IN RE ADDICKS AND BARKER (TEXAS) FLOOD-CONTROL RESERVOIRS V. USA
Filing
104
UNREPORTED MANAGEMENT ORDER NO.3 (ORDER ESTABLISHING SUB-MASTER DOCKET FOR DOWNSTREAM CLAIMS). Signed by Chief Judge Susan G. Braden. (cn) Copy to parties. (Additional attachment(s) added on 12/5/2017: # 1 Attachment A) (ar).
COURT ATTACHMENT A
In the United States Court of Federal Claims
Filed: November 20, 2017
IN RE ADDICKS AND BARKER
(TEXAS) FLOOD-CONTROL
RESERVOIRS
Master Docket No. 17-3000L
THIS DOCUMENT APPLIES TO:
ALL CASES
ORDER REGARDING JUDICIAL ASSIGNMENT, APPOINTMENT OF PLAINTIFFS’
COUNSEL FOR THE PURPOSE OF PRE-TRIAL JURISDICTIONAL DISCOVERY,
THE GOVERNMENT’S MOTION TO DISMISS PURSUANT TO RULE OF THE
UNITED STATES COURT OF FEDERAL CLAIMS 12(b)(1)–(7), AND SCHEDULING.
(DOWNSTREAM CLAIMS)
During the October 6, 2017 and November 1, 2017 hearings convened in Houston, the
court was advised that putative class action complaints and individual complaints with downstream
claims affecting approximately 4,000 private property interests are or will be filed in the United
States Court of Federal Claims. See, e.g., In re Addicks and Barker (Texas) Flood-Control
Reservoirs, Master Docket No. 17-3000L, Dkt. 7 (Fed. Cl. Nov. 3, 2017).
I.
Assignment Of A United States Court Of Federal Claims Judge.
The undersigned judge, the Honorable Susan G. Braden, of the United States Court of
Federal Claims is hereby assigned to manage jurisdictional discovery and adjudicate issues
presented by any motion filed, pursuant to Rule of the United States Court of Federal Claims
(“RCFC”) 12(b)(1)–(7).1
II.
Appointment Of Co-Counsel For Jurisdictional Discovery (In Alphabetical
Order).
On October 11, 2017, the court issued an Order requesting “all counsel of record that wish
to be considered as class counsel(s) and/or lead class counsel(s)” to file a Statement of Interest
addressing the factors set forth in RCFC 23(g)(1). See, e.g., Y And J Properties, Ltd., No. 17-1189,
Dkt. 12 at 6 (Fed. Cl. Oct.11, 2017).
1
On December 4, 2017, the Clerk of Court will effectuate this assignment when Master
Docket, In re Addicks and Barker (Texas) Flood-Control Reservoirs, Master Docket No. 17-3000L
is divided into Sub-Master Dockets. See In re Addicks and Barker (Texas) Flood-Control
Reservoirs, Master Docket No. 17-3000L, Dkt. 10 (Fed. Cl. Nov. 13, 2017).
After considering the views of all counsel, the court makes the following appointments of
Plaintiffs’ Counsel for the purpose set forth herein.
Mr. William S. Consovoy received his Juris Doctor, magna cum laude, from George Mason
University School of Law (now the Antonin Scalia Law School) and has served as a Law Clerk to
Judge Edith H. Jones of the United States Court of Appeals for the Fifth Circuit and Justice
Clarence Thomas of the United States Supreme Court. Mr. Consovoy is a Founding Partner of the
Washington, D.C. and New York firm of Consovoy, McCarthy, Park, PLLC. In addition, Mr.
Consovoy is the Co-Director of the Supreme Court clinic at the Antonin Scalia Law School. Mr.
Consovoy is admitted to the bar of the United States Court of Federal Claims. The court appoints
Mr. Consovoy as Co-Lead Counsel for the purposes set forth herein.2
Mr. David C. Frederick graduated from the University of Texas School of Law, with
honors, and served as a Law Clerk to Judge Joseph Sneed of the United States Court of Appeals
for the Ninth Circuit and Justice Bryon White of the United States Supreme Court. From 19962001, Mr. Frederick was an Assistant Solicitor to the Solicitor General of the United States. Mr.
Frederick is admitted to the bar of the United States Court of Federal Claims, the United States
Court of Appeals for the Federal Circuit, and the United States Supreme Court. In addition, Mr.
Frederick is an Adjunct Professor of Law at the University of Texas Law School, where he teaches
a Supreme Court clinic. The court appoints Mr. Frederick as Co-Lead Counsel for the purposes
set forth herein.
Where “diverse interests exist among the parties, the court may designate . . . counsel
representing different interests.” MANUAL FOR COMPLEX LITIGATION § 10.224 (4th ed. 2004). Mr.
Frederick and Mr. Edelson have filed complaints they contend should be certified as class actions.
The court has determined the issue of class certification is premature at this juncture. The court is
concerned that the interests of property owners who ultimately may decide to opt-in to a certified
class, may be different from those who may decide to pursue claims as individuals. See RCFC 23
Rules Committee Notes (Rule 23 “only contemplates opt-in class certifications”). For this reason,
the court also has appointed Mr. Jack E. McGehee to serve as Of Counsel for the purposes set forth
herein to ensure the interests of individual plaintiffs are represented, since McGehee, Chang,
Barnes, Landgraf represents only individual plaintiffs who, at this point, do not seek class
certification.
Mr. McGehee is a graduate of the United States Military Academy at West Point and St.
Mary’s University School of Law. Mr. McGehee is the Founding Partner of the Houston firm
McGehee, Change, Barnes, Landraf. Mr. McGehee has served as President and Director of the
Texas Trial Lawyers Association and has taught Civil Trial Advocacy at the University of Houston
Law School and at the Trial Techniques Institute at Emory Law School. Mr. McGehee is admitted
to practice before the United States Court of Federal Claims and the United States Supreme Court.
All of the above-referenced appointed counsel satisfy the criteria for selection, set out in
the MANUAL FOR COMPLEX LITIGATION (4th ed. 2004) and MDL Standards and Best Practices,
DUKE LAW SCHOOL CENTER FOR JUDICIAL STUDIES (Sept. 11, 2014), https://law.duke.edu/sites/
default/files/centers/judicialstudies/MDL_Standards_and_Best_Practices_2014-REVISED.pdf.
2
Mr. Jay Edelson of Edelson PC recommended Consovoy, McCarthy, Park, PLLC to the
court.
2
All appointed counsel will be compensated, pursuant to 42 U.S.C. § 4654(c), for their
representation of Plaintiffs, as set forth herein, including any subsequent appeals. See Hensley v.
Eckerhart, 461 U.S. 424 (1983); see also Hubbard v. United States, 480 F.3d 1327 (Fed. Cir.
2007). In that regard, appointed counsel are expected to keep and maintain detailed time records
from the date of this Order, take care to limit the use of law firm personnel (partners, associates,
and paralegals) only to the extent absolutely necessary to meet professional standards of due
diligence and care and minimize ancillary expenses.
III.
Schedule.
To ensure the expeditious and orderly management of jurisdictional discovery, the court
establishes the following schedule.
On or before December 8, 2017, the Government will file any Motion For A More Definite
Statement, pursuant to RCFC 12(e).
On or before December 15, 2017, the parties will exchange Mandatory Initial Disclosures,
including lists of documents and tangible items.
On or before December 29, 2017, the parties will exchange electronically stored
information and hard-copy documents.
On or before January 15, 2018, Plaintiffs may file an Amended Complaint, consolidated or
otherwise, in response to any motion filed on December 8, 2017, pursuant to RCFC 12(e).
On or before February 15, 2018, the Government will file any Motion To Dismiss, pursuant
to RCFC 12(b)(1)–(7).
On or before March 15, 2018, Plaintiffs will file any Response to the Government’s
February 15, 2018 Motion To Dismiss.
On or before April 2, 2018, the Government will file any Reply to the March 15, 2018
Plaintiffs’ Response.
On or before July 14, 2018, the court will convene an oral argument in the United States
District Court for the Southern District of Texas, 515 Rusk Street, Houston, Texas on the
Government’s February 15, 2018 Motion To Dismiss.
Page limitations for briefs and court filings, set forth in RCFC, are suspended. No
extensions of time will be granted, but for extraordinary circumstances.
IT IS SO ORDERED.
s/ Susan G. Braden
SUSAN G. BRADEN
Chief Judge
3
COURT ATTACHMENT B
In the United States Court of Federal Claims
Filed: November 20, 2017
IN RE ADDICKS AND BARKER
(TEXAS) FLOOD-CONTROL
RESERVOIRS
Master Docket No. 17-3000L
THIS DOCUMENT APPLIES TO:
ALL CASES
ORDER REGARDING JUDICIAL ASSIGNMENT, APPOINTMENT OF PLAINTIFFS’
COUNSEL FOR THE PURPOSE OF PRE-TRIAL DISCOVERY, DISPOSITIVE
MOTIONS FOR PARTIAL OR SUMMARY JUDGMENT AND/OR CROSS-MOTIONS
PURSUANT TO RULE OF THE UNITED STATES COURT OF FEDERAL CLAIMS 56
AND/OR A TRIAL ON LIABILITY, AND SCHEDULING.
(DOWNSTREAM CLAIMS)
During the October 6, 2017 and November 1, 2017 hearings convened in Houston, the
court was advised that putative class action complaints and individual complaints with downstream
claims affecting approximately 4,000 private property interests are or will be filed in the United
States Court of Federal Claims. See, e.g., In re Addicks and Barker (Texas) Flood-Control
Reservoirs, Master Docket No. 17-3000L, Dkt. 7 (Fed. Cl. Nov. 3, 2017).
I.
Assignment Of A United States Court Of Federal Claims Judge.
The Honorable Marian Blank Horn of the United States Court of Federal Claims is hereby
assigned to manage pre-trial discovery and adjudicate all pre-trial dispositive motions.1
II.
Appointment Of Co-Counsel For Pre-Trial Discovery And Dispositive Motions
(In Alphabetical Order).
On October 11, 2017, the court issued an Order requesting “all counsel of record that wish
to be considered as class counsel(s) and/or lead class counsel(s)” to file a Statement of Interest
1
On December 4, 2017, the Clerk of Court will effectuate this assignment when Master
Docket, In re Addicks and Barker (Texas) Flood-Control Reservoirs, Master Docket No. 17-3000L
is divided into Sub-Master Dockets. See In re Addicks and Barker (Texas) Flood-Control
Reservoirs, Master Docket No. 17-3000L, Dkt. 10 (Fed. Cl. Nov. 13, 2017).
addressing the factors set forth in Rule of the United States Court of Federal Claims (“RCFC”)
23(g)(1). See, e.g., Y And J Properties, Ltd., No. 17-1189, Dkt. 12 at 6 (Fed. Cl. Oct.11, 2017).
After considering the views of all counsel, the court makes the following appointments of
Plaintiffs’ Counsel for the purpose set forth herein.
Mr. Rand P. Nolen is a graduate of the South Texas College of Law. Mr. Nolen is a
Founding Partner of the Houston law firm of Fleming, Nolen, Jez, LLP, where he specializes in
complex civil litigation. Mr. Nolen is admitted to the bar of the United States Court of Federal
Claims and the United States Supreme Court. The court appoints Mr. Nolen as Co-Lead Counsel
for the purposes set forth herein.
Mr. Derek Potts is a graduate of the University of Missouri-Kansas City School of Law.
Mr. Potts is the Founder and Managing Partner of the Potts Law Firm, based in Houston, Texas.
Mr. Potts specializes in complex litigation and multi-district litigation matters. Mr. Potts is
admitted to the bar of the United States Court of Federal Claims. The court appoints Mr. Potts as
Co-Lead Counsel for the purposes set forth herein.
Where “diverse interests exist among the parties, the court may designate . . . counsel
representing different interests.” MANUAL FOR COMPLEX LITIGATION § 10.224 (4th ed. 2004). Mr.
Nolen and Mr. Potts have filed complaints that they contend should be certified as class actions.
The court has determined that the issue of class certification is premature at this juncture. The
court is concerned that the interests of property owners who ultimately may decide to opt-in to a
certified class, may be different than those who may decide to pursue claims as individuals. See
RCFC 23 Rules Committee Notes (Rule 23 “only contemplates opt-in class certifications”). For
this reason, the court also has appointed Mr. Richard W. Mithoff to serve as a Co-Lead Counsel
for the purposes set forth herein to ensure that the interests of individual plaintiffs are represented,
since Mithoff Law represent only individual plaintiffs who, at this point, do not seek class
treatment.
Mr. Mithoff is a graduate of the University of Texas School of Law. Mr. Mithoff was a
Law Clerk for Judge William Wayne Justice of the United States District Court for the Eastern
District of Texas and is a Founding Partner of the Houston law firm of Mithoff Law. Mr. Mithoff
is admitted to the bar of the United States Court of Federal Claims and the United States Supreme
Court. The court appoints Mr. Mithoff as Co-Counsel for the purposes set forth herein.2
Each of the above-referenced appointed counsel satisfy the criteria for selection, set out in
the MANUAL FOR COMPLEX LITIGATION (4th ed. 2004) and MDL Standards and Best Practices,
DUKE LAW SCHOOL CENTER FOR JUDICIAL STUDIES (Sept. 11, 2014), https://law.duke.edu/sites/de
fault/files/centers/judicialstudies/MDL_Standards_and_Best_Practices_2014-REVISED.pdf.
All appointed counsel will be compensated, pursuant to 42 U.S.C. § 4654(c), for work on
pre-trial discovery issues and dispositive motions, including any subsequent appeals. See
Hensley v. Eckerhart, 461 U.S. 424 (1983); see also Hubbard v. United States, 480 F.3d 1327
(Fed. Cir. 2007). In that regard, appointed counsel are expected to keep and maintain detailed time
records from the date of this Order, take care to limit the use of law firm personnel (partners,
2
Mr. Phillip B. Dye, Jr. of Vinson & Elkins LLP recommended Mithoff Law to the court.
2
associates, and paralegals), only to the extent absolutely necessary to meet professional standards
of due diligence and care and minimize ancillary expenses.
III.
Schedule.
To ensure the expeditious and orderly management of pre-trial jurisdictional discovery,
dispositive motions, and/or a trial on liability, the court establishes the following schedule.
On or before January 30, 2018, all initial disclosures and electronically stored information
and hard copy documents filed in the pre-trial phase of this case, will be provided to opposing
counsel.
On or before February 28, 2018, the Government will file an Answer, pursuant to RCFC
7(a)(2), in response to any Amended Complaint filed on or before January 15, 2018. Thereafter,
the parties may conduct discovery, subject to court Order, including any expert discovery, to
conclude no later than May 31, 2018.
On or before June 15, 2018, the parties will file any dispositive motion(s), pursuant to
RCFC 56.
On or before July 16, 2018, the parties may file any Responses and/or Cross-Motions to
the June 15, 2018 dispositive motion(s).
On or before July 31, 2018, the parties simultaneously may file any Replies.
On or before October 29, 2018, the court will convene an oral argument in the United States
District Court for the Southern District of Texas, 515 Rusk Street, Houston, Texas on any
dispositive motions.
If contested facts preclude disposition of this case on partial or summary judgment,
pursuant to RCFC 56, this case will be set for a trial on liability by the assigned judge, at the
earliest date available.
Page limitations for briefs and court filings, set forth in RCFC, are suspended. No
extensions of time will be granted, but for extraordinary circumstances.
IT IS SO ORDERED.
s/ Susan G. Braden
SUSAN G. BRADEN
Chief Judge
3
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