ROCCO TOMMASEO, et al
THE UNITED STATES
Hon. Susan G. Braden
Case 1:05-cv-01119-SGB Document 10 Filed 01/13/06 Page 1 of 8
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
FIRST AMENDED CLASS ACTION COMPLAINT
NOW INTO COURT, through undersigned counsel, come ROCCO TOMMASEO,
and, THOMAS TOMMASEO, and ROCKY AND CARLO, INC., and STEVEN
BORDELON, husband of, and CYNTHIA BORDELON and STEVE’S MOBILE HOME &
R.V. REPAIR, INC., appearing individually and on behalf of all persons similarly
situated, who respectfully submit this First Amended Complaint and represent as
STATEMENT OF JURISDICTION
This Court has jurisdiction over this matter pursuant to 28 U.S.C.A. § 1491(a)(1).
This is a claim seeking compensation from the United States for the taking of private
property for public use pursuant to Amendment V of the U.S. Constitution.
Plaintiffs ROCCO TOMMASEO, and THOMAS TOMMASEO, and STEVEN
BORDELON, husband of, and CYNTHIA BORDELON, citizens of the United States of
America and residents of St. Bernard Parish, Louisiana, are individuals of the full age of
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majority and plaintiffs ROCKY AND CARLO, INC. and STEVE’S MOBILE HOME & R.V.
REPAIR, INC., are Louisiana Corporations with their principal places of business in St.
Bernard Parish, Louisiana (hereinafter referred to collectively as “Plaintiffs”) who bring
this claim individually and on behalf of all other persons similarly situated.
Made defendant herein is the United States of America (the “United States”), a
sovereign and body politic.
The Mississippi River Gulf Outlet (“MRGO”) is a 76-mile-long man-made channel
between the Gulf of Mexico and the City of New Orleans created as a navigation project
by the United States and designed and maintained by the U.S. Army Corps of
Engineers. Congress authorized the construction of the MRGO in 1956 by passing the
River and Harbor Act of 1956 to create a means of direct access for deep water vessels
from the Gulf of Mexico to the Port of New Orleans and to promote economic
development of the Port of New Orleans and adjacent St. Bernard Parish.
The construction of the MRGO was originally authorized to a depth of 36 feet, a
surface width of 650 feet, and a bottom width of 500 feet. The 76-mile channel bisected
the marshes of lower St. Bernard Parish and the shallow waters of Chandeleur Sound
and cut through then existing marsh land which had acted as a natural barrier against
hurricane winds and storm surge.
The original design and construction of the MRGO was such that the surface
width was wider than the bottom width creating a foreseeable and inevitable condition
whereby the natural consequence of wake and wave action in the channel would be the
continued eroding and widening of the MRGO.
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In addition, the MRGO allowed salt water from the Gulf of Mexico to flow into the
marshes of St. Bernard Parish, thereby killing plants and vegetation which had served
to hold land and soil in place.
The wetland loss and deterioration from the MRGO have allowed for expanded
tidal amplitude and duration, increasing the flooding risk to interior portions of St.
Bernard Parish and Orleans Parish and further providing a direct line of access for
hurricane-related storm surge to reach St. Bernard and Orleans Parishes. This
presented a threat of flooding in the event of a severe hurricane such as Hurricanes
Katrina and Rita as described herein below.
The United States, acting through the U.S. Army Corps of Engineers, has
repeatedly and continuously dredged the bottoms of the MRGO, removing soil that had
eroded from the banks of the MRGO into the bottom of the channel and placing the
dredged soil into the Gulf of Mexico. On information and belief, such dredging
continued on a regular basis until recently and may continue into the future.
10. Plaintiffs are residents of Louisiana who owned real property with improvements
thereon including both residential and commercial property in southeast Louisiana. In
addition to owning such property, plaintiffs owned and operated commercial ventures in
southeast Louisiana. Thus, plaintiffs had vested property rights in the real property they
owned as well as the commercial activity in which they engaged.
11. On or about August 29, 2005, Hurricane Katrina struck southeastern Louisiana
and the Mississippi Gulf Coast pushing a storm surge through the MRGO and into St.
Bernard Parish. The result was massive flooding and the destruction of plaintiffs’
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This flooding was a direct, natural or probable result of the creation of the MRGO
and the continued operation, maintenance, and dredging thereof by the United States.
13. On information and belief, but for the creation and maintenance of the MRGO by
the United States, the flooding and devastation of Plaintiffs’ property would not have
The actions of the United States have deprived Plaintiffs of all economically
viable use of their property.
COUNT I – PERMANENT TAKING OF PROPERTY
15. Plaintiffs reallege paragraphs one through 14 in this Complaint and incorporate
them herein by reference as if set forth in full.
16. As a natural and direct result of the creation of the MRGO and the continued
operation, maintenance, and dredging thereof, the plaintiffs have been deprived of the
use, occupancy, and enjoyment of their real property and the improvements thereon
thereby resulting in a permanent taking of their property for a public use.
In addition to their real property loss, plaintiffs have been deprived of the
continued operation of their commercial ventures as a direct result of the destruction of
their business location.
COUNT II – TEMPORARY TAKING OF PROPERTY
18. Plaintiffs reallege paragraphs one through 14 in this Complaint and incorporate
them herein by reference as if set forth in full.
In the alternative, and only in the event that the MRGO is closed and plaintiffs’
real property can be redeveloped in the future, plaintiffs have been deprived of the use,
occupancy and enjoyment of their real property for the indefinite future and have
suffered a temporary taking of their real property.
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20. Nevertheless, even if plaintiffs’ real property can be redeveloped in the future, the
improvements on the property have been rendered uninhabitable and effectively
destroyed thereby depriving plaintiffs of the use, occupancy and enjoyment of the
improvements on their real property resulting in a permanent taking of their property.
COUNT III – PERMANENT TAKING OF FLOWAGE EASEMENT
21. Plaintiffs reallege paragraphs one through thirteen in this Complaint and
incorporate them herein by reference as if set forth in full.
Following the destruction of plaintiffs’ property in August 2005, on or about
September 24, 2005 Hurricane Rita struck the Louisiana coast causing another storm
surge to travel up the MRGO, leading to a second flood of St. Bernard and Orleans
Parishes and plaintiffs’ property.
23. On information and belief, storm surges associated with Category 4 or 5
hurricanes in the future will travel the MRGO and repeat the flooding of and damage to
The flooding of plaintiffs’ property is recurring and is necessarily incident to and
an inevitable consequence of the creation and maintenance of the MRGO.
25. As a result, and in the alternative to the other causes of action stated herein, the
United States has created a flowage easement on plaintiffs’ property thereby resulting in
a permanent taking of plaintiffs’ property for a public purpose.
REQUEST FOR CLASS ACTION CERTIFICATION
26. Plaintiffs reallege paragraphs one through 25 in this Complaint and incorporate
them herein by reference as if set forth in full.
27. Plaintiffs bring this action individually and on behalf of all other persons similarly
situated (i.e. property owners residing, owning property and/or engaging in commercial
Case 1:05-cv-01119-SGB Document 10 Filed 01/13/06 Page 6 of 8
enterprises in St. Bernard Parish or Orleans Parish, Louisiana whose property was
appropriated by the United States all as described hereinabove).
28. Maintaining this action as a class action is appropriate because
(a) the class is so numerous (approximately 65,000 residents of St. Bernard
Parish occupying over 27,000 residences) that joinder of all members is
(b) there are questions of law and fact common to the class (i.e. the action of the
United States in creating the MRGO and the direct and natural result of the
taking of the plaintiffs’ property as well as that of others similarly situated),
(c) the claims of the representative parties (plaintiffs herein) are typical of the
claims of the proposed class, and
(d) the plaintiffs herein (as representative parties) will fairly and adequately
protect the interests of the class.
29. Plaintiffs have retained counsel who are experienced in and capable of
prosecuting class action litigation and who will devote the appropriate resources
necessary to prosecute these claims.
WHEREFORE, the premises considered, plaintiffs pray:
(a) that this matter be maintained and certified as a class action on behalf of all
those persons residing, owning property and/or engaging in commercial enterprises in
St. Bernard Parish or Orleans Parish, Louisiana which property was taken by the United
States for a public purpose through the construction and continued operation,
maintenance and dredging of the Mississippi River Gulf Outlet;
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(b) for judgment in their favor individually and on behalf of all persons similarly
situated and against the United States of America finding that plaintiffs’ property as well
as the property of all persons similarly situated has been taken for a public purpose
entitling plaintiffs, and all persons similarly situated, to just compensation in accordance
with Amendment V of the U.S. Constitution in the amount of $50,000,000,000;
(c) for an award of all reasonable costs, disbursements, and expenses, including
reasonable attorney, appraisal, and engineering fees pursuant to 42 U.S.C. Section
(d) for such other and further relief to which this Honorable Court deems plaintiffs
to be entitled.
Respectfully submitted this ________ day of January, 2006.
S/ F. Gerald Maples
F. Gerald Maples (#25960)
MAPLES & KIRWAN, LLC
902 Julia Street
New Orleans, LA 70113
Telephone: (504) 569-8732
Facsimile: (504) 525-6932
J. Wayne Mumphrey (#9824)
MUMPHREY LAW FIRM, LLC
9061 West Judge Perez Drive
Chalmette, LA 70043
Telephone: (504) 277-8989
John H. Musser, IV (#9863)
322 Lafayette St.
New Orleans, LA 70130
Telephone: (504) 566-1218
Facsimile: (504) 566-7185
Case 1:05-cv-01119-SGB Document 10 Filed 01/13/06 Page 8 of 8
Randall A. Smith (#2117)
Stephen M. Wiles (#17865)
Tiffany H. Davis (#20855)
SMITH & FAWER, L.L.C.
201 St. Charles Avenue, Suite 3702
New Orleans, Louisiana 70170
Telephone: (504) 525-2200
COUNSEL FOR PLAINTIFFS