In Re: In The Matter Of The Complaint Of Great Lakes Dredge & Dock Company LLC., 08-30738.
| Decision Date | 14 October 2010 |
| Docket Number | No. 08-30738.,08-30738. |
| Citation | 624 F.3d 201 |
| Parties | In Re: In the Matter of the Complaint of GREAT LAKES DREDGE & DOCK COMPANY LLC, As Owner of the dredges California, Manhattan Island, Padre Island, and Alaska, and as owner pro hac vice of the Dredge Texas from Exoneration from the Limitation of Liability. Great Lakes Dredge & Dock Company, As owner of the dredges California, Manhattan Island, Padre Island, and Alaska, and as owner pro hac vice of the Dredge Texas, Petitioner-Appellee, v. Louisiana State; Orleans Parish School Board; Debbie M. Thomas Richardson; Phillip Reed; Marguerite Abrahms; et al., Claimants-Appellants. In Re: In the Matter of the Complaint of Mike Hooks, Inc., as owner of the Dredge Missouri H, Petitioner-Appellee, v. Louisiana State; Orleans Parish School Board; Debbie M. Thomas Richardson; Phillip Reed, Claimants-Appellants. In Re: In the Matter of the Complaint of T. L. James & Company, Inc., as owner of the dredges Tom James and George D. Williams, II praying exoneration from or limitation of liability, Petitioner-Appellee, v. Louisiana State; Orleans Parish School Board; Debbie M. Thomas Richardson; Phillip Reed, Claimants-Appellants. In Re: In the Matter of the Complaint of Gulf Coast Trailing Company, a Louisiana Partnership, as owner of the dredge Ouachita, praying for exoneration from or limitation of liability; TLJIC LLC, a partner therein as owner of the dredge Ouachita praying for exoneration from or limitation of liability, Petitioners-Appellees, v. Louisiana State; Orleans Parish School Board; Debbie M. Thomas Richardson; Phillip Reed, Claimants-Appellants. In Re: In the Matter of the Complaint of Manson Construction Company, as owner and operator of the Hopper Dredges Newport and Bayport, for exoneration from or limitation of liability, Petitioner-Appellee, v. Louisiana State; Orleans Parish School Board; Debbie M. Thomas Richardson; Phillip Reed, Claimants-Appellants. In Re: In the Matter of the Complaint of Luhr Bros., Inc., as owner of Spud Barge L-1101, Spud Barge L-1103 and M/V Michael A. and as owner Pro Hac Vice of M/V Charlie B. praying for exoneration from or limitation of liability, Petitioner-Appellee, v. Louisiana State; Orleans Parish School Board; Debbie M. Thomas Richardson; Phillip Reed, Claimants-Appellants. In Re: In the Matter of the Complaint of King Fisher Marine Service L P as owner of the Dredges Leonard M. Fisher and Everett Fisher, Petitioner-Appellee, v. Louisiana State; Orleans Parish School Board; Debbie M. Thomas Richardson; Phillip Reed, Claimants-Appellants. In Re: In the Matter of the Complaint of Pine Bluff Sand and Gravel Company as owner and operator of dredge Marion praying for exoneration from or limitation of liability, Petitioner-Appellee, v. Louisiana State; Orleans Parish School Board; Debbie M. Thomas Richardson; Phillip Reed, Claimants-Appellants. In Re: In the Matter of the Complaint of Weeks Marine, Inc. as owner of the Dredges B. E. Lindholm, George D. Williams, Weeks 262 and BT 208, Petitioner-Appellee, v. Louisiana State; Orleans Parish School Board; Debbie M. Thomas Richardson; Phillip Reed, Claimants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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George M. Gilly, Evans Martin McLeod, William Joseph Riviere, Phelps Dunbar, L.L.P., New Orleans, LA, for Manson Constr. Co.
William J. Larzelere, Jr., Thomas Justin Simpson, Larzelere, Picou, Wells, Simpson, Lonero, L.L.C., Metairie, LA, for Luhr Bros., Inc.
Richard A. Cozad, Emma Alexandra Mekinda, McAlpine & Cozad, New Orleans, LA, for King Fisher Marine Serv. L.P.
André J. Mouledoux, Mouledoux, Bland, Legrand & Brackett, L.L.C., New Orleans, LA, for Pine Bluff Sand & Gravel Co.
Randolph J. Waits, John Francis Emmett, I, Waits, Emmett & Popp, L.L.C., New Orleans, LA, for Weeks Marine, Inc.
Camilo Kossy Salas, III (argued), Salas & Co., L.C., New Orleans, LA, for Abrahms and others.
James H. Roussel, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., New Orleans, LA, William Paul Ferranti (argued), Winston & Strawn, L.L.P., Chicago, IL, Gene C. Schaerr, Winston & Strawn, L.L.P, Washington, DC, Nyka Marie Scott, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., New Orleans, LA, for Great Lakes Dredge & Dock Co., LLC.
Samuel Bryan Gabb, Joseph R. Pousson, Jr., Plauche, Smith & Nieset, L.L.C., Lake Charles, LA, for Mike Hooks, Inc.
Arthur Gordon Grant, Jr., Sr. Litigating Atty., Philip S. Brooks, Jr., Montgomery Barnett, New Orleans, LA, for T.L. James & Co., Inc. and TLJIC LLC.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before KING, HIGGINBOTHAM and GARZA, Circuit Judges.
In this consolidated limitation action, Claimants, Hurricane Katrina flood victims, filed claims against the Limitation Petitioners, private companies that operated twenty-two dredging vessels along the Mississippi River Gulf Outlet pursuant to contracts with the United States Army Corps of Engineers. Claimants suffered damages from the flooding of Orleans and St. Bernard Parishes when several levee systems failed as a result of the erosion of protective wetlands allegedly caused by the Limitation Petitioners' negligent maintenance dredging operations. The Limitation Petitioners moved to dismiss the claims under Federal Rules of Civil Procedure 12(b)(1) and 12(c). The district court granted the motion to dismiss, finding that the Limitation Petitioners owed no duty to the Claimants because the devastation caused by Hurricane Katrina was not a foreseeable result of the allegedly negligent conduct of any Limitation Petitioner. Claimants timely appealed. We affirm the judgment of the district court.
The Mississippi River Gulf Outlet (“MRGO”) is a 76-mile navigational channel that connects the Gulf of Mexico with the Industrial Canal in New Orleans, bisecting the marshy wetlands of St. Bernard Parish and Chandeleur Sound. It was built between 1958 and 1965 by the United States Army Corps of Engineers (“Corps of Engineers”) pursuant to congressional authorization. From 1965 to 1993, the Corps of Engineers performed maintenance dredging to maintain the navigability of the MRGO. Beginning in 1993, the Corps of Engineers contracted with numerous private dredging companies, including the Limitation Petitioners, to assist the Corps of Engineers in maintenance dredging along the MRGO. From 1999 to 2004, the Corps of Engineers awarded 154 contracts to private dredging companies, many to the Limitation Petitioners, to dredge the length of the MRGO channel.
Claimants in the present action, who number in the tens of thousands, are individuals, businesses, and other entities who own property that was damaged due to flooding after Hurricane Katrina made landfall on August 29, 2005. They contend that the Limitation Petitioners' maintenance dredging operations caused severe damage to the Louisiana wetlands, which provide a natural barrier against tidal surge from storms and hurricanes. This damage to the wetlands caused an amplification of the storm surge in the New Orleans region during Hurricane Katrina, which increased the pressure on the levees and flood walls along the MRGO, leading to levee breaches and the subsequent flooding of St. Bernard Parish and Orleans Parish.
Prior to the instant action, two separate class action suits (“ Reed” and “ Ackerson”) were filed in the District Court for the Eastern District of Louisiana by plaintiffs seeking damages from the United States and from private companies that performed maintenance dredging in the MRGO pursuant to government contracts. After consolidation of the Reed and Ackerson suits, the government and the defendant dredgers moved to dismiss.
Before the district court ruled on the defendants' motions, several of the dredgers filed petitions in the Eastern District of Louisiana under the Limitation of Liability Act, 46 U.S.C. § 30511, seeking exoneration from and/or limitation of liability for all claims for any damages arising out of Hurricane Katrina as a result of their maintenance dredging activities for the Corps of Engineers. 1 The limitation actions were consolidated into the present case (the “limitation action”) and transferred to the judge presiding over the Reed and Ackerson suits.
The district court subsequently granted the motions to dismiss the claims against the government and the defendant dredgers in the Reed and Ackerson suits . 2 See In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2007 WL 763742 (E.D.La. Mar. 9, 2007). The district court dismissed the claims against the government for lack of subject matter jurisdiction. 3 Id. at *2. The district court dismissed the claims against the dredging companies under the government contractor immunity doctrines articulated in Yearsley v. W.A. Ross Construction Co. 4 and Boyle v. United Technologies Corp. 5 The district court found that, because the dredging companies were alleged to have performed their contracts in conformity with the Corps of Engineers' specifications, and were not alleged to have performed negligently or absent due care, the dredgers, as government contractors, were immune from liability for any damages caused by their dredging operations for the Corps of Engineers. In re Katrina, 2007 WL 763742, at *3-4. We affirmed on appeal, finding that the pleadings “attack Congress's policy of creating and maintaining the MRGO, not any separate act of negligence by the Contractor Defendants,” and therefore the district court did not err in dismissing the action on the basis that Yearsley immunity applied. See Ackerson, 589 F.3d at 207.
Following dismissal of the class action suits, Claimants filed claims against the dredgers in the limitation action. Many of the claims asserted in the limitation action were substantially similar to those brought against the dredgers in the Reed and Ackerson suits. But the Claimants also added new...
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