United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge
tort action, Plaintiff Presidential Towers Condominium, Inc.
alleges that Defendants Republic Services, Inc.
("Republic") and BFI Waste Services, LLC
("BFI") were contracted to pick up the trash from
Plaintiffs property, and negligently damaged and subsequently
trespassed on Plaintiffs property by refusing to remove
Defendants' dumpsters. ECF No. 12 at 2-3. Plaintiff seeks a
total of $133, 187.25 in damages. Id. BFI filed a
counterclaim against Plaintiff, alleging a breach of contract
and seeking damages of $35, 561.57. ECF No. 14. Presently
pending before the Court is Defendants' Motion for
Summary Judgment. ECF No. 26. No hearing is necessary.
See Loc. R. 105.6 (D. Md. 2016). For the following
reasons, Defendants' Motion for Summary Judgment is
granted-in-part and denied-in-part.
September 7, 2012, Plaintiff entered into a Customer Service
Agreement (the "Agreement") with BFI Waste
Services, LLC for BFI to remove Plaintiffs trash and
recyclables. ECF No. 26-3 at 2. The Agreement specifically
provided that the contracting party was "BFI Waste
Services, LLC, DBA Allied Waste Services of Washington,
Republic Services of Washington Metro, Calvert Trash."
Id. The Agreement specified that it would
"automatically renew for successive 36 month terms
unless either party gives written notice of termination to
the other at least 60 days before the end of the then current
term." Id. The Agreement also provided that the
Company could, after notice to Plaintiff, "increase the
rates provided in this Agreement to adjust for any increase
in" a number of different costs. Id. at 6.
the terms of the Agreement, BFI provided dumpsters for
Plaintiff to store its trash and recycling. The parties do
not dispute that it was Plaintiffs responsibility to empty
the dumpsters and remove the trash. There is conflicting
evidence, however, regarding whose responsibility it was to
move the dumpsters from inside the building to the pick-up
location. According to BFI's Business Unit Controller,
BFI was responsible for picking up the trash and recycling
from outside of Plaintiff s building; it was the
responsibility of Plaintiff s employees or cleaning
contractors to transport the dumpsters from the interior of
Plaintiff s building to the outside area. ECF No. 26-4 at 2.
At his deposition and in his affidavit, however, Plaintiffs
corporate designee was unclear as to whose responsibility it
was. Compare ECF No. 26-6 at 5 ("primarily the
task [of moving the dumpsters] is done by the cleaning
company"), with ECF No. 27-8 at 11-12
(explaining that the "responsibility ... to get the cans
from the trash room to the outside ... varied between the
trash company and the cleaning company"), and
ECF No. 27-5 at 3 ("Both the defendant and the cleaning
contractor were responsible for taking dumpsters from the
trash collection rooms to outside and returning them.").
parties carried out this relationship for several years until
late 2014. On an invoice dated December 20, 2014, BFI
included under a heading labeled "Important
Information" the notice that "[y]our next invoice
may reflect a rate adjustment, if you have any questions
after receiving your next invoice please contact us."
ECF No. 26-5 at 18. The total charges for the December 20,
2014 invoice were $6, 812.03, and consisted of $6, 190.31 for
"Basic Service" and $619.03 for a "Total Fuel
Recovery Fee." Id. On the next invoice, dated
January 20, 2015, the total charges were $7, 016.87, which
consisted of $6, 376.02 for "Basic Service" and
$637.70 for "Total Fuel Recovery Fee." Id.
at 26-5. This amounts to a roughly 3% increase. At this
point, as reflected by the invoices, Plaintiff stopped paying
its monthly balance. BFI continued to provide service and
send Plaintiff monthly invoices, noting the past due balance,
and assessing monthly late fees. See Id. at 22
(invoice from February 20, 2015); id. at 24 (invoice
from March 20, 2015); id. at 26 (invoice from April
20, 2015); id. at 28 (invoice from May 20, 2015);
id. at 30 (invoice from June 20, 2015); id.
at 32 (invoice from July 20, 2015). The invoices indicate
that throughout this time, Plaintiff made payments towards
its balance only once, on June 25, 2015, when it made three
payments of $2, 500 each. Id. at 32. The invoice
from July 20, 2015, indicates that the final past due balance
was $35, 551.67. Id.
Plaintiff stopped paying its monthly balance, Plaintiff and
BFI entered into negotiations regarding the balance and
Plaintiffs contract with BFI. ECF No. 26-4 at 3. BFI
discussed waiving part of the outstanding balance, entering
into a new contract with Plaintiff, and matching any price
that Plaintiff was being offered by BFI's competitors.
Id. Ultimately, on July 2, 2015, Plaintiff informed
BFI that it wished to terminate its relationship with BFI,
and requested that BFI remove its containers by July 13,
2015. ECF No. 26-12 at 2. Plaintiff informed BFI that it
would begin assessing a storage fee of $75 per day per
container after July 13, 2015, if the containers were not
removed. Id. On July 8, 2015, BFI acknowledged
receipt of the notice of termination, but demanded
"final payment for services rendered of $35,
551.67" for Plaintiff to be able to terminate the
relationship. ECF No. 26-9 at 2. Furthermore, BFI informed
Plaintiff that "[u]ntil payment is received we will not
service or remove these containers and we will not pay a
storage fee." Id. On August 4, 2015, BFI
delivered several "Final Notices" to Plaintiff,
threatening to turn the matter over to a collection agency.
ECF No. 27-4 at 3-5. The dumpsters were not removed until
November 11, 2015. ECF No. 26-10 at 5.
point prior to May 9, 2016, the walls of the corridor between
Plaintiffs trash room and the pick-up location were
"substantially gouged or damaged." ECF No. 26-11.
Plaintiffs corporate representative testified that this
damage occurred while Republic was servicing Plaintiff, and
that Republic's representatives acknowledged that their
containers had caused the damage to the walls. ECF No. 27-8
6, 2016, Plaintiff commenced an action against Republic in
the District Court for Prince George's County.
Presidential Towers Condominium. Inc. v. Republic
Services. Inc., Civil Case No. CAL1627862 (District
Court for Prince George's Cty.). On November 9, 2016,
Republic removed the action to this Court pursuant to its
diversity jurisdiction (Defendants are Delaware corporations,
with their principal places of business in Arizona, and
Plaintiff is a Maryland corporation). ECF No. 1; ECF No. 13
at 1. On December 7, 2016, Plaintiff filed its Amended
Complaint, naming BFI as an additional defendant, ECF No. 12.
BFI answered the Complaint and filed a counterclaim against
Plaintiff on December 20, 2016. ECF No. 14. Defendants filed
a Motion for Summary Judgment regarding Plaintiffs claims and
BFI's counterclaim on July 28, 2017, which is now pending
before the Court. ECF No. 26. Plaintiff has opposed
Defendants' Motion, ECF No. 27, to which Defendants
replied, ECF No. 30.
STANDARD OF REVIEW
"Under [Federal Rule of Civil Procedure] 56(c), summary
judgment is proper 'if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.'"
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106
S.Ct. 2548 (1986) (quoting Fed.R.Civ.P. 56(c)). The party
moving for summary judgment bears the burden of demonstrating
that no genuine dispute exists as to material facts.
Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282,
1286 (4th Cir. 1987). If the moving party demonstrates that
there is no evidence to support the non-moving party's
case, the burden shifts to the non-moving party to identify
specific facts showing that there is a genuine issue for
trial. See Celotex, 477 U.S. at 322-23. Importantly,
at the summary judgment stage, it is not the Court's
function to weigh the evidence but simply to decide if there
is a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249, 106 S.Ct. 2505 (1986). A
dispute of material fact is genuine if the conflicting
evidence creates "fair doubt, " Cox v. Cnty. Of
Prince William, 249 F.3d 295, 299 (4th Cir. 2001), such
that "a reasonable jury could return a verdict for the
nonmoving party." Anderson, 477 U.S. at 248.
ruling on a motion for summary judgment, "[t]he evidence
of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor." Id.
at 255. Nevertheless, a "mere scintilla of proof' is
not enough to defeat a motion for summary judgment.
Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003)
(citing Anderson, 477 U.S. at 252). To defeat the
motion, the party opposing summary judgment must submit
evidentiary materials showing facts on the basis of which the
finder of fact could reasonably decide the case in its favor.
Anderson, 477 U.S. at 252. If a party fails to make
a showing sufficient to establish the existence of an
essential element on which that party will bear the burden of
proof at trial, summary judgment is proper. Id.
Defendants raise several arguments in their Motion for
Summary Judgment. First, Republic argues that Plaintiff does
not have any valid claims against it, because it was not a
party to the Agreement. ECF No. 26-1 at 7. Second, BFI argues
that it is entitled to summary judgment on Plaintiffs damages
claims because BFI was not responsible for moving its
dumpsters through the corridors of Plaintiff s building,
where Plaintiff alleges it suffered damages. Id. at
7. Third, BFI argues that it is entitled to summary judgment
on Plaintiffs trespass claims because Plaintiff has not
"produced nor identified any actual damage done to the
property where the dumpsters were kept." Id. at