Tommaseo v. United States

80 Fed. Cl. 366, 2008 U.S. Claims LEXIS 22, 2008 WL 312306
CourtUnited States Court of Federal Claims
DecidedJanuary 31, 2008
DocketNo. 05-1119L
StatusPublished
Cited by6 cases

This text of 80 Fed. Cl. 366 (Tommaseo 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
Tommaseo v. United States, 80 Fed. Cl. 366, 2008 U.S. Claims LEXIS 22, 2008 WL 312306 (uscfc 2008).

Opinion

MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS’ MOTION TO FILE A SECOND AMENDED COMPLAINT.

BRADEN, Judge.

On November 30, 2007, Plaintiffs filed a Motion To File A Second Amended (Class Action) Complaint1 (“Pl.Mot.Leave”), together with a Proposed Second Amended Class Action Complaint (“Second Amend. Compl.”). On December 17, 2007, the Government filed an Opposition (“Gov’t Resp.”), and on December 31, 2007, Plaintiffs filed a Reply (“Pl.Reply”).

I. RELEVANT FACTS.2

The Mississippi River Gulf Outlet (“MRGO”) is a 76-mile, man-made navigation channel, designed and maintained by the United States Army Corps of Engineers (“Government”), that runs from the Gulf of Mexico to the Port of New Orleans. See [368]*368First Am. Compl. 114. This federal project was authorized in 1956 to provide deep water vessels direct access between the Gulf of New Mexico and the Port of New Orleans for commercial and national defense purposes. Id. Construction began in 1958 and was completed in 1968. See Gov’t Mot. Dis. at 3. The MRGO is 76 miles long and originally was authorized with a surface width of 650 feet, a bottom width of 500 feet, and a depth of 36 feet. First Am. Compl. 115. The MRGO is bordered on the east by Lake Borgne and on the west by marshland that lies between the MRGO and St. Bernard Parish. Id.; see also Gov’t Mot. Dis. at 3.

The First Amended Complaint alleges that the MRGO is now significantly wider than the initial authorized size, i.e., up to three times as wide in some areas. See First Am. Compl. H115-9. This increase in the width allegedly has occurred for two reasons. First, “the surface width [of the MRGO] was wider than the bottom width creating [a situation where] wake and wave action [from ships traveling along] the channel ... continue[ ] eroding and widening [of the channel]” Id. H 6. Second, the MRGO allows salt water from the Gulf of Mexico to flow into marshlands bordering St. Bernard Parish, damaging the wetlands that serve as a natural buffer against hurricane winds and storm surge: “[t]he wetland loss and deterioration from the MRGO ... allowed for expanded tidal amplitude and duration, increasing the flooding risk to interior portions of St. Bernard Parish and Orleans Parish and further providing a direct line of access for hurricane-related storm surge to reach St. Bernard and Orleans Parishes.” Id. 11H 7, 8. In addition, Plaintiffs allege that where the MRGO merges with the Gulf Intracoastal Waterway, a “funnel” has been created that effectively causes storm surge from “any tropical storm or hurricane which passes in the vicinity of the MR-GO ... into St. Bernard Parish and the Lower Ninth Ward [of New Orleans], flooding those lands time and time again.” PI. Resp. at 7.

On August 29, 2005, Hurricane Katrina landed on the southeastern Louisiana Gulf Coast near New Orleans, causing “catastrophic damage.” See Gov’t Mot. Dis. Ex. E at 1 (Richard D. Knabb et al„ Nat’L Hurricane Center, Tropical Cyclone Report Hurricane Katrina (2005)). The National Hurricane Center (“NHC”) reported that Hurricane Katrina generated a “massive storm surge” that reached “15 to 19 feet ... in eastern New Orleans [and] St. Bernard Parish” and peaked at 27.8 feet along the Mississippi Gulf Coast. Id. at 9. This storm surge was so large that it “severely strained the levee system in the New Orleans area ____ [and] overtopped large sections of the levees east of New Orleans, in Orleans Parish and St. Bernard Parish[.]” Id. The resulting flood devastated St. Bernard Parish. Id. at 9-11; First Am. Compl. 1111.

Plaintiffs are resident property owners in St. Bernard or Orleans Parishes or are Louisiana corporations with a principal place of business in St. Bernard Parish. See First Am. Compl. UH2, 10. The First Amended Complaint alleges that Plaintiffs suffered “massive flooding and destruction of [their] property” by Hurricane Katrina, and that, “but for the creation and maintenance of the MRGO by the United States, the flooding and devastation of Plaintiffs’ property would not have occurred.” Id. 111111-13. After Hurricane Katrina, Plaintiffs’ property has been subjected to repeated flooding, even during minor weather events, because of the wetland loss associated with the MRGO. Id. 111122-24.

II. PROCEDURAL HISTORY.

On October 17, 2005, Plaintiffs filed a class action in the United States Court of Federal Claims, alleging that the Government deprived Plaintiffs of their property in violation of the Just Compensation Clause of the Fifth Amendment to the United States Constitution (“Just Compensation Clause”). On October 24, 2005, Plaintiffs filed a Disclosure Statement pursuant to Rule of the United States Court of Federal Claims (“RCFC”) 7.1.

On January 13, 2006, a First Amended Complaint was filed that included three counts. See First Am. Compl. 111115-29. On January 17, 2006, the Government filed an Answer. On March 7, 2006, the parties filed a Joint Preliminary Status Report. On [369]*369March 17, 2006 and July 18, 2006, the court convened telephone status conferences. On July 18, 2006, the court issued a Scheduling Order requiring any dispositive motions to be filed on or before September 18, 2006.

On August 16, 2006, Plaintiffs filed a Motion to Compel Discovery Responses, together with five exhibits. On September 5, 2006, the Government filed a Response. On September 7, 2006, Plaintiffs filed a Reply. On September 7, 2006, the court convened a hearing to consider Plaintiffs’ August 16, 2006 Motion to Compel. On September 8, 2006, the court entered an Order, denying Plaintiffs’ August 16, 2006 Motion to Compel, as premature, and directing the Government to file any motion to dismiss by September 30, 2006. On October 2, 2006 the Government filed a Motion for an Enlargement of Time, which the court granted.

On October 4, 2006, the Government filed a Motion to Dismiss, pursuant to RCFC 12(b)(1), together with five supporting exhibits. On November 2, 2006, Plaintiffs filed a Motion In Limine to exclude those exhibits. On November 2, 2006, Plaintiffs filed a Declaration of Counsel in opposition of Government’s October 4, 2006 Motion to Dismiss. On that same date Plaintiffs filed a Statement of Contested Material Facts in opposition to the Government’s Motion to Dismiss, as well as a Response to the Government’s October 4, 2006 Motion to Dismiss. On November 20, 2006, the Government filed a Reply to Plaintiffs’ November 2, 2006 Response and a Response to Plaintiffs’ November 2, 2006 Motion In Limine. On December 6, 2006, Plaintiffs filed a Reply to the Government’s November 20, 2006 Response.

On January 27, 2007, Plaintiffs filed an Ex Parte Motion for Leave to File a Supplemental Memorandum in Opposition to the Government’s Motion to Dismiss and proposed Supplemental Memorandum with four exhibits. On February 2, 2007, the Government filed an Opposition. On February 7, 2007, the court issued an Order granting Plaintiffs’ January 27, 2007 Ex Parte Motion for Leave to File a Supplemental Memorandum. On February 21, 2007, Plaintiffs filed a Supplemental Memorandum in Opposition to Defendant’s Motion to Dismiss.

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Bluebook (online)
80 Fed. Cl. 366, 2008 U.S. Claims LEXIS 22, 2008 WL 312306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tommaseo-v-united-states-uscfc-2008.