Graci v. United States, 72-1286.

• Decision Date: 09 January 1973
• Docket Number: No. 72-1286.,72-1286.
• Parties: Benjamin T. GRACI, Jr., etc., et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Third-Party Plaintiff-Appellee, v. BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS, Third-Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

472 F.2d 124 (1973)

Benjamin T. GRACI, Jr., etc., et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Third-Party Plaintiff-Appellee, v. BOARD OF COMMISSIONERS OF the PORT OF NEW ORLEANS, Third-Party Defendant-Appellee.

No. 72-1286.

United States Court of Appeals, Fifth Circuit.

January 9, 1973.

Elmer R. Tapper, Chalmette, La., Evangeline M. Vavrick, New Orleans, La., for Galjour, Tapper and Appel.

Gibson Tucker, Jr., Charles A. O'Niell, Jr., Jerald N. Andry, G. Gilbert V. Andry, III, New Orleans, La., for Graci.

Charles G. Jacques, Jr., New Orleans, La., for Reid.

Benjamin J. Birdsall, Jr., James F. Mulla, Jr., Joseph J. Laura, Jr., Ignatz G. Kiefer, New Orleans, La., for Ciaccio.

Gerald J. Gallinghouse, U. S. Atty., Mary W. Cazales, James D. Carriere, Asst. U. S. Attys., New Orleans, La., for United States.

Charles M. Lanier, Sumter D. Marks, Jr., New Orleans, La., for Board of Commissioners of the Port of New Orleans.

Before RIVES, THORNBERRY and GOLDBERG, Circuit Judges.

THORNBERRY, Circuit Judge:

Plaintiff-appellant Graci appeals from the district court's denial of his motion that his suit under the Federal Tort Claims Act be declared a class action. We dismiss this appeal for want of jurisdiction because we find the order denying the class action is not a final order under 28 U.S.C.A. § 1291 and is not otherwise appealable.

Swollen by the rains of Hurricane Betsy and the accompanying tidal surge from the Gulf of Mexico, the waters of the Mississippi River overflowed their levees in September of 1965 and flooded large parts of South Louisiana. Graci, who owned property and resided in the afflicted area at the time of the hurricane, filed suit against the United States under the Federal Tort Claims Act, 28 U.S.C.A. § 1346, alleging that the negligence of the United States Corps of Engineers in constructing the Mississippi River-Gulf Outlet, a deep water channel, without taking proper precautions to protect adjacent areas from hurricane flooding had proximately caused the inundation of his property. He alleged $28,700 of property damage and $50,000 of damage due to mental anguish and inconvenience. In addition to pressing his individual claim, Graci attempted to sue under Rule 23, Fed.R.Civ.P., on behalf of all persons who owned property in a certain portion of the flooded area. Four similar suits against the United States, two of which were also filed as class actions, have been consolidated with Graci's suit. The named individual plaintiffs in all these suits number 231 and their claims total over three million dollars. The United States denied liability to the plaintiffs and filed a third-party complaint against the Board of Commissioners of the Port of New Orleans, claiming indemnity for any sums the Government might eventually become obligated to pay as a result of the lawsuits. Graci moved that his suit be declared a class action and that he be declared representative of the class, and the other named plaintiffs filed similar motions, which were consolidated with Graci's for hearing. The district court denied all the motions, and Graci alone appeals from this ruling.

When a district court denies class action status for a lawsuit without disposing of the claims of the individual named plaintiff, this denial is not an appealable final order under 28 U.S.C.A. § 1291 unless it effectively sounds the "death knell" of the suit and denies the individual plaintiff his day in court. Gosa v. Securities Investment Company, 5th Cir. 1971, 449 F.2d 1330; see generally 3B J. Moore, Federal Practice ¶ 23.97 (2d ed. 1969); 7A C. Wright & A. Miller, Federal Practice and Procedure § 1802...