ROCCO TOMMASEO, et al. )
THE UNITED STATES
Hon. Susan G. Braden
Case 1:05-cv-01119-SGB Document 51 Filed 11/30/2007 Page 1 of 8
UNITED STATES COURT OF FEDERAL CLAIMS
MOTION (AND INCORPORATED MEMORANDUM IN SUPPORT)
FOR LEAVE OF COURT TO FILE
SECOND AMENDED CLASS ACTION COMPLAINT
NOW INTO COURT, through undersigned counsel, come Plaintiffs Rocco Tommaseo,
Thomas Tommaseo, Rocky and Carlo, Inc., Steven Bordelon, Cynthia Bordelon, and Steve’s
Mobile Home & R.V. Repair, Inc. (on their own behalf and on behalf of all other persons
similarly situated), who hereby move this Honorable Court for leave, as previously discussed
during various status conferences, to file the Second Amended Class Action Complaint in this
matter.1 Leave to file this proposed Second Amended Class Action Complaint is sought
pursuant to Rule 15 of the Rules of the Court of Federal Claims. A motion with contradictory
hearing is required as Fred Disheroon, lead defense counsel in this matter, has repeatedly stated
that he objects to any further amendment of the Complaint, despite his persistent claims that the
current Complaint needs to be “clarified,” and despite his knowledge that an amendment was
forthcoming (as discussed during several status conferences with the Court).
1 Attached as Exhibit 1.
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Allowing the amendment of this Complaint comports with the purposes of Rule 15 of the
Rules of the United States Court of Federal Claims, which provides as follows:
Rule 15. Amended and Supplemental Pleadings.
(a) Amendments. A party may amend the party’s pleading once as a matter of course at
any time before a responsive pleading is served or, if the pleading is one to which no
responsive pleading is permitted and the action has not been placed upon the trial
calendar, the party may so amend it at any time within 20 days after it is served.
Otherwise a party may amend the party’s pleading only by leave of court or by
written consent of the adverse party; and leave shall be freely given when justice so
requires. A party shall plead in response to an amended pleading within the time
remaining for response to the original pleading or within 10 days after service of the
amended pleading, whichever period may be the longer, unless the court otherwise
orders. (Emphasis added.)
(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings
are tried by express or implied consent of the parties, they shall be treated in all
respect as if they had been raised in the pleadings. Such amendment of the pleadings
may be necessary to cause them to conform to the evidence and to raise these issues
may be made upon motion of any party at any time, even after judgment; but failure
so to amend does not affect the result of the trial of these issues. If evidence is
objected to at the trial on the ground that it is not within the issues made by the
pleadings, the court may allow the pleadings to be amended and shall do so freely
when the presentation of the merits of the action will be subserved thereby and the
objecting party fails to satisfy the court that the admission of such evidence would
prejudice the party in maintaining the party’s action or defense upon the merits. The
court may grant a continuance to enable the objecting party to meet such evidence.
(c) Relation Back of Amendments. An amendment of a pleading relates back to the
date of the original pleading when
a. relation back is permitted by the law that provides the statute of limitations
applicable to the action, or
b. the claim or defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in the
original pleading, or
c. the amendment changes the party or the naming of the party against whom a
claim is asserted if the foregoing provision (b) is satisfied and the party to be
brought in by amendment (A) has received such notice of the institution of the
action that the party will not be prejudiced in maintaining a defense on the
The First Amended Class Action Complaint (“First Amended”) Draws
Incessant Criticism From Defense Counsel
Case 1:05-cv-01119-SGB Document 51 Filed 11/30/2007 Page 3 of 8
merits and (B) knew or should have known that, but for a mistake concerning
the identity of the proper party, that action would have been brought against
(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable
notice and upon such terms as are just, permit the party to serve a supplemental
pleading setting forth transactions or occurrences or events which have happened
since the date of the pleading sought to be supplemented. Permission may be granted
even though the original pleading is defective in its statement of a claim for relief or
defense. If the court deems it advisable that the adverse party plead to the
supplemental pleading, it shall so order, specifying the time therefor.
Since the filing of the First Amended Class Action Complaint, defense counsel has
complained, at nearly every opportunity, that the Complaint needs to be “clarified.” This
criticism has been leveled at nearly every status conference, during objections in depositions,2 in
correspondence, and in all discussions concerning discovery Plaintiffs are desirous of
conducting. Consequently, to allay the concerns of counsel opposite, Plaintiffs move to provide
The Court’s Rule 15 Jurisprudence
A pair of companion cases authored by this very Court clearly indicate that leave should
be granted in the case sub judice. In ATK Thiokol, Inc. v. United States, 72 Fed. Cl. 306 (2006)
(“ATK I”), this Honorable Court ruled that the dictates of Rule 15(a), RCFC, require that leave
should be granted in the absence of some demonstrable bad faith by the movant.3 No such ill
motive exists here.
2 Defendant is still refusing to reconvene the Rule 30(b)(6) deposition of the Corps, despite defense counsel’s failure
to produce the “person most knowledgeable” on even one topic set forth in the Notice. Rec. Doc. 47.
3 72 Fed. Cl. at 313.
Case 1:05-cv-01119-SGB Document 51 Filed 11/30/2007 Page 4 of 8
Furthermore, in ATK I this Court specifically noted that the Government received
adequate and timely notice of the Plaintiffs’ intent to amend the Complaint,4 seeking additional
damages. The same rationale applies to the case sub judice.
The St. Bernard Parish Government
On 21 June 2006, Plaintiffs, at the request of the Court to specify ownership of the
properties then at issue, filed a Declaration into the record including the tax records and other
documents demonstrating ownership of the properties of the first group of named Plaintiffs.
Further, the Declaration also specified properties owned by the St. Bernard Parish Government.
The St. Bernard Parish Government seeks to be formally added as a named Plaintiff in the
proposed Second Amended Class Action Complaint, as do other geographically, hydrologically
and topographically representative property owners. Months of notice have been provided to
Defendant. The amendment is further proper, as will be explained, infra.
Advance Notice was also Provided in Respect of the Robin Plaintiffs
In addition to the advance notice provided to Defendant with respect to the St. Bernard
Parish Government being added as a named Plaintiff, early notice was also provided with respect
to the Robin Plaintiffs. This is evident from the depositions conducted to date. The particulars
are as follows.
Edward Robin is an 82 year old resident of Yscloskey, Louisiana (located in the
southeastern portion of St. Bernard Parish). Mr. Robin was deposed on 13 June 2007; he was
cross-examined at length by defense counsel. Mr. Robin fully explained the repetitive and
disruptive flooding events which the MRGO project has been causing on his family’s properties
Case 1:05-cv-01119-SGB Document 51 Filed 11/30/2007 Page 5 of 8
and businesses since 2002. A physical invasion takings claim was clearly manifest from the
testimony of Mr. Robin.5
Brad Robin and the Family Corporations
Ten weeks later, on 24 August 2007, Brad Robin was deposed; he was cross-examined by
defense counsel without limitation. Brad Robin, like his father, testified about the repeat flood
events attendant to the MRGO project occurring since 2002, plus the consumption of his dry land
by the ever expanding MRGO and its sequalae.6 He identified all of his family’s properties and
businesses which are now subject to increasingly frequent inundation; he even entered the
property deeds into the record.7 He was extensively cross-examined by defense counsel as to all
of these items. The claims of the Robins and their family businesses were clearly in the offing
months ago. Defendant can claim no surprise or prejudice in respect of the amendment seeking
to specifically add these claims.
Port Ship Service, Inc.
Port Ship Service, Inc. (“PSSI”) is a company located in St. Bernard Parish which also
seeks to be added as a representative party plaintiff. While PSSI’s facility (property title
documents are attached to the proposed Second Amended Class Action Complaint) experienced
flooding problems (associated with the MRGO) for several years, the conditions have so
worsened in recent months that the company’s business is constantly disrupted. Ergo, PSSI has
determined that it must expressly join this suit as a party plaintiff.8 There can be no prejudice or
surprise to the Defendant as this suit has been filed as a St. Bernard Parish-wide class action.
5 The transcript of Mr. Robin’s deposition, sans exhibits, is attached as Exhibit 2.
6 The constant dredging, which only ceased after the passage of Hurricane Katrina in August of 2005, rivals the
earth movement involved in the Panama Canal project.
7 The transcript of Brad Robin’s deposition, sans exhibits, is attached as Exhibit 3.
8 If the Court were to deny this Motion, an entire new suit would be filed for Port Ship Service, Inc., which
obviously disserves the principle of judicial economy.
Case 1:05-cv-01119-SGB Document 51 Filed 11/30/2007 Page 6 of 8
The addition of this PSSI facility further “clarifies” the Complaint by identifying an additional
representative parcel; it provides additional geographical specification.
The Lower Ninth Ward
The proposed Second Amended Class Action Complaint also adds two named Plaintiffs
to represent the Lower Ninth Ward geographical section of the Class Action Complaint currently
on file. The addition of Gwendolyn Adams and Henry Adams provide specification (by way of
this exemplar parcel).9 This will provide defense counsel and the Court with additional
information as to that grand parcel.
Again, there can be no prejudice to Defendant as the Lower Ninth Ward was specified (in
the original Class Action Complaint and the First Amended Class Action Complaint) as being at
issue in this litigation. See Rule 15(c)(1) and (2), RCFC; Phillips v. United States, 77 Fed. Cl.
513, 520 (2007). This amendment is certainly within the broad discretion afforded the trial
judge. Principal Life Ins. Co. & Subsidiaries v. United States, 75 Fed. Cl. 32, 33 (2007).
Defense Counsel’s Concerns Provide a Specific Basis for Amendment
In ATK Thoiokol, Inc. v. United States, 76 Fed. Cl. 654 (2007) (“ATK II”), this very Court
ruled that the filing of a Second Amended Complaint was properly allowed to satisfy the
government’s concern that the First Amended Complaint did not precisely state the relief
requested. The complaints by government counsel in ATK II10 mirror those of counsel opposite
in this case.11 The proffered amendment here seeks to exactly those same concerns.
Consequently, this amendment should be allowed, especially as the claims sought to be added
9 Title documents attached to Second Amended Class Action Complaint.
10 76 Fed. Cl. at 658.
11 Id. at 662.
Case 1:05-cv-01119-SGB Document 51 Filed 11/30/2007 Page 7 of 8
“arise out of the same operative facts.”12 Finally, here there is only a year’s “delay;” seven years
was not an impediment to the second amendment in ATK II.13
The proposed Second Amended Class Action Complaint seeks to provide appropriate
class representation for each affected area, and to clarify the theory of the taking applicable to
each grand parcel. Allowing this amendment will ensure that the various geographical,
hydrological and topographical areas of the putative class are represented by appropriate named
plaintiffs; this provides greater clarification for the Court and counsel opposite. The St. Bernard
Parish Government is an excellent representative of the entirety of the St. Bernard Parish portion
of the appropriated land at issue in this litigation. The Robin family and its businesses are
excellent representatives of the more southern and eastern reaches of St. Bernard Parish.
Gwendolyn Adams and Henry Adams are appropriate representatives of the Lower Ninth Ward
section of the City of New Orleans, the northernmost and westernmost portion of the property at
issue in this litigation. PSSI is an excellent example of a business along Paris Road which is
repeatedly disrupted by the conditions which are the direct, natural or probable consequence of
the MR-GO project. These disruptions now occur during times of good weather; far worse is
experienced, and is expected the future, in the event of tropical cyclonic storms or similar
The proffered amendments provide the Court with further specification of the grand
parcels at issue in this takings litigation. In summary, the goals sought to be effectuated by Rule
15 of the Rules of the United States Court of Federal Claims are fully effectuated by the
12 Id. at 661, N.3.
13 Id. at 661.
Case 1:05-cv-01119-SGB Document 51 Filed 11/30/2007 Page 8 of 8
F. GERALD MAPLES, P.A.
Respectfully Submitted this 30th day of November 2007,
s/F. Gerald Maples
F. Gerald Maples T.A. (LA# 25960)
Stephen M. Wiles (LA# 17865)
Carlos A. Zelaya, II (LA# 22900)
902 Julia Street
New Orleans, LA 70113
Telephone: (504) 569-8732
Facsimile: (504) 525-6932
J. Wayne Mumphrey (LA# 9824)
MUMPHREY LAW FIRM, LLC
One Canal Place
365 Canal Street, Suite 2280
New Orleans, LA 70130
Telephone: (504) 569-0661 Facsimile: (504)
John H. Musser, IV (LA# 9863)
201 St. Charles Avenue, Suite 2500
New Orleans, LA 70170
Telephone: (504) 599-5964
Facsimile: (504) 566-7185
CERTIFICATE OF SERVICE
I hereby certify that by filing the foregoing pleading via the ECF for the United States
Court of Federal Claims, a copy of the above and foregoing will be served upon counsel for the
United States, pursuant to the E-Noticing System this 30th day of November, 2007. A courtesy
copy is also being directly e-mailed to Messrs. Disheroon and Romley.
s/F. Gerald Maples
F. Gerald Maples