Current Developments
Last Updated: June 28, 2011
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.
 

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. 20149)

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 deliberations.

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 deliberations.

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 was ordered:

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’ motion.

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.

(Doc. 19847)

 

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

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. (Doc. 19481)

November 18, 2009

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, Appendix)

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 respective judges.

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 (Doc. 19207).

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 umbrella.

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 deposition:

Plaintiffs’ brief shall be filed no later than May 21, 2009.
Defendants’ opposition shall be filed no later than
May 28, 2009.

Briefing on the issue of the proffers made during trial:

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 June 18, 2009.
Defendants' Post Trial Memorandum shall be filed by July 20, 2009.
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 claim.

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. 18756)

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 any.

March 31, 2009

A Pre-Trial Conference in Robinson was held on March 31, 2009 and the following Minute Entry (Doc. 18433) 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. 18212)

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. 17061).

January, 2009

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 Doc. 17107).

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 will issue.

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. 14450).

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

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)

June 13, 2008

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. 13438)

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. 10378) 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. 10337) was denied as there are questions of fact. (Doc. 12946)

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

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 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.

 

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.