United States District Court, N.D. Texas, Dallas Division
SHARP MEXICAN PARTNERS, LP, d/b/a MANNY'S UPTOWN and SHARP MEXICAN #8, LLC d/b/a MANNY'S LAKEWOOD, Plaintiffs,
REPUBLIC WASTE SERVICES OF TEXAS, LTD. d/b/a REPUBLIC SERVICES OF DALLAS & d/b/a ALLIED WASTE SERVICES OF DALLAS, Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN, UNITED STATES MAGISTRATE JUDGE
case has been referred to the undersigned United States
magistrate judge for pretrial management under 28 U.S.C.
§ 636(b) and a standing order of reference from United
States District Judge Karen Gren Scholer. See Dkt.
motions are pending before the Court:
• Plaintiffs' Motion for Class Certification [Dkt.
• Plaintiffs' Motion for Leave to Amend to Add
Plaintiffs [Dkt. No. 99];
• Defendant's Amended Motion for Summary Judgment
[Dkt. No. 101]; and
• Plaintiffs' Amended Motion for Continuance of
Defendant's Motion for Summary Judgment/Motion for
Protection [Dkt. No. 109].
parties disagree as to the order in which the Court should
decide these motions. Because the amended motion for summary
judgment may be dispositive of the case, the undersigned will
first address the two motions concerning summary judgment.
a breach-of-contract case in which the Court must determine
whether the contracts are ambiguous or unambiguous and, if
they are unambiguous, to interpret them as a matter of law.
The contract terms at issue concern a “container
Sharp Mexican Partners, LP d/b/a Manny's Uptown
(“Manny's Uptown”) and Sharp Mexican #8, LLC
d/b/a Manny's Lakewood (“Manny's
Lakewood”), two restaurant entities, contracted with
Defendant Republic Waste Services of Texas Ltd. d/b/a
Republic Services of Dallas and d/b/a Allied Waste Services
of Dallas, a waste collection service provider, for the
collection, transportation, and disposal of all of
Plaintiffs' non-hazardous waste materials. To be eligible
for waste-collection services from Republic, Plaintiffs were
required to sign Customer Service Agreements (the
“Agreements”). See Dkt. No. 18.
Uptown contracted with Republic for waste removal services in
a July 2014 contract (the “2014 CSA”). The 2014
CSA's first page listed costs under headings, including
headings for “monthly” costs and
“additional charges.” Dkt. No. 18; Dkt. No. 103
at 4. The second page included a provision that allowed for
the modification of the contract rates:
RATE ADJUSTMENTS - [Republic] may, from time to time by
notice to Customer, increase the rates provided in this
Agreement to adjust for any increase in: (a) disposal costs;
(b) transportation costs due to a change in location of
Customer or the disposal facility used by [Republic]; (c) the
Consumer Price Index for all Urban Customers; (d) the average
weight per cubic yard of Customer's Waste Materials above
the number of pounds per cubic yard upon which the rates
provided in this Agreement are based as indicated on the
cover page of this Agreement; or (e) [Republic's] costs
due to changes in Applicable Laws. [Republic] may increase
rates for reasons other than those set forth above with
Customer's consent, which may be evidenced verbally, in
writing or by the parties' actions and practices.
Dkt. No. 103 at 5.
January 2016, Republic provided Manny's Uptown with
written notice regarding the addition of the Container
Refresh service. See Id. at 10. In the
“Important Information” section of the January
invoice sent to Manny's Uptown, Republic explained that
future invoices would include a $9 monthly rate for the
Your future invoices will include a charge for Container
Refresh. This lets you swap your container once a year for a
low $9 monthly rate. Plan and opt-out details enclosed, or by
email if you are paperless.
Id. Republic asserts that it also provided a
separate Notice of Service Change, Rate Adjustment &
Contract Modification (the “Insert Notice”) with
Change, Rate Adjustment & Contract Modification details
and opt-out information:
• Customer is automatically enrolled in Container
Refresh and enrollment will be automatically renewed each
month until customer cancels participation.
• Customer is required to call Republic Services at the
customer service number noted on customer's invoice to
opt out of Container Refresh or to cancel participation in
the program. The decision to opt out will not affect any
other terms of customer's existing contract/service
• Customer is required to call and request the container
exchange and is eligible for one container exchange for every
12 months of enrollment.
• Payment of the $9 monthly participation rate is
required for 12 consecutive months from date of enrollment if
customer requests and receives a container exchange.
• Republic Services reserves the right to cancel
Container Refresh at its discretion, in which case a customer
who has not received a container exchange may request a
• Customer's contract/service agreement may require
that customers consent to the charge for this service. Under
such contracts/agreements, customer's payment of the
monthly charge for Container Refresh provides such consent.
You will receive this notice twice. The first notice will be
sent 30 days before the first charge will appear on your
invoice to allow you time to opt out of the program. The
second notice will accompany an invoice that will include the
first monthly charge for participation in the program unless
you previously opted out. Because of the processing time
involved, a charge may appear on your bill after you have
decided to opt out of this program. If that occurs, please
contact customer service to confirm your opt-out was received
and the charge was removed from your account.
Id. at 12; see also Id. at 2 ¶¶
6, 10-12; 215-226; 227-230.
February 2016 invoice included a notice of the rate change
and additional service in the “Important
The invoice includes a charge for Container Refresh in which
you are automatically enrolled. Plan and opt-out details are
enclosed or in a separate email if you are paperless.
Id. at 13. Republic asserts that the Insert Notice
was provided to Manny's Uptown a second time with the
February 2016 invoice. See Id. at 2 ¶¶ 6,
10-12; 215-226; 227-230.
February 2016 invoice charged Manny's Uptown for the $9
Container Refresh Fee as a separate line item and designated
the $9 as a charge for the upcoming month of March:
“Container Refresh (03/01/16 - 03/31/16).”
Id. at 13. Each invoice subsequently submitted to
Manny's Uptown included a similar line item for the
Container Refresh charge. See Id. at 15-46.
Manny's Uptown paid Republic the $9 Container Refresh
charge for March 2016 and the remaining eight months under
the 2014 CSA.
October 21, 2106, Republic entered into a new Customer
Service Agreement with Manny's Uptown (the “2016
Uptown CSA”) and Manny's Lakewood (the “2016
Lakewood CSA”; together with the 2016 Uptown CSA,
“the 2016 CSAs”). See Id. at 6-7, 8-9.
The first page of both the 2016 Uptown CSA and the 2016
Lakewood CSA listed costs under headings, including headings
for “monthly service, ” “additional
charges, ” and “one time charges.”
Id. at 6, 8. It listed “Container
Refresh” as an “additional charge” of $9.
Id. On the second page of each of the 2016
CSA's, the Container Refresh charge is explained:
If service to Customer includes Container Refresh, Customer
is limited to requesting one exchange of each participating
container every twelve months of paid enrollment; any
additional exchange is subject to Company's standard
container exchange fee. Customer agrees that during any
enrollment year in which Customer receives an exchange under
the program, any service change request by Customer to Cancel
Container Refresh will not be effective until Customer
completes payment for twelve (12) consecutive months of
enrollment in the program. Company reserves the right, in its
sole discretion, to suspend or cancel the Container Refresh
Id. at 7, 9.
new customer, Manny's Lakewood obtained six months'
free enrollment in the Container Refresh program. The
Comments section of the first page of the 2016 Lakewood CSA
provides: “Container Refresh Promotional Period: 6
months free.” Id. at 8.
invoiced both Plaintiffs $9 each month for Container Refresh.
See Id. at 13-14, 15046, 47-62. The invoices listed
the Container Refresh charge on each invoice and specifically
designated the month to which the fee applied. See
Id. The Lakewood CSA invoices also reflected a $9 credit
each month for Container Refresh for the first six months of
the CSA in compliance with the promotional period. See
Id. at 8-9, 47-58.
sued Republic over the Container Refresh charges. In their
Second Amended Complaint and Class Action, filed after
Republic removed the case based on diversity jurisdiction,
see Dkt. No. 1, Plaintiffs assert claims for breach
of contract, fraud by nondisclosure, and fraudulent
inducement. See Dkt. No. 18 at 4-9. The Court
dismissed Plaintiffs' fraud by nondisclosure and
fraudulent inducement claims. See Dkt. No. 57. Only
the breach-of-contract claim remains.
allege that Republic unilaterally added a Container Refresh
fee onto Manny's Uptown's monthly invoice in 2014 and
that, after paying the Container Refresh charge for nine
months without a contractual agreement, they were
fraudulently induced into signing new contracts with Republic
that contained ambiguous language regarding the Container
Refresh program and that Republic failed to disclose that the
Container Refresh fee was a monthly charge. They allege that
they never requested enrollment in the Container Refresh
program and never requested a container exchange.
Nevertheless, they have paid and continue to pay the
Container Refresh fee to Republic. See id. at 4.
deposed Plaintiffs' designated corporate representative,
Maria Ann Espinoza. See Dkt. No. 103 at 66. Ms.
Espinoza testified that the Insert Notice and the Important
Information sections of the January and February 2016
invoices are not ambiguous. See Id. at 100-03,
109-11, 114-18. She also testified that the Insert Notice and
all of the invoices from January 2016 through June 2017
unambiguously show that the $9 Container Refresh charge is a
monthly charge. See Id. at 100-03, 109-11, 114-24,
filed a motion for summary judgment, see Dkt. No.
60, which the Court denied without prejudice without opinion,
see Dkt. No. 84. Republic states that the Court told
the parties that Republic could refile the motion for summary
judgment if mediation between the parties was unsuccessful -
which it was. See Dkt. No. 97.
filed a motion for class certification before mediation,
see Dkt. No. 90, and, after mediation, filed a
motion to amend their complaint to add two additional
parties, see Dkt. No. 99.
filed an amended motion for summary judgment based on the
argument that the contracts between the parties are
unambiguous and may be construed by the Court as a matter of
law. See Dkt. No. 101. Plaintiffs filed a response,
see Dkt. No. 110, and Republic did not file a reply.
then filed a motion to continue the amended motion for
summary judgment, see Dkt. No. 104, which they
amended, see Dkt. No. 109. Plaintiffs ask the Court
to decide their motion for class certification before it
decides Republic's amended motion for summary judgment.
Plaintiffs also assert that they need additional discovery to
provide a full and complete response to the amended motion
for summary judgment. Republic filed a response to
Plaintiffs' Amended Motion for Continuance of
Defendant's Motion for Summary Judgment/Motion for
Protection, see Dkt. Nos. 105 & 113, and
Plaintiffs did not file a reply.
Federal Rule of Civil Procedure 56, 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). A
factual “issue is material if its resolution could
affect the outcome of the action.” Weeks Marine,
Inc. v. Fireman's Fund Ins. Co., 340 F.3d 233, 235
(5th Cir. 2003). “A factual dispute is
‘genuine,' if the evidence is such that ...