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Current Developments
Last Updated:
February 29, 2008
Because of the volume of calls, the court has ordered that any
questions concerning the Katrina Canal Breach Consolidated Litigation
should first be addressed by Liaison Counsel.
In the event
Liaison Counsel cannot answer a question, such inquiry must be made in
writing and faxed to the attention of Marion Barbir at 504-589-2393.
Counsel are advised that failure to abide by this order may result in
sanctions--this includes any call from an attorney or any staff person
of that counsel's office.
If you require a transcript of any
proceeding held in open court, please dial (504) 589-7725, giving
docket number and date of proceeding for transcript requested.
ORAL ARGUMENT ON MOTIONS TO REMAND
The Court has entertained sufficient oral argument on the various
issues raised in connection with Motions to Remand in this
consolidated matter that it has determined that there shall be no more
oral argument held with respect to any Motion to Remand filed herein.
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February 29, 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)
February 28, 2008
The court granted the Washington Group International, Inc.'s Ex
parte Motion for Scheduling Conference and/or to Amend Case
Management Orders (Doc. 11238)
insofar
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)
(Doc.
11449)
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.
11439)
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.
11357)
February 15, 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.
11285)
February 4, 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
Doc.
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)
January 30, 2008
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.
10984).
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,
10037, 10039,
10041,
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.
(Doc. 10620)
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.
(Doc. 10110).
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.
(Doc. 10054)
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
a.m.
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.
(Doc. 9237).
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
Doc.
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
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)
September 18, 2007
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
shortly.
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.
Organizational Orders:
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,
2009.
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
and cutoffs
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
Extension Act.
August 2, 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.
July 3, 2007
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
convenience.
Dredging
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
Court established a Discovery Order Concerning
Materials as to which Privileges may be Asserted with regard to
Electronically Stored Information (Doc.
5183).
April 17, 2007
The 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.
3776).
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)
04/17/07 [#3783]
Amendment #2 (Granting Doc. 3427 filed 03/16/07)
04/17/07 [#3776] Amendment #3
(Granting Doc. 3582 filed 03/28/07)
04/26/07 [#3989] Amendment #4
(Granting Doc. 5148 filed 05/22/07)
05/23/07 [#5250] Amendment #5
(Granting Doc. 5190 filed 05/23/07)
05/29/07 [#5392] Amendment #6
(Granting Doc. 5543 filed 06/12/07)
06/13/07 [#5558] NOTE:
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
A mandatory Status
Conference was held on February 13, 2007.
A synopsis thereof is contained in Doc.
3569.
February 2, 2007
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
Doc. 2994
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.
2655
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
Doc. 2471
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.
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November 27, 2006
The Court issued its opinion concerning whether the Water Damage
Exclusion in a number of all risk policies precludes coverage for the
policy holders. To read that opinion, see
Doc. No. 1803.
The Court has also learned that the Supreme Court of the United
States denied writs on the Motion to Recuse Judge Duval.
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