NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 16a0616n.06

No. 16-5785

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BURKHEAD & SCOTT, INC.,

Plaintiff-Appellant,

v.

CITY OF HOPKINSVILLE, KY; 

HOPKINSVILLE SOLID WASTE 

AUTHORITY,

Defendants-Appellees.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE WESTERN DISTRICT OF 

KENTUCKY

BEFORE: McKEAGUE, GRIFFIN, and KETHLEDGE, Circuit Judges.

PER CURIAM. Burkhead & Scott, Inc. (BSI) appeals the district court’s judgment in 

favor of the City of Hopkinsville, Kentucky, and the Hopkinsville Solid Waste Authority

(HSWA).

Beginning in 1998, BSI collected and hauled construction demolition debris and 

industrial solid waste within the City. According to co-owner Brian Burkhead, BSI and its 

customers were told by the City from the beginning that its operations were illegal. Despite this 

resistance from the City, BSI continued to operate. In 2011, BSI received a letter from HSWA’s 

general manager giving the company five days to remove its equipment from the City. A copy 

of the City’s solid waste ordinance was attached to the letter. BSI took the position that the 

ordinance prohibited anyone other than the City from hauling commercial refuse and garbage 

and therefore did not bar BSI’s operations because it never hauled those types of waste. In the 
No. 16-5785, Burkhead & Scott, Inc. v. City of Hopkinsville

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fall of 2012, two of BSI’s customers switched their accounts to HSWA. After losing this 

business, BSI sold its land and equipment.

In its amended complaint, BSI asserted two claims against the defendants: (1) that the

flow control provisions of the City’s solid waste ordinance violated the Commerce Clause by 

discriminating against the interstate market for solid waste disposal services and (2) that the 

defendants tortiously interfered with business relationships between BSI and its current and 

prospective clients. The defendants filed a motion for summary judgment on BSI’s claims. In 

response, BSI addressed only its tortious interference claim, abandoning its constitutional claim. 

The district court granted the defendants’ summary judgment motion. BSI filed a motion to 

alter, amend, or vacate the district court’s judgment, asserting in part that the district court should 

exercise its discretion to remand its tortious interference claim to the appropriate state court. The 

district court denied BSI’s motion. This timely appeal followed. 

We review de novo the district court’s decision to grant summary judgment in favor of 

the defendants. Thomas M. Cooley Law Sch. v. Kurzon Strauss, LLP, 759 F.3d 522, 526 (6th 

Cir. 2014). Summary judgment is appropriate “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 matter requiring statutory interpretation is a question of law requiring de 

novo review, and the starting point for interpretation is the language of the statute itself.” 

Vander Boegh v. EnergySolutions, Inc., 772 F.3d 1056, 1059 (6th Cir. 2014) (quoting Roberts v. 

Hamer, 655 F.3d 578, 582 (6th Cir. 2011)). 

To recover for tortious interference with a prospective business advantage under 

Kentucky law, BSI must show: “(1) the existence of a valid business relationship or expectancy; 

(2) that [the defendants were] aware of this relationship or expectancy; (3) that [the defendants] 

intentionally interfered; (4) that the motive behind the interference was improper; (5) causation; 
No. 16-5785, Burkhead & Scott, Inc. v. City of Hopkinsville

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and (6) special damages.” Snow Pallet, Inc. v. Monticello Banking Co., 367 S.W.3d 1, 6 (Ky. Ct. 

App. 2012). Tortious interference claims turn on the defendant’s motive, requiring the plaintiff 

to “show malice or some significantly wrongful conduct.” Nat’l Collegiate Athletic Ass’n By 

& Through Bellarmine Coll. v. Hornung, 754 S.W.2d 855, 859 (Ky. 1988).

The defendants assert that BSI had no valid business relationship or expectancy because 

its operations violated the City’s solid waste ordinance. The ordinance provides in relevant part:

It shall be unlawful for any person or firm, except pursuant to temporary 

collection service permits, to engage in or conduct any collection of trash or 

building material within the city’s corporate limits. Any individual or firm 

providing the service without proper consent shall be in violation of this chapter

and subject to a civil penalty as established herein. Collection at each premises 

shall constitute a separate offense.

Hopkinsville Code of Ordinances § 93.02(C)(5). BSI does not dispute that it never obtained a 

permit and instead argues that its collection and disposal of industrial waste and construction 

demolition debris fell outside the scope of the ordinance. As the district court pointed out, 

construction demolition debris plainly constitutes “building material” under the ordinance’s 

definition: “Solid waste which results from the collection, remodeling, repair and demolition of 

structures.” Hopkinsville Code of Ordinances § 93.01. Because BSI collected building material 

without a permit in violation of the ordinance, BSI cannot show that it had a valid business 

relationship or expectancy or that the defendants acted with malice in advising its customers that 

its activities were illegal. See Aureus Holdings, Ltd. v. Detroit City, 303 F. App’x 265, 268-69 

(6th Cir. 2008).1 Accordingly, the district court properly granted summary judgment in favor of 

the defendants on BSI’s tortious interference claim. 

 

1 BSI’s argument that the City lacks authority to collect building material in excess of two cubic yards in 

volume, per Ordinance § 93.02(C)(3), and that this limitation necessarily implies that large scale collections are 

reserved for private waste disposal contractors like BSI, is unavailing. Even if BSI’s premise is accepted as correct, 

the argument affords no excuse or justification for BSI’s undisputed failure to obtain the requisite permit or other 

proper consent to provide the service, as required by § 93.02(C)(5).
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BSI contends that, after the dismissal of its federal constitutional claim, the district court 

should have declined to exercise supplemental jurisdiction over its tortious interference claim 

and dismissed that claim without prejudice. The decision to retain supplemental jurisdiction 

over state-law claims after federal claims have been dismissed is left to the district court’s 

discretion. Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195, 210 (6th Cir. 2004). “A district 

court should consider the interests of judicial economy and the avoidance of multiplicity of 

litigation and balance those interests against needlessly deciding state law issues.” Landefeld v. 

Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993) (citation omitted). 

The interests of judicial economy favored the district court’s retention of supplemental 

jurisdiction. BSI did not abandon its federal constitutional claim until the defendants moved for 

summary judgment. By that time, the case had been pending for nearly three years, and the 

parties had completed discovery. BSI waited to request remand of its tortious interference claim 

until after the district court granted summary judgment in favor of the defendants on that claim. 

Under these circumstances, the district court did not abuse its discretion in retaining 

supplemental jurisdiction over BSI’s tortious interference claim. See Harper, 392 F.3d at 211-

12; see also Taylor v. First of Am. Bank-Wayne, 973 F.2d 1284, 1288 (6th Cir. 1992).

For the foregoing reasons, we AFFIRM the district court’s judgment in favor of the 

defendants.