January 20, 2011
The exemplar BARGE suit was tried to the Court from June 21, 2010
through July 9, 2010. Briefing was completed on October 1, 2010. The
Court issued its Findings of Facts and Conclusions of Law today.
Judgment was entered in favor of Lafarge North America, Inc. and
against Josephine Richardson, Holiday Jewelers, Inc., John Alford
and Jerry Alford dismissing Plaintiffs claims in their entirety with
each party to bear its, his or her own costs. The Court found that
the overwhelming physical and scientific evidence proved that the
Barge did not cause the North and South Breaches to the eastbank
floodwall at the IHNC and thus did not cause the cataclysmic
flooding of the Ninth Ward. (Doc. No.
December 9, 2010
The In re Katrina Canal Breaches Consolidated
Litigation, C.A. No. 05-4182 has served as the "Katrina
Umbrella" wherein all cases in which the legal issues surrounding
the levee breaches which occurred in the aftermath of Hurricane
Katrina have been consolidated and have been categorized by topic.
This Court at the inception of this process planned that the Katrina
Umbrella would be dismantled incrementally after the fundamental
issues involved in each category had been resolved, and to date the
Court has proceeded with this course of conduct. This Court finds
that the LEVEE category has reached this point of departure. As a
result, an order was entered severing the LEVEE designated cases and
all tag-alongs from the Katrina Umbrella and ordered them to be
randomly re-allotted to a single judge of the Court for further
handling. (Doc. No. 20136)
July 16, 2010
Judgment entered and suits concerning Additional
Living Expenses and Contents coverages were ordered severed and
re-allotted. (Doc. 19939 as related
to Doc. 19694).
July 9, 2010
BARGE Exemplar Trial concluded with the following
briefing schedule established:
July 23, 2010
Trial transcript shall be completed.
August 27, 2010
Plaintiffs’ Post-Trial Findings of
Fact/Conclusions of Law with no page limitation with respect to this
pleading shall be filed. As the Court noted, the persuasive
Post-Trial Memoranda shall be the main focus of the Court’s
Plaintiffs’ Post Trial Memoranda shall not be more
than 75 pages.
September 17, 2010
Defendant’s Post-Trial Findings of
Fact/Conclusions with no page limitation with respect to this
pleading shall be filed. As the Court noted, the persuasive
Post-Trial Memoranda shall be the main focus of the Court’s
Defendant’s Opposition to Plaintiffs’ Post Trial
Memoranda which shall not be more than 75 pages.
October 1, 2010
Plaintiffs’ final responses thereto which shall
not be more than 30 pages. (Doc. 19936).
Modified schedule (Doc. 19998)
June 3, 2010
A status conference was held with counsel for the
United States, MRGO PSLC, and Entergy and its insurer to discuss the
general posture of this master case and to establish a schedule for
proceedings in this action where the single remaining issue in the
MRGO Consolidated Class Action Litigation is the United States’
alleged liability with respect to the remediation of the EBIA and
its effect on the IHNC floodwalls. The United States intends to
assert its Discretionary Function Exception defense. Entergy New
Orleans, Inc. and Hartford Steam Boiler Inspection and Insurance
Company ("Entergy") whose claims have been consolidated in this
matter, sought certain assurances with respect to discovery
concerning the production of environmental compliance documents as
they pertain to the EBIA. As a result of discussions the following
July 2, 2010
|The United States shall review
and produce all the environmental compliance documents in its
possession that concern the EBIA project.
August 2, 2010
|The United States shall file its
Motion for Summary Judgment.
September 3, 2010
|Plaintiffs shall file their
Motion for Summary Judgment and Opposition to the United States’
September 23, 2010
|The United States shall file its
opposition and response thereto.
||The subject motions was set on
Wednesday, October 13, 2010 at 1:30p.m.
April 1, 2010
The Court addressed the Forced Place claims that
had been brought by homeowners relying on insurance placed by
mortgagees on their properties which were harmed during Hurricane
Katrina which cases had been consolidated under the In re Katrina
Canal Breaches Litigation "FORCED PLACED" category.
Addressing this category of claims in a
global manner, the Court dismissed most claims brought by homeowners
relying on insurance placed by the mortgagee on the property, all
such findings based on the clear policy language at issue. However
where these "Forced Place" policies provided Additional Living
Expenses and Contents coverages, the motion was denied and time was
given for amendment if counsel deemed it necessary. With the passage
of time allowed, these cases were to be severed and randomly
reallotted. (Doc. 19694 and corrected
by Doc. 19729). Judgment on
immediately dismissed claims is Doc.
19730. (Doc. 19694).
February 2, 2010
Court granted the Motion to Consolidate Entergy
Companies’ Individual Case with the MR-GO Master Consolidated Class
Action (Doc. 19345). See Order and
Reasons of February 2, 2010. Doc. 19611
December 18, 2009
November 18, 2009
The Court granted the "Motion to Dismiss the
Sewerage and Water Board Without Prejudice" filed on behalf of the
LEVEE PSLC (Doc. 19275). Using the
standard applicable to a Rule 41(a)(2) motion to dismiss without
prejudice, the Court concluded that the plaintiffs’ motion was not
filed at a late stage in the proceedings and that dismissal of
plaintiffs’ claims against the Sewerage and Water Board would not
cause the Sewerage and Water Board to suffer plain legal prejudice.
The Court entered its Findings of Fact and
Conclusion of law in the Robinson matter. The Court ruled
that the failure of the United States Army Corps of Engineers to
maintain and operate the MRGO properly was a substantial cause for
the failure of the Reach 2 Levee. It found that the Corps was not
negligent with respect to its failure to construct a surge
protection barrier at the "funnel" where Reach 2 merges into Reach 1
and the GIWW and thus was not liable for the flooding of New Orleans
East. It also found that the Corps was not entitled to immunity
under § 702c of the Flood Control Act of 1928 and is not entitled to
the protection of the due care, discretionary function, or
misrepresentation exceptions under the Federal Torts Claim Act. As a
result of these findings, it found that plaintiffs in the St.
Bernard Polder were entitled to damages as set forth with more
precision in the opinion. (Doc. 19415,
September 8 and 9, 2009
Order (Doc. 19255)
and Final Order and Judgment (Doc.
19256) entered by Judge Duval. The Court granted the Motion
filed by the Settling Plaintiffs and Settling Defendants to the
effect that the funds resulting from the insurance proceeds tendered
by St. Paul Fire and Marine Insurance Company on behalf of the
Settling Defendants (Doc. 16647),
the Lake Borgne Basin Levee District, the Lake Borgne Basin Board of
Levee Commissioners, the East Jefferson Levee District, the East
Jefferson Levee District Board of Commissioners, the Orleans Levee
District, and the Orleans Levee District Board of Commissioners is a
limited fund. The Court gave final approval to the Class Action
Settlement Agreement which is attached to the Final Order and
Judgment. In the Final Order and Judgment, the Court authorized the
appointment of a Special Master to determine the distribution of the
proceeds in the event the Judgment becomes final after appeal. Also,
the Court stayed all pending actions against the Settling Defendants
in Federal and State Court.
August 10, 2009
Order (Doc. 19207) entered by
Judge Duval. It requires that individual Plaintiffs in the Master
Class Action Complaint and the Chehardy cases must refile
their own individual claims no later than September 10, 2009. Such
cases will be randomly allotted among the judges of the Court. On or
after September 14, 2009, Judge Duval will dismiss all of the claims
within the Insurance umbrella of In re Katrina Canal Breaches,
while the refiled individual claims will proceed before their
August 6, 2009
Order and Reasons (Doc. 19205)
entered denying Plaintiffs' Motion for Reconsideration (Doc.
19079) and granting Defendant Insurers' Motion to Sever (Doc.
19083). The Court determined that Plaintiffs did not present any
persuasive arguments to cause the Court to reconsider its prior
ruling that struck the Plaintiffs' class allegations from their
complaint. The Court also found that severance of the claims in the
Master Class Action Complaint and the Chehardy cases was
appropriate. Those individual Plaintiffs will be required to refile
their separate claims pursuant to an order to be issued subsequently
June 16, 2009
The Court issued its Order and Reasons (Doc.
19005) granting Defendants' Motion to Strike Class Allegations (Doc.
16711) in the Insurance category of the In re Katrina umbrella.
June 9, 2009
The Court issued its Order and Reasons (Doc.
18977) denying a Motion to Strike Class Allegations on behalf of
the United States in the MRGO category of the In re Katrina
May 21, 2009
The Court issued its Order and Reasons (Doc.
18852) denying the Plaintiffs' Motion for Class Certification (Doc.
15549) in the Barge category of the In re Katrina umbrella.
May 14, 2009
At the close of trial, the Court conducted a status
conference to discuss future briefing schedule. The following was
established along with a listing of issues to be included in the
post-trial memoranda to be filed:
Briefing on the issue of the admissibility of Dalrymple
Plaintiffs’ brief shall be filed no later than
May 21, 2009.
Defendants’ opposition shall be filed no later than
Briefing on the issue of the proffers made
Party seeking admission of proffer shall file brief no later than June 15, 2009.
Party opposed to admission of proffer shall file response no later
than June 22, 2009.
Post Trial Briefs--no Findings of Fact or Conclusions of
Law are required to be filed and are optional.
Briefs cannot exceed 125 pages; this order partially amends a
pre-trial conference Minute Entry of May 4, 2009 (Doc. 18756)
Plaintiffs' Post-Trial Memorandum shall be filed by
Defendants' Post Trial Memorandum shall be filed by July 20,
Plaintiffs' Reply Memorandum shall be filed by August 3, 2009.
(Doc. No. 18842)
May 7, 2009
The Court issued its Order & Opinion (Doc.
18765) granting in part and denying in part the Sewerage and
Water Board’s Motion for Summary Judgment seeking dismissal of
plaintiffs’ claims that its negligence caused the breach of the 17th
Street Canal levee. The Court dismissed the claims against the
Sewerage and Water Board alleging negligent design, construction and
maintenance of the levee, negligent rejection of the "Barrier Plan",
and statutory negligence with respect to underseepage from the
levee. Concluding that a genuine issue of material fact existed
concerning whether the Sewerage and Water Board acted negligently
with respect to the dredging of the 17th Street Canal,
the Court denied the motion for summary judgment on the dredging
May 4, 2009
A status conference was held this day at which
time the Court informed the parties that the trial of the MRGO Master Consolidated Class Action
Complaint (Doc. 3415) is STAYED except
with respect to the motion practice concerning the discretionary
function exception as it pertains to the United States' alleged
defalcations at the EBIA. A briefing schedule for that motion and
for post-trial briefs is set forth in the minute entry. (Doc.
April 3, 2009
In an Order & Opinion (Doc.
18431), the Court granted Public Belt Railroad Commission for
the City of New Orleans’s motion for summary judgment dismissing
plaintiffs’ claim that it acted negligently in damaging Floodgate
W-30. Based on an uncontroverted affidavit opining that the repair
of Floodgate W-30 was not made in a reasonable and timely manner,
the Court concluded that there was no evidence raising a genuine
issue of material fact with respect to whether the Orleans Levee
District’s failure to timely repair the floodgate qualified as
negligence superseding the Public Belt Railroad’s negligence, if
March 31, 2009
A Pre-Trial Conference in Robinson was held on March 31,
2009 and the following Minute Entry (Doc.
was entered memorializing same.
March 20, 2009
The Court denied Plaintiffs’ Motion for Partial
Summary Judgment (Doc. 16510) and
Defendant United States’ Renewed Motion to Dismiss or, in the
Alternative, for Summary Judgment (Doc.
16511). In these motions, the Robinson
plaintiffs and the United State presented legal arguments
concerning two important legal bars to the case before the Court–the
due care exception and the discretionary function exception.
Plaintiffs sought to preclude the Government from raising the
discretionary function exception based on the first inquiry required
for its application–that certain federal statutes, regulations and
policies specifically prescribed a course of action for the Corps to
follow and that the Corps had no choice to but to adhere to those
directives. The Court found that the FWCA does not provide such a
bar; however, with respect to NEPA, Plaintiffs demonstrated that
there are material questions of fact that the Corps itself had found
that the environmental damage caused by the maintenance and
operation of the MRGO was significant, such that it had no choice
but to file the appropriate mandated reports.
As to the United States’ motion, the Court
found as a matter of law that the due care exception is unavailable
to it for the claims presented with respect to maintenance and
operation of the MRGO, and it found that there are material
questions of fact with respect to the original design and
construction thereof. Furthermore, to the extent that the Corps can
prove that it did not violate a mandate with respect to NEPA, there
are material questions of fact with respect to whether the actions
complained of were grounded in political, social, or economic policy
rather than ordinary non-policy decisions concerning technical,
engineering and professional judgments, or other non policy based
factors, and/or whether the safety of the people and property in the
area override any ostensible purported “policy” considerations. (Doc.
March 5, 2009
The Court issued its Order and Reasons (Doc.
18033) denying the State of Louisiana's Motion to Sever and
Remand (Doc. 16480) and granting in
part and denying in part defendant Insurance Companies' Motion to
Dismiss (Doc. 16493).
January 30, 2009
Hearings were held on two Road Home motions:
the State of Louisiana’s Motion to Sever and Remand (Doc. 16480) and
Defendant Insurance Companies’ Motion to Dismiss (Doc. 16493). The
State’s motion sought to sever all of claims assigned to the State
pursuant to the Road Home agreements and remand them to state court,
leaving the class action in federal court. The insurance companies’
motion sought to dismiss all of the State’s claims, alleging that
the assignment agreements are barred under state law, that most of
the claims are prescribed, and that the State failed to adequately
allege the facts of its claim. The matter was taken under
advisement. (Doc. 17061)
January 13, 2009
The Court held an informal status conference as
contemplated in Case Management Order No. 7, Paragraph V (Doc.
12935) concerning the scope and contours of any trials on the merits
in MRGO/BARGE. It was ordered that Liaison Counsel for MRGO
plaintiffs, MRGO defendants, BARGE plaintiffs, and BARGE defendants
and the United States shall file with the Court no later than March
15, 2009, a joint written statement proposing which cases should be
tried in July of 2009 in the event no class is certified. In the
event that a consensus cannot be reached, then separate proposals
may be filed. (Doc. 17466).
The Court also reset the Sewerage and Water
Board’s Motion to Dismiss (Doc. 16843) in LEVEE for hearing on
February 27, 2009 at 10:30 a.m. (Doc. 17448)
January 8, 2009
A hearing was held with respect to Defendant
United States’ Renewed Motion to Dismiss or, in the alternative, for
Summary Judgement (Doc. 16511) and Plaintiffs’ Motion for Partial
Summary Judgment of the Discretionary Function Exception (Doc.
16510). At the conclusion of the hearings, supplementary briefing on
the Corps’ alleged defalcations with respect to the National
Environmental Protection Act (NEPA) was ordered with plaintiffs to
file a supplement brief no later than January 23, 2009. The United
States was ordered to file its response no later than February 6,
2009. At that time, the matter will be considered submitted. (Doc.
The Court reviewed its
progress in settling the mass joinder lawsuits filed against
insurers that remain in the INSURANCE sub-category of cases.
Initially 22 mass joinder cases were filed; in those 22 cases there
were a total of 11,850 plaintiffs. Through the tireless work of
counsel and Magistrate Judge Jay Wilkinson, 9550 of these claims
have been settled. Recognizing that the remainder of these claims
are unlikely to settle, the Court has begun a course of severance
and re-allotment of the remaining mis-joined claims which will
result in approximately 2,300 individual lawsuits being randomly
re-allotted. The Insurance Umbrella Forced Place Policy Case
Management Order and various individual orders set out these
procedures for this process. (See, e.g.,
Doc. 17105 and
December 19, 2008
A supplementary Stay Order was entered with
respect to the LEVEE/MRGO Levee District Settlement. (Doc. 16811).
December 18, 2008
The Court held a hearing on the United States’
Motion for Summary Judgment (Doc. 15317) (Causation Motion for
Summary Judgment) which sought the dismissal with prejudice of
Plaintiffs’ claims that allege their damage was caused by the
negligent operation and maintenance of the MRGO. At the end of the
hearing, the Court indicated that the motion was going to be denied
as there were material questions of fact; however, written reasons
December 15, 2008
An Order of Preliminary Certification of a
Settlement Class, Preliminary Approval of Proposed Settlement and
Stay of Certain Claims and Actions was entered in the LEVEE and MRGO
sub-categories. The Court found preliminarily that this settlement
was consistent with a limited fund class action settlement under
Fed. R. Civ. P. 23(b)(1)(B) with the fund consisting of all of the
insurance proceeds available to all of the levee districts that were
sued in this litigation. The Certification Hearing was set for April
2, 2009 at 10:00 a.m. with a Fairness Hearing to follow immediately
thereafter. Objections to certification and/or fairness were ordered
to be filed in writing no later than March 13, 2009. (Doc. 16721)
December 15, 2008
The Court issued its Order and Reasons granting
the Motion for Summary Judgment filed by Washington Group
International, Inc. (Doc. 15861) finding that the three
prerequisites for the application of the government contractor
defense were met. (Doc. 16723).
November 13, 2008
A hearing was held on the Washington Group
International, Inc.’s Motion for Summary Judgment (Doc. 15861)
seeking dismissal based on the Government Contractor Defense of
plaintiffs’ claims concerning its work on the east bank of the Inner
Harbor Navigation Canal ("EBIA"). Plaintiffs contended in their
complaint that WGI failed to fulfill its state law duty of due care
when it excavated and backfilled two locations pursuant to its
contract with the United States Army Corps of Engineers to remediate
properly an area adjacent to the Industrial Canal thereby causing
two floodwall failures. (Doc. 16604).
October 9, 2008
At a hearing held on September 12, 2008, the
parties and the Court recognized that another and final continuance
in the Robinson matter was necessary. Trial was continued to
commence on April 20, 2009. An extensive briefing schedule was
established in this Order. The Court continued the hearing date to
December 18, 2008 on the United States’ Motion for Summary Judgment
(Doc. 15317) (Causation Motion for Summary Judgment) which seeks the
dismissal with prejudice of Plaintiffs’ claims that allege their
damage was caused by the negligent operation and maintenance of the MRGO. The hearing on the Motion for Summary Judgment to be filed by
the United States on the Discretionary Function Exception (Doc.
16511) was set for January 9, 2009. No more substantive motions will
allowed to be filed in Robinson. (Doc. 15841)
September 29, 2008
In response to the Amended Complaint filed in
the Robinson matter, the United States filed a Motion to
Dismiss Counts Two and Three thereof. Count 2 denominated as one
brought pursuant to "Strict Liability" alleged that the Corps was
liable pursuant to La. Civ. Code 2317 based on its "garde" of the
MRGO. Count 3 alleged negligent supervision and vicarious liability
for activities of a third-party contractor Washington Group
International ("WGI") undertaken in the East Bank Industrial Area ("EBIA").
The Court denied the motion with respect to Count 2 finding that
while it is denominated as a claim in strict liability, under
Louisiana law, it is a claim in essence that invokes another theory
of negligence and thus recognizable under the FTCA. As to Count 3,
the Court found these claims to be time barred and granted the
motion in that regard. (Doc. 15515).
September 23, 2008
An extension of time was sought by the Attorney
General for the State of Louisiana with respect to the certification
of the Commissioner of Administration to give her consent to any
representation of the State of Louisiana by private counsel as
ordered in Doc. 14450. An extension was granted until October 10,
2008. (Doc. 15254)
August 29, 2008
In response to briefing ordered on July 1, 2008
at a status conference concerning the issue of insurance coverage
for Lafarge North America and plaintiffs’ direct action against
Lafarge’s insurer, the Court determined that it would not lift the
stay concerning the motion practice on insurance issues concerning
Lafarge as these issues are being timely addressed as Judge Haight
of the Southern District of New York. (Doc. 14719)
August 28, 2008
A telephonic status conference was held to
discuss the protocol for determining individual cases for trial in
July of 2009 as set forth in CMO No. 7 (Doc. 12935). Because of the
continuance in the Robinson matter, it is clear that a
determination of liability with respect to the United States for
damages allegedly caused by the MRGO will not be decided prior to
the scheduled hearing for Class Certification in December. It was
also indicated that because the United States was having difficulty
with respect to the promulgation of its expert reports, a further
continuance in Robinson may be sought. The Court indicated
that, as there appeared to be no consensus on the cases for to be
tried in July, the Court would independently select them.
Furthermore, the Court indicated that it was inclined not to allow
individual named class members to be used as test cases unless that
particular plaintiff chose to opt out of the class. A Joint Proposed
Protocol was to be filed on September 24, 2008. (Doc. 14720)
August 13, 2008
The Court ruled on the Motion of State Farm and
Casualty Company and Certain Other Insurers Defendants to Disqualify
Plaintiff’s Private Counsel. (Doc. 10937) In this motion, certain
insurers sought the disqualification of private counsel hired by the
Attorney General of Louisiana to file and pursue a class action on
behalf of the State of Louisiana to recover the claims due to the
holders of insurance policies that had been assigned to the State of
Louisiana via the Road Home Program. The Insurers argued that the
retained private counsel faced a potential conflict of interest
because the interests of the State and the putative class members
may conflict at a future point in the litigation. The Insurers also
maintained that the contract between the between the Attorney
General and private counsel was invalid because the Attorney General
failed to comply with Louisiana statutory requirements for the
retention of private counsel by state agencies. The Court found that
there was no conflict of interest; however, it ordered the Louisiana
Attorney General to comply with statutory requirements for the
retention of private counsel. The Court ordered the Attorney General
to submit certification of such compliance within 45 days. (Doc.
August 11, 2008
The Court held a hearing concerning a plethora
of cases and motions all concerning cases filed by the Hurricane
Legal Center. (See Doc. 12856 and
Doc. 12857) The Court determined that
the Motion to Vacate the Court’s dismissal of the Acevedo I
and Abrams cases were without basis. It further found that
the Motion for Appeal of Denial of Leave to amend to be unavailing
as well. The Court noted that the amended complaints sought to be
filed sought to recast the claims of all of the hundreds of
plaintiffs as being "caused by wind and wind driven rain alone"
which was in direct contravention of the judicial admissions made in
the original complaints. Furthermore, the Court found that the
original complaints , albeit inartfully, stated a claim for failure
to pay adequately wind damage claims. Furthermore, it found based on
the Post- Sher CMO, that all claims for failing to pay for flood
damage were dismissed. (Doc. 14402)
June 23, 2008
June 13, 2008
The Court entered a Case Management Order to establish a Road
Home Settlement Protocol aimed at streamlining the procedure by
which the Road Home would approve insurance settlement agreements
entered into between insureds and insurers where a portion of the
proceeds had been assigned at the time the insured received a Road
Home grant. This protocol is intended for use in all relevant cases
pending in this section of Court as well all other sections in the
United States District Court for the Eastern District of Louisiana,
and it is hoped that it will aid other courts in processing like
claims. (Doc. 13598)
The Court recognizing that under the current case law, it has
been established that the exclusions in Louisiana homeowners'
insurance policies of coverage for damages caused by the flood that
resulted from the various levee breaches in the aftermath of
Hurricane Katrina are valid and unambiguous. As such, the Court has
dismissed those claims globally and at the request of counsel
involved has entered a case management order for the Insurance
umbrella establishing a procedure to settle all non-mass joinder
cases. (Doc. 13521)
June 12, 2008
In the related In re: Dredging Limitation Actions Consolidated
Litigation, C.A. No. 06-8676, the Court granted the Limitation
Dredgers' Motion to Dismiss the claims filed therein for damages
arising from flooding to claimants in St. Bernard and Orleans
Parish. This matter is related to the March 9, 2007 entry concerning
Reed and Ackerson. (Doc. 193 in 06-8676).
June 3, 2008
A status conference was held in the Robinson matter and it
was determined that the complaint required an amendment to include
specific allegations of fault with respect to the Lock Expansion
Project or the East Bank Industrial Area ("EBIA"). It was ordered
that such amendment be filed no later than June 13, 2008 and trial
of this matter was continued to commence on January 20, 2009. New
cut-off dates were established therein as well. (Doc.
May 2, 2008
The Court rendered its decision on the 3 Motions for Summary
Judgment concerning the applicability of Section 702c Immunity under
the Flood Control Act of 1928 to the MRGO and damages caused by it.
The Court denied the United States' Motion to Dismiss Lafarge North
America Inc.'s Third-Party Complaints (Doc.
7730)and Motion to Dismiss,
Motion for Summary Judgment in the Robinson matter (Doc.
in so far as the United States is not immune for damages caused by
defalcations that are extrinsic to the Lake Pontchartrain and
Vicinity Hurricane Protection Project. The Robinson Motion
for Summary Judgment Adjudication Concerning Defendant United States
Second Affirmative Defense of Immunity Under 33 U.S.C. § 702 (Doc.
was denied as there are questions of fact. (Doc.
May 1, 2008
The new Case Management Order No. 7 was entered
establishing all new cut-offs and dates for trials in LEVEE, MRGO
and BARGE subcategories. (Doc. 12935)
April 21, 2008
A status conference was held with liaison counsel for INSURANCE
and ROAD HOME. The Court ordered that no later than May 28, 2008,
counsel shall present to the Court a proposed Case Management Order
for Insurance and Road Home where certain procedures will be put in
place to encourage and obtain settlements of the pending cases in a
timely manner with the understanding that without such settlement,
the Court intends at an appropriate time to sever these cases for
random re-allotment. The Court also ordered that counsel shall also
discuss and report to the Court no later than May 28, 2008 a
suggested method by which to dismiss class action claims still
pending based on allegations of coverage based on the alleged
ambiguity in the Water Damage Exclusion which allegations have been
rendered without force as a result of the Sher decision by the
Louisiana Supreme Court. (Doc. 12632)
April 14, 2008
A Status Conference was noticed for April 21, 2008 since the
Court's jurisdiction over the Road Home litigation has been
established. Counsel were informed that the Court would be requiring
a Case Management Order for ROAD HOME as well as a schedule for the
INSURANCE cases. (Doc. 12477)
March 7, 2008
February 29, 2008
The Court held a status conference in open court concerning the
confection of a Revised Case Management Order which will control the
schedule for MRGO and BARGE Master Class Action cases. It was
ordered that a specific schedule be proposed. (Doc. 11705)
February 28, 2008
The Court granted the Motion to Expedite (Doc.
11382); granting in part and denying in part the Motion for
Extension of Deadlines (Doc. 11381) -
Granted insofar as the deadline for the production of documents is
extended from February 29, 2008 to March 20, 2008 and the deadline
for Fact and Witness Lists is extended from March 20, 2008 to March
31, 2008. (Doc. 11474)
The court granted the Washington Group International, Inc.'s Ex
parte Motion for Scheduling Conference and/or to Amend Case
Management Orders (Doc. 11238)
as the Court proposes a number of changes in the deadlines which have not expired in MRGO and BARGE
as contained in Case Management Orders Nos. 4 and 5 (see the Order
for details); the Court
Further ordered that these proposed deadlines will be the subject of a status
conference which shall be held 3/7/2008 @ 10:00 AM before Judge
Stanwood R. Duval Jr.
The Court also granted the Motion to Sever, Motion to Consolidate
Cases filed by Parfait Family (07-3500) (Doc.
8698). The causes of action asserted in the
Parfait Family v. United States, et al., C.A. No. 07-3500 be Severed
and Reconsolidated by virtue of the two amending complaints as found
in (Doc. 8698), and that the Clerk of
Court shall assign a separate civil action case number for all
administrative, statistical, and docketing purposes to the claims
severed in the MRGO litigation group umbrella. The Court
further ordered that this order shall have no bearing on the pending
(Doc. 8364) Motion to Dismiss filed by
the United States.
The Court denied the Motion to Dismiss, Motion to Stay filed by
Washington Group International, Inc.,(Doc.
8224) and Motion to Stay filed by Orleans Levee District. (Doc. 8428)
February 27, 2008
A status conference was held ordering that Liaison Counsel shall
contact Judge Africk's Chambers directly to set a conference to
begin settlement discussions. Counsel shall effect such a call
no later than February 29, 2008. (Doc.
February 22, 2008
The Court denied Mr. Ashton O'Dwyer's Motion for Disqualification
or Recusal of Judge Duval From Victims of Katrina Litigation for
Personal bias, Prejudice and Partiality (Doc.
10910) and ordered him to provide a copy of the Court's Order
and Reasons to each of his named clients and to file into the record
a sworn affidavit certifying that he has complied with this order. (Doc.
February 15, 2008
February 4, 2008
A status conference was held concerning State Farm's interest in
terminating the claims against it based on the inapplicability of
the water damage exclusion in all cases pending in the Insurance
Umbrella . It was agreed that a list of all cases in which State
Farm, Hartford and any other relevant insurer is a defendant for
which a motion to dismiss would be appropriate would be provided to
plaintiffs' counsel. Then no later than March 7, 2008, counsel will
propose a method for disposing of these claims along the lines of
the "me too " motions filed with respect to the contractors and
engineers. In addition, the parties discussed the possibility of
settlement in a global manner all insurance claims and of confecting
a case management order to that end. A report on this endeavor shall
be filed with the Court no later than March 17, 2008. (Doc.
January 30, 2008
The United States Court of Appeals granted leave
to appeal the Court’s decision of November 14, 2007 denying remand
of the Road Home suit based on the provisions of the CAFA and MMTJA (See
8319 and entry for November 14, 2007 below). The appeal was granted
under 28 U.S.C. § 1453 and established an expedited briefing
schedule with a deadline of April 4, 2008 for the 5th
Circuit to rendered its opinion being April 4, 2008. (Doc. 11099)
The Court denied in part and granted in part the United
States’ Motion to Dismiss Counts I-II and V-VII of the Superseding
Master Consolidated Class Action Complaint and to Strike the
Remaining Counts (Doc. 6380) finding that the United States Corps of
Engineers is immune from suit for the damages caused by the breaches
of the flood walls at the 17th Street, Orleans Avenue and
London Avenue canals based on the immunity granted by § 702c of the
Flood Control Act of 1928. The allegations concerning the Industrial
Canal are to be lodged in the Master Complaint concerning MRGO. (Doc.
January 29, 2008
A Status Conference was held concerning State Farm Fire and
Casualty Company and Certain Other insurer Defendants’ motion to
Disqualify plaintiff’s Private Counsel (Doc. 10937) . The
Attorney General requested time to "get up to speed" on this matter
as he lately assumed the office and there being no objection, the
matter was set for special hearing on April 3, 2008 at 3:00 p.m.
A briefing schedule was set forth therein. (Doc. 11213).
January 23, 2008
The Court denied Motions to Dismiss filed by the Sewerage and
Water Board of New Orleans (Doc. 9910,
10043, 10115) and by the Board of Commissioners of the East
Jefferson Levee District (Doc. 10201) wherein they sought to dismiss
the subject cases as being prescribed by virtue of filing these
suits after the prescriptive date in spite of the pendency of timely
filed class actions. (Doc. 10837). A written order was entered on
February 11, 2008. (Doc. 11153). Transcript for reasons can be found
at Doc. 11247.
January 22, 2008
The Court entered an Amended Order clarifying the January 17,
2008 order concerning a stay in all FTCA and/or AEA actions. No
motions are to be filed in these cases other than Barge, Robinson,
and the Levee and MRGO Master Class Action Cases. If a party seeks
to file a motion stayed by this order, counsel must request a status
conference to seek leave to file same. The United States is to file
a specific list of the cases and case numbers of the cases so
affected by February 1, 2008. (Doc. 10723)
January 17, 2008
The Court granted the United States of America’s Motion for a
Stay of All Cases Apart from Barge, Robinson, and the Levee
and MRGO Master Class Action Cases (Doc. 9057). No further motion
practice shall occur in any other matter concerning FTCA or AEA
claims against the United States until the stay is lifted upon the
resolution of the immunity issues inherent therein as proceeding
under the CMO No. 4 in the Master Complaints, Barge and Robinson.
January 9, 2008
The Court, in resolving a dispute concerning the Statement of
Facts that was to be filed in conjunction with the Robinson
motions concerning §702c immunity, ordered that the stay of
discovery on the merits in Robinson as set forth in and
revised in Docs. Nos. 3408,
3603, and 8416 be lifted and notice of
any discovery pursued in Robinson shall be given to liaison
counsel in the umbrella. (Doc. 10289)
January 4, 2008
The Court issued an order to clarify the terms of the stay
entered with regard to the Insurance Umbrella (Doc. 7759) entered on
November 26, 2007. The stay applies without limitation to discovery,
any deadlines for responsive pleadings or other motions with regard
to cases lodged in the Insurance Category. With the exception of
joint motions to dismiss resolved cases, no motions of any kind are
to be filed during this time. However, where a case has been
bifurcated under CMO No. 4, leave may be sought to file a motion to
effectuate the scheduling order in place with respect to that case.
January 2, 2008
The Court ordered that the hearing on United States of America’s
Motion to Dismiss Lafarge North America Inc."s Third-Party
Complaints (Doc. 7730) will be heard in tandem with the motions to
be filed on the same issue in the Robinson matter.
December 27, 2007
The Court granted in part and denied in part the Public Belt
Railroad Commission for the City of New Orleans’ Motion to Dismiss
the Claims of the Plaintiffs Pursuant to F.R.C.P. Rule 12(b)(6)
(Doc. 3609, 3360 and
3029) which concerned flooding. The only claim
which survived this motion concerned the Public Belt Railroad
negligence in connection with a September 10, 2004 train derailment
which damaged part of the flood protection system. (Doc. 9858)
The Court granted CSX Transportation, Inc’s Motion to Dismiss
(Doc. 3621) allegations contained in the Superseding Master
Consolidated Class Action Complaint concerning flooding which
occurred due to the allegedly faulty design of a railroad crossing
at or near the Industrial Canal’s flood protection
structures. (Doc. 9856)
A previously filed motion of the same nature (Doc. 3099) which
was superseded with the filing of the master Consolidated Class
Action Complaint was dismissed as moot (Doc. 9855).
December 4, 2007
A Status Conference was held wherein the schedule for briefing on
the Untied States Motion for Summary Judgment on the § 702c immunity
issue in the Robinson matter was amended with new briefing
dates and the hearing set for March 11, 2008 commencing at 9:00
November 27, 2007
The Court denied Washington Group International, Inc.’s Motion to
Dismiss (Doc. 4140) in which it sought dismissal from the MRGO
Master Consolidated Class Action Complaint in which plaintiffs
alleged that it performed certain work pursuant to a contract with
the Army Corps of engineers which caused the collapse of a flood
wall which protected the Lower Ninth Ward and St. Bernard Parish.
November 26, 2007
A status conference was held concerning the course of action the
Court should take in light of the decision rendered by the Fourth
Circuit Court of Appeal for the State of Louisiana in Joseph Sher
v. Lafayette Ins. Co., et al., 2007 CA-0757, November 19, 2007.
( Doc. 9227). Recognizing that it is direct conflict with the
Fifth Circuit’s decision reversing this court on certain insurance
coverage issues and that said issue is one which will ultimately be
decided by the Louisiana Supreme Court, the Court denied the entry
of final judgment on the Fifth Circuit ruling (Docs.
8051 and 9073)
and denied the defendants’ Joint Motion To: (1) Modify the Court’s
May 1, 2006 Consolidation Order; and (2) Deconsolidate and/or Sever
Cases Within the Insurance Umbrella (Doc. 7759).
November 14, 2007
Motion to Remand the Road Home suit (Doc. 8319) which had been
removed based on CAFA and the MMTJA was heard in open court and
denied for reasons orally stated. The transcript is found as
9066. The written order denying same was entered on December 3,
2007. (Doc. 9314)
November 7, 2007
The Court granted the Joint Motion to Modify Case Management and
Scheduling Order No. 4, as Amended, to Defer Class Action
Certification Proceedings (Doc. 8603) until such time as the Court
has rendered its decision on (1) § 702c immunity of the Corps with
respect to Levee and MRGO, (2) the Rule 12 and Rule 56 motions of
the Washington Group International, and a Motion to Strike the class
Action Allegations which will be ordered to be filed by the Untied
States in the event it is not found to be immune from suit. (Doc. 8928)
November 6, 2007
Interim Road Home Case Management Order was entered in lieu of
CMO No. 6. (See September 18, 2007 entry). (Doc. 8873)
October 24, 2007
A Status Conference was held to discuss with counsel a Joint
Motion to Modify Case Management and Scheduling Order No. 4, as
Amended, to Defer Class Action Certification Proceedings (Doc.
8603). The Court ordered responsive pleadings to be filed and found
that the Class Certification proceedings which were then scheduled
for November 5, 2007 might need to be continued. The Court also
questioned whether the adjudication of the third-party claim of
Lafarge against the United States ought to be adjudicated with the MRGO claims. (Doc. 8667)
October 12, 2007
The Court granted a Motion for Judgment on the Pleadings (Doc.
5522) filed by the Board of Commissioners for the Port of New
Orleans to dismiss claims brought in the Levee cases on the part of
the Dock Board with respect to the levee and/or flood gate failures
along the Inner Harbor Navigation Canal. (Doc. 8389)
September 20, 2007
September 18, 2007
The hearing date on Daubert and substantive motions due to
be filed no later than June 9, 2008 in the Robinson Case
Management Order No. 1 (Doc. 3408) was reset from July 16, 2008 to
July 23, 2008 at 10:00 a.m. All other deadlines established remain
in place. (Doc. 7809)
The case brought by the Attorney General of the State of
Louisiana on behalf of the Division of Administration, Office of
Community Development based on the alleged shortfall in the Road
Home Program against approximately 200 insurers was transferred to
this section and has now been consolidated with the In re Katrina
matter. As a result, a new consolidation order was entered
(Doc. 7729) which sets out the
procedures to be used in filing pleadings in that case which will be
designated as the "Road Home" case. Anyone involved in that case is
instructed to review this document to further understand this
Court's filing procedures. The Court anticipates entering a Case
management and Scheduling Order No. 6 (CMO No.6) in the matter
Please note that the Court has ordered that the due date for
responsive pleadings by any defendant has been EXTENDED TO
NOVEMBER 30, 2007. Furthermore, no motions or other pleadings
are to be filed until such time as the CMO No. 6 is entered.
Seven cases concerning damages allegedly caused by the Ingram
Barge at the Industrial Canal were transferred into this
Consolidated Litigation. As a result, a new consolidation order was
entered (Doc. 7723) which sets out the
procedures to be used in filing pleadings in those cases which will
be designated as "Barge" cases. Anyone involved in them is
instructed to review this document to further understand this
Court's filing procedures.
In addition, Case Management and Scheduling Order No. 5 was
entered to instruct all counsel as to the new deadlines and cut-offs
established by the Court in order to prosecute these cases.
(Doc. 7724). The order requires that
answers must be filed no later than September 28, 2007 and
establishes a trial date for these cases of June 15,
Case Management and Scheduling Order No. 5 has been:
Amended by Doc. 9004 granting Doc. 8974.
Amended by Doc. 10881 granting Doc. 9569 establishing new deadlines
August 29, 2007
The Court entered its Order and Reasons [Doc.
7350] granting the Untied States' Motion to Strike Admiralty
Claims [Doc. 5855] recognizing that
all claims against the United States brought by plaintiffs shall be
pursued under the Federal Tort Claim Act as the allegations of the
complaint do not support admiralty jurisdiction under the Admiralty
August 2, 2007
July 3, 2007
The Court of Appeals for the Fifth Circuit
reversed this Court’s Order and Reasons with respect to certain
insurance coverage provisions that the Court had found to be
ambiguous. It issued as mandate on August 27, 2007 and entered on
this docket as Doc. No. 7409.
The parties agreed to and the Court approved the
following form on June 15, 2007 (Doc. 5574) for the purpose of
individuals being able to file a claim in all Dredging Limitation
Actions arising out of the dredging of MRGO. While these cases have
now been deconsolidated from the Katrina Canal Breaches Consolidated
Litigation for docketing purposes, this document is related to that
umbrella litigation and is provided here for any proper claimant's
Limitation Claim Form
NOTE: IF A CLAIMANT IS REPRESENTED BY COUNSEL, YOU
ARE NOT REQUIRED TO USE THIS CLAIM FORM. IT IS INTENDED TO BE USED
BY THOSE WHO DO NOT HAVE COUNSEL. (See C.A. No. 06-8676, Doc. 8).
July 2, 2007
The Court entered its Order and Reasons denying the United
States' Motion for Certificate of Appealability with respect to its
decision denying its previous Motion to Dismiss the Robinson
suit. [Doc. 6194]
June 29, 2007
The Court granted all the Motions pending, save
that filed by the Washington Group International, Inc. [Doc.
4140] with respect to engineers and contractors and found that
the 17th Street Canal, the Orleans Avenue Canal, and the London
Avenue Canal are not navigable waterways giving rise to admiralty
jurisdiction . [Doc. 6175]
May 29, 2007
Court established an Amended Discovery Protocol
concerning non-stayed discovery issues [doc.
5392/doc. 5190] and a Master
Protective Order (Doc. 5393).
May 23, 2007
April 17, 2007
Court established a Discovery Order Concerning
Materials as to which Privileges may be Asserted with regard to
Electronically Stored Information (Doc.
he Court amended CMO No. 4 to redesignate James
Construction Group, LLC, Gulf Group, Inc. of Florida and CR Pittman
Construction Co. as "Remaining Contractor Defendants" and set
certain deadlines concerning the filing of their Motions to Dismiss.
(Doc. 3783). It also amended certain
deadlines with respect to MRGO and Levee Defendants as to when their
interrogatories, requests for production and requests for admission
all limited to class certification issues had to be filed (now April
30, 2007). Responses are now due no later than May 30, 2007 (Doc.
March 27, 2007
The Court issued its order with regard to the administrative
closure of four "mass joinder" cases pending in the umbrella--Abadie,
06-5164, Aaron06-4746, Keifer 06-5370 and
Ausitn, 06-5383. These cases have been administratively closed
as to all defendants except State Farm Fire and Casualty Company.
The Court finding that the claims are misjoined issued specific
directions with respect to filing individual complaints against
State Farm. See Doc. 3573 for a full
explanation of the Court's order.
March 16, 2007
A hearing was held on March 15, 2007 concerning a Motion to
Enforce Stay filed by the Insurance Defendants in the Fifth Circuit
arising out of their decision to appeal the Court's decision
concerning the Water Damage Exclusion. The Court found that the stay
would implicate discovery and class certification with respect to
all insurance class actions; however, it will not impact on the MRGO
or Levee cases or the individual insurance cases except with respect
to discovery concerning the cause of the levee breaches. See
Doc. 3426 for a full explanation of
the Court's decision and reasons.
March 15, 2007
The Court entered the Robinson Case Management Order No. 1 which
sets forth in detail the schedule for discovery, motion practice and
trial in Robison, et al. v. the United States, et al., C.A.
No. 06-2286. Trial is now scheduled to commence on September 8, 2008
at 9:00 a.m. and is scheduled for three weeks. Also outlined in the
order are the various deadlines concerning motions which the United
States has indicated that it will file and discovery cut-offs.
See Doc. 3408.
On March 29, 2007, a motion making certain changes was granted
and a Revised Case Management Order No. 1 has been promulgated
incorporating those changes. It can be found at REVISED CASE
MANAGEMENT ORDER NO. 1 (Doc. 3603).
Amendment # 1 [doc 7809]
Hearings on all motions Daubert and substantive motions due to be
filed no later than June 9, 2008 scheduled in and Robinson Case
Management Order No. 1
3408 and Revised Robinson
Case Management Order No. 1,
3603 which were set for
July 16, 2008 at 10:00 a.m. to July 23, 2008 at 10:00 a.m. All
other deadlines shall remain in place.
March 9, 2007
The Court granted certain Motions to Dismiss filed
by the Dredging Defendants in Reed, C.A. No. 06-2152 and
Ackerson, 06-4006 (MRGO cases) as well as the Government's
Motion to Dismiss in Reed based on the premature filing of
the suit. See Doc. 3365.
March 1, 2007
The Court entered Case Management and Scheduling
Order No. 4 which governs and is geared toward the substantial
resolution in the foreseeable future class certification and common
liability issues, including disclosure, discovery, further motion
practice, trial preparation and related proceedings in the Levee,
MRGO and Insurance categories of cases.
All trial dates and other pretrial dates and
deadlines set in the individualized non-class action Insurance
category cases are continued by this order. This order DOES NOT
apply to Responder, Dredging Limitations and St. Rita Nursing Home
categories. Furthermore, the Court determined that Robinson, et
al v. United States, C.A. No. 06-2268 in this umbrella is
appropriate for a separate scheduling order, including trial of all
issues, and will be governed by a separate order. A careful review
of this order is suggested by the Court.
Note that this Order was entered simultaneously
with the notice that the Fifth Circuit granted an expedited hearing
and stay in the Insurance cases that are presently on appeal. (Court
of Appeals' Docket No. 07-30119). The Court ordered the parties to
make certain submissions with respect to the effect of these orders
on Case Management Order No. 4 on
March 9, 2007.
Amendment #1 (Granting Doc. 3419 filed 04/15/07)
Amendment #2 (Granting Doc. 3427 filed 03/16/07)
(Granting Doc. 3582 filed 03/28/07)
(Granting Doc. 5148 filed 05/22/07)
(Granting Doc. 5190 filed 05/23/07)
(Granting Doc. 5543 filed 06/12/07)
THE LISTING OF MOTIONS DO NOT CORRESPOND
WITH THE STYLE OF EACH MOTION; THESE ARE
LISTED IN ORDER SUCH MOTIONS WERE FILED.
A synopsis of the deadlines created by this
document can be found in the Calendar section.
February 13, 2007
February 2, 2007
A mandatory Status
Conference was held on February 13, 2007.
A synopsis thereof is contained in Doc.
The Court issued
its ruling denying the United States Motion to Dismiss pursuant to
Fed. R. Civ. P. 12(b)(1) filed in the Robinson matter in which
six plaintiffs have sued the United States and the Army Corps of
Engineers for damages caused by the MRGO. See
January 24, 2007
A hearing occurred this morning with respect to
Plaintiffs' Motion for Leave to File Motion and Incorporated
Memorandum in Support for Entry of an Order Administratively Closing
Aaron , No. 06-4746, Abadie , No. 06-4746 (Doc. 2238)
and Kiefer,No. 06-5370 (Doc. 2659) and Austin, C. A.
06-5383. Agreement was reached among the litigants concerning the
proper course of action to take concerning the administrative
closure as to most of the litigants, and the Court ordered that a
proposed order memorializing that agreement be filed with the Court no later than February 1, 2007. An extension of time to file
responsive pleadings was also granted until February 8, 2007 in all
matters consolidated herein. See Doc.2860
January 19, 2007
The court agreed to grant one final extension of
time for the presentation of the First Discovery Plan for the
Katrina Canal Breaches Consolidated Litigation that extension being
to January 26, 2007. See Doc. 2736
January 11, 2007
A status conference was held in which a number of
state court judges participated; the topic of discussion was the
creation of the First Discovery Plan for the Katrina Canal Breaches
Consolidated Litigation and the need for coordinating such discovery
with the state court proceedings A proposed discovery plan is
now to be presented on January 22, 2007 and will be reviewed by the
state court judges with the Court receiving their comments.
The Court intends to put in place its First Discovery Plan within a
week of receipt of the proposal. See Doc.
January 2, 2007
A status conference was held to discuss discovery
as it pertains to Insurance Cases and coordinating discovery with
State Court actions. Also, the Motion to Administratively
close Abadie and Aaron are now set with oral argument
for January 24, 2007 at 9:30 a.m. See
in the Organizational Orders section of this website.
December 29, 2006
Judge Duval denied the Motion to Dismiss filed by
the Orleans Levee District and the Sewerage and Water Board (Doc.
573) and the Sewerage and Water Board's Motion to Dismiss (Doc.
563). See Doc. 2423
and Doc. 2422 respectively.
December 15, 2006
A hearing was held with respect to the Motions to Dismiss filed
by the Dredging Defendants before Judge Duval and was taken under
advisement at the time.
December 8, 2006
Judge Duval granted summary judgment dismissing
the claims lodged against contractors and engineers for the work
preformed on various levees and canal walls based on the relevant
Louisiana peremption statutes. See
Doc. 2142 and Doc. 2148.
December 6, 2006
The Court has issued a comprehensive minute entry
concerning a Status Conference held with Liaison Counsel on November
29, 2006, concerning the course of the motion practice and discovery
in the future in the Katrina Canal Breaches Consolidated Litigation.
It is anticipated that there will be no hearings on any matters
other than the presently scheduled Dredging Motions on December 15,
2006 until January 23, 2007 when the Motions to Stay the Dredging
Limitations will be heard. Cut-offs have been set with respect to
the next wave of Rule 12 motions and the like. Also a call docket
before Judge Wilkinson on January 5, 2007 is also set. You should
review this order carefully. See Doc. 2034
in the Organizational Orders of this website.
Also, Case Management Order No. 3 concerning the
establishment of the Canal Breaches website to service this
litigation and various reminders concerning the procedures to be
used are contained therein. See Doc. 2033
in the Organizational Orders of this website.