STATE OF MISSISSIPPI et al v. USA

Filing 31

UNREPORTED ORDER on schedule. Answer due by 3/9/2020. Defendant's Motion to Consolidate due by 3/23/2020. Plaintiffs' Response due by 3/30/2020. Defendant's Reply due by 4/6/2020. Joint Proposed Status Report due by 4/22/2020. Signed by Judge Elaine D. Kaplan. (arlr) Service on parties made.

In the United States Court of Federal Claims
STATE OF MISSISSIPPI, et al.
Plaintiffs,
v.
THE UNITED STATES OF AMERICA,
Defendant.

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Consolidated
Nos. 19-231L / 19-258L
(Filed: February 20, 2020)

ORDER
Plaintiffs in these consolidated cases bring Fifth Amendment Takings claims against the
United States alleging that the Army Corps of Engineers’ construction and operation of a set of
structures known as the Old River Control Structure (“ORCS”) on the lower Mississippi River
has caused recurrent flooding of their properties. Similar allegations have been made in three
other cases that are also currently before this Court. See Bowen v. United States, Case No. 191812; Ard et al. v. United States, Case No. 19-1968; Bancroft Enters., LLC, et al. v. United
States, Case No. 20-30.
On February 6, 2020, the Court denied the government’s motion to dismiss the
consolidated cases. ECF No. 27. Currently before the Court is the Joint Submission of Parties as
to Scheduling. ECF No. 28. In their joint submission, the parties agreed that the government will
answer the State of Mississippi Amended Complaint, ECF No. 8, and the Williams Trust
Amended Complaint, ECF No. 7, on or before March 9, 2020. The parties further agree that
answers are not needed at this time in Ard and Bancroft Enterprises.
The parties disagree, however, regarding the remainder of the schedule. Plaintiffs propose
that State of Mississippi and Williams Trust proceed together to trial on both liability and
damages. Plaintiffs’ ambitious schedule for the State of Mississippi and Williams Trust cases
culminates with summary judgment motions to be filed in December of 2020 and a trial, if
necessary, in April of 2021. In the meantime, they propose that proceedings in Ard and Bancroft
be stayed.
The government, on the other hand, suggests that the Court adhere to the Case
Management Procedure set forth in the Rules of the Court of Federal Claims (“RCFC”). It
proposes that before establishing a comprehensive schedule for all proceedings in the cases, the
parties first meet and confer to establish “the likely scope of discovery and to identify pertinent
factual and legal contentions,” which will inform “the schedule the parties propose and that the
Court adopts for discovery.” Id. at 4–5 (citing RCFC App. A ¶ 3). After this initial conference,
the government maintains that the parties, consistent with the Rules of the Court, should file a

Joint Preliminary Status Report “that sets forth, among other things, a proposed discovery plan
that include[s] proposed deadlines for fact and expert discovery” and will contain a proposed
“structure to facilitate this matter’s efficient resolution.” Id. at 5 (citing RCFC App. A ¶ 4–6), 7.
The Court agrees with the government that the most prudent course at this juncture is to
follow this Court’s standard case management procedure. As the government observes, there are
more than 300 Plaintiffs in the Williams Trust, State of Mississippi, Ard, and Bancroft cases, and
their claims involve “over 600 parcels of real property spanning approximately 160 river miles
along the Mississippi River.” Id. at 6. The claims Plaintiffs present, moreover, will require
resolution of difficult questions of fact. These include, among others, whether and to what extent
the ORCS caused the flooding about which Plaintiffs complain or whether and to what extent
other factors—such as increased rainfall or the actions of non-federal, private actors—are to
blame. In addition, at this time it is unclear whether and to what extent the flooding Plaintiffs
allege was caused by the ORCS varied from property to property in terms of its intensity,
frequency, or timing.
Given these considerations, it would be unwise for the Court to establish a schedule
without there first being some common understanding of Plaintiffs’ specific contentions and how
they plan to prove their cases as well as a common understanding of the government’s potential
defenses. The Court therefore adopts the following schedule as proposed by the government:
March 9, 2020

United States shall file Answers to the Williams Trust and
State of Mississippi Amended Complaints

March 23, 2020

United States shall file its Motion to Consolidate Cases

March 30, 2020

Plaintiffs shall file their Response to the United States’
Motion to Consolidate, if any

April 6, 2020

United States shall file its Reply to Plaintiffs’ Response,
if any

April 10–17, 2020

Early Meeting of Counsel

April 22, 2020

Parties shall file a Joint Preliminary Status Report

In proposing a schedule for this case in their Joint Preliminary Status Report, the parties
are encouraged to consider the procedures employed to adjudicate similar complex, multiplaintiff takings cases such as Ideker Farms v. United States, No. 14-183, and In Re Addicks and
Barker (Texas) Flood-Control Reservoirs, No. 17-3000, including the bifurcation of the liability
and damages portions of the cases as well as the selection of representative (or “bellwether”)
plaintiffs.

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After the parties submit their Joint Preliminary Status Report on April 22, the Court will
schedule a status conference to discuss further proceedings in these cases.
IT IS SO ORDERED.

s/ Elaine D. Kaplan
ELAINE D. KAPLAN
Judge

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