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Case 1:05-cv-01119-SGB Document 29 Filed 11/02/2006 Page 1 of 14


1:05-cv-1119 SGB
Hon. Susan G. Braden









NOW INTO COURT, through undersigned counsel, come Plaintiffs Rocco Tommaseo,

et al., who hereby move this Honorable Court for an Order excluding all exhibits attached to the

Defendant’s Motion to Dismiss. The questioned documents are not authenticated, are not self-

authenticating, are not relevant, and/or constitute inadmissible hearsay. Furthermore, the IPET

Report cited by Defendant (and which defense counsel previously advised the Court would be

defining document this case) has been criticized for focusing on legal conclusions and other

Government attempts to avoid liability rather than reaching verifiable factual conclusions

through the use of unbiased scientific analysis. The Defendant has no proper evidence in support

of its Motion.

On 4 October 2006 the Government submitted a Motion to Dismiss under Rule 12(b)(1)

of the Rules of the Court of Federal Claims (RCFC). The Government attached five “exhibits”

to that motion which purportedly attacked many of the factual statements made by the Plaintiffs

in their First Amended Class Action Complaint. As demonstrated below, all of the


Case 1:05-cv-01119-SGB Document 29 Filed 11/02/2006 Page 2 of 14

Government’s exhibits are unauthenticated, not sworn, irrelevant, untrustworthy, contain

improper legal conclusions and/or constitute inadmissible hearsay under the Federal Rules of

Evidence. Consequently, Plaintiffs move, pursuant to this Motion in Limine, that all five exhibits

be summarily excluded from this Honorable Court’s determination of subject matter jurisdiction.

Alternatively, Plaintiffs move for an evidentiary hearing to address these issues.1

Applicable Evidentiary Standard

When the Court of Federal Claims considers a motion to dismiss under RCFC 12(b)(1), it

“must accept as true the complaint’s undisputed factual allegations and construe the facts in the

light most favorable to the plaintiff.” Figueroa v. United States, 57 Fed. Cl. 488, 492 (2003),

citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). When a RCFC 12(b)(1) motion to dismiss

challenges the factual assertions that form the basis for the court’s jurisdiction, then the trial

court “may weigh relevant evidence when it considers a motion to dismiss that challenges the

truth of jurisdictional facts alleged in a complaint.” Ferreiro v. United States, 350 F.3d 1318,

1324 (Fed. Cir. 2003) (emphasis added).

When the Court of Federal Claims considers evidence presented by a defendant in a Rule

12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the Court of Federal Claims

has noted that the hearsay rules of the Federal Rules of Evidence must be applied in considering

such evidence. See Reliance Ins. Co. v. United States, 23 Ct. Cl. 108, 113 (1991). When a

defendant attacks the factual allegations in a complaint, the “facts underlying the controverted

jurisdictional allegations are in dispute and are subject to fact-finding by the district court.”

Cedars-Sinai Med. Ctr. v. United States, 11 F.3d 1573, 1584 (Fed. Cir. 1993). Any such fact-

finding must be guided by the Federal Rules of Evidence, otherwise “the court would be required

1 RCFC Rule 12(d); Commodities Export Co. v. U.S. Customs Serv., 888 F.2d 431 (6th Cir. 1989); Palmer v.
Hoffman, 318 U.S 109 (1943).


Case 1:05-cv-01119-SGB Document 29 Filed 11/02/2006 Page 3 of 14

to admit voluminous evidence having little or no probative value which could burden the record

and confuse the issues.” Matthews v. Sec’y of the Dept. of Health & Human Servs., 18 Ct. Cl.

514, 521 (1989). In the context of a “factual attack” on a 12(b)(1) motion to dismiss, if the court

considered hearsay evidence “[t]he court’s job of sifting through such evidence to try to

determine its trustworthiness and what, if any, weight to give it would become much more

difficult and time consuming.” Id.

An examination of each exhibit offered by Defendant United States shows that no

admissible evidence is offered by the Movant.2 For example, assuming that the Court found any

of the proffered exhibits to be authenticated and to meet a hearsay exception, then the Court’s

analysis of the Government’s proffered exhibits should then be focused upon the origin, nature

and trustworthiness of the self-serving, unsworn reports prepared by the Movant itself, or hold

that these items are simply generic background information which do nothing to refute the

factual allegations made in the Plaintiffs’ Amended Complaint. This Honorable Court should

exclude all five proffered exhibits from consideration with the Government’s Rule 12(b)(1)

Motion to Dismiss.3

Map of New Orleans Elevation by Neighborhood with Major Roads

Exhibit A

Defendant’s Exhibit A consists of a one page map of elevations in New Orleans and a

portion of St. Bernard Parish. A notation on the bottom right of the exhibit sources the image to

the Greater New Orleans Community Data Center (GNOCDC). The GNOCDC is a private, non-

2 Even in situation where the Movant attempts to shift the burden of proof to the non-Movant, and assuming that
those attempts are successful, “any doubts regarding factual issues [must resolve] in favor of the non-moving party”
and the court must “draw all reasonable inferences in its [the non-Movant’s] favor.” Cottrell v. United States, 71
Fed. Cl. 559, 564 (2006) (Damich, C.J.). Consequently, even if this Motion is denied in toto, the Movant still needs
to prove its case to the certain exclusion of recovery by the aggrieved party. Id.
3 The challenge made here by the Defendant can in some instances be considered to actually be a Motion for
Summary Judgment, which should not be “precipitously” granted. Moden v. United States., 404 F.3d 1335, 1343
(Fed. Cir. 2005).


Case 1:05-cv-01119-SGB Document 29 Filed 11/02/2006 Page 4 of 14

profit community organization.4 Because it is a private entity, no information from the

GNOCDC is entitled to the “Public Records and Reports” hearsay exception. Federal Rules of

Evidence 803(8) (“FRE”). As the GNOCDC describes its website as the “most widely used

source for information about New Orleans’ 73 neighborhoods and the 10 surrounding parishes,”

the image could possibly be construed as falling in the hearsay exception for “Records of

Regularly Conducted Activity” in FRE 803(6). However, there is no certification of authenticity

by the custodian in compliance with FRE 902(11) as required by FRE 803(6). Even if the

Government had provided the required custodial certification, because the GNOCDC compiles

data from a number of sources, any evidence drawn from the GNOCDC website constitutes

hearsay within hearsay.

Hearsay within hearsay is only admissible if “each part of the combined statements

conforms with an exception to the hearsay rules.” FRE 805. Even if the government reports on

which the GNOCDC bases much of its evidence proved to be self-authenticating, the

Government failed to provide any certification by the GNOCDC custodian to satisfy the

authentication and double hearsay problems with the GNOCDC website and map.

Further, even if the GNOCDC map did conform to all the hearsay rules in the FRE, the

map provides little relevant detail in the instant case and it should be excluded under FRE 402.

Not only does the map fail to identify the Mississippi River-Gulf Outlet (MR-GO), it also fails to

include the entire length of the MR-GO. The map merely implies that much of New Orleans and

St. Bernard Parish flooded because they lie partially below sea level. It provides no information

to resolve what the Defendant contends is the factual dispute about the role of the MR-GO in

funneling hurricane storm surge into St. Bernard Parish and the Lower Ninth Ward.

Because Defendant’s Exhibit A fails to meet any decent evidentiary standards, this Court

4 Greater New Orleans Community Data Center, (last visited October 23, 2006).


Case 1:05-cv-01119-SGB Document 29 Filed 11/02/2006 Page 5 of 14

should exclude it and not consider it in the adjudication of this Motion.

Fiscal Year 2005, Annual Report of the Secretary of the Army of Civil Works Activities

Exhibit B

In Exhibit B, the Defendant cites itself and provides excerpts from the Fiscal Year 2005

Annual Report from the Secretary of the Army outlining certain activities related to the

authorization, construction, and maintenance of the MR-GO, notwithstanding the obvious motive

problems as suggested in Palmer v. Hoffman, supra. While the Defendant could continue to cite

itself and argue that some of that report falls under the “Public Records and Reports” exception

of FRE 803(8), the evidence is not certified by a written declaration “of its custodian or other

qualified person” as required by FRE 902(11). As the title “Annual Report” refers more to a

domestic record of regularly conducted activity under FRE 902(11) versus an official publication

under FRE 902(5), the document is not self-authenticating and certification is required. That

certification is lacking.

Assuming that the Annual Report meets a hearsay exception, the report bears little, if any

relevance to the instant dispute. The report provides ancient information about the authorized

dimensions of the MR-GO. Def’s Ex. B at 11-2 -11-4. Aside from briefly mentioning

“[c]oncerns about increased maintenance dredging costs and ecosystem deterioration,” this

newly manufactured report provides no current information about the size in August and

September of 2005 (particularly the width and dredged depth) of the MR-GO, nor how the size

has increased since the channel was first completed decades ago. Def’s Ex. B at 11-2. Other

than providing some basic information about the MR-GO’s geography and its original authorized

size, the report does not provide any information that disputes any factual allegations made in the

Plaintiff’s First Amended Class Action Complaint.5 In fact, the report mentions the concerns

5 Record Document 10.


Case 1:05-cv-01119-SGB Document 29 Filed 11/02/2006 Page 6 of 14

that prompted a reevaluation study initiated in fiscal year 1999; a study that remained unfinished

when Hurricane Katrina struck on 29 August 2005. The report is incomplete as it states the

“impacts of MR-GO on storm surge…will need to be considered before continuing the

reevaluation study.” Def’s Ex. B at 11-2-11-3. Rather than definitively disputing the allegations

made in the Plaintiff’s First Amended Class Action Complaint, Exhibit B provides outdated

technical data and conclusions, which can neither be supported nor admitted.

Because Defendant’s Exhibit B fails to pass evidentiary scrutiny and does not refute the

factual claims made in the Plaintiff’s First Amended Class Action Complaint, it should be

excluded from consideration, in toto.

Notes on the Influence of the Mississippi River Gulf Outlet on Hurricane Induced Storm

Surge in New Orleans and Vicinity

Exhibit C

The Defendant cites itself again; Exhibit C consists of a twenty-one page report prepared

by three named authors, two of whom are employed by the answerable party here, the U.S. Army

Corps of Engineers. The Defendant could argue that this report is admissible under the “Public

Records and Reports” exception of FRE 803(8), but that Rule provides that such records and

reports may be inadmissible if “the sources of information or other circumstances indicate lack

of trustworthiness.” FRE 803(8)(C). This report was prepared after litigation in this matter

began. The Government is the defendant in this case. Naturally a Government employee or

contractor working on this report after Plaintiffs filed suit6 would be more likely to issue a

Government-friendly opinion—namely, that the MR-GO did not funnel storm surge into St.

Bernard Parish and substantial parts of New Orleans. While opinions and conclusions are not

per se inadmissible, “a trial judge has the discretion, and indeed the obligation, to exclude an

6 For example, one author of the report is Johannes Westerink, who the Government employs as an expert in various
Hurricane Katrina-related claims against the United States. As Dr. Westerink’s report is the unsworn writing of an
advocate, FRE 803(8) does not apply.


Case 1:05-cv-01119-SGB Document 29 Filed 11/02/2006 Page 7 of 14


report or portions

thereof—whether narrow

‘factual’ statements or broader

‘conclusions’—that she determines to be untrustworthy.” Beech Aircraft Corp. v. Rainey, 488

U.S. 153, 167 (1988). This “report” is particularly problematic as it is not sworn or otherwise

verified; it is, quite simply, not appropriate evidence to support the Defendant’s fact-based


In a recent opinion, the Court of Federal Claims observed, “[w]hen the expert witness has

consulted numerous sources, and uses that information together, with his own professional

knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its

own right and not as hearsay in disguise.” Yankee Atomic Elec. Co. v. United States, --Fed. Cl.--,

2006 WL 2848615, citing United States v. Sims, 514 F.2d 147, 149 (9th Cir. 1975). The key

word here is testimony, meaning the declarant is subject to an oath and cross-examination.

While the authors of Exhibit C may have consulted sources and used their education and

experience (which is not specified) to arrive at a conclusion, that conclusion is still unsworn and

uncertified hearsay, and it should be disregarded by this Court.

Legal Conclusions Prohibited

A witness may not testify as to legal conclusions that will decide the case. See, e.g.,

Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 99-100 (1st Cir. 1997). Nor may he substitute for

the court in explaining the law to the jury. See, e.g., Hygh v. Jacobs, 961 F.2d 359, 363-64 (2d

Cir. 1992). Testimony as to legal conclusions, such as that contained in Defendant’s “report,” is

impermissible. Woods v. Lecureux, 110 F.3d 1215, 1220-21 (6th Cir. 1997); Good Shepherd

Manor Found., Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003); Burkhart v. Wash.

Metro. Area Transit Auth., 112 F.3d 1207, 1212-13 (D.C. Cir. 1997).

The Sixth Circuit uses the following test to determine whether an expert's testimony


Case 1:05-cv-01119-SGB Document 29 Filed 11/02/2006 Page 8 of 14

embraces a legal conclusion or simply a factual one: “[t]he best resolution of this type of

problem is to determine whether the terms used by the witness have a separate, distinct and

specialized meaning in the law different from that present in the vernacular. If they do, exclusion

is appropriate.” Torres v. County of Oakland, 758 F.2d 147, 151 (6th Cir. 1985). Defendant’s

unsworn report proffered as Exhibit C is exactly the sort of mischief to which the Sixth Circuit

was referring in Torres.

The D.C. Circuit has adopted the Torres test. Burkhart, 112 F.3d at 1212-13 (D.C. Cir.

1997). “Each courtroom comes equipped with a ‘legal expert,’ called a judge, and it is his or her

province alone to instruct the jury on the relevant legal standards.” Id. at 1213. Plaintiffs object

in this regard as to Exhibits B, C and D, as use of the conclusions contained in these reports

could ultimately usurp the roles of the judge and jury in applying that law to the facts before it.

United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999). The legal conclusions contained in

these reports are inadmissible.7

Additional Problems

While FRE 902(5) provides that certain “[b]ooks, pamphlets, or other publications

purporting to be issued by public authority,” are self-authenticating, the Government here is not

functioning as the presumably disinterested “public authority,” but rather as the Defendant in a

civil action. As such, the report in Exhibit C does not constitute an “official publication.”

Because this report does not meet one of the self-authentication criteria of FRE 902, there is a

statutory requirement that it be certified, but it is not.

7 “[W]hen an expert undertakes to tell the jury what result to reach, this does not aid the jury in making a decision,
but rather attempts to substitute the expert's judgment for the jury's. When this occurs, the expert acts outside of his
limited role of providing the groundwork in the form of an opinion to enable the jury to make its own informed
determination ... [T]his Court requires the exclusion of testimony which states a legal conclusion.” United States v.
Duncan, 42 F.3d 97, 101 (2d Cir. 1994).


Case 1:05-cv-01119-SGB Document 29 Filed 11/02/2006 Page 9 of 14

Given the release of Exhibit C (and Exhibits B and D) after the onset of this litigation, it

calls into question whether the “evidence” presented in this self-authored report would satisfy the

requirements of admissibility under Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993), or

otherwise under Rules 702 and 705. While Daubert did not create a mandatory checklist, it did

set out a number of common factors for determining the admissibility of scientific evidence,

including whether the scientific knowledge has been or can be tested; whether the study has been

subjected to peer review and publication, what the potential error rate is; and the extent to which

the theories and techniques have been widely-accepted. Id. at 593-94. Although Exhibit C

provides some detail that might allow others to re-test the results, the study lacks perceptible

mention of any rate-of-error. Because Exhibit C is dated 21 February 2006, there has been

relatively little time for others to conduct peer review of the study and its methodology, and it is

quite possible that it was commissioned to defend this case.8

None of the Movant’s Evidence is Sworn

As the Plaintiffs’ Statement of Contested Material Facts and the accompanying sworn

Declaration of Dr. Paul Kemp show, members of the scientific community have debated the

effects of the MR-GO both before and after Hurricanes Katrina and Rita. Thus, it is far from

clear that the results reached in Exhibit C by the Government’s “in-house experts” constitute the

generally accepted scientific conclusions on the effects of the MR-GO on wetlands destruction,

storm surge and flooding.9 Further, Defendants’ report is not sworn, therefore it is not competent

evidence for a dispositive motion. See, e.g., Caudillo ex rel. Caudillo v. Lubbock Indep. Sch.

Dist., 311 F. Supp. 2d 550, 555, n. 2 (N.D. Tex. 2004) (holding that “documents are not proper

summary judgment evidence before this Court” where they were “not sworn to, certified, or

8 Something which obviously merits further inquiry at an evidentiary hearing
9 See Third Report of the NAE/NRC Committee on New Orleans Regional Hurricane Protection Projects, attached
as Exhibit 1.


Case 1:05-cv-01119-SGB Document 29 Filed 11/02/2006 Page 10 of 14

attached to any affidavit swearing to or certifying the documents”); cf. DeMars v. O'Flynn, 287

F. Supp. 2d 230, 242 (W.D.N.Y. 2003) (“Unsworn statements are not sufficient to defeat a

motion for summary judgment.”).10

That the Government has provided inadmissible evidence which purportedly conflicts

with the factual allegations in the Amended Complaint does not justify a dismissal of the case on

a RCFC 12(b)(1) motion, nor does it shift the burden of proof.11 Instead, this contest reaffirms

the Plaintiffs’ contentions that a dispute of material fact exists. Indeed, Defendant’s attempted

factual attack requires admissible evidence, and Defendant has offered none. Therefore,

Defendant is in the uncomfortable and untenable position of supporting its Motion to Dismiss

with nothing more than the factual allegations contained in Plaintiffs’ Complaint.12

Because Exhibit C is self-serving, unsworn, uncertified, hearsay evidence that does not

refute any of the relevant factual allegations made in the Plaintiff’s First Amended Class Action

Complaint, this evidence should be excluded from consideration.

The Direct Impact of the MR-GO on Hurricane Storm Surge

Exhibit D

Exhibit D has many of the problems noted above, plus several others. The Government’s

Exhibit D consists of a report prepared by URS (an industry-oriented environmental consulting

company) under contract with the State of Louisiana, Department of Natural Resources. Because

this report was prepared by a private entity and not a government agency, it is not entitled to the

“Public Records and Reports” hearsay exception in FRE 803 (8).13 URS had a contract with the

State of Louisiana (the State), to prepare a report for the State, which is also a Defendant in

10 See also, Rule 26, RCFC.
11 Moden, 404 F.3d at 1341-42.
12 The legal consequences of this scenario are fully detailed in the Plaintiffs’ Memorandum in Opposition to the
Motion to Dismiss, which is being filed subsequent to this Motion in Limine.
13 Brown v. Sierra Nevada Memorial Miners Hosp., 849 F. 2d 1186 (9th Cir. 1988); Hawthorne Partners v. AT&T
Technologies, Inc., 1994 WL 63054 (N.D. Ill.)


Case 1:05-cv-01119-SGB Document 29 Filed 11/02/2006 Page 11 of 14

many post-Katrina cases. However, nothing in the report indicates that URS regularly prepares

reports on the MR-GO or on the particular subjects of hurricane storm surge and wetlands

degradation. Assuming that the report somehow met the “regularly conducted business activity”

hearsay exception under FRE 803 (6), the report is certified by neither an affidavit, nor any other

appropriate means, nor does the report provide the sworn details on the qualifications and

experience of URS in preparing such reports. All of these elements are required by RCFC Rule


Additionally, Exhibit D makes extensive use of a 2003 Corps of Engineers report,

making a portion of Exhibit D hearsay-within-hearsay. FRE 805 requires each level of hearsay

to meet an exception. Even if the 2003 Corps of Engineers’ report somehow met one hearsay

exception, the underlying hearsay problems of the URS report remain.

Furthermore, the 2003 Corps of Engineers study is untrustworthy and should not be

admitted into evidence pursuant to FRE 803(8)(C). Courts evaluate the trustworthiness of a

government report based on three criteria: “(1) the timeliness of an investigation; (2) the special

skill or experience of the official; and (3) possible motivational problems.” Ellis v. Int'l Playtex,

Inc., 745 F.2d 292, 300-01 (4th Cir. 1984). The 2003 Corps of Engineers study has problems in

all three respects. First, the investigation took place after Hurricane Katrina, when the Corps of

Engineers had already been named as a Defendant in numerous suits; therefore the timing of the

investigation is suspect.

Second, the Corps of Engineers’ report relied heavily on the “ADCIRC Grid,” which was

prepared by one of the report’s authors Dr. Joannes Westerink of Notre Dame University. In

other words, the Corps of Engineers “shopped” for their expert, and hired one based on the

position it knew the expert would take (based on that author’s past reports in the field), rather


Case 1:05-cv-01119-SGB Document 29 Filed 11/02/2006 Page 12 of 14

than upon the expert’s qualifications and expertise. The Corps of Engineers then relied on that

expert’s prior data to ensure that the report’s results would benefit it in defending this suit and

other like it. Finally, the Corps of Engineers has a conflict of interest in designing, maintaining

and dredging the MR-GO and then investigating what went wrong. The Defendant has a clear

motivation to ensure that no blame is assigned to it.14 The Corps simply cannot rely on its own

exculpatory report.

Because Exhibit D makes use of an uncertified, unsworn, untrustworthy report based on

evidence prepared by the Defendant as co-author in a self-serving report, this evidence should be

further excluded from consideration.

Tropical Cyclone Report, Hurricane Katrina

Exhibit E

Regarding Exhibit E, the Government will likely argue that the Tropical Cyclone Report

prepared by the National Hurricane Center falls under the “Public Reports and Records” hearsay

exception of FRE 803(8). Admittedly, the National Hurricane Center’s duties likely include

preparing reports on hurricanes and other tropical weather events. Nevertheless, the Exhibit does

not appear to qualify as a self-authenticating book, pamphlet or “other publication purporting to

be issued by public authority.” FRE 902(5). Rather, Exhibit E appears to be as it is titled, a

report, one that is updated with new information. Def’s Ex. E at 1. That process of updating

adds to the sense that Exhibit E would not be covered by a hearsay exception (such as the

“Public Reports and Records” exception of 803(8)). FRE 902(11) requires certification for such

items, too. Exhibit E contains no certification of authenticity by affidavit or any other means,

and it is prepared by an agency of Defendant (further raising questions about its trustworthiness).

14 The Corps’ motivation in this regard is currently the subject of pending discovery in this case with respect to the
“liability disclaimer” prominently featured in the Motion to Compel, Rec. Doc. 20. The IPET Report has been
roundly criticized for venturing into such legal conclusions. See Third Report of the NAE/NRC Committee on New
Orleans Regional Hurricane Protection Projects, copy attached as Exhibit 1.


Case 1:05-cv-01119-SGB Document 29 Filed 11/02/2006 Page 13 of 14

As with Exhibits A and B, Exhibit E provides only general background information. It

does not directly address the Plaintiffs’ contention that the MR-GO funneled storm surge into St.

Bernard Parish and the Lower Ninth Ward. Much of the information included in Exhibit E

covers material unrelated to the Plaintiffs’ claims. Statistics cited (such as the fact that Hurricane

Katrina spawned a total of forty-three tornadoes), neither bear relevance in the present litigation,

nor do they refute the factual allegations made in Plaintiffs’ Amended Complaint. Def’s Ex. E at

10. The Government’s purpose in presenting this evidence seems to be to suggest that Hurricane

Katrina was a very powerful hurricane, so what could they do? Whatever its purpose, the

putative evidence offered as Exhibit E does not seriously challenge or directly address any of the

factual allegations made in Plaintiffs’ amended complaint relating to widening of the channel,

loss of wetlands, and storm surge related to the MR-GO. Consequently, it bears no relevance to

these proceedings and should be excluded under FRE 402.

Because Exhibit E consists of uncertified hearsay evidence, concerning generic subject

matter that fails to directly refute Plaintiffs’ claims, the evidence should be excluded from



In the exhibits attached to its Motion to Dismiss under RCFC 12(b)(1), the Government

makes repeated use of uncertified, inadmissible hearsay evidence, none of which is sworn. Even

if part or all of the evidence met a hearsay exception, the evidence is unauthenticated, self-

serving (self-authored), and/or irrelevant to the current proceedings. For the above reasons, the

Plaintiff respectfully requests that this Honorable Court exclude Exhibits A through E attached to

the Government’s Motion to Dismiss. Alternatively, Plaintiffs seek an evidentiary hearing as to

the proffered exhibits.


Case 1:05-cv-01119-SGB Document 29 Filed 11/02/2006 Page 14 of 14

Respectfully submitted this 2nd day of November, 2006.

s/ Stephen M. Wiles_____________
F. Gerald Maples, T.A. (# 25960)
Stephen M. Wiles (# 17865)
Carlos A. Zelaya, II (# 22900)
902 Julia Street
New Orleans, LA 70113
Telephone: (504) 569-8732
Facsimile: (504) 525-6932


J. Wayne Mumphrey (# 9824)
109- A Smart Place
Slidell, LA 70458
Telephone: (985) 649-0709
Facsimile: (985) 649-5706


John H. Musser, IV (# 9863)
201 St. Charles Avenue
Suite 2535
New Orleans, LA 70170
Telephone: (504) 566-1218
Facsimile: (504) 566-7185

Rocco Tommaseo, et al.


I hereby certify that a true copy of the above and foregoing has been served upon all
counsel of record via facsimile transmission and pursuant to electronic noticing on this 2nd day
of November, 2006.

_s/ Stephen M. Wiles
Stephen M. Wiles