* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60255

Summary Calendar

NOTTINGHAM CONSTRUCTION COMPANY, L.L.C.

Plaintiff-Appellant

v.

CITY OF WAVELAND

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:07-CV-1151-LG-RHW

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

This case arises from a complaint filed by Nottingham Construction

Company, L.L.C. (“Nottingham”) against the City of Waveland (“Waveland”) as

a result of Waveland’s award of a construction project to Hemphill Construction

Company (“Hemphill”) pursuantto a public bidding process. Nottingham alleges

that the contract resulted from collusion, bid rigging and/or favoritism. The

district court granted Waveland’s motion to dismiss on the basis of a statutory

United States Court of Appeals

Fifth Circuit

F I L E D

September 10, 2008

Charles R. Fulbruge III

Clerk
No. 08-60255

2

requirement that any appeal of a decision by a municipality be filed within ten

days from the date of the decision. For the reasons stated herein, we affirm.

I.

In December 2006, Waveland received bids from numerous contractors for

a sewer and water system reconstruction project (the “Project”). During the

bidding process, Waveland’s engineer, Digital Engineering and Imaging, Inc.,

told Nottingham that it could not use excavated materials as select backfill on

the project. This information was significant because Nottingham alleges that

the use of excavated materials as select backfill, as opposed to hauling in new

material to use as backfill, can dramatically reduce the expense of the project.

The written communications concerning use of excavated materials as backfill

were attached to Contract Addendum No. 2 for the Project at the request of

Nottingham. 

Nottingham’s bid of $27,472,620.00 was the second lowest among the

contractors. Nottingham asserts that the use of excavated materials as select

backfill would have reduced its bid for the project by $4,000,000.00. The lowest

bid for the project was submitted by Hemphill in the amount of $23,639,425.00.

Waveland awarded the contract to Hemphill, which was executed on April 4,

2007. Nottingham does not dispute that it knew the contract was awarded to

Hemphill.

After the project had been underway for several months, a Nottingham

representative witnessed Hemphill using excavated materials as backfill.

Nottingham contacted the engineering firm regarding the use of excavated

materials as backfill and alleges that a representative of the engineering firm

admitted that the materials were being used and also admitted that Hemphill

was not required to use a deductive change order to reflect the lower costs.

Nottingham alleges that since Hemphill was allowed to use excavated materials

as backfill, the contract resulted from collusion, bid rigging, and/or favoritism.
No. 08-60255

3

On August 29, 2007, Nottingham notified Waveland of its claim for

damages and its protest of the award of the Project. Waveland sent a letter

through its attorney denying Nottingham’s request for a hearing on its claim for

damages. On October 19, 2007, Nottingham filed a Complaint against Waveland

seeking damages it allegedly suffered when it was not awarded the contract for

the Project.

In response to the complaint, Waveland filed a motion to dismiss

challenging the timeliness of Nottingham’s complaint under MISS. CODE ANN.

§ 11-51-75. The district court agreed that Nottingham’s complaint was not

timely filed and dismissed it pursuant to FED. R. CIV. PROC. 12(b)(6). 

II.

We review de novo the district court’s order on a motion to dismiss under

Rule 12(b)(6). In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.

2007), cert. denied, Chehardy v. Allstate Indem. Co., --- U.S. ---, 128 S. Ct. 1231

(2008) and Xavier Univ. of La. v. Travelers Cas. Prop. Co. of Am., --- U.S. ---, 128

S. Ct. 1230 (2008). “The court accepts all well-pleaded facts as true, viewing

them in the light most favorable to the plaintiff.” Id. (internal quotations

omitted). Because this case is in federal court based on diversity jurisdiction, we

mustfollow Mississippi’s substantive law as interpreted by Mississippi’s highest

court. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Am. Nat’l Gen. Ins.

Co. v. Ryan, 274 F.3d 319, 328 (5th Cir. 2001). 

MISS. CODE ANN. § 11-51-75 provides:

Any person aggrieved by a judgment or decision of the board of

supervisors, or municipal authorities of a city, town, or village, may

appeal within ten (10) days from the date of adjournment at which

session the board of supervisors or municipal authorities rendered

such judgment or decision, and may embody the facts, judgment and

decision in a bill of exceptions which shall be signed by the person

acting as president of the board of supervisors or of the municipal

authorities. 
No. 08-60255

4

The Mississippi Supreme Court has held that the ten-day time limit is

mandatory. Newell v. Jones County, 731 So. 2d 580, 582 (Miss. 1999).

Accordingly, an action challenging a municipality’s decision to enter into a

contract must be filed within ten-days of date of adjournment of session where

the decision was made or the claims will be dismissed. Id. It is undisputed that

Nottingham’s claims challenging Waveland’s contract with Hemphill were not

filed within ten days from the date of the contract. 

Nottingham asserts that § 11-51-75 does not apply to the present case

because Waveland has not made any final decision with respectto Nottingham’s

protest. We disagree. The decision to award the contract to Hemphill, not the

resolution of Nottingham’s protest, is the basis of Nottingham’s claims.

Nottingham cannot restart the clock on its deadline to challenge the award of

the contract to Hemphill by filing an untimely protest. Otherwise, the ten-day

requirement of § 11-51-75 would be meaningless. 

In support of its argument, Nottingham relies almost entirely on Shepard

v. City of Batesville, No. 2:04-CV-330, 2007 WL 108288, (N.D. Miss. Jan. 8,

2007). In Shepard, the plaintiff demonstrated that he was the lowest and best

bidder on several contracts to perform earthmoving work for the City of

Batesville. 2007 WL 108288 at *6. Although the city found him to be the lowest

and best bidder, the city only gave him one of the jobs. Id. The city claimed that

it hired other contractors to perform the rest of the work because it could not

reach the plaintiff by telephone. Id. The court held there was no evidence that

the city ever made a final decision awarding the other jobs to different bidders

or gave notice of any such decision. Id. As a result, the court held that the tenday time limit provided for under § 11-51-75 was never triggered. Id.

Shepard is not binding on this court. To the extent that it is persuasive

authority, it is clearly distinguishable. The pivotal fact in Shepard was that the

city decided thatthe plaintiff was the lowest and best bidder butthen used other
No. 08-60255

5

bidders without notice to the plaintiff. Id. In the present case, Nottingham was

never declared the lowest and best bidder, Waveland gave notice that the

contract was awarded to Hemphill, and the decision to award the contract to

Hemphill was a final decision. Therefore, Nottingham’s reliance on Shepard is

misplaced. 

Nottingham also argues on appeal that it did not become a “person

aggrieved” under § 11-51-75 until it witnessed Hemphill’s use of excavation

materials as backfill several months after the decision to award the contract was

made. In its response to Waveland’s motion to dismiss, Nottingham never

asserted to the district court that it was not a “person aggrieved” when the

contract was awarded to Hemphill. Rather, Nottingham’s argument to the

district court was based on its contention that there was no final decision to

appeal pursuant to § 11-51-75. Because Nottingham raises this argument for

the first time on appeal, we will review only for plain error. See Crawford v.

Falcon Drilling Co., 131 F.3d 1120, 1123 (5th Cir. 1997). Under plain error

review, “we must determine (1) if there was error, (2) if that error was plain, (3)

if the error affects substantial rights, and (4) whether allowing that error to

stand seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 1124 (emphasis added). The test is conjunctive, meaning

that before we can reverse, all four prongs must be met. Even assuming,

arguendo, that the district court erred, any such error was not plain. 

Nottingham’s claims are based on the theory the contract awarded to

Hemphill by Waveland resulted from collusion, bid rigging, and/or favoritism.

If Nottingham’s allegations of bid rigging are true, as we assume for purposes

of this appeal, then Waveland’s wrongful conduct and Nottingham’s injury
No. 08-60255

1

Ifthere was no bid rigging at the time the contract was entered into, then Nottingham

has no interest in the contract and lacks standing to challenge the failure of Waveland to

require a deductive change order for the use of excavated materials as select backfill on the

project. See Nelson v. City of Horn Lake, 968 So. 2d 938, 945 (Miss. 2007) (holding that lowest

priced bidder did not have property interest in contract awarded to competitor). 

6

occurred when the contract was awarded to Hemphill, not when Nottingham

became aware of the alleged bid rigging.1

Nottingham fails to cite any authority for the proposition that a person

who is injured by a final decision of a municipal authority is not a “person

aggrieved” until he becomes aware that the decision was the result of wrongful

conduct. The two Mississippi Supreme Court cases it cites only stand for the

proposition that a “person aggrieved” must have some interest in the decision

appealed, although that interest need not be recognized as a property interest.

See Nelson v. City of Horn Lake, 968 So. 2d 938, 944-45 (Miss. 2007) (holding

that a losing bidder was a “person aggrieved” under § 11-51-75 although it did

not have a property interest in the contract awarded to another bidder);

Thornton v. Town of Charleston, 68 So. 169, 171 (Miss. 1915) (“we have

construed ‘persons aggrieved’ and ‘persons interested’ as synonymous terms”).

Nothing in either Nelson orThornton suggests that an unsuccessful bidder is not

a “person aggrieved” until he becomes aware of wrongful conduct that occurred

during the bidding process. The district court did not plainly err in holding that

Nottingham was a “person aggrieved” under § 11-51-75 when the contract was

awarded to Hemphill.

Nottingham’s arguments essentially boil down to the contention that

§ 11-51-75 is bad public policy because it allows undiscovered acts of bid rigging

to go unchecked. Of course, as Nottingham itself notes, the statutes regarding

bidding are designed to protectthe taxpaying public. There are several criminal

statutes that protect taxpayers from fraudulent and collusive bidding in public

works contracts. See, e.g., Miss Code Ann. §§ 97-7-11, 97-11-31, 97-11-53, 97-15-
No. 08-60255

2 The closest it came in the district court was the following, which was part of a section

containing no citation to cases discussing the discovery rule: “Nottingham had no knowledge

of its claims against Waveland nor could it possibly have been expected to have knowledge of

such claims. . . . It was impossible for Nottingham to learn of Waveland’s illegal actions . . . .”

3 The Mississippi Supreme Court recently addressed this question in Caves v.

Yarbrough, No. 2006-CA-01857-SCT, 2007 WL 3197504 (Miss. Nov. 1, 2007), motion for reh’g

argued and submitted (June 10, 2008).

7

11. Thus, the implication that this court must fashion some remedy to avoid the

effects of § 11-51-75 in order to promote public policy against bid rigging is

unavailing. If Hemphill has committed wrongdoing, redress for taxpayers exists.

Although not raised by Nottingham in response to Waveland’s motion to

dismiss,2the district court also considered whether the “discovery rule” could

save Nottingham’s claims. The district court concluded that the discovery rule

does not apply to § 11-51-75. In its briefs to this court, Nottingham again does

not discuss whether the discovery rule applies to § 11-51-75.3 Because

Nottingham does not assert in its briefs that the discovery rule tolls the ten-day

time limit under § 11-51-75, that issue has been waived on appeal. See Audler

v. CBC Innovis Inc., 519 F.3d 239, 255 (5th Cir. 2008) (“A party waives an issue

if he fails to adequately brief it” (internal quotation marks omitted)); see also

FED. R. APP. P. 28(a)(9)(A) (“The appellant’s brief must contain . . . appellant’s

contentions and the reasons for them, with citations to the authorities and parts

of the record on which the appellant relies.”). 

Accordingly, the judgment of the district court is AFFIRMED.