Substantive Orders

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Orders Description
12/18/09 [#19481] 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.
09/08/09 [#19255]
09/09/09 [#19256]
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.
08/10/09 [#19207]


The Court issued its Order requiring that all individual Plaintiffs in the Insurance umbrella must refile their claims as an individual suit by September 10, 2009. These cases will be realloted at random among the judges of the Court. On or after September 14, 2009, Judge Duval will then dismiss all claims within the Insurance umbrella while the individual cases proceed.
08/06/09 [#19205]



The Court issued its Order and Reasons denying Plaintiffs' Motion for Reconsideration (Doc. 19079) and granting Defendant Insurers' Motion to Sever (Doc. 19083) in the Insurance umbrella of In re Katrina. Plaintiffs' Motion for Reconsideration sought reversal of the Court's prior order dated June 16, 2009 that struck Plaintiffs' class allegations (Doc. 19005).
06/16/09 [#19005]


Order and Reasons entered granting Defendant Insurers' Motion to Strike Class Allegations (Doc. 16711). The Court determined that Plaintiffs' Motion for Class Certification (Doc. 3413) did not propose a class action that could fulfill the predominance requirement of Federal Rule of Civil Procedure 23(b)(3). The Court determined that Defendants were not required by law to provide notice to any potential plaintiffs that class certification had been denied. The Court also dismissed any claims seeking recovery under flood exclusion clauses, and all claims pursuant to the Louisiana Valued Policy Law.
06/9/09 [#18977]


Order and Reasons entered denying the United States' Motion to Strike Class Allegations. The United States had opposed MRGO Plaintiffs' Motion for Class Certification on the basis that no class action may be maintained against the United States under the Federal Tort Claims Act ("FTCA") (Doc. 8284). This Court construed this opposition as a motion to strike class allegations in order to specifically address the issue of whether a class action can be brought against the United States under the FTCA. The Court found that the class, as framed by the Plaintiffs, could be maintained because it included only those plaintiffs who had already filed administrative claims with the U.S. Army Corps of Engineers.
05/21/09 [#18852] Order and Reasons entered denying Barge Plaintiffs' Motion for Class Certification (Doc. 15549). The Court determined that the proposed class action did not fulfill the predominance requirement and the superiority requirement of Federal Rule of Civil Procedure 23(b)(3).
03/31/09[#18434] Pre-Trial Conference Minute Entry
03/20/09[#18212] Order and Reasons denying   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) which concerned the application of the Discretionary Function Exception to the Corps actions with respect to the MRGO.
03/5/09 [#18033]
Order and Reasons entered 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).  The Court found that the Road Home Limited Assignment/Subrogation Agreements that were executed by grant recipients were valid under Louisiana law, and therefore the State could assert contract-based claims against recipients' insurers; however, the Court concluded that the State could not bring any extra-contractual claims against the insurers.  Also, the Court held that it would be inappropriate to sever the State's subrogated claims and remand them to state court because of the difficulties in conducting simultaneous litigation regarding the same claims.
12/19/08 [#16811] A supplementary Stay Order was entered with respect to the LEVEE/MRGO Levee District Settlement.
12/15/08[#16721] 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.
12/15/08 [#16723] 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.
09/29/08[#15515] Order granting in part and denying in part Motion to Dismiss Counts Two and Three of Amended Complaint filed in Robinson. 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.
8/13/08 [#14450] Order and Reasons on the Motion of State Farm and Casualty Company and Certain Other Insurers Defendants to Disqualify Plaintiff’s Private Counsel. (Doc. 10937) 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. Eventually, the State determined to pursue the claim without aid of outside counsel.



Order and Reasons concerning mass joinder 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)


Ruling on 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. 10378) and he Robinson Motion for Summary Judgment Adjudication Concerning Defendant United States Second Affirmative Defense of Immunity Under 33 U.S.C. § 702 was denied as there are questions of fact (Doc. 10337) finding that the United States' motions were denied 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 plaintiffs' motion was denied as there are questions of material fact.
02/29/08[#11474] Order granting 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.
02/27/08[#11439] Order 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.


Order and Reasons denying 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 ordering 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.
02/04/08[#11099] Notice from the United States Court of Appeals for the Fifth Circuit granting leave to appeal this Court’s decision of November 14, 2007 denying remand of the Road Home suit based on the provisions of the MMTJA (See Doc. 8319 and entry for 11/14/07). The appeal was granted under 28 U.S.C. § 1453 and established an expedited briefing schedule with a deadline of April 4, 2008 under the statute for the 5th Circuit to rendered its opinion. (Doc. 11099)
01/30/08 [#10984] Order and Reasons denying in part and granting 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 floodwalls 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.
01/23/08[#10837] Minutes from Court proceedings wherein the Court denied Motions to Dismiss filed by the Sewerage and Water Board of New Orleans (Doc. 9910, 10037, 10039, 10041, 10043, 10115) and by the Board of Commissioners of the East Jefferson Levee District (Doc. 10201). 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.
12/27/07[#9858] Order and Opinion granting in part and denying 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)
12/27/07[#9856] Order and Opinion granting 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.
12/27/07[#9855] Order dismissing as moot A previously filed motion by CSX Transportation, Inc. (Doc. 3099) which was superseded with the filing of the Master Consolidated Class Action Complaint.
11/27/07[#9237] Order and Reasons denying 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.
11/26/07[#9227] Minute Entry concerning a status conference which 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. 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).
10/12/07 [#8389] Order and Reasons granting 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.
11/14/07[#9314] Minutes from proceedings where Court orally order denied Motion to Remand the Road Home suit which had been removed based on CAFA and the MMTJA. The transcript is found as Doc. 9066. The written order denying same linked here was entered on December 3, 2007.
08/29/07 [#7350] Order and Reasons 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 Extension Act.
07/02/07 [#6194] Court denied United States' motion for Certificate of Appealability [Doc. 2994]
06/29/07 [#6175] Order and Reasons Concerning Various Engineers' and Contractors' Motions to Dismiss, including finding that the 17th Street Canal, the Orleans Avenue Canal, and the London Avenue Canal are not navigable waterways giving rise to admiralty jurisdiction .
03/15/07 [# 3408] Robinson Case Mangaement Order No. 1 for Robinson, et al. v. the United States, et al., C.A. No. 06-2286.
03/09/07 [# 3365] Order and Reasons concerning Motions to Dismiss the Dredging Defendants in Reed C. A No. 06-2152 and Ackerson, 06-4066 and the United States in Reed , C.A. No. 06-2152 .
03/01/07 [3299]

04/17/07 [#3783]

04/17/07 [#3776]

04/26/07 [#3989]

05/23/07 [#5250]

05/29/07 [#5392]

06/13/07 [#5558]

Case Management Order No. 4 entered. See Current Developments for explanation.

Amendment #1   (Granting Doc. 3419 filed 04/15/07)

Amendment #2   (Granting Doc. 3427 filed 03/16/07)

Amendment #3   (Granting Doc. 3582 filed 03/28/07)

Amendment #4   (Granting Doc. 5148 filed 05/22/07)

Amendment #5   (Granting Doc. 5190 filed 05/23/07)

Amendment #6   (Granting Doc. 5543 filed 06/12/07)

02/02/07 [#2994] Order and Reasons denying Motion to Dismiss filed by the United States in Robinson.
12/29/06 [#2423] Order and Reasons denying Motion to Dismiss filed by the Orleans Levee District and the Sewerage and Water Board (Doc. 573)
12/29/06 [#2422] Order and Reasons denying Sewerage and Water Board's Motions to Dismiss (Doc. 563)
12/08/06 [#2142] Motion for Summary Judgment for Contractors based on peremption was granted on December 8, 2006
12/08/06 [#2148] Motion for Summary Judgment for Engineers based on peremption was granted on December 8, 2006
10/27/06 [#1469] Minutes of 10/27 a.m. Oral Argument on Army Corps of Engineers Immunity for Damages Caused by MRGO
10/27/06 [#1554] Minutes of 10/27 p.m. Oral Argument on Insurance Coverage--Water Damage Exclusion (Chehardy, Xavier, and Humphreys)
09/22/06 [#1231] Order and Reasons - Motion to Dismiss defendant State of Louisiana (O'Dwyer, Kirsch, Tauzin)
09/13/06 [#1133] Order and Reasons - Motion to Dismiss defendant City of new Orleans
08/28/06 [#1029] Order setting 10/27 oral argument and Opposition Deadlines
08/28/06 [#1027] Order re Vanderbrook supplemental briefing
08/25/06 [#1232] Minutes of 8/25 oral argument on Peremption Motions with Respect to the 17th St. Canal and Vanderbrook
08/09/06 [#888] Order and Reasons - Motion to Remand re: Laurendine
07/19/06 [#789] Judgment - Motion to Dismiss re: O’Dwyer 05-4181
07/19/06 [#788] Order and Reasons - Motion to dismiss re: O’Dwyer 05-4181
06/28/06 [#702] Minutes of 6/28 Oral Argument - Motion to Sever and Proceed Separatey by Allstate
06/28/06 [#722] Transcript of 6/28 Oral Argument - Motion to Sever and Proceed Separatey by Allstate
06/13/06 [#551] Order and Reasons denying Motion for Reconsideration of Magistrate Judge’s Order re: Leave to File 12th Amending Complaint in O'Dwyer 05-4181
06/02/06 [#476] Order and Reasons granting Motion to Sever/Remand Orleans Levee District -- Harvey 05-4568
06/01/06 [#469] Order and Reasons granting Motion to Sever/Remand Orleans Levee District -- Vanderbrook
05/24/06 [#479] 5th Circuit order denying Petition for mandamus re: recusal
05/10/06 [#316] Order correcting typographical error in Document 285
05/10/06 [#320] Order and Reasons affirming Document 71, Magistrate Judge’s Order re Leave to File 12th Amending Complaint in O'Dwyer 05-4181
05/04/06 [#285] Order and Reasons denying Motion to Disqualify Judge Duval
04/19/06 [#198] Minutes of 4/19 oral argument including Motion to Recuse Judge Duval (Docs. 61 and Docs. 63)
03/28/06 [#56] Order denying Motion to Disqualify District and Magistrate Judges en banc