IN DISTRICT COURT, COUNTY OF CASS, STATE OF NORTH DAKOTA MWT ND, LP, ) ) Plaintiff, ) ) FIRST AMENDED COMPLAINT vs. ) ) Case No. 09-2023-CV-02021 Sanford Health and ) Healthcare Environmental Services, LLC, ) ) Defendants. ) ) InRopUucTION L This action pertains to activities by Defendant Healthcare Environmental Services, LLC (“HES”), a wholly-owned subsidiary of Sanford Health, including its inappropriate handling and delivery of regulated medical waste, including infectious and bio hazardous medical waste, to the MWT ND, LP (*MW1”) treatment facility in Fargo, North Dakota. HES and MWT entered a 10-year Medical Waste Treatment and Disposal Agreement (“Disposal Agreement”) and 10-year Commercial Building Lease Agreement (“Lease Agreement”), for which MWT established the dedicated facility in Fargo to dispose of Sanford Health’s waste delivered by HES to the facility. These agreements were guaranteed by HES’s much-larger parent Sanford Health, which enabled MWT to secure necessary debt financing for the facility. Although very early in the relationship, HES has already undertaken a course of egregious conduct—all in an apparent attempt to renege on its long-term waste disposal contract with MWT, inflict reputational and regulatory harm on MWT, damage MWT’s relationship with its lender, and enable Sanford Health to purport to escape its responsibilities under its guaranty that facilitated MWT’s financing for the Fargo treatment facility. HBS’s illicit actions include (i) surreptitious activities early in the EXHIBIT siemoming, before MWT staff arrived, (actions all caught on videotape) designed to falsely show that MWT has mismanaged the medical waste at the treatment facility; (i) delivery of waste in violation of state law, including a human torso concealed within a plastic container; and (iii) cutting off the feed water supply to the facility without notice as an admitted “negotiation” tactie—putting at risk human lives and the expensive treatment equipment that operates at temperatures in excess of 1200° Fahrenheit. HES’s egregious conduct culminated in the removal of waste already received and accepted into MW1’s legal custody and regulatory care, HES has also failed to make payments owed under certain agreements, for which Sanford Health acted as a guarantor, forcing MWT to address a default notice from its lender. a. HES has shown a complete disregard for the terms of the contracts it entered with MWT. As a result of HES’s egregious misconduct, MWT has undertaken significant measures, at great expense (only a portion of which [TES has reimbursed to MW’), to maintain the parties’ business relationship and avoid litigation. But HES continues to flout the contracts? provisions and has wrongly attempted to terminate the Disposal Agreement and Lease Agreement, claiming MWT is failing to meet its obligations based on manufactured evidence. mI, MWT is one of a limited number (less than ten) of approved facilities authorized to destroy pharmaceutical, chemotherapy, and pathological waste in the United States. HES’s actions have already damaged MWT’s reputation among the medical community. Others in the industry have been wrongfully led to believe that the relationship between HES and MWT has terminated and that MWT has been forced to shut down its Fargo North Dakota facility Iv, As a result of the above and HIES’s ongoing transgressions and breaches, MWT has been left with no choice but to file this lawsuit.BRIEF BACKGROUND Historically, medical waste was often incinerated—a process that causes significant air pollution, including previously in the Fargo area where residents complained of thick black smoke emanating from a HES incinerator facility that previously disposed of the company’s was . In contrast, MWT’s proprietary technology, employed now at the Fargo waste treatment facility, decomposes medical waste and destroys toxins, ‘The result is an inert pyrolytic carbon char and clear emissions, free of heavy metals and other environmental pollutants. And in the case of the Fargo treatment facility, even the steam produced during the pyrolysis is then used in Sanford’s facilities to aid them in meeting their power needs. vi. Over the last 30 years, nearly all medical waste incinerators in the United States have been closed, including HES’s facility in Fargo that shut down amid pressure from regulators and neighbors. As detailed in a November 2018 Valley News article, HES’s facility closed in 2018 after failing to meet emissions standards and experiencing apparent difficulty adequately disposing of medical waste. As further detailed in the same news article, members of the community complained of glass vials filled with blood strewn across the ground nearby and other waste ending up on their properties. Indeed, following complaints, HES was forced to build a fence to keep waste off one neighbor's property. Upon information and belief, HES even resorted to hiding medical waste after its facility was closed in 2018. Vu. Finding itself in urgent need of a solution to process Sanford Heulth’s ‘medical waste for treatment and disposal, HES approached MW’. MWT began processing HES’s waste at its New Mexico facility before opening a dedicated facility in Fargo for HES’s waste, financed based on the revenue stream provided for by the Disposal Agreement.vill. MWT went to great expense—more than $6,000,000—and took out a substantial loan, for which HES was required to make payments to the lender, to construct and ‘operate the Fargo treatment facility. But HES has now failed to make payments under the terms of its agreements, to either the lender or to MWT, leaving MWT to fend for itself and respond to a default notice from its lender, potentially jeopardizing MWT’s existence and the cnvironmentally-safe processing of thousands of pounds of medical waste. And MWT has been forced to do this despite the guaranty provided by Sanford which unconditionally guaranteed HES’s performance of HES’s obligation under the Disposal Agreement and Lease Agreement, including HES"s payment of minimum annual amounts of approximately $1 million for the ten- year life of the Disposal Agreement, By HES’s wrongful refusal to pay, Sanford is now liable under its guaranty to MWT and the lender. Ix. Before medical waste is delivered to the facility, HES and its drivers are responsible for ensuring the proper sorting of the various categories of waste and ensuring the medical waste is packaged appropriately, including that the containers are not leaking. Despite these obligations, medical waste was repeatedly delivered by inadequately trained drivers—in violation of the Disposal Agreement, x. Arriving medical waste, including the waste HES contracts to deliver from Sanford’s medical facilities, is received at MWI"s secure treatment facility, pending final acceptance by MWT. The waste is inspected, documented, weighed, and staged for destruction. To complete this process and comply with applicable local, state, and federal regulations, waste must be packaged and delivered in compliance with exacting protocols—protocols specifically incorporated into the Disposal Agreement and protocols that MWT repeatedly reminded HES of throughout the relationship. Additionally, for contractual, permitting, and company policy, MWTis unable to accept and dispose of certain categories of waste. That information is also clearly and unambiguously spelled out in MWI°s Waste Acceptance Protocol included in the Disposal Agreement. Despite repeatedly reminding HES of its obligations under the contract, HES has repeatedly delivered noncompliant waste to MW1’s treatment facility. xl. Noncompliance issues have ranged from HES’s failure to properly sort and package the medical waste to delivering waste prohibited under the terms of the contract and state Jaw, including hazardous waste and brazenly delivering a human torso hidden within a plastic container to MWT’s treatment facility. Indeed, unknown to MWT at the time, a HES employee signed the manifest for MWTT to accept the torso—a surreptitious act in violation of the Disposal Agreement that permitted only MWT personnel to sign for and accept the medical waste. Plaintiff MWT believes this deception was intended to conceal the delivery of this unauthorized waste. XIL HES’s failure to comply with these protocols has caused MWT significant harm by substantially increasing costs, undermining the efficient operation of the facility, which the protocols were designed to protect, and creating regulatory problems, distractions, and delays, XII, In an apparent attempt by HES to terminate its contract, tamish MWT’s reputation in the medical waste disposal industry, and avoid liability for its repeated defaults and breaches under the Disposal Agreement and Lease Agreement, a HES employee was caught on MWT’s surveillance cameras staging a scene for photographs to portray MW'T as failing to comply with the terms of the Disposal Agreement and to adequately maintain the order of the treatment facility. Put simply, this relationship has tured from (i) a mutually beneficial, environmentally sound solution for the disposal of medical waste, and a potentially positive business relationship, to (ii) a made-for television movie complete with decaying human remains and staged photographs.‘THE PARTIES xIV. Plaintiff MWT ND, LP is a Delaware limited partnership with its principal place of business in Texas. xv. Defendant Sanford Health is a North Dakota non-profit foreign corporation with its principal place of business in Sioux Falls, South Dakota. Sanford Health also operates healthcare facilities throughout North Dakota, including in Fargo, North Dakota. XVL Defendant Healthcare Environmental Services, LLC (“HES”) is a wholly- ‘owned subsidiary of Sanford Health, HES is a North Dakota limited liability company with its principal place of business in Fargo, North Dakota. XVIL. ‘Third Party Defendant David Cardenas is a resident of Dallas, Texas. JURISDICTION AND VENUE XVIIL This court has personal jurisdiction over HES because HES conducts or has conducted continuous, systematic and routine business within the state, all events giving rise to this suit occurred in North Dakota, and also by virtue of a governing law provision in the agreements giving rise to the dispute. This court has subject matter jurisdiction over this action because MWT’s claims arise under the laws of North Dakota, XIX, Venue is proper in this court because HES conducts or has conducted continuous, systematic, and routine business within Cass County, North Dakota, because all events giving rise to this action occurred in the county, and also because the venue selection clauses contained in the Disposal Agreement and Lease Agreement designate any suit arising out of the agreements shall be filed in any state court sitting in Cass County, North Dakota,(GENERAL FACTS AND ALLEGATIONS XX. Plaintiff MWT operates a medical waste treatment facility in Fargo, North Dakota, After HES"s Fargo incinerator facility shut down in November 2018, HES approached MWT to process its waste ata treatment facility operated by an MWT affiliate in New Mexico and to establish a new waste treatment facility in Fargo. XX On September 9, 2020, MWT entered into two agreements with HES—a ten-year Disposal Agreement and a ten-year Lease Agreement. The Disposal Agreement called for MWT to treat, destroy and dispose, or cause to be treated, destroyed and disposed, a broad range of medical waste that HES delivered to MWT. XXII. To allow MWT to obtain financing for the treatment facility, Sanford executed a guaranty (the “Sanford Guarantee”) unconditionally guaranteeing HES’s performance of its obligation under the Disposal Agreement and Lease Agreement, including HES’s payment of minimum annual amounts of approximately $1 million for the ten-year life of the Disposal Agreement. XXiIIL. Under the terms of the Disposal Agreement, HES was required to provide and assure the packaging, manifesting, and labeling of all medical waste delivered to the treatment facility in accordance with the Waste Acceptance Protocols expressly included in the Disposal Agreement. All waste was required to be properly identified by category and contained in rigid, leak-proof and puncture resistant containers. XXIV. The Disposal Agreement, the Waste Acceptance Protocols contained within it, and state law strictly prohibit certain categories of waste, including hazardous waste, fetal remains, human torsos, and improperly packaged, leaking, or damaged containersXXV. MWT retained the right under the Disposal Agreement, but not the obligation, to inspect, sample, analyze or test any waste before accepting it. The Disposal Agreement specifically states in Section 4(d) that MWT’s “exercise of, or failure to exercise its rights hereunder, shall not operate to relieve [HES] of [HES’s] responsibility or liability under this, Agreement or under all applicable federal, state or local laws, permits and ordinances.” XXVI. ‘The Disposal Agreement required that all shipments of medical waste must be delivered to MW1’s treatment facility Monday through Friday 8AM to SPM. Prior to MWT’s acceptance, HES and its drivers were required to inspect all arriving medical waste to ensure it ‘was properly packaged and not leaking or damaged prior to unloading it from the delivery vel at MW1T’s facility, XXVIL ‘The Disposal Agreement also permits MWT to inspect each pallet or container for improper packaging, leaking, or damage. To certify acceptance upon completion of this inspection, each pallet or container is required to be weighed at the point of entry to the facility, documented, and labeled or marked with an ID number. The Disposal Agreement also requites an MWT employee to sign for the shipments before they are deemed accepted. XXVIIL. HES’s failure to comply with the Waste Acceptance Protocols contained within the Disposal Agreement has caused MWT significant damage. For example, in July 2022, MWT was forced to repackage approximately 80 percent of the waste delivered by HES. The ‘waste was not contained in sealed containers in accordance with the Disposal Agreement and acceptance protocols, MWT notified HES of the non-compliance at that time and the need to assess extra charges for the sorting and repackaging of the waste that had been delivered. Despite the reminders of HES’s obligations under the contract, HES continued to disregard the Waste Acceptance Protocols. Waste was delivered in noncompliant containers that ultimately forcedMWT to develop alternative solutions to maintain the business relationship at great expense to Mwt. XXIX. Despite HES’s ongoing non-compliance and MWT’s continuing complaints, in August 2022, MWT proposed a solution to address HES's repeated delivery of material in unsealed, reusable open-lid bins. The solution, not contemplated in the Disposal Agreement, would add significant cost to the disposal process. MWT informed HES of the additional cost associated with the time-consuming and laborious task of removing loose waste bags and containers from the reusable bins, sorting the waste, segregating waste acceptable under the Disposal Agreement from unacceptable waste, repackaging the acceptable waste into containers fit for MWT’s disposal process, and directing HES to remove the unacceptable waste, MWT also noted the cost for disinfecting the reusable containers and to keep the treatment facility open for extended hours to facilitate this process, HES rejected MW'l’s proposed solution. XXX. HES’s breaches of contract do not end with the Disposal Agreement, HES has also repeatedly violated the terms of the Lease Agreement. As the landlord, HES retained the ability under the Lease Agreement to access the treatment facility during business hours, upon a “reasonable prior written notice” to MWT, with a minimum of a twenty-four hours’ notice to inspect, conduct environmental testing, and protect the premises. Yet, HES has deemed it appropriate (in violation of the Lease Agreement) to improperly access the treatment facility for a variety of purposes without the required advance notice, some of them apparently nefarious. In ‘what appears to be an effort to undermine the business relationship with MWT, to cast MWT in a negative light, to improperly attempt to terminate the Disposal Agreement and cut off the payment stream to MWT’s lender, and to avoid the damages caused by its previous defaults, HES improperly accessed the MWT facility to orchestrate a scheme that makes it appear as if MWT isin breach of its obligations to maintain an orderly facility and properly dispose of the medical ‘waste delivered to the treatment facility. XXXI. In late February 2023, surveillance cameras in the treatment facility captured video of a HES employee entering the treatment facility, without permission and in violation of the Lease Agreement, to stage photographs intended to create the appearance that MWT’s facility was disorganized and out of compliance with the applicable agreements and state laws. The HES employee removed waste from the neatly and carefully organized containers and spread that waste around the treatment facility’s floor. The HES employee proceeded to take several photographs before returning the waste to its containers and restoring the containers to their proper places. HES thereafter brazenly mischaracterized these staged photographs and attached them to an April 2023 notice of termination to MWT. XXXII. On March 3, 2023, HES delivered waste to the treatment facility which shockingly contained a human torso, in blatant violation of the Disposal Agreement and attached Waste Acceptance Protocols. Unknown to MWT at the time, a HES employee also “accepted” and signed the waste manifest on behalf of MWT, in blatant violation of the terms of the Disposal Agreement. On March 7, 2023, MWT discovered the problem after an MWT employee noticed a rotten and putrid smell and rejected the waste. MWT filed a waste rejection form with the North Dakota Environmental Quality Department (“NDEQ”) noting the event. No official, senior or otherwise, from HES or Sanford acknowledged, apologized, or otherwise communicated with MWT regarding the delivery of the human torso, The human torso simply disappeared at some point without prior or subsequent notice to MWT. After alerting HES to the rejected delivery of the human torso, along with other unacceptable waste MWT has received, in an email on March 8, 2023, the relationship between HES and MWT soured even further.XXXII. On March 8, 2023, HES employees entered the MWT treatment facility, .out proper notice or approval in violation of the Lease Agreement, and began removing waste from the facility. MWT instructed HES employees not to remove the waste that had already been accepted upon its prior delivery. But HES employees proceeded to do so, telling MWT to contact HES’s legal department, HES also sent a notice of default claiming, without any possible means of substantiating its claims, that MWT was in default of the Disposal Agreement, Had MWT in fact been in default (which it was not), HES’s wrongful removal of medical waste from the treatment facility would deny MWT’s ability to cure as would have been its right under the isposal Agreement. XXXIV. On March 9, 2023, HES employees again entered the treatment facility and removed more waste. In another egregious act, HES this time turned off the feed water to MWT’s boiler, which operates at temperatures in excess of 1200° Fahrenheit, cracking the boiler and endangering the lives of MWT and HES employees and individuals in the surrounding area in violation of Section 11 of the Lease Agreement. HES’s counsel admitted in an email later that day that this tactic was a “part of the negotiation” by HES in an attempt to retrade the existing agreements between the parties, XXXV. MWT incurred substantial expense to build out the waste treatment fac including an approximately $5,000,000 loan for which Sanford Health acted as a guarantor for HES"s performance under the Disposal Agreement and the Lease Agreement, assuring MWT's ability to repay that loan. In order to secure repayment of that loan, the applicable agreements require HES to make periodic payments on MWT’s behalf directly to the lender. HES stopped making payments in March of 2023 and has made no payments since that time. These actions are in violation of HES’s obligations under the Disposal Agreement and have left MWTT in defaultwith its lender, As a result, MWT has experienced increased, ongoing costs and risks related to default with the lender, XXXVI. Despite its transgressions and breaches set forth above, HES nonetheless sent MWT a notice of termination on April 28, 2023, claiming that the Disposal Agreement was terminated for cause and the Lease Agreement was terminated as a result of that default, HES cited several alleged grounds for this purported termination, none of which are accurate, including MWT’s alleged failure to timely dispose of medical waste—a fact HES simply could not know one way or the other because it was neither entitled to enter the premises without proper, advance notice nor had it provided a means of tracking the waste it delivered to the treatment facility. XXXVIL Appended to the purported notice of termination are photographs that HES claims were taken between March 3 and March 8, 2023. Several of these photographs are clearly identifiable as the product of HES’s February 2023 staged scene captured on MW1T’s surveillance cameras as more fully described above. XXXVI. Compounding the suspiciousness of these photographs, boxes pictured purport to show the date the photographed waste was transferred into MWT’s custody. This labeling is inconsistent with HES’s practice during the preceding months, No such dates had ever been placed on the boxes delivered to the treatment facility. ‘These photographs appear to be a pretext to support HES’s wrongful notice of termination of the Disposal Agreement and Lease Agreement. XXXIX. 'S purported termination of the Disposal Agreement and Lease Agreement is barred by its prior breach of these agreements for the conduct outlined in the preceding paragraphsXL. Additionally, on or about November 7, 2023, HES notified MWT that HES considered the Fargo Facility to have been surrendered or abandoned and that HES had retaken possession of that faci ,, changed the utility service over to HES’s name and changed the locks at the facility. At the time of those unlawful actions, MWT still had some of its equipment in the Fargo Facility, was current on all of its utility payments for that facility and was performing wind- down operations at that facility in order to comply with applicable regulations. These actions were taken after this lawsuit was filed, without any adjudication of MWT’s claim that it was entitled to possession of the premises and without any prior warning to MWT or its attomeys. These actions have also exposed MWT to potential regulatory violations and fines for failure to properly close out its permitted facility. Count] BREACH OF CONTRACT XLL MWT repeats and realleges each allegation above and incorporates them by reference as though fully set forth here. XLIL HES and Sanford Health have collectively violated the terms of both the Lease Agreement and Disposal Agreement, and Sanford Health has violated the terms of the Sanford Guaranty. XLII HES has delivered waste to MWT on multiple occasions that fails to comply with Section 4(b)(ii) of the Disposal Agreement and the Waste Acceptance protocols that are part of the Disposal Agreement. XLIV. HES is required to deliver waste in “rigid, leak-proof and puncture resistant containers having @ melting point less than 270F, which are secured tightly to preclude loss of contents and which are designed for the safe transportation and containment” of such waste.XLV. HES has breached the Disposal Agreement by delivering mixed waste to MWT in open lid bins. As a result, MWY has incurred additional expense to sort the waste and place it into compliant containers and boxes or to palletize the waste to stage it for destruction. XLVI. HES also failed to properly identify/label pathological waste and segregate it from any preservative liquids prior to being packaged for MWT. MWT has on numerous occasions detected hazardous liquids in violation of HES’s obligations under the “Segregation and Containment Specific Treatment Requirements” protocols contained in the Waste Acceptance Protocols. XLVIL HES failed to abide by the Disposal Agreement’s restriction on unacceptable waste. HES has delivered a variety of “Unacceptable Waste,” as defined in Section 4(c) of the Disposal Agreement, The unacceptable waste delivered by HES includes, but is not limited to, fetal remains from abortion clinics, which is specifically prohibited by the Disposal Agreement, XLVIIL HES has repeatedly improperly delivered hazardous waste in black hazardous waste containers that HES has attempted to conceal within other waste. XLIX. HES has also improperly delivered a variety of regulated waste, including aviation regulated waste—improperly identified as “regulated garbage”—in violation of MWT's disposal permits and the Waste Acceptance Protocols. L. HES also delivered a human torso hidden inside of a plastic container, identified only afier an MWT employee noticed a distinctive rotten and putrid smell. MWT rejected the waste and required HES to remove it. LL Inaddition to violating Section 4(c) of the Disposal Agreement, the delivery ofa human torso violated MWT’s permits under NDAC Section 3320-12-01. Compounding theproblem of bringing this unacceptable waste to MWT’s facility, a HES employee accepted and signed the waste manifest on behalf of MWT without MW1’s approval or consent. LIL HES has also failed to properly train drivers pursuant to the protocols for picking up and sorting waste from the waste generator’s location in violation of Section 12 of the Disposal Agreement. Lill, HES has, every month since August 2022, delivered waste to MWT’s treatment facility without any information on the manifest to identify the source of the waste, in violation of the Disposal Agreement and state and federal regulatory requirements. LIV. HES staff has entered MWT’s treatment facility in violation of Section 11 of the Lease Agreement on multiple occasions. In an egregious violation of the Lease Agreement, caught on camera, a HES employce entered the treatment facility at 6:19 AM on February 23, 2023. Before business hours and without MWT’s permission to enter, a HES employee proceeded to take waste containers that MWT had already accepted at the treatment facility and disorganized them to make it appear as though the waste had not been properly sorted and organized. The HES employee took pictures of this staged scene that HES included in an April 28, 2023 termination notice to MWT. That notice attempts to terminate the Disposal Agreement under Section 13(b) of that agreement. ‘The purported termination letter mischaraeterizes the photos attached as having been taken between March 3 and March 8, 2023. Security camera footage, however, shows that several of the photographs are from the HES employee’s impermissible entry into the treatment facility on February 23, The fact that HES misrepresented these photos to MWT supports MWT"s belief that HES seeks to wrongfully terminate the Disposal Agreement through improper means and to alleviate itself of its prior breaches noted above.LY. In violation of the Lease Agreement, HES employees improperly entered the leased premises on March 8, 2023, without notice or permission, and removed waste that MWT had already accepted and taken custody of under the terms of the Disposal Agreement, after being told not to do so by MWT staff. LVL On March 9, 2023, HES employees again entered the treatment facility and removed more waste in violation of the Lease Agreement, LVI. HES also tured off the feed water to MWT’s boiler in violation of Section 11 of the Lease Agreement all as part of an admitted “negotiation” tactic by HES in an attempt to retrade the agreements between the parties, despite the great risk to human health and well-being. LVI. HES has breached Section 8.1 of the Lease Agreement, which requires HES to maintain and make any necessary repair to the roof and structural components of the building HES failed to timely make repairs needed to the roof and the leaking exterior walls of the treatment facility, despite numerous requests for such repairs by MWT. LIX, Pursuant to Sections 1(f) and 5(b) of the Disposal Agreement, HES is required to make Minimum Annual Payments, on a bi-monthly basis, to MWT’s lender, LX, On March 1, 2023, MWT sent HES its Invoice No. UMB-19 for the $40,145.83 bi-monthly payment due from HES to the lender on March 15, 2023. On March 15, 2023, MWT sent HES its Invoice No. UMB-20 for the $40,145.83 bi-monthly payment due from HES to the lender on March 31, 2023. HES has failed and refused to make those payments to the lender on behalf of MWT, as well as payments due under the Disposal Agreement thereafter, which constitute breaches of HES’s obligations under the Disposal Agreement. LXL. HES's faiture to pay the amounts due has caused MWT to be in default with the lender—missing all payments due on March 15, 2023, and thereafier.LXIL Pursuant to the Sanford Guaranty, Sanford Health guaranteed the prompt, complete and full, and punctual payment, observance and performance of all the obligations of HES under the Disposal and Lease Agreements. As described in the paragraphs above, HES has failed to meet its obligations under the Disposal Agreement and Lease Agreement and failed to make timely payments to the lender under the applicable agreements, MWT is suing to enforce Sanford’s obligations under the Sanford Guaranty. Count Two TRESPASS LX. MWT repeats and realleges each allegation above and incorporates them by reference as though fully set forth here. LXIV. A person commits civil trespass “where a person ‘intentionally and without a consensual or other privilege . .. enters land in possession of another or any part thereof or causes a thing or third person so to do.” Gray v, Berg, 2016 ND 82, 83 (N.D. 2016). LXV, HES has wrongfully trespassed at the treatment facility on numerous cecasions, including those instances identified above. Count THREE ConvERSION LXV. MWT repeats and realleges each allegation above and incorporates them by reference as though fully set forth here. LXVIL. ‘On March 8, 2023, and March 9, 2023, HES employees entered the waste treatment facility and removed significant waste that MWT had already taken custody of and accepted, Under the Disposal Agreement, the waste HES removed was therefore MW1"s property,LXVII. HES wrongfully exercised control over MWT’s property, inconsistent with MWT’s ownership rights that attached upon MWT’s acceptance of the waste at the Fargo treatment facili LXIX. HES cannot simply claim that they had no ill intent in removing the property from MWT’s treatment facility. “Conversion does not require bad intent on the part of the converter, but only an intent to control or interfere with an owner's rights to use to an actionable degree.” Buri v. Ramsey, 2005 ND 65, § 13 (2005). Count Four DECLARATORY JUDGMENT. LXX. MWT repeats and realleges each allegation above and incorporates them by reference as though fully set forth here. LXXL. MWT seeks, and is entitled to, entry of declaratory judgment pursuant to the Declaratory Judgment Act, N.D.C.C. §§ 32-23-01 et. Seq, and N.D.R. Civ. P. 57. MWT therefore requests the Court enter a declaratory judgment with the declarations listed below, as well as any other declarations the Court finds just, reasonable, and equitable: a) A declaration that MWT has complied with the terms of the Disposal Agreement and the Lease Agreement; b) A declaration that HES has wrongfully attempted to terminate the Disposal Agreement and the Lease Agreement without cause; and ©) Adeclaration that the Disposal Agreement and the Lease Agreement remain in full force and effect.Count Five ‘WRONGFUL REPOSSESSION OF THE FARGO FACILITY LXXIL MWT repeats and realleges each allegation above and incorporates them by reference as though fully set forth here. LXXIIL Prior to any adjudication of the parties competing claims for possession of the Fargo Facility, HES wrongfully took possession and control of that facility in derogation of MWT’s rights and in violation of North Dakota law. It also placed MWT in jeopardy of violating applicable regulations for closing out its permitted facility LXXIV, MIWT asserts that it is entitled to immediate possession of the Fargo Facility and is secking to regain possession of that facility as well as all damages it incurred as a result of Defendants’ wrongful acts. PRAYER FOR Ri MWT prays for relief as follows 1, An order awarding MWT damages it has sustained as a result of HES’s multiple and repeated breaches of contract, wrongful trespass, unlawful repossession of the Fargo Facility, and conversion in an amount according to proof offered at trial, including lost profits, expenses incurred, and harm to MW’s reputation and standing. 2. A declaratory judgment as set forth in Count Four. 3. Anorder awarding MWT the right to possess the Fargo Facility. 4, An award of attomey’s fees, pre-judgment interest at the statutory rate for all payments currently due MWT under the contract and post-judgment interest as allowed by law. 5. Allother legal and equitable relief as may be available under the law the Court may deem proper.Dated this___day of December, 2023. WOLD JOHNSON, P.C. Benjamin E. Thomas (ID #04713) ‘A Member of the Firm 500 2 Avenue N #400 PO Box 1680 Fargo, North Dakota 58107-1680 701-235-5515 bthomas@woldlaw.com Attomeys for Plaintiff SHACKELFORD, BOWEN, MCKINLEY & NORTON, LLP James W. Mortis, Jr. (P0279) ‘Texas Bar No. 14487600 orris(@shackelford law 9201 N. Central Expressway, 4th Floor Dallas, Texas 75231 Main: 214-780-1400 Fax: 214-780-1401 Attorneys for Plaintiff 20