderson, 477 U.S. at 249). Thus, “if a party ‘fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,’ a court should enter summary judgment.” Williams v. J.B. Hunt Transp., Inc., 826 F.3d 806, 810 (5th Cir. 2016) (quoting Celotex, 477 U.S. at 322). To defeat summary judgment, “[t]he nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial.” Axis Oilfield Rentals, LLC v. Mining, Rock, Excavation & Constr., LLC, 166 F.Supp.3d 684, 690 (E.D. La. 2016). Case 2:11-cv-02405-KDE-KWR Document 195-1 Filed 12/06/16 Page 9 of 13 10 II. PARTIAL SUMMARY JUDGMENT SHOULD BE ENTERED DISMISSING ALL CLAIMS RELATED TO THE CHEF MENTEUR LANDFILL. A. The Court may grant summary judgment on specific RICO predicate acts. A RICO plaintiff must prove that each defendant conducted or participated directly or indirectly in the conduct of a RICO enterprise by committing at least two acts of racketeering in furtherance of the alleged illegal enterprise. See 18 U.S.C. § 1961(5); Sedima v. S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n. 14 (1985); McLaughlin v. Anderson, 962 F.2d 187, 192 (2d Cir. 1992) (stating that “the bare minimum of a RICO charge is that a defendant personally committed or aided and abetted the commission of two predicate acts”). A party may move for summary judgment “identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought.” Fed. R. Civ. P. 56(a) (emphasis added). In ruling on summary judgment motions in RICO cases, courts may consider each alleged predicate act separately and grant summary judgment on some or all of the alleged predicate acts of racketeering. See Andrea Doreen Ltd. v. Bldg. Material Local Union 282, 299 F. Supp. 2d 129, 152 (E.D.N.Y. 2004) (granting partial summary judgment on 11 of 16 RICO predicate acts); Curtis v. Wilks, 704 F. Supp. 2d 771, 790 (N.D. Ill. 2010) (granting partial summary judgment on some but not all RICO predicate acts). B. RICO’S CAUSATION REQUIREMENT. RICO permits a civil action to be brought by “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter ….” 18 U.S.C. § 1964(c). The plaintiff’s right to sue requires a showing that the alleged violation of section 1962 is “not only a ‘but for’ cause of his injury, but was the proximate cause as well.” Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 457 (2006) (quoting Holmes v. Sec. Inv'r Prot. Corp., 503 U.S. 258, 268 Case 2:11-cv-02405-KDE-KWR Document 195-1 Filed 12/06/16 Page 10 of 13 11 (1992)). The plaintiff, therefore, must establish “a direct causal connection” to prevail in a RICO civil action. Id at 460. As held by the United States Supreme Court: A RICO plaintiff cannot circumvent the proximate-cause requirement simply by claiming that the defendant’s aim was to increase market share at a competitor's expense. … When a court evaluates a RICO claim for proximate causation, the central question it must ask is whether the alleged violation led directly to the plaintiff's injuries. Id. at 460–61 (emphasis added). C. WASTE MANAGEMENT CANNOT ESTABLISH CAUSATION. With respect to the cause of the closure of the Chef Menteur landfill, there are no disputed issues of material fact. Executive Order CRN 06-03, by its own terms, did not grant to Waste Management an indefinite suspension of the provisions of the CZO requiring application for a conditional use permit. Rather, the suspension was temporary and remained in effect only “for a period of six months unless earlier rescinded.” See Exh. “A-1,” § 4. The Executive Order, which recognized Waste Management’s plans to file a conditional use application and conduct neighborhood meetings, contained no guarantee of any further extension and certainly did not exempt Waste Management, indefinitely, from the requirements of the CZO. As such, Waste Management cannot establish “but for” or “proximate causation,” which are essential elements of its Count I and Count II RICO claims with regard to the closure of the Chef Menteur Landfill. As a matter of law, its authorization to operate was only for six months.3 3 Although the expiration of the Executive Order alone defeats Waste Management’s claim, Waste Management’s causation theory would also depend on a series of subsequent, speculative events, including that Waste Management would have prevailed at public hearings before the City Planning Commission and that the New Orleans City Council would have granted a conditional use permit. Accordingly, even if it could overcome the threshold issue of the expiration of the Executive Order, Waste Management’s claim rests on a series of hypothetical political decisions by numerous public officials. Case 2:11-cv-02405-KDE-KWR Document 195-1 Filed 12/06/16 Page 11 of 13 12 Moreover, the February 14, 2006, Agreement between Waste Management and the City states that it was granted under the City’s “emergency powers” and explicitly required Waste Management to “apply for a conditional use permit through the City Planning Commission.” See Exh. “B” ¶ 5. Waste Management cannot prove its timely compliance with this requirement, especially when it did not file its application until August 14, 2006, which was more than a month after the City’s press release announcing that the Executive Order would be allowed to expire. See Exhs. “A-3” and “B.” As a result, Executive Order CRN 06-03, which temporarily suspended the need for Waste Management to comply with the CZO, simply expired by its own terms on August 14, 2006. Any alleged wrongful acts by defendants are neither the “but for” nor “proximate cause” of the closure of the Chef Menteur Landfill. As in Anza, Waste Management’s allegation that defendants’ purported goal “was to increase market share at a competitor’s expense” is simply insufficient to satisfy causation. Anza, 547 U.S. at 457. Waste Management must prove a “direct causal connection,” which it cannot do in light of the undisputed facts. Id. at 460. Accordingly, partial summary judgment should be entered dismissing with prejudice all claims against Mr. Heebe related to the closure of the Chef Menteur Landfill. Waste Management cannot satisfy its evidentiary burden of proof on causation, an essential element of these claims. Lindsey, 16 F.3d at 618; Williams, 826 F.3d at 810; Celotex, 477 U.S. at 322. Case 2:11-cv-02405-KDE-KWR Document 195-1 Filed 12/06/16 Page 12 of 13 13 CONCLUSION For the foregoing reasons, the Motion for Partial Summary Judgment submitted by defendant, Frederick R. Heebe, should be granted. All claims asserted by plaintiff, Waste Management of Louisiana, LLC, against Mr. Heebe regarding the closure of the Chef Menteur Landfill should be dismissed with prejudice. Respectfully submitted, /s/ William P. Gibbens Kyle Schonekas, 11817 William P. Gibbens, 27225 Andrea V. Timpa, 29455 SCHONEKAS, EVANS, MCGOEY & MCEACHIN, L.L.C. 909 Poydras Street, Ste. 1600 New Orleans, Louisiana 70112 (504) 680-6050 kyle@semmlaw.com billy@semmlaw.com andrea@semmlaw.com Attorneys for Frederick R. Heebe CERTIFICATE OF SERVICE I hereby certify that on December 6, 2016, I electronically filed the foregoing pleading with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all counsel of record. /s/ William P. Gibbens William P. Gibbens Case 2:11-cv-02405-KDE-KWR Document 195-1 Filed 12/06/16 Page 13 of 13 2016.12.06.Heebe.Statement.Uncontested.Facts.in.Supp.MPSJ.docx IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA WASTE MANAGEMENT OF LOUISIANA, LLC CIVIL ACTION NO. 2:11-cv-02405 VERSUS JUDGE KURT D. ENGELHARDT RIVER BIRCH, INC., HIGHWAY 90, LLC, MAGISTRATE ROBY FREDERICK R. HEEBE, and ALBERT J. WARD, JR. STATEMENT OF UNCONTESTED MATERIAL FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT Pursuant to LR 56.1, defendant, Frederick R. Heebe, respectfully submits this Statement of Uncontested Material Facts in Support of his Motion for Partial Summary Judgment: 1. Former Mayor Ray Nagin signed Executive Order CRN 06-03, on February 9, 2006, suspending certain sections of the New Orleans Comprehensive Zoning Ordinance (the “CZO”) to allow a construction and demolition landfill at 16600 Chef Menteur Highway. See Exh. “A-1,” attached to Memo in Support. 2. Pursuant to the dictates of the Executive Order, certain provisions of the CZO were suspended “to facilitate the prompt permitting and operation of an [sic] construction and debris landfill to accommodate the urgent need for debris disposal in the City.” Id. Case 2:11-cv-02405-KDE-KWR Document 195-2 Filed 12/06/16 Page 1 of 4 2 3. The Executive Order, however, only provided for the temporary operation of the construction and demolition debris (“C&D”) Landfill at 16600 Chef Menteur Highway (the “Chef Menteur Landfill”). Id. 4. This Executive Order allowed plaintiff, Waste Management of Louisiana, LLC (“Waste Management”), to operate an unpermitted Landfill for a maximum period of six (6) months, during which period Waste Management was to file a conditional use application. Id. 5. Executive Order CRN 06-03 reflects that Waste Management planned to file a conditional use application with the City, including holding the appropriate neighborhood meetings. Id. 6. Executive Order CRN 06-03 then specifies that its “provisions … shall be effective for a period of six months unless earlier rescinded by [former Mayor Nagin] or by other operation of law.” Id., § 4 (emphasis added). 7. Thus, by its own terms, Executive Order CRN 06-03 was scheduled to expire on August 14, 2006. Id. 8. In conjunction with the issuance of the Executive Order, Waste Management and the City of New Orleans entered into the Agreement on February 14, 2006, whereby Waste Management expressly agreed: See Exh. “B-1,” attached to Memo in Support. (emphasis added). Case 2:11-cv-02405-KDE-KWR Document 195-2 Filed 12/06/16 Page 2 of 4 3 9. Prior to expiration of the Executive Order, Waste Management was required to apply for a conditional use permit and conduct neighborhood meetings under both the Executive Order and the Agreement. Id. 10. With a written authorization to operate that was valid for only six months, Waste Management began operations at the Chef Menteur Landfill in April 2006. See Doc. 140, ¶ 43. 11. On July 13, 2006, the City of New Orleans issued a press release announcing that Executive Order CRN 06-03 will expire on August 14, 2006, and that former Mayor Nagin “will not extend, renew, reissue and/or reauthorize Executive Order CRN 06-03.” See Exh. “C-1,” attached to Memo in Support. 12. The City announced that absent the issuance of a conditional use permit to Waste Management, the Chef Menteur Landfill will be closed on August 14, 2006. Id. 13. On August 14, 2006, the City formally notified Waste Management that it must “cease and desist all operations of the” Chef Menteur Landfill by August 15, 2006. See Exh. “A-2,” attached to Memo in Support. 14. The City stated to Waste Management on August 14, 2006: As required in the February 14, 2006, agreement between the City of New Orleans and Waste Management, Waste Management agreed to apply for a conditional use permit through the City Planning Commission. … As stated previously, Mayor Nagin will not renew or extend Executive Order CRN 06-03. Moreover, there is no request for a conditional use permit from Waste Management pending before the City Planning Commission and/or the City Council. Considering the foregoing, your failure to adhere to the cease and desist order will be deemed a violation of the City of New Orleans Comprehensive Zoning Ordinance and the applicable provisions of the City Code. … Id. (emphasis added). Case 2:11-cv-02405-KDE-KWR Document 195-2 Filed 12/06/16 Page 3 of 4 4 15. Waste Management waited until August 14, 2006, to file its application, which was the same date the Executive Order expired and more than a month after the City of New Orleans issued its press release announcing that the Executive Order would be allowed to expire. Respectfully submitted, /s/ William P. Gibbens Kyle Schonekas, 11817 William P. Gibbens, 27225 Andrea V. Timpa, 29455 SCHONEKAS, EVANS, MCGOEY & MCEACHIN, L.L.C. 909 Poydras Street, Ste. 1600 New Orleans, Louisiana 70112 (504) 680-6050 kyle@semmlaw.com billy@semmlaw.com andrea@semmlaw.com Attorneys for Frederick R. Heebe CERTIFICATE OF SERVICE I hereby certify that on December 6, 2016, I electronically filed the foregoing pleading with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all counsel of record. /s/ William P. Gibbens William P. Gibbens Case 2:11-cv-02405-KDE-KWR Document 195-2 Filed 12/06/16 Page 4 of 4 Case 2:11-cv-02405-KDE-KWR Document 195-3 Filed 12/06/16 Page 1 of 1 Case 2:11-cv-02405-KDE-KWR Document 195-4 Filed 12/06/16 Page 1 of 2 Case 2:11-cv-02405-KDE-KWR Document 195-4 Filed 12/06/16 Page 2 of 2 Case 2:11-cv-02405-KDE-KWR Document 195-5 Filed 12/06/16 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA WASTE MANAGEMENT OF LOUISIANA, LLC CIVIL ACTION NO. 2:11-cv-02405 VERSUS JUDGE KURT D. ENGELHARDT RIVER BIRCH, INC., HIGHWAY 90, LLC, MAGISTRATE ROBY FREDERICK R. HEEBE, and ALBERT J. WARD, JR. DECLARATION OF WILLIAM P. GIBBENS I, William P. Gibbens declare under penalty of perjury under the laws of the United States of America that the following is true and correct: 1. I am an attorney at the law firm of Schonekas, Evans, McGoey & McEachin, LLC and represent the defendant, Frederick R. Heebe “(Heebe”), in this action. 2. I have personal knowledge of the matters set forth in this declaration, and if called to testify as to these matters, I can do so competently. 3. On or about October 13, 2016, plaintiff, Waste Management of Louisiana, LLC (“Waste Management”), produced documents in response to discovery requests issued by Heebe, including: a. Agreement between City of New Orleans and Waste Management dated February 14, 2006. [WM-00002892 – 2893] Executed this 6 th day of December, 2016, in New Orleans, Louisiana. /s/ William P. Gibbens William P. Gibbens Case 2:11-cv-02405-KDE-KWR Document 195-6 Filed 12/06/16 Page 1 of 1 Case 2:11-cv-02405-KDE-KWR Document 195-7 Filed 12/06/16 Page 1 of 2 Case 2:11-cv-02405-KDE-KWR Document 195-7 Filed 12/06/16 Page 2 of 2 Case 2:11-cv-02405-KDE-KWR Document 195-8 Filed 12/06/16 Page 1 of 2 Case 2:11-cv-02405-KDE-KWR Document 195-8 Filed 12/06/16 Page 2 of 2 CITY OF NEW ORLEANS MAYORS OFFICE OF COMMUNICATIONS 1300 PERDIDO STREET, SUITE 2E04 NEW ORLEANS, LOUISIANA 70112 504-658-4940 C. Ray Nagin MAYOR FOR IMMEDIATE RELEASE July 13, 2006 Mayor Does Not Renew Executive Order Landfill Set to Close August 14th (New Orleans, LA) Today Mayor C. Ray Nagin announced the expiration of the Executive Order regarding the operation of the Chef Menteur Highway Landfill effective August 14, 2006. Mayor Nagin will not renew or extend Executive Order CRN 06-03 for construction and demolition debris disposal at the Chef Menteur Highway Landfill. This executive order allowed for the use of the Chef Menteur Highway Landfill for six months and was set up to only receive non-toxic C&D materials. Independent testing was done on air and water quality on May 24th, 27th, and on June 5, 2006 by Severn Laboratory in collaboration with the Louisiana Department of Environmental Quality and the Louisiana Environmental Action Network with results indicating no contamination at or above health risk levels. The complete test report is available at www.deq.louisiana.gov. For more information, please contact the Mayor’s Press Office at (504) 658-4940. --END-- Sign up to have City Hall news, press releases, and other updates from Mayor C. Ray Nagin emailed directly to you. To subscribe, go to http://www.new-orleans.la.us/home/features/all_lists.php Office of Communications City Hall, 1300 Perdido St. Office: 504-658-4000 New Orleans, LA 70112 Fax: 504-658-4938 https://web.archive.org/web/20061103063701/http:/www.cityofno.com/portal.aspx?portal=1&load=~/PortalModules/ViewPressRelease.ascx&itemid=3642 Case 2:11-cv-02405-KDE-KWR Document 195-9 Filed 12/06/16 Page 1 of 3 HOME RESIDENTS BUSINESSES GOVERNMENT VISITORS Sign In Sign Up Site Map Site Info Contact Us Search City Web Site: Advanced Search Home Page EPA Information Temporary Housing and Shelter Permitting Information - Updated Louisiana Recovery Corporation City Purchasing Portal City Information Events Calendar Site Policies & Information Important Phone Numbers Departments & Agencies Select A Department Department Phone Directory » City of New Orleans Services Pay Parking Tickets Pay Personal Auto Tax Pay Traffic Tickets Pay Real Estate Tax Pay Sales Tax All Services » Site Font Styles Verdana Medium Change Site Font Styles Contact Us Having trouble with our website or just have a question or comment for us? Click here to contact us. Add To Profile Print CITY OF NEW ORLEANS MAYORS OFFICE OF COMMUNICATIONS 1300 PERDIDO STREET, SUITE 2E04 NEW ORLEANS, LOUISIANA 70112 504-658-4940 C. Ray Nagin MAYOR FOR IMMEDIATE RELEASE July 13, 2006 Mayor Does Not Renew Executive Order Landfill Set to Close August 14th (New Orleans, LA) Today Mayor C. Ray Nagin announced the expiration of the Executive Order regarding the operation of the Chef Menteur Highway Landfill effective August 14, 2006. Mayor Nagin will not renew or extend Executive Order CRN 06-03 for construction and demolition debris disposal at the Chef Menteur Highway Landfill. This executive order allowed for the use of the Chef Menteur Highway Landfill for six months and was set up to only receive non- toxic C&D materials. Independent testing was done on air and water quality on May 24th, 27th, and on June 5, 2006 by Severn Laboratory in collaboration with the Louisiana Department of Environmental Quality and the Louisiana Environmental Action Network with results indicating no contamination at or above health risk levels. The complete test report is available at www.deq.louisiana.gov. For more information, please contact the Mayor’s Press Office at (504) 658-4940. --END-- Sign up to have City Hall news, press releases, and other updates from Mayor C. Ray Nagin emailed directly to you. To subscribe, go to http://www.new- orleans.la.us/home/features/all_lists.php Office of Communications City Hall, 1300 Perdido St. Office: 504-658-4000 New Orleans, LA 70112 Fax: 504-658-4938 Home | Residents | Businesses | Government | Visitors | Site Info | Site Map | Contact Us All content materials © The City of New Orleans http://www.cityofno.com/portal.aspx?portal=1&load=~/PortalModules/ViewPressRe Go OCT NOV 3 2005 2006 1 captures 3 Nov 06 - 3 Nov 06 Case 2:11-cv-02405-KDE-KWR Document 195-9 Filed 12/06/16 Page 2 of 3 -- Write ABOVE THIS LINE to post a reply -- City of New Orleans Public Records Requests A message was sent to you regarding record request #16-2246: Ms. Abramson: This information is available online at: https://web.archive.org/web/20061103063701/http:/www.cityofno.com/portal.aspx? portal=1&load=~/PortalModules/ViewPressRelease.ascx&itemid=3642 Sincerely, Anita B. Curran Deputy City Attorney Law Department 1300 Perdido St., Ste. 5E03 New Orleans, LA 70112 From: New Orleans City Attorney"s Office To: Andi Abramson Subject: [External Message Added] City of New Orleans records request 16-2246 Date: Wednesday, November 30, 2016 11:37:07 AM View Request #16-2246. Too many emails? Change your email settings here Like NextRequest? Recommend us to another government! Case 2:11-cv-02405-KDE-KWR Document 195-9 Filed 12/06/16 Page 3 of 3 2016.12.06.Heebe.Not.Submission.2021.docx IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA WASTE MANAGEMENT OF LOUISIANA, LLC CIVIL ACTION NO. 2:11-cv-02405 VERSUS JUDGE KURT D. ENGELHARDT RIVER BIRCH, INC., HIGHWAY 90, LLC, MAGISTRATE ROBY FREDERICK R. HEEBE, and ALBERT J. WARD, JR. NOTICE OF SUBMISSION Please take notice that defendant, Frederick R. Heebe, in accordance with Rule 7.2 of the Local Civil Rules of the United States District Court for the Eastern District of Louisiana, hereby submits his Motion for Partial Summary Judgment for decision on December 21, 2016, at 9:30 am. before the Honorable Kurt D. Engelhardt, United States District Court, Eastern District of Louisiana, 500 Poydras Street, Courtroom C351, New Orleans, Louisiana. Dated: December 6, 2016. Respectfully submitted, /s/ William P. Gibbens Kyle Schonekas, 11817 William P. Gibbens, 27225 Andrea V. Timpa, 29455 SCHONEKAS, EVANS, MCGOEY & MCEACHIN, L.L.C. 909 Poydras Street, Ste. 1600 New Orleans, Louisiana 70112 (504) 680-6050 kyle@semmlaw.com billy@semmlaw.com andrea@semmlaw.com Attorneys for Frederick R. Heebe Case 2:11-cv-02405-KDE-KWR Document 195-10 Filed 12/06/16 Page 1 of 2 2 CERTIFICATE OF SERVICE I hereby certify that on December 6, 2016, I electronically filed the foregoing pleading with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to all counsel of record. /s/ William P. Gibbens William P. Gibbens Case 2:11-cv-02405-KDE-KWR Document 195-10 Filed 12/06/16 Page 2 of 2