He did the mash
He did the monster mash
On or about August 29, 2005, Hurricane Katrina hit the Gulf Coast largely sparing Greater New Orleans, which fortunately lay in Katrina’s rapidly deteriorating western eye-wall. The result was that Katrina laid waste to virtually everything in its path along the Mississippi Gulf Coast; but in Orleans and St. Bernard Parishes, Katrina’s winds did not even register as a Category 3 on the Saffir-Simpson scale. The winds barely reached 100 miles per hour. Nevertheless, through the fault and negligence of Defendants, a tidal surge rushed from the Gulf though the MR-GO and collided at the nexus of the Gulf Intra-coastal Waterway [“GIWW”] and MR-GO with another storm surge from Lake Borgne which combined to flood the New Orleans east bank (downtown protected area), the Lower Ninth Ward and St. Bernard Parish by overwhelming levees/floodwalls and/or spoil banks that had been negligently designed, constructed, maintained, undermined, weakened and/or operated by the Defendants.
This action results from one of the most predictable and preventable man-made catastrophes in American history—the tragic devastation of homes and lives during and after Hurricane Katrina [“Katrina”] on or about August 29, 2005–caused by negligence, fault and/or strict liability of the United States Army Corps of Engineers [“Corps”], Washington Group International, Inc. [“Washington” or “Washington Group”], the Board of Commissioners of the Orleans Parish Levee District [“Orleans“], St. Paul Fire and Marine Insurance Company [“St. Paul”], and The Board of Commissioners of the Lake Borgne Basin Levee District [“Lake Borgne”] [collectively “Defendants”]
He did the mash
Joseph M. Bruno did the monster mash
Bruno is the MRGO Plaintiffs’ Liasion Counsel; the monster is the Motion to Dismiss filed by the USA; and the first steps in the monster mash were a Response and Memorandum in Opposition to the United States of America’s Motion to Dismiss.
On October 16, 2009, the United States of America (hereafter “the Government”) filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), seeking
dismissal of all claims pertaining to the East Bank Industrial Area (EBIA) as set forth in Count Three of the Amended MR-GO Master Consolidated Class Action Complaint (Rec. Doc. 11471) (hereafter “Amended Complaint”), as well as the claims asserted by Plaintiffs Kenneth B. Armstrong, Sr., and Jeannine B. Armstrong…
The gist of the Government’s argument in support of dismissal is that although Count Three of the Amended Complaint sets forth allegations relating to the East Bank Industrial Area (EBIA), the Inner Harbor Navigational Canal (IHNC), and Washington Group International (WGI), none of the 14 name plaintiffs’ administrative claims (Form 95’s) makes any mention of them. Therefore, the government argues, the Federal Tort Clam Act’s (FTCA) administrative requirements of notice and presentment have not been satisfied and this Court therefore lacks subject matter jurisdiction.
In addition, the Government argues that this Court lacks subject matter jurisdiction over Armstrong’s claims because they filed suit before either a formal denial by the Government, or the passage of six months from the filing of their amended Form 95’s. The Court has been down this road before in the Robinson matter where the Government argued and the Court agreed that “[t]he Notice of a Class Claim that was filed on behalf of plaintiffs did not include sufficient facts to place the Corps on notice that these particular plaintiffs sought recovery for the alleged defalcations that occurred at the EBIA[,] . . . [nor was there any] indication that the EBIA, and the work of WGI would be the subject of this lawsuit. Furthermore, with respect to the individual claimant’s allegations in the Form 95s.” …Plaintiffs respectfully suggest that the Court’s decision in Robinson was in error, and that the instant motion of the Government should be denied…
On September 19, 2008, in response to plaintiffs inquiry with regard to amending box 8 of form 95’s the Government responded with a letter from James F. McConnon, Jr., Trail Attorney Torts Branch (FTCA Staff). In that letter, the government states that “a claim shall be deemed to have been presented when a Federal agency receives from a claimant . . . an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of t he incident. . . .”
Thus, the Government, in its correspondence to plaintiffs counsel takes the position that a claim is presented when it sets forth notice of the accident, the injury, and a sum certain. Now, the Government seeks to expand on those requirements…The Form 95 is the first step in the process of seeking to redress injuries caused by the torts of the Government. It is a form that is often filed by the claimant himself, without the assistance of an attorney. It is a form that must be filled out before any litigation is instituted, and thus before any discovery can be had.
It is a one page claim form that request the claimant to provide a description of accident and the nature and extent of the injury, and it is designed to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite fair settlement of tort claims… To require that the form provide all theories of liability is contrary to the reasons for providing the Form 95 to provide notice of the accident, the injury, and a sum certain, so as to ease court congestion, avoid unnecessary litigation, and facilitate settlement.
While the plaintiffs disagree with the government’s position and will oppose the motion, and the Court has not yet ruled, should the Court rule in favor of the government there will be no Count Three EBIA plaintiffs remaining in the suit and thus no adequate representation to protect the movants’ interest in their EBIA claims.
This Motion, in turn, was followed with a Memorandum in Support of Plaintiffs’ Motion to Intervene expanding on the claim made in their Motion:
The Government has been on notice of the Count Three EBIA claims for more than a year. To allow intervention by persons with Form 95’s setting forth such claims to intervene in the action would work no hardship, undue or otherwise, upon the Government. On the other hand, to deny the intervention would strike those claims from the action. In such a scenario the intervenors would be forced to file new lawsuits duplicating the years of effort of the parties and the Court, or lose the EBIA theories of liability in pursuing their claims.
Out from his coffin, Drac’s voice did ring
Seems he was troubled by just one thing
He opened the lid and shook his fist
And said, “Whatever happened to my Transylvania twist?”
The MRGO Plaintiffs’ version of the “Transylvania twist” was the 31-page Complaint Intervention quoted in the two opening paragraphs of this post with Count Three that Plaintiffs are attempting to preserve cited below:
Intervenors re-allege all previous allegations contained herein, and in addition to the allegations regarding the MR-GO set forth above, Intervenors aver, upon information and belief, that the breaches and failure of the hurricane protection levees and flood walls of the IHNC/Industrial Canal were caused by the negligence and fault of the Defendants Corps, Washington Group, and Orleans all as set forth herein.
Defendant Washington Group contracted with the Corps in connection with the IHNC/Industrial Canal Lock Replacement Project, which was authorized by the River and Harbor Act of 1956, the Water Resources Development Acts of 1986 and 1996, and which was intended to enlarge and deepen the lock. Defendant Washington Group was hired to level and clear abandoned industrial sites along the IHNC/Industrial Canal between the flood wall and the canal itself for the purpose of clearing acreage to make way for the digging of a new canal, which would be used temporarily for the same purpose as the existing IHNC/Industrial Canal while the new system of larger locks was constructed.
The initial phases of work included demolition and site preparation of what was referred to as the East Bank Industrial Area—a 32-acre site located between Florida Avenue and Claiborne Avenue and extending from the canal to the floodwall. Defendant Washington Group’s tasks included, but were not limited to, the removal of wharfage, salvage, debris, and other materials from the IHNC/Industrial Canal and/or its banks. More specifically, Defendant Washington Group’s scope of work included, but were not limited to: demolition of abandoned industrial structures on the east side of the canal; removal of underground structures described in Defendant’s own recommendation reports as “extensive excavation and subsurface activity”; abatement of vegetation, including numerous oak trees; removal of canal side obstructions; removal of the Jordan Street wharf, which included the removal of a concrete deck and support pilings to a depth of 36 feet below mean water level; removal of all electrical, sewer, gas, water, and telephone facilities on the site, including Boland sewer lift station; “bank removal” that included the vibratory extraction of bulkheads along the canal water’s edge; removal of more than fifty structures and more than forty concrete slabs; grid trenching of the entire East Bank Industrial Area; removal of ten sunken or partially sunken barges; removal of barges that served as building foundations; removal of an estimated 3,000 pilings at the site, both on land and in the canal, by use of a vibratory extractor (to a depth of 30 feet for land-based pilings and 40-50 feet for canal/waterbased pilings); grading and hydro-mulching the site; and other such work to be demonstrated through the course of discovery and trial.
In performing the work, Defendant Washington Group, based on information and belief, undermined the integrity of the levee, and/or flood wall along the eastern shoreline of the IHNC/Industrial Canal, abutting the Lower Ninth Ward of Orleans Parish. Defendant Washington Group’s acts and/or omissions resulted in underseepage-induced erosion and other damage to the levee and/or flood wall(s), ultimately causing and/or contributing to its/their catastrophic failure.
Defendant Washington Group was negligent and/or at fault in the following non-exclusive respects: (1) it knew or should have known that its work was causing damage to the levee and/or flood wall structures and did nothing to correct the problem; (2) it failed to follow proper procedures in performing its work; (3) it failed to comply with appropriate regulations and standards in performing its work; (4) it failed to notice the damage caused by its work and failed to call that damage to the attention of the appropriate authorities; (5) and any other acts of fault or negligence to be proven upon the trial of the cause.
The negligence and/or fault of the Corps, caused or contributed to cause the failure of the levee and/or flood wall and/or spoil bank on the sides of the IHNC/Industrial Canal.
The negligence of the Corps consisted of the following non-exclusive particulars: (1) allowing the work to proceed; (2) failing to caution the Washington Group about the potential damage to the levee and/or flood wall system by its work; (3) failing to monitor and/or properly inspect the work of the Washington Group; (4) failing to adequately evaluate the potential damage to the levee and/or flood wall structure by the work of Washington Group; (5) failing to correct the damage caused by the actions of the Washington Group; (6) failing to discharge its duty to maintain the integrity of the levee and/or flood wall system of the IHNC/Industrial Canal; (7) and in addition, as a result of the negligence and/or fault of the Corps during and/or immediately following hurricane Katrina, an accelerated/enhanced hurricane surge was propelled up the MR0GO and then through the MR-GO/GIWW, in an even greater surge, overtopping the I-walls, and/or levees along the MR-GO/GIWW causing massive innundation of the Orleans Parish East Bank (downtown protected area); (8) and other acts of negligence or fault to be shown at trial of the cause.
The negligence and/or fault of Defendant Orleans caused or contributed to the cause of the failure of the levee and/or flood wall and/or I-Walls and/or spoilbanks on the sides of the IHNC/Industrial Canal. Defendant Orleans was granted the authority to establish adequate drainage and flood control in Orleans Parish and other areas within the jurisdiction including the IHNC/Industrial Canal. Orleans was specifically granted authority to erect flood control works as they relate to tidewater flooding, hurricane protection and saltwater intrusion. Orleans was required to engage in the construction and maintenance of levees/floodwalls and/or spoil banks. All levee districts and their commissioners, including Orleans, have the responsibility for the care and inspection of levees.
The negligence and/or fault of Defendant Orleans consists of the following non-exclusive particulars: (1) failure to adequately inspect and/or supervise the activities of Defendant Washington Group; (2) failure to ensure the adequacy of Defendant Washington Group’s procedures; (3) failure to ensure that Defendant Washington Group complied with appropriate regulations and standards; (4) failing to note the resulting damage to the levee and/or flood wall system caused by Defendant Washington Group’s activities; (5) failing to note the under-seepage resulting from the undermining of the integrity of the levee and/or flood wall by the work performed by Defendant Washington Group; (6) having noted the under-seepage, in failing to take steps to correct the problems created by Defendant Washington Group, or to notify other authorities, of the damage to the levee and/or flood wall system caused by the work performed by Defendant Washington Group. As a proximate result of the negligent grossly negligent, reckless, wanton and or illegal acts or omissions of the Defendants described herein this Complaint in Intervention , the Intervenors sustained damages.
The scene was rockin’
Plaintiffs also filed a Combined Motion and Memo to Extend Motion to Dismiss and Entergy filed a Motion to Consolidate with MRGO.