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Case 1:05-cv-01119-SGB Document 14 Filed 03/07/2006 Page 1 of 6

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

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.


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UNITED STATES OF AMERICA,

Plaintiffs,

v.

Defendant.

No. 05-1119L

Hon. Susan G. Braden

JOINT PRELIMINARY STATUS REPORT

Plaintiffs Rocco Tommaseo, et al., and Defendant United States of America by and

through their respective counsel, hereby submit this Joint Preliminary Status Report pursuant to

the Rules of the United States Court of Federal Claims, Appendix A (RCFC).

A.

JURISDICTION

Assuming that Plaintiffs can establish the necessary facts, the parties agree that the

Tucker Act, 28 U.S.C. § 1491, confers jurisdiction on this Court to adjudicate a claim of a Fifth

Amendment taking.

B.

PARTIES

The parties do not believe this case should be consolidated with any other case.

C.

BIFURCATION

The parties believe that this case should be bifurcated between liability and damages for

reasons of judicial and litigant efficiency. In the liability phase, the Court can adjudicate

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Case 1:05-cv-01119-SGB Document 14 Filed 03/07/2006 Page 2 of 6

whether there has been a taking of Plaintiffs’ respective property interests. It will be far more

efficient to prepare and litigate the damages phase of the case only after it has been clearly

established what property interests, if any, have been taken by Defendant.

D.

DEFERRAL OF PROCEEDINGS

The parties do not believe that this case should be deferred and the parties are not aware

of any case pending before this Court which would necessitate the deferral of this action.

E.

REMAND OR SUSPENSION

The parties are not seeking a remand or suspension.

F.

ADDITIONAL PARTIES

This case has been styled a class action. In the interest of judicial and litigant efficiency,

the parties believe that Plaintiffs’ counsel should be named interim class counsel while the

Defendant’s potential liability, if any, is developed. The parties agree that the process of

identifying and certifying a class should be postponed in the interim and any deadlines for

putative class members to opt in should be deferred. Defendants do not concede that this is an

appropriate case for class certification.

G.

MOTIONS

Defendant anticipates that it will file a motion for summary judgment pursuant to RCFC

56 after the close of discovery.

H.

RELEVANT FACTUAL AND LEGAL ISSUES

Plaintiff’s Statement

Plaintiff believes the primary issues in this litigation are as follows:

1)

2)

Whether the actions of the Defendant constituted a taking of plaintiffs’ property

interests.

Whether this matter is appropriate as a class.

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Case 1:05-cv-01119-SGB Document 14 Filed 03/07/2006 Page 3 of 6

3)

The amount of damages suffered.

Defendant’s Statement

Defendant believes the primary issues in this litigation are as follows;

1)

2)

3)

4)

Whether Plaintiffs’ claims are barred by the applicable statute of limitations?

Whether Plaintiffs’ claims sound in Tort, thereby depriving the Court of

jurisdiction over this matter?

Whether Defendant’s actions amount to a taking of an interest in Plaintiffs’

properties without compensation, in violation of the Fifth Amendment?

If Defendant’s actions amount to an unconstitutional taking, what amount of

compensation are Plaintiffs due?

I.

SETTLEMENT

The parties believe that in-depth discussions regarding settlement and/or alternative

dispute resolution are premature at this point in time and that settlement discussions are unlikely

to be successful at least until further discovery has occurred. The Defendant also believes that

any potential settlement discussions would be more productive following a RCFC 56 motion and

the resultant narrowing of the issues at play in this case.

J.

TRIAL

Defendant believes that this case can be resolved by dispositive motion. Should the case

not be resolved on dispositive motions, the parties anticipate that this case will proceed to trial

on those issues that remain. The parties do not request expedited trial scheduling. The parties

agree that the trial should be held in Louisiana.

K.

ELECTRONIC CASE MANAGEMENT NEEDS

There are no special issues regarding electronic case management needs.

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Case 1:05-cv-01119-SGB Document 14 Filed 03/07/2006 Page 4 of 6

L.

OTHER

1)

The parties would like to draw the Court’s attention to Nicholson v. United

States, No. 05-1259 (Fed. Cl. filed Dec. 2, 2005) (Baskir, J.). Nicholson is a Fifth

Amendment taking claim brought in this Court as a class action on behalf of all

residents of the City of New Orleans. In Nicholson, the plaintiffs allege that

flooding caused by the breach of the levees abutting the Seventeenth Street,

Industrial Avenue and London Avenue canals effected a taking. Their demand is

for $100 billion.



2)

The parties would also like to draw the Court’s attention to the at least twenty tort



cases which have been filed in Louisiana arising from Hurricane Katrina. Most

are putative class actions, including several against the federal government.

In several suits, Katrina victims sued the Army Corps of Engineers and Coast

Guard alleging negligence in the design of the levees.

3)

At this early stage, the parties stipulate to the waiver of initial pretrial disclosures,

pursuant to RCFC 26(a)(1).

M.

DISCOVERY PLAN

The parties request an initial eight-month period in which to conduct discovery. The

parties believe that this schedule is appropriate in light of the magnitude of this case which will

likely require several depositions, pursuant to RCFC 30(a)(1), the production of numerous

documents and the evaluation of a great deal of physical evidence.

Further, important studies of the events surrounding Hurricane Katrina are in progress.

In particular, ongoing studies by the United States Army Corps of Engineers (the “Corps”) and

the Interagency Performance Evaluation Task Force (“IPET”) will assist in providing a record of

what occurred in St. Bernard Parish during and after Hurricane Katrina. These reports are

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scheduled to be completed on or around June 1, 2006. The parties feel that it would not be

appropriate to begin expert discovery prior to the completion of these studies. Defendant

believes that an additional four-month period should be allotted for this task.

Dated: March 7, 2006

Respectfully submitted this 7th day of March, 2006.

______________________________________
F. Gerald Maples (#25960)
MAPLES & KIRWAN, LLC
902 Julia Street
New Orleans, LA 70113
Telephone: (504) 569-8732
Facsimile: (504) 525-6932

-and-

J. Wayne Mumphrey (#9824)
MUMPHREY LAW FIRM, LLC
9061 West Judge Perez Drive
Chalmette, LA 70043
Telephone: (504) 277-8989

-and-

John H. Musser, IV (#9863)
322 Lafayette St.
New Orleans, LA 70130
Telephone: (504) 566-1218
Facsimile: (504) 566-7185

-and-

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
Fax: (504) 525-2205

COUNSEL FOR PLAINTIFFS

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Case 1:05-cv-01119-SGB Document 14 Filed 03/07/2006 Page 6 of 6

SUE ELLEN WOOLDRIDGE
Assistant Attorney General
Environment and Natural Resources Division

s/ Fred Disheroon by Mark T. Romley
FRED R. DISHEROON, Special Litigation Counsel
MARK T. ROMLEY, Trial Attorney
Natural Resources Section
Environment and Natural Resources Division
U.S. Department of Justice
601 D. St. N.W., Room 3022
Washington, D.C. 20004
Telephone: (202) 616-9649
Fax: (202) 616-9667

COUNSEL FOR DEFENDANT

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