Waste Management of Louisiana v. River Birch, Inco ( 2019 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 18-30139
WASTE MANAGEMENT OF LOUISIANA, L.L.C.,
Plaintiff - Appellant
v.
RIVER BIRCH, INCORPORATED; ALBERT J. WARD, JR.; FREDERICK R.
HEEBE; HIGHWAY 90, L.L.C.,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
Before DAVIS, COSTA, and OLDHAM, Circuit Judges.
PER CURIAM:
ON PETITION FOR PANEL AND EN BANC REHEARING
Treating the Petition for Rehearing En Banc as a Petition for Panel
Rehearing, we note that Defendants did not cite or rely on Matsushita Electric
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), in the district court
or to the panel. We therefore decline to consider that case now. Both the
majority and the dissent agree that the issue in this case is factual, more
particularly, what inferences can or will be drawn by the jury from the
evidence.
The majority continues to adhere to its view that fact issues are
presented that preclude summary judgment. The dissent disagrees and would