Banks v. United States

84 Fed. Cl. 288, 2008 U.S. Claims LEXIS 304, 2008 WL 4636178
CourtUnited States Court of Federal Claims
DecidedOctober 15, 2008
DocketNos. 99-4451 L, 99-4453L, 99-4454L, 99-4455L, 99-4456L, 99-4457L, 99-4458L, 99-4459L, 99-44510L, 99-44511L, 99-44512L, 00-365L, 00-379L, 00-380L, 00-381L, 00-382L, 00-383L, 00-384L, 00-385L, 00-386L, 00-387L, 00-388L, 00-389L, 00-390L, 00-391L, 00-392L, 00-393L, 00-394L, 00-395L, 00-396L, 00-398L, 00-399L, 00-400L, 00-401L, 05-1353L, 05-1381L, 06-72L
StatusPublished
Cited by23 cases

This text of 84 Fed. Cl. 288 (Banks v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Banks v. United States, 84 Fed. Cl. 288, 2008 U.S. Claims LEXIS 304, 2008 WL 4636178 (uscfc 2008).

Opinion

OPINION and ORDER

HEWITT, Judge.

I. Background

A. Procedural Setting

The facts of this case are set forth in detail in the court’s September 28, 2007 opinion, Banks v. United States (Banks Liability Opinion), 78 Fed.Cl. 603, 603-10 (2007). [290]*290The current procedural posture of this case is described briefly here.

After consolidating the claims of all plaintiffs, the court held a trial for the purpose of determining liability. Trial on liability began on Monday, June 4, 2007, and concluded on Friday, June 8, 2007. Banks Liability Opinion, 78 Fed.Cl. at 609. Following the liability trial, the court issued the Banks Liability Opinion. Before the court are the parties’ post-liability trial briefings: Plaintiffs’ Damages Trial Memorandum (plaintiffs’ Memorandum or Pis.’ Mem.); Defendant’s Response to Plaintiffs’ Damages Trial Memorandum (Def.’s Resp.); and Plaintiffs’ Reply in Support of Plaintiffs’ Damages Trial Memorandum (Pis.’ Reply). The court treats plaintiffs’ Memorandum as a motion for reconsideration for the reasons set forth below in Part I.B. The court has not relied in this opinion on the documents addressed in plaintiffs’ Motion to Strike Declaration of David Wolf and James Selegean (Motion to Strike) and, accordingly, deems plaintiffs’ Motion to Strike to be MOOT.

A. Plaintiffs’ Memorandum Is Treated as a Motion for Reconsideration

Plaintiffs contend that defendant is hable for erosion of plaintiffs’ properties located along the eastern shore of Lake Michigan south of the St. Joseph Harbor. Banks Liability Opinion, 78 Fed.Cl. at 604. The court determined after trial that defendant was hable for a portion of the erosion of plaintiffs’ properties, id. at 621, and, further, that the extent of defendant’s liability depended in part on the nearshore lakebed composition, id. at 622. In particular, defendant’s liability depended on whether the nearshore lakebed composition was found to be sandy or cohesive. Id. at 622-23. The Banks Liability Opinion concluded that the nearshore lake-bed composition along plaintiffs’ zone1 is predominantly sandy, with the exception of certain of plaintiffs’ properties located in the northernmost portion of plaintiffs’ zone, some of which properties were characterized as having a cohesive nearshore lakebed composition. Id. at 628.

Plaintiffs now present two theories in support of allowing the presentation of additional evidence regarding the nearshore lakebed composition in plaintiffs’ zone during the damages phase of the trial.

First, plaintiffs argue that the presentation of evidence as to the nearshore lakebed composition in plaintiffs’ zone should not be precluded during the damages trial because “there has been no definitive ruling [on the nearshore lakebed composition] to reconsider.” Pis.’ Reply 8. Plaintiffs argue that “[t]he issue of each individual [plaintiffs shoreline composition was not, and could not have been[,] conclusively addressed in the liability phase of the trial,” Pis.’ Reply 6, because “there is no definitive competent evidence in the record of the [shoreline] profile of each [plaintiffs property, nor should there be,” Pis.’ Mem. 6.

Plaintiffs argue that calculating damages as to individual plaintiffs during the damages trial necessarily requires the court also to address the issue of nearshore lakebed composition in plaintiffs’ zone during the damages phase. Pis.’ Reply 7 (“At the damages trial, the parties can move crisply with the calculation of damages, including the submission of actual and current shoreline composition evidence.”). The court disagrees. Plaintiffs’ argument mischaraeterizes the scope of the liability trial and fails to account for the findings made by the court in the Banks Liability Opinion. Contrary to plaintiffs’ contention, the court explicitly and conclusively determined the issue of the near-shore lakebed composition in plaintiffs’ zone, as more particularly discussed below.

Findings based on evidence as to the nearshore lakebed composition of plaintiffs’ zone were necessary to determine defendant’s liability for the erosion in plaintiffs’ zone. In the Banks Liability Opinion, the court stated that “the composition of the lake bed is relevant because the composition affects erosion and mitigation processes.” Banks Liability Opinion, 78 Fed.Cl. at 622. The parties presented, and the court reviewed, detailed documentary and testimoni[291]*291al evidence on the specific issue of the near-shore lakebed composition within plaintiffs’ zone. See id. at 621-28. On the issue of nearshore lakebed composition, the court held:

With no expert evidence from plaintiffs to counter defendant’s expert’s studies and explanations, and no expert review of Dr. Naim’s—and particularly Dr. Larson’s— research conclusions regarding the lake bottom composition, the court finds that plaintiffs failed to prove by a preponderance of the credible evidence that plaintiffs’ properties are located on a cohesive lake bottom.

Id. at 628. The court accepted defendant’s experts’ findings that the nearshore lakebed “along plaintiffs’ zone is predominantly sandy,” with the exception of any of plaintiffs’ properties located in the northernmost portion of plaintiffs’ zone (some of which properties were characterized by defendant’s experts as cohesive). Id. The evidence at trial did not permit the court to determine (by, for example, an overlay of plaintiffs’ property lines onto the lakebed composition data presented by defendant) exactly which of plaintiffs’ properties in the northernmost portion of plaintiffs’ zone were adjacent to the cohesive nearshore lakebed shown on defendant’s exhibits. See, e.g., Defendant’s Exhibits 1 (Nairn Report), 8 (Larson Report), and 28-31 (Figures from Larson Report) (demonstrating the composition of the nearshore lakebed, but not correlating the composition data to individual plaintiffs’ property lines); see also infra note 6 (discussing the reasons why evidence as to individual plaintiffs specific property ownership was not presented at the liability trial). The court stated that the questions of specific property ownership and damages would be based upon the court’s liability findings, including the court’s factual findings regarding the nearshore lakebed composition. See Banks Liability Opinion, 78 Fed.Cl. at 616. Plaintiffs’ argument that the court made “no definitive ruling” about the composition of the nearshore lakebed, Pis.’ Reply 8, is simply inaccurate.

Secondly, and in the alternative, plaintiffs argue that the court should grant a motion for reconsideration of its findings regarding the nearshore lakebed composition in plaintiffs’ zone. Pis.’ Reply 8. Given the fact that the court issued findings on the nearshore lakebed composition in the Banks Liability Opinion, the court treats plaintiffs’ Memorandum as a motion for reconsideration.

For the reasons discussed below in Part III, plaintiffs’ arguments are insufficient to meet the standard of review for motions for reconsideration.

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Cite This Page — Counsel Stack

Bluebook (online)
84 Fed. Cl. 288, 2008 U.S. Claims LEXIS 304, 2008 WL 4636178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banks-v-united-states-uscfc-2008.