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Case 1:05-cv-01119-SGB Document 54 Filed 01/31/2008 Page 1 of 13

In the United States Court of Federal Claims

No. 05-1119L

Filed: January 31, 2008
TO BE PUBLISHED

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ROCCO TOMMASEO, THOMAS
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TOMMASEO, ROCKY AND CARLO, INC., *
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STEVEN BORDELON, CYNTHIA
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BORDELON, and STEVE’S MOBILE
HOME & R.V. REPAIR, INC.,
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* Motion For Leave To Amend Complaint;
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Amended and Supplemental Pleadings,
RCFC 15(a);
Futility;
Just Compensation Clause, U.S. CONST.
amend. V;

Prejudice;
Standing;
Subject Matter Jurisdiction;
Undue Delay.

Defendant.

Plaintiffs,

v.

THE UNITED STATES,



F. Gerald Maples, New Orleans, Louisiana, counsel for Plaintiffs.

Fred Russell Disheroon, United States Department of Justice, Environment and Natural Resources
Division, Washington, D.C., counsel for Defendant.

MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS’

MOTION TO FILE A SECOND AMENDED COMPLAINT.

BRADEN, Judge.

1

On November 30, 2007, Plaintiffs filed a Motion To File A Second Amended (Class Action)
Complaint (“Pl. Mot. Leave”), together with a Proposed Second Amended Class Action Complaint
(“Second Amend. Compl.”). On December 17, 2007, the Government filed an Opposition (“Gov’t
Resp.”), and on December 31, 2007, Plaintiffs filed a Reply (“Pl. Reply”).

The court has not considered the merits of Plaintiffs’ Class Action Complaint at this

1
juncture.

Case 1:05-cv-01119-SGB Document 54 Filed 01/31/2008 Page 2 of 13

I.

RELEVANT FACTS.2

The Mississippi River Gulf Outlet (“MRGO”) is a 76-mile, man-made navigation channel,
designed and maintained by the United States Army Corps of Engineers (“Government”), that runs
from the Gulf of Mexico to the Port of New Orleans. See First Am. Compl. ¶ 4. This federal project
was authorized in 1956 to provide deep water vessels direct access between the Gulf of New Mexico
and the Port of New Orleans for commercial and national defense purposes. Id. Construction began
in 1958 and was completed in 1968. See Gov’t Mot. Dis. at 3. The MRGO is 76 miles long and
originally was authorized with a surface width of 650 feet, a bottom width of 500 feet, and a depth
of 36 feet. First Am. Compl. ¶ 5. The MRGO is bordered on the east by Lake Borgne and on the
west by marshland that lies between the MRGO and St. Bernard Parish. Id.; see also Gov’t Mot.
Dis. at 3.

The First Amended Complaint alleges that the MRGO is now significantly wider than the
initial authorized size, i.e., up to three times as wide in some areas. See First Am. Compl. ¶¶ 5-9.
This increase in the width allegedly has occurred for two reasons. First, “the surface width [of the
MRGO] was wider than the bottom width creating [a situation where] wake and wave action [from
ships traveling along] the channel . . . continue[] eroding and widening [of the channel]” Id. ¶ 6.
Second, the MRGO allows salt water from the Gulf of Mexico to flow into marshlands bordering
St. Bernard Parish, damaging the wetlands that serve as a natural buffer against hurricane winds and
storm surge: “[t]he wetland loss and deterioration from the MRGO . . . 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.” Id. ¶¶ 7, 8. In addition, Plaintiffs allege that where the MRGO
merges with the Gulf Intracoastal Waterway, a “funnel” has been created that effectively causes
storm surge from “any tropical storm or hurricane which passes in the vicinity of the MR-
GO . . . into St. Bernard Parish and the Lower Ninth Ward [of New Orleans], flooding those lands
time and time again.” Pl. Resp. at 7.

On August 29, 2005, Hurricane Katrina landed on the southeastern Louisiana Gulf Coast near
New Orleans, causing “catastrophic damage.” See Gov’t Mot. Dis. Ex. E at 1 (RICHARD D. KNABB
ET AL., NAT’L HURRICANE CENTER, TROPICAL CYCLONE REPORT HURRICANE KATRINA (2005)). The
National Hurricane Center (“NHC”) reported that Hurricane Katrina generated a “massive storm
surge” that reached “15 to 19 feet . . . in eastern New Orleans [and] St. Bernard Parish” and peaked
at 27.8 feet along the Mississippi Gulf Coast. Id. at 9. This storm surge was so large that it
“severely strained the levee system in the New Orleans area. . . . [and] overtopped large sections of

2

The relevant facts recited herein were set forth in Tommaseo v. United States, 75 Fed. Cl.
799 (2007) (“Tommaseo I”), and also were derived from: Plaintiffs’ January 13, 2006 First Amended
Class Action Complaint (“First Am. Compl.”); Defendant’s October 4, 2006 Motion to Dismiss
(“Gov’t Mot. Dis.”) and Exhibit E thereto (“Gov’t Mot. Dis. Ex. E”); and Plaintiffs’ November 2,
2006 Response (“Pl. Resp.”).

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Case 1:05-cv-01119-SGB Document 54 Filed 01/31/2008 Page 3 of 13

the levees east of New Orleans, in Orleans Parish and St. Bernard Parish[.]” Id. The resulting flood
devastated St. Bernard Parish. Id. at 9-11; First Am. Compl. ¶ 11.

Plaintiffs are resident property owners in St. Bernard or Orleans Parishes or are Louisiana
corporations with a principal place of business in St. Bernard Parish. See First Am. Compl. ¶¶ 2, 10.
The First Amended Complaint alleges that Plaintiffs suffered “massive flooding and destruction of
[their] property” by Hurricane Katrina, and that, “but for the creation and maintenance of the MRGO
by the United States, the flooding and devastation of Plaintiffs’ property would not have occurred.”
Id. ¶¶ 11-13. After Hurricane Katrina, Plaintiffs’ property has been subjected to repeated flooding,
even during minor weather events, because of the wetland loss associated with the MRGO. Id. ¶¶
22-24.

II.

PROCEDURAL HISTORY.

On October 17, 2005, Plaintiffs filed a class action in the United States Court of Federal
Claims, alleging that the Government deprived Plaintiffs of their property in violation of the Just
Compensation Clause of the Fifth Amendment to the United States Constitution (“Just
Compensation Clause”). On October 24, 2005, Plaintiffs filed a Disclosure Statement pursuant to
Rule of the United States Court of Federal Claims (“RCFC”) 7.1.

On January 13, 2006, a First Amended Complaint was filed that included three counts. See
First Am. Compl. ¶¶ 15-29. On January 17, 2006, the Government filed an Answer. On March 7,
2006, the parties filed a Joint Preliminary Status Report. On March 17, 2006 and July 18, 2006, the
court convened telephone status conferences. On July 18, 2006, the court issued a Scheduling Order
requiring any dispositive motions to be filed on or before September 18, 2006.

On August 16, 2006, Plaintiffs filed a Motion to Compel Discovery Responses, together with
five exhibits. On September 5, 2006, the Government filed a Response. On September 7, 2006,
Plaintiffs filed a Reply. On September 7, 2006, the court convened a hearing to consider Plaintiffs’
August 16, 2006 Motion to Compel. On September 8, 2006, the court entered an Order, denying
Plaintiffs’ August 16, 2006 Motion to Compel, as premature, and directing the Government to file
any motion to dismiss by September 30, 2006. On October 2, 2006 the Government filed a Motion
for an Enlargement of Time, which the court granted.

On October 4, 2006, the Government filed a Motion to Dismiss, pursuant to RCFC 12(b)(1),
together with five supporting exhibits. On November 2, 2006, Plaintiffs filed a Motion In Limine
to exclude those exhibits. On November 2, 2006, Plaintiffs filed a Declaration of Counsel in
opposition of Government’s October 4, 2006 Motion to Dismiss. On that same date Plaintiffs filed
a Statement of Contested Material Facts in opposition to the Government’s Motion to Dismiss, as
well as a Response to the Government’s October 4, 2006 Motion to Dismiss. On November 20,
2006, the Government filed a Reply to Plaintiffs’ November 2, 2006 Response and a Response to
Plaintiffs’ November 2, 2006 Motion In Limine. On December 6, 2006, Plaintiffs filed a Reply to
the Government’s November 20, 2006 Response.

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On January 27, 2007, Plaintiffs filed an Ex Parte Motion for Leave to File a Supplemental
Memorandum in Opposition to the Government’s Motion to Dismiss and proposed Supplemental
Memorandum with four exhibits. On February 2, 2007, the Government filed an Opposition. On
February 7, 2007, the court issued an Order granting Plaintiffs’ January 27, 2007 Ex Parte Motion
for Leave to File a Supplemental Memorandum. On February 21, 2007, Plaintiffs filed a
Supplemental Memorandum in Opposition to Defendant’s Motion to Dismiss.

On March 29, 2007, the court filed a Memorandum Opinion and Order holding that: (i) the
court has jurisdiction to adjudicate the claims in Plaintiffs’ January 13, 2006 First Amended Class
Action Complaint and named Plaintiffs are ordered to further amend “to allege sufficient facts of
ownership of the properties at issue to establish standing;” (ii) Count II is not ripe for adjudication
and is dismissed; (iii) the Government’s October 4, 2006 Motion to Dismiss concerning the Ridge
Line inquiry is denied as premature, without prejudice, “but may be reasserted after discovery is
completed;” (iv) Plaintiffs are ordered to show cause why Counts I and III are not barred by the
statute of limitations; and (v) Plaintiffs’ November 2, 2006 Motion In Limine is denied. See
Tommaseo I, 75 Fed. Cl. at 807 (2007).

On June 14, 2007, Plaintiffs filed a Corrected Motion For Leave To File Declaration And
Exhibits, which the court granted in a June 20, 2007 Order. Plaintiffs filed a June 21, 2007
Declaration of Mr. Wayne B. Mumphrey and supporting exhibits. In addition, Plaintiffs also filed
an August 7, 2007 Motion To Compel And For Imposition Of Fees And Expenses, with six
supporting exhibits, and moved for the court to order the Government to: respond to Plaintiffs’
RCFC 30(b)(6) Deposition Notice; and “produce, identify, authenticate, and explain all materials
requested to be delivered in response to the [RCFC] 30(b)(5) Request For Production Of
Documents[.]”

Following a September 13, 2007 Status Conference, the court issued a September 17, 2007
Order Granting In Part And Denying In Part Plaintiffs’ August 7, 2007 Motion To Compel and
ordering the Government to “provide Plaintiff with an index of the documents under control of the
United States in a Joint Electronic depository, subject to In Re Katrina Canal Breaches Litigation,
under seal.” On October 16, 2007, a Discovery Protocol Order was issued, which contained two
clerical changes to the September 17, 2007 Order.

On November 30, 2007, Plaintiffs filed a Motion To File A Second Amended Class Action
Complaint (“Pl. Mot. Leave”), together with a Proposed Second Amended Class Action Complaint
(“Second Amend. Compl.”). On December 17, 2007, the Government filed an Opposition (“Gov’t
Resp.”), and on December 31, 2007, Plaintiffs filed a Reply (“Pl. Reply”).

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III.

DISCUSSION.

A.

Jurisdiction.

The Tucker Act, 28 U.S.C. § 1491(a)(1), authorizes the United States Court of Federal
Claims to render judgment and award money damages on any claim against the United States based
on the United States Constitution, an Act of Congress, a regulation of an executive department, or
an express or implied contract with the United States. See United States v. Testan, 424 U.S. 392,
397-98 (1976). The United States Supreme Court, however, has held that the Tucker Act does not
create any substantive right for monetary damages. See United States v. Mitchell, 445 U.S. 535, 538
(1980). Therefore, a plaintiff must identify and plead an independent contractual relationship,
constitutional provision, federal statute, and/or executive agency regulation that provides a
substantive right to money damages in order for the court to have jurisdiction. See Khan v. United
States, 201 F.3d 1375, 1377 (Fed. Cir. 2000).

In Tommaseo I, the court determined that it had subject matter jurisdiction, pursuant to the
Tucker Act, 28 U.S.C. § 1491(a)(2), to adjudicate claims alleged in the January 13, 2006 First
Amended Complaint. See Tommaseo I, 75 Fed. Cl. at 807 (“The court has determined that it has
jurisdiction to adjudicate the claims in Plaintiffs’ January 13, 2006 First Amended Class Action
Complaint[;] however, the named Plaintiffs are hereby ordered to further amend to allege sufficient
facts of ownership of the properties at issue to establish standing.”); see also First Am. Compl. ¶ 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.”).

The court also determined that the “First Amended Complaint . . . does not allege when the
named Plaintiffs became property owners in . . . St. Bernard or Orleans Parishes, an essential fact
to establish standing.” See Tommaseo I, 75 Fed. Cl. at 803 (citing Dow v. United States, 357 U.S.
17, 20-21 (1958) (holding that a plaintiff seeking just compensation for a taking under the Fifth
Amendment must be the owner of the property at the time of the taking)); see also Cavin v. United
States, 956 F.2d 1131, 1134 (Fed. Cir. 1992) (“Without undisputed ownership of the [] property [at
issue] at the time of the takings, [the plaintiffs] cannot maintain a suit alleging that the Government
took their property without just compensation.”); Lacey v. United States, 595 F.2d 614, 619 (Ct. Cl.
1979) (“The person entitled to compensation for a taking of property by the Government is the owner
of the property at the time of the taking.”) (citation omitted).

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3

In addition, the court determined that since Counts I and III of the First Amended
Complaint did not specify the precise dates of the alleged takings, Plaintiffs were ordered to show
cause why Counts I and III, as pled, were not barred by the statute of limitations. See Tommaseo
I, 75 Fed. Cl. at 804-05 (“In this case, if Plaintiffs’ takings theory is premised on the creation of the
MRGO, to satisfy the statute of limitations, [then] Plaintiffs would have to establish that the effects
from the ‘creation’ of the MRGO were not ‘stabilized’ until on or after October 17, 1999, i.e., six
years prior to filing the October 17, 2005 Complaint. If Plaintiffs’ theory is premised on the
expansion of the MRGO by ‘continued operation, maintenance, and dredging,’ to satisfy the statute
of limitations, Plaintiffs would have to establish that the ‘situation’ created by these activities was
not ‘stabilized’ until on or after October 17, 1999.”) (citing 28 U.S.C. § 2501 (“Every claim of which
the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon
is filed within six years after such claim first accrues.”)).

3

“Count I - Permanent Taking of Property” alleges that: “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 public use.” First
Am. Compl. ¶ 16.

4

“Count III - Permanent Taking of Flowage Easement” alleges that: “The flooding of
plaintiffs’ property is recurring and is necessarily incident to and an inevitable consequence of the
creation and maintenance of the MRGO [whereby] the United States has created a flowage easement
on plaintiffs’ property thereby resulting in a permanent taking of plaintiffs’ property for a public
purpose.” First Am. Compl. ¶¶ 24-25.

5

In Tommaseo I, the court observed that:

Plaintiffs’ First Amended Complaint does not state concise or clear allegations. See
e.g., compare First Am. Compl. ¶ 12 (“[The] flooding was a direct, natural or
probable result of the creation of the MRGO and the continued operation,
maintenance, and dredging thereof[.]”) (emphasis added), with id. ¶ 13 (“[B]ut for
the creation and maintenance . . . the flooding . . . would not have occurred.”)
(emphasis added), with id. at ¶ 24 (“The flooding . . . is . . . an inevitable consequence
of the creation and maintenance of the MRGO.”) (emphasis added), with id. at
Prayer ¶ (a) (“[P]roperty was taken . . . through the construction and continued
operation, maintenance and dredging[.]”). See RCFC 8(e), 12(e), 15(a). When
Plaintiffs respond to the court’s Show Cause Order, Plaintiffs should further amend
their [C]omplaint not only to state the required facts to establish standing, but also
to state facts sufficient to identify their takings theory in a concise and clear manner,
so that the court can properly resolve the statute of limitations issue.

75 Fed. Cl. at 805, n.5.

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The court also determined that Count II of the Complaint was not ripe for adjudication since
the MRGO is not closed. See Tommaseo I, 75 Fed. Cl. at 803; see also First Am. Compl. ¶ 19
(“[O]nly in the event that the MRGO is closed and [P]laintiffs’ real property can be redeveloped in
the future, [then] [P]laintiffs 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.”).

B.

The Court’s Resolution Of Plaintiffs’ Motion For Leave To File A Second
Amended Complaint.

1.

Governing Precedent.

Pursuant to RCFC 15(a), “a party may amend the party’s pleading only by leave of the court
or by written consent of the adverse party; and leave to amend shall be freely given when justice so
requires.” RCFC 15(a). The United States Supreme Court has held, interpreting Fed. R. Civ. P.
15(a), that:

If the underlying facts or circumstances relied upon by a plaintiff may be a proper
subject of relief, he ought to be afforded an opportunity to test his claim on the
merits. In the absence of any apparent or declared reason-such as undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment, etc.-the leave
sought should, as the rules require, be “freely given.”

Foman v. Davis, 371 U.S. 178, 182 (1962) (citation omitted) (emphasis added).

2.

The Court’s Resolution.

The Government argues that the court should not allow Plaintiffs leave to file a Second
Amended Class Action Complaint, pursuant to Rule 15(a), because: (1) the (Proposed) Second
Amended Complaint confuses the issues by asserting factually dissimilar claims; (2) justice does not
require allowance of the Amendment, because it includes proposed additional Plaintiffs with
dissimilar claims; and (3) the Second Amended Complaint is futile, because it does not allege a
specific date of the taking of the properties at issue. See Gov’t Resp. at 2-5.

a.

The Government Has Not Established “Undue Delay” Or “Bad
Faith.”

Plaintiffs contend that the Motion to File a Second Amended Complaint was not unduly
delayed, because the Government had sufficient notice of the proposed additional Plaintiffs and their
claims. See Pl. Mot. Leave at 4-7 (specifying that the Government had notice of the proposed

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additional parties’ claims based on: documents in the record, deposition testimony, and
representative property ownership within the geographical areas named in the October 17, 2005
Complaint). Plaintiffs also indicate that the Second Amended Complaint is necessary, because the
“effects of the MRGO project are now worse than were realized when the Original Complaint was
filed.” See Pl. Reply at 6 (“It no longer takes a hurricane to flood significant portions of the area in
question[.]”). In addition, Plaintiffs argue that the Second Amended Complaint is a good-faith effort
to provide more clarity to Government requests. See Pl. Mot. Leave at 3 (referring to Government’s
repeated requests for clarification of Complaint).

6

The Government’s response does not assert any “undue delay” in Plaintiffs’ filing their
Motion For Leave to File a Second Amended Class Action Complaint, nor does the Government
assert that Plaintiffs have filed the motion in “bad faith.” See Foman, 371 U.S. at 182. Nor does the
court discern that Plaintiffs’ Motion To File A Second Amended Complaint presents any “undue
delay,” or exercise of “bad faith.” First, the Government had sufficient notice of the claims in the
(Proposed) Second Amended Complaint, because these claims arise from the same transaction as
the October 17, 2005 Complaint and the January 13, 2006 First Amended Complaint. See, e.g., Oct.
17, 2005 Compl. ¶¶ 12, 14-16, 20-22 (alleging a permanent taking of property based on the creation,
continued operation, maintenance, and dredging of the MRGO or, alternatively, creation of a
drainage easement on Plaintiffs’ property); Jan. 13, 2006 Amend. Compl. ¶¶ 15-17, 21-25 (amending
October 17, 2005 Complaint to allege that the MRGO has caused recurring flooding, resulting in a
taking of Plaintiffs’ property); Second Amend. Compl. ¶¶ 4-56 (amending First Amended Complaint
to specify the ways in which flooding allegedly has interfered with Plaintiffs’ property rights, listing
properties and dates of acquisition, and clarifying the types of meteorological and environmental
events that caused flooding allegedly from the creation, dredging, and maintenance of the MRGO).

See, e.g., Pl. Mot. Leave at 4 (“On 21 June 2006, Plaintiffs . . . filed a Declaration into the
6
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.”).

7

See, e.g., Pl. Mot. Leave at 4 (“Edward Robin is an 82 year old resident of Yscloskey,
Louisiana[.] Mr. Robin was deposed on 13 June 2007; he was cross-examined at length by defense
counsel[.]”); see also Pl. Mot. Leave Ex. 2 (June 13, 2007 Deposition of Edward Robin, Sr.).

See, e.g., Pl. Mot. Leave at 5 (“Port Ship Service, Inc. (“PSSI”) is a company located in St.
8
Bernard Parish which also seeks to be added as a representative party plaintiff . . . . There can be no
prejudice or surprise to the Defendant as this suit has been filed as a St. Bernard Parish-wide class
action.”).

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The court acknowledges that additional Plaintiffs, and specific facts relating thereto, were
added to the (Proposed) Second Amended Complaint, partly in response to the court’s request for
clarification regarding the accrual dates of Plaintiffs’ claims. See Tommaseo I, 75 Fed. Cl. at 804-05
(“In this case, if Plaintiffs’ takings theory is premised on the creation of the MRGO, to satisfy the
statute of limitations, [then] Plaintiffs would have to establish that the effects from the ‘creation’ of
the MRGO were not ‘stabilized’ until on or after October 17, 1999, i.e., six years prior to filing the
October 17, 2005 Complaint.). Although the exact circumstances surrounding each alleged taking
varies, in the initial Complaint, the First Amended Complaint, and the (Proposed) Second Amended
Complaint, the underlying “transaction” at issue remains the same, i.e., that Plaintiffs’ property was
taken, under a “continuous physical process,” by the creation, maintenance, and dredging of the
MRGO. See Snoqualmie Tribe of Indians v. United States, 178 Ct. Cl. 570, 587 (1967) (“[N]otice
is the test, and it is built-into the rule’s requirement that the amended pleading arise out of the same
‘conduct, transaction, or occurrence.’”).

9

Second, the timing of the Second Amended Complaint, approximately two years after filing
the October 17, 2005 Complaint, is not excessive. See ATK Thiokol v. United States, 76 Fed. Cl.
654, 661 (2007) (granting Plaintiff leave to amend seven years after filing the initial complaint).
Third, the Amendment is, in part, in response to a court order and the Government’s request for
clarification. Id. at 661-62 (allowing amendment in response to court invitation to amend and to
respond to Government concerns that First Amended Complaint did not specify the entire relief
requested).

On March 29, 2007, the court ordered Plaintiffs to amend the First Amended Complaint to
specify when Plaintiffs allegedly became property owners to satisfy jurisdictional requirements. See
Tommaseo I, 75 Fed. Cl. at 803 (“The court will afford the named Plaintiffs leave to further amend
to satisfy this jurisdictional requisite.”). Subsequently, the Government has requested further
clarification of the Plaintiffs’ claims. See Gov’t Resp. at 2-5 (arguing that the (Proposed) Second
Amended Complaint still does not provide greater clarity).

Because Plaintiffs seek to amend the Complaint in response to the court’s March 29, 2007
ruling and the Government’s requests, the Amendment comes only two years after the filing of the
October 17, 2005 Complaint, and the (Proposed) Second Amended Complaint alleges claims that
arise from the same transaction as the initial Complaint and First Amended Complaint, the court has
determined that the Plaintiffs’ motion was filed in good faith and without undue delay.

b.

The Government Has Not Established “Prejudice.”

9

For example, the (Proposed) Second Amended Complaint claims a taking resulting from
frequent lock closures due to encroaching salt water from the MRGO. See Second Amend. Compl.
¶ 42 (“[T]he rising salt water results in [the Government’s] more frequent closures of the locks on
Bayou Bienvenue, a natural bayou that flows into the MRGO. Every time the locks are closed, [Port
Ship Services, Inc.], whose property lies adjacent to Bayou Bienvenue, cannot operate its business,
which costs the company money.”).

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The Government argues that the (Proposed) Second Amended Complaint “further confuses
the issues” by: modifying the claims of the parties named in the January 13, 2006 First Amended
with factually dissimilar claims. See Gov’t Resp. at
Complaint; and naming additional plaintiffs,
10
2-3 (“[Plaintiffs] have gone from alleging that a hurricane was at least a significant contributing
cause of their alleged flood damages, to alleging multiple claims[.]”). Therefore, the Government
urges the court not to allow Plaintiffs leave to amend, because the factual and legal dissimilarities
among the proposed additional Plaintiffs “add several new and different causes of action.” Id. at 2
(“[J]ustice does not require this honorable Court to allow this grossly expansive and more confusing
amended complaint.”). Specifically, the Government contends that the additional claims create
complicated questions regarding varying accrual dates for statute of limitations purposes. Id. at 2-3
(arguing that each new claim would have a different accrual date).

Plaintiffs respond that the proposed additional Plaintiffs are property owners that better
represent the alleged harmful effects of the MRGO and the specific means by which such harm was
caused. See Pl. Reply at 6 (“It no longer takes a hurricane to flood significant portions of the area
in question–even on sunny days, wind blowing in certain directions can cause extensive flooding of
Plaintiffs’ properties. The new representative Plaintiffs are exemplars of this type of appropriation.”).
In addition, Plaintiffs argue that the (Proposed) Second Amended Complaint does not alter the basic
factual claims and legal theory set forth in the initial and First Amended Complaint. See Pl. Reply
at 5-6 (confirming that the Plaintiffs continue to aver that the creation, maintenance, and dredging
of the MRGO directly and indirectly caused, extensive and increased flooding of Plaintiffs’
properties, and that Hurricane Katrina only played a partial role in causing damage).

The court has determined that the (Proposed) Second Amended Complaint does not prejudice
the Government, because the Government had sufficient notice of the potential of additional
Plaintiffs and claims. Amended pleadings may be unduly prejudicial if they cause “unfair surprise
to the opposing party, unreasonably broaden the issues, or require additional discovery.” Cooke v.
United States, No. 06-748, 2007 U.S. Claims LEXIS 383, at *5-6 (Fed. Cl. Dec. 6, 2007). The
proposed additional Plaintiffs are individual and corporate residents of St. Bernard Parish, Louisiana,
and the Lower Ninth Ward of the City of New Orleans, and, like the initial Plaintiffs, allege
“continuous physical process” takings, based on the creation, maintenance, and dredging of the
MRGO. Compare Jan. 13, 2006 Amend. Compl. ¶¶ 10, 22 (“Plaintiffs are residents of Louisiana
who owned real property with improvements thereon including both residential and commercial
property in southeast Louisiana . . . . 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.”) with Nov. 30, 2007 Second Am. Compl. ¶¶ 11-12 (“Plaintiffs are residents
of St. Bernard Parish who owned immovable property, most of which included improvements
thereon, both residential and commercial, in St. Bernard Parish, Louisiana. The same applies to the
properties in the Lower Ninth Ward of the City of New Orleans . . . . On 29 August 2005 Hurricane

10

The proposed additional Plaintiffs include: the St. Bernard Parish Government; the Robin
family; Port Ship Services, Inc.; and the Adams’ of the Lower Ninth Ward. See Pl. Mot. Leave at
7.

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Katrina pushed a storm surge through the MRGO, into St. Bernard Parish and the Lower Ninth Ward
of the City of New Orleans. The result was massive flooding and the destruction of plaintiffs’
property.”).

Despite the Government’s claim that the proposed Plaintiffs raise new legal theories that rely
on facts distinct from those previously alleged, the (Proposed) Second Amended Complaint belies
this claim. See Second Am. Compl. ¶ 9 (all alleging “continuous physical process” takings that “are
the direct, natural, or probable consequence of the MGRO project[.]”). Moreover, Plaintiffs have
consistently asserted, in the original and amended complaints, that the named Plaintiffs represent “all
other persons similarly situated.” See Oct. 17, 2005 Compl. ¶ 2; see also Jan. 13, 2006 Amend.
Compl. ¶ 2 (naming Louisiana residents of and corporations with their principal places of business
in St. Bernard Parish and the Lower Ninth Ward as the Plaintiffs). Therefore, because the proposed
additional Plaintiffs in this Complaint impose no unforeseen liability on the Government, the court
has determined that a Second Amended Complaint does not unduly prejudice the Government. See
RCFC 15(a); see also Foman, 371 U.S. at 182 (citation omitted) (“In the absence of any apparent
or declared reason-such as . . . undue prejudice to the opposing party by virtue of allowance of the
amendment . . . the leave sought should, as the rules require, be “freely given.”).

The court also has determined that the (Proposed) Second Amended Complaint serves the
interest of justice, and rejects the Government’s argument to the contrary, because adjudicating the
proposed additional Plaintiffs’ claims serves the interest of judicial efficiency. The initial Plaintiffs
and the proposed additional Plaintiffs together allege a “continuous physical process” taking of
property within St. Bernard Parish and the Lower Ninth Ward by the United States for a public
purpose, i.e., the creation, maintenance, and dredging of the MRGO. See Second Amend. Compl.
¶¶ 4-14 (alleging that the maintenance and expansion of the MRGO has directly and indirectly
caused repeated flooding of Plaintiffs’ property). Although the circumstances and extent of each
Plaintiff’s injury may vary, each relies on a common set of facts and the same legal theory. See
Barnes v. United States, 68 Fed. Cl. 492, 498 (2005) (allowing class certification for Navy
employees even though the Government’s liability to each plaintiff differ). Requiring the proposed
Plaintiffs to file separate suits would be inefficient and burden the parties. Id. at 496 (clarifying that
commonality of law and facts sufficient for class certification requires the plaintiffs’ claims to share
essential characteristics to the extent that “resolution of some of the legal or factual questions that
qualify each member’s case as a genuine controversy can be achieved through generalized proof, and
if these particular issues are more substantial than the issues subject only to individualized proof.”)
(quoting Moore v. Paine Webber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002)).

Therefore, the court has determined that the facts and legal claims asserted in the Second
Amended Complaint are sufficiently similar that separate adjudication of the proposed additional
Plaintiffs’ claims would not serve the interest of justice.

c.

The Government Has Not Established “Futility.”

The Government argues that the (Proposed) Second Amended Complaint fails to state a
claim, because it does not allege a date of taking of the properties at issue. See Gov’t Resp. at 3

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(“[T]he proposed amended complaint is insufficient as it does not in any place allege the purported
date of taking of the properties so claimed.”). In addition, the Government asserts that the claims
of the St. Bernard Parish Government are partially invalid. Id. at 4 (arguing that the alleged taking
of 90 properties from the St. Bernard Parish Government, based on the inability to alienate such
properties or the need to elevate new structures, cannot serve as a “proper basis for an alleged Fifth
Amendment taking of private property[.]”).

Plaintiffs respond that the takings claims asserted here do not require alleging any specific
date of the taking. See Pl. Reply at 2-3 (characterizing Plaintiffs’ claims as a physical process suit,
which does not require allegations of a precise date of taking, but rather allows the trier of fact to
determine the date of the taking); see also United States v. Dickinson, 331 U.S. 745, 749 (1947) (A
“continuing process of physical events” taking claim does not arise “until the situation becomes
stabilized,” such that “the consequences of inundation have so manifested themselves that a final
account may be struck.”). Plaintiffs argue that the alleged Government activity manifested to the
extent that a “final account may be struck” only within the relevant six-year statute of limitations,
i.e., since or after October 17, 1999. Id. at 4 (quoting Cristina Inv. Corp. v. United States, 40 Fed.
Cl. 571, 579 (1998)); see also Barnes v. United States, 538 F.2d 865, 873 (Ct. Cl. 1976) (Because
of the inherent uncertainty in determining the accrual of a claim involving gradual natural processes,
“[a]dopting a date of taking must often be done in a somewhat imprecise manner.”) (emphasis
added); Tommaseo I, 75 Fed. Cl. at 804-05 (“In this case, if Plaintiffs’ takings theory is premised
on the creation of the MRGO, to satisfy the statute of limitations, [then] Plaintiffs would have to
establish that the effects from the ‘creation’ of the MRGO were not ‘stabilized’ until on or after
October 17, 1999, i.e., six years prior to filing the October 17, 2005 Complaint.”). Plaintiffs also
argue that the St. Bernard Parish Government’s claims are valid takings claims, because they allege
that the MRGO has prevented the St. Bernard Parish Government from selling or using parish
property. Pl. Reply at 8 (“[W]here a Plaintiff such as the St. Bernard Parish Government cannot sell
of use its property (due to the reduced property values and recurrent flooding events caused by the
MRGO project), its [right to alienate the property] has also been taken.”).

The court has determined that the Government has not established futility. See
Phillips v. United States, 77 Fed. Cl. 513, 520 (2007) (denying leave to amend because the court
determined as a matter of law that the contract at issue was insufficient to establish jurisdiction and
no additional facts could alter this interpretation). A finding of futility “requires the [c]ourt to
determine that the proposed amendment is subject to dismissal or so wholly and patently lacking in
merit that it cannot possibly succeed.” Centech Group, Inc. v. United States, 78 Fed. Cl. 658 (2007).
The facts, as alleged in the (Proposed) Second Amended Complaint, clarify Plaintiffs’ continuous
physical process taking claims as “stabilized” on or after October 17, 1999. Therefore, the court
declines to determine they are facially insufficient for the purposes of this motion. See, e.g., Second
Am. Compl. ¶ 22 (“This federal project, continually operated, maintained, and dredged (through
August 2005) by the [Army] Corps of Engineers and its contractors, gradually destroyed these
properties, via saltwater erosion and saltwater intrusion, the consumption of more than 20,000 acres
of protective tree stands, marshland and vegetation, all of which previously acted as a protective
buffer[.]”) (emphasis added); Id. ¶ 24 (“Because [Plaintiffs’] respective parcels have been subject
and are currently subjected to increasingly disruptive effects attendant to the continuous operation,

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maintenance and dredging of the federal MRGO project, the combined effect of the unending
destruction of the protective tree stands, vegetation and marsh barrier, plus the creation of the funnel
for saltwater intrusion and storm surge, has deprived Plaintiffs of the full use and enjoyment of their
respective parcels, resulting in a taking for a public purpose, without just compensation.”) (emphasis
added); Id. ¶ 45 (“The practical result of the erosion and saltwater intrusion by the ever expanding
MRGO project is that property owners in much of the Lower Ninth Ward are at least partially
deprived of their ability to use, enjoy and alienate their immovable property.”) (emphasis added).

In light of the requirement in RCFC 15(a) that leave to amend “shall be freely given when
justice so requires,” the court has determined that Plaintiffs’ Motion For Leave To File A Second
Amended Class Action Complaint should be granted. See RCFC 15(a); see also Zenith Radio Corp.
v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971) (“[G]rant of leave to amend the pleadings
pursuant to Rule 15(a) is within the discretion of the trial court.”).

IV.

CONCLUSION.

For the aforementioned reasons, Plaintiffs’ November 30, 2007 Motion For Leave Of Court

To File A Second Amended Class Action Complaint is granted.

IT IS SO ORDERED.

s/ Susan G. Braden
SUSAN G. BRADEN
Judge

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