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