Opinion
No. 3:22-cv-59-DPM
2023-08-23
ALLEN BETH INCORPORATED, Plaintiff v. WASTE CONNECTIONS US, INC. and Waste Connections of Arkansas, Inc., Defendants
John M. Rainwater, Rainwater, Holt & Sexton P.A., Little Rock, AR, Nicholas W. Armstrong, Pro Hac Vice, Oscar M. Price, IV, Pro Hac Vice, Price Armstrong, LLC, Birmingham, AL, for Plaintiff. Casey T. Clausen, Pro Hac Vice, Beveridge & Diamond, P.C., Seattle, WA, Eric Lawrence Klein, Pro Hac Vice, Beveridge & Diamond P.C., Boston, MA, James Slaughter, Pro Hac Vice, Nessa Horewitch Coppinger, Pro Hac Vice, Beveridge & Diamond, P.C., Washington, DC, Michael Bailey Heister, Steven W. Quattlebaum, Quattlebaum, Grooms & Tull PLLC, Little Rock, AR, Noah P. Watson, Arkansas Attorney General's Office, Little Rock, AR, for Defendants.
John M. Rainwater, Rainwater, Holt & Sexton P.A., Little Rock, AR, Nicholas W. Armstrong, Pro Hac Vice, Oscar M. Price, IV, Pro Hac Vice, Price Armstrong, LLC, Birmingham, AL, for Plaintiff. Casey T. Clausen, Pro Hac Vice, Beveridge & Diamond, P.C., Seattle, WA, Eric Lawrence Klein, Pro Hac Vice, Beveridge & Diamond P.C., Boston, MA, James Slaughter, Pro Hac Vice, Nessa Horewitch Coppinger, Pro Hac Vice, Beveridge & Diamond, P.C., Washington, DC, Michael Bailey Heister, Steven W. Quattlebaum, Quattlebaum, Grooms & Tull PLLC, Little Rock, AR, Noah P. Watson, Arkansas Attorney General's Office, Little Rock, AR, for Defendants.
ORDER
D.P. Marshall Jr., United States District Judge
The parties continue to wrestle about whether Allen Beth is the correct plaintiff. The record from the first round, as supplemented by the evidentiary materials added in the current round, makes a few things clear enough. Waste Connections's predecessor made a contract with "Sharp Office Supply" in Ash Flat. Shelly Johnson signed as an owner. The parties' contract, Doc. 25-1, is appended. The contracting parties did business with each other for more than fifteen years. Allen Beth did not always turn square corners when it came to corporate names, fictitious names, and successors. But Shelly Johnson and her husband, Jeff, have been involved in the business through all these years. Allen Beth's amended complaint provides some of the corporate history.
After that pleading was filed, though, there were two more corporate developments. Allen Beth appears to have become "Sharp Office Furniture and Logistics, Inc." Doc. 48-2. Shelly Johnson is the corporate treasurer, and Jeff Johnson is the president, as he was of Allen Beth. Doc. 48-2; Doc. 56-1. In addition, "Sharp Office Supply, Inc." has been incorporated — by other individuals, but at the same address where this small business has long operated. Doc. 48-1. This is intriguing, for the new entity carries the name of the original plaintiff. Doc. 1; Doc. 43 at 6-7. The why behind these two recent twists remains unexplained.
Whatever the whole story may be, it does not make any legal difference at this point. On the current record as a whole, Allen Beth has standing, and is the real party in interest in substance, because it made the original contract through an unregistered d/b/a name. Iowa Public Service Co. v. Medicine Bow Coal Co., 556 F.2d 400 (8th Cir. 1977); Fed. R. Civ. P. 17. Any mis-naming issue can be corrected in due course. Waste Connections's motion to dismiss based on the naming and entity issues is denied without prejudice to renewal, if need be, on a more complete record.
Waste Connections also asks to end the case now on the merits. This request cannot be resolved on the motion to dismiss. But, in the alternative Waste Connections seeks summary judgment and has stated material facts supported by affidavits. The fighting issue is a notice-and-cure provision in the parties' contract. "Customer shall provide [Waste Connections] with written notice of any problem which it believes constitutes a failure by [Waste Connections] to fully perform its obligations under this Agreement. [Waste Connections] will be considered in breach of this Agreement if [Waste Connections] does not cure the problem in ten (10) business days after receiving such notice." Appendix at ¶ 9a.
Allen Beth did not provide pre-suit notice of any overcharges. This case was filed in state court on 26 January 2022. Waste Connections calculated the alleged overcharges paid by Allen Beth for the five-year period before the suit began, determined that amount (adjusted for inflation) to be $2,698.87, added interest at 6%, and got a total of $2,860.80. On 8 February 2022, Kendrick Ketchum (Waste Connections's district manager for Arkansas) met with Shelly Johnson at the business. Ketchum gave Johnson a check for $3,000.00 (which she accepted but has never cashed), explained what the check covered, and informed her that Waste Connections had reduced Allen Beth's service rate to an amount less than it was in January 2017 and that Waste Connections would not charge Allen Beth the fuel surcharge fee in the future. To Ketchum, Johnson seemed satisfied with Waste Connections's fix of the alleged overcharges.
These are the material facts as stated by Waste Connections. Doc. 48-1. Allen Beth has responded to them with various legal arguments rather than with proof showing some genuine dispute. LOCAL RULE 56.1; Conseco Life Insurance Co. v. Williams, 620 F.3d 902, 909 (8th Cir. 2010). In a footnote, Allen Beth does say it disagrees with Waste Connections's characterization of the conversation between Kendrick Ketchum and Shelly Johnson, as well as whether that exchange and the tender of the $3,000.00 check was a legitimate attempt to cure the breach. Doc. 56 at 11, n.6. This factually unsupported aside does not create a genuine issue of material fact. Conseco, 620 F.3d at 909. Allen Beth also argues that it would be premature to address notice and cure given the lack of discovery on the parties' disputes and communications about the alleged overcharges. But no affidavit or declaration establishing a good reason to defer this issue pending some necessary discovery has been offered. Fed. R. Civ. P. 56(d). The Court takes judicial notice of the calendar: Waste Connections tendered the cure on the ninth business day after receiving notice of the alleged overcharges. Fed. R. Evid. 201. No genuine dispute exists on the material facts about notice and cure.
The parties chose Texas law. "This Agreement shall be governed in all respects by the laws of the State of Texas, without giving effect to the conflict of laws rules thereof." Appendix at ¶ 10. Their choice was reasonably related to their transaction because Waste Connections's principal place of business is Texas. And the parties' choice does not offend any public policy of Arkansas's. Arkansas Appliance Distributing Co. v. Tandy Electronics, Inc., 292 Ark. 482, 485, 730 S.W.2d 899, 900 (1987).
Texas law therefore applies to the deep issue: Is the parties' contractual term about notice and cure a covenant or condition? If the former, then Waste Connections has a claim for damages in the circumstances presented; if the latter, then Allen Beth's lack of notice and Waste Connections's tendered cure eliminate Allen Beth's claim for breach of the contract. Criswell v. European Crossroads Shopping Center, Ltd., 792 S.W.2d 945, 948-49 (Tex. 1990); C & C Road Construction, Inc. v. Saab Site Contractors, L.P., 574 S.W.3d 576, 586-89 (Tex. App.—El Paso 2019, no pet.).
This term is a condition. Because they can have harsh consequences, "conditions are not favorites of the law." Criswell, 792 S.W.2d at 948. This provision might indeed work a forfeiture. Waste Connections could point to lack of pre-suit notice and refuse to fix any problem. It could, for example, defend against the overcharges alleged here by saying that Allen Beth had let them slide. Absent lack of notice being excused, Allen Beth's alleged overcharges might stand. RESTATEMENT (SECOND) OF CONTRACTS § 225. Or this provision might work for good. It offers a way for Waste Connections to fix some non-performance, thus preserving the parties' agreement for waste collection and related services. Having this option makes good sense in a business relationship for continuing services. The parties' agreement was for a three-year term, renewable for an unlimited number of three-year terms unless Allen Beth gave a timely notice of termination. Appendix at ¶ 1. The parties' working relationship endured for more than fifteen years before Allen Beth sued, and apparently still exists.
The Court must gather the parties' intentions about the notice-and-cure term from both the plain meaning of that term and the whole of their agreement. C & C Road, 574 S.W.3d at 588. The parties' contract uses a freighted word —if—in the sentence that deals specifically with a breach by Waste Connections. That company "will be considered in breach of this Agreement if [Waste Connections] does not cure the problem in ten (10) business days after receiving such notice." As a customer, Allen Beth had various obligations, such as not putting hazardous material in Waste Connections's containers, taking care of those containers, and providing unobstructed access to them. Appendix at ¶¶ 6, 7a & 7b. Allen Beth's main obligation was to pay monthly invoices upon receipt. In an echoing grace period, the parties agreed that Allen Beth would not be in breach of this obligation until "ten (10) days after receipt of an invoice from [Waste Connections]." Appendix at ¶ 3.
The parties' use of the word "if" in connection with Waste Connections's fix, or not, of a problem after notice signals an intention to create a condition. C & C Road, 574 S.W.3d at 588. The contract provides Waste Connections the opportunity to cure. A failure to do so promptly creates the breach. Cheung-Loon, LLC v. Cergon, Inc., 392 S.W.3d 738, 744-45 (Tex. App.—Dallas 2012, no pet.); RESTATEMENT (SECOND) OF CONTRACTS § 224.
Because Texas Law disfavors conditions, the Court must consider whether another reasonable interpretation of the notice-and-cure provision exists. If the opportunity to cure is merely a promise, then Waste Connections would have a claim for damages resulting from Allen Beth's breach of that promise. C & C Road, 574 S.W.3d at 588. What would Waste Connections's damages be from Allen Beth's silence? The lost opportunity to cure, keep collecting waste, and keep getting paid. The potential damages from a customer's breach of this term, read as a promise, seem co-extensive with those available for the customer's non-performance of the contract as a whole —Allen Beth's loss of business. Reading this term as a promise or covenant rather than a condition reads it out of the contract. The Court must instead give legal effect to all of the parties' chosen words. James Construction Group, LLC v. Westlake Chemical Corp., 650 S.W.3d 392, 414 (Tex. 2022).
Notice-and-cure conditions are commonplace under Texas law. C & C Road, 574 S.W.3d at 588 (collecting cases). Waste Connections proposed one in clear terms. Allen Beth accepted it long ago. And this condition is not harsh in the particular circumstances presented. Waste Connections did not say "No notice, Allen Beth, therefore our duty to address any billing problem is excused." Compare, Solar Applications Engineering, Inc. v. T.A. Operating Corp., 327 S.W.3d 104, 108 (Tex. 2010); RESTATEMENT (SECOND) OF CONTRACTS § 225. Waste Connections addressed the dispute both retrospectively and prospectively. That the company's fix may have been partly or wholly motivated by an intention to pretermit a class action rather to right a wrong does not alter its legal effect. The billing dispute was cured in Allen Beth's favor.
Allen Beth contends that Waste Connections waived its notice-and-cure defense by not asserting it in its motions to dismiss the earlier iterations of Sharp's complaint. But this defense is not among those waived by not asserting them at the first opportunity. Fed. R. Civ. P 12(h)(1). Waste Connections could have pleaded this defense in its eventual answer, then sought summary judgment. Fed. R. Civ. P. 12(c) & (h)(2). No procedural defect exists in Waste Connections's request for judgment now based on Allen Beth's lack of pre-suit notice and Waste Connections's timely cure.
Likewise, the Court sees no waiver in the tangled motion practice about removal, standing, subject matter jurisdiction under CAFA, and the real party in interest. The applicable procedural rules allowed Waste Connections to make the tactical choices it did.
Last, Allen Beth has not shown that notice would have been futile. Cheung-Loon, 392 S.W.3d at 745. Allen Beth says Waste Connections knew about the overcharges based on similar litigation in South Carolina. The undisputed facts here, however, show that Waste Connections cured after Allen Beth sued and provided particulars about overcharges this business had paid. The fix undercuts Allen Beth's first argument from futility. The elimination of potential class-wide liability does not show that notice would have been futile, either. Parties do not make contracts intending to protect other similarly situated parties. Allen Beth's second futility-based argument also fails.
Allen Beth contends that, even if its breach claim falters based on the lack of notice and the tendered cure, its unjust enrichment claim survives. Waste Connections's main responding arguments are that Allen Beth has no standing and isn't the real party in interest. The Court has rejected those arguments. Allen Beth is the one who has been paying Waste Connections's invoices all these years. And while the general rule is that no claim for unjust enrichment exists when the parties have a contract that covers the disputed issue, as Allen Beth points out, this rule has many exceptions. E.g., U.S. v. Applied Pharmacy Consultants, Inc., 182 F.3d 603, 606-09 (8th Cir. 1999) (Arkansas law). Plus, neither Allen Beth nor Waste Connections have explored the legal effect of the cure: the refund, the reduced service fee, and the "no more fuel surcharges" promise.
The Court would benefit from focused arguments about the unjust enrichment claim and the applicable Texas law. The RESTATEMENT (SECOND) OF RESTITUTION AND UNJUST ENRICHMENT might provide some insights, too. The evidentiary record is, for the moment, closed. And the parties' additional arguments must start from the rulings in this Order. Simultaneous supplemental briefs (ten-page limit) on unjust enrichment due by 8 September 2023. No replies. The pending motions remain under advisement.
So Ordered.
Attachment
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