Livingston Parish was two years too late in trying to get a $5 million claim against it for unpaid Hurricane Gustav cleanup work moved from federal to state court.
U.S. District Judge Shelly Dick ruled Wednesday that Alvin Fairburn & Associates’ claim will stay in federal court because the parish did not request a change of venue in 2013, when it first asked the court to dismiss the claim on other grounds.
Fairburn’s claim stems from the firm’s work monitoring debris removal within the parish’s drainage districts after the 2008 storm. Fairburn has not been paid for any of that work, which totaled nearly $5 million.
Fairburn filed its claim against the parish in January 2013 as part of its response to a federal whistleblower lawsuit that former parish consultant Corey Delahoussaye filed against the parish, Fairburn and two of the parish’s other Gustav contractors.
In his lawsuit, Delahoussaye said the parish and its cleanup contractors conspired to have his contract with the parish for wetlands mitigation work terminated because he had reported some allegedly illegal work performed by the firms.
Judge Dick kicked Delahoussaye’s contract claims to state court in August 2013, after the parish argued that the contract specifically required those issues to be heard there. Only his civil rights claims under the First and 14th Amendments remain in the federal case.
But the parish did not make a similar argument over venue about the Fairburn contract until Dec. 29, 2014 — two weeks after the parish lost its first motion to dismiss Fairburn’s $5 million claim as unrelated to Delahoussaye’s civil rights claims. The parish filed that first motion to dismiss in January 2013, a week after Fairburn made the claim for payment.
Parish legal adviser Christopher Moody argued in his Dec. 29 motion that the parish had been prevented from requesting a change of venue until at least Dec. 10, when Fairburn filed a copy of its monitoring contract into the federal court’s record. But Fairburn’s attorney, Brad Rhorer, said that argument “strains sensibility” because the parish, as a party to the contract, already had a copy of it and should have known its terms. Judge Dick agreed.
Moody said that given the parish’s failure to settle its disputes with Fairburn outside of court, Dick’s ruling leaves parish officials a few choices: countersue Fairburn in federal court, sue the firm in state court or join the firm as a defendant in a related state court case the parish’s primary debris removal contractor filed in 2011.
That contractor, International Equipment Distributors, has sought $52 million plus interest from the parish for unpaid work also stemming from Hurricane Gustav cleanup.
The Federal Emergency Management Agency has denied the parish’s claims for $59 million in federal reimbursement for the work, and a three-judge panel of the U.S. Civilian Board of Contract Appeals affirmed that decision in May. The panel’s ruling was final and unappealable.
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