United States of America v. Land et al
Filing
111
ORDERED that the United States' 103 MOTION to Continue Trial and All Pre-Trial Dates is GRANTED. Trial and pretrial conference are CONTINUED, to be reset at a Telephone Scheduling Conference 3/9/2012 11:00 AM before courtroom deputy. FURTHER ORDERED that National Food and Beverage Co., Inc.'s 92 MOTION to Continue Trial Pending Court of Federal Claims' Ruling in the Tucker Act Trial is DENIED WITHOUT PREJUDICE. Signed by Judge Carl Barbier.(gec, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES
CIVIL ACTION
VERSUS
NO: 10-3062
NATIONAL FOOD AND BEVERAGE
CO., INC., ET. AL.
SECTION: J(1)
ORDER
This matter is before the Court on Defendant National Food
and Beverage Company, Inc.’s Motion to Stay Pending Court of
Federal Claims’ Ruling in Tucker Act Trial (Rec. Doc. 92) and
Plaintiff United States of America’s Motion to Continue Trial and
All Pre-Trial Dates (Rec. Doc. 103).
Each party has filed a
response to the other’s motion.
PROCEDURAL HISTORY AND BACKGROUND FACTS
This land condemnation action arises out of the United
States Army Corps of Engineers (“Corps”) project to repair,
strengthen, and expand the levees in and around the city of New
Orleans in the wake of Hurricane Katrina.
This project
represented a massive undertaking and required a massive amount
of clay materials.
One way the Corps set about acquiring clay involved
cooperation with local governmental authorities.
framework for this method was as follows.
The basic
The Corps first
entered into several “cooperation agreements” with the
Plaquemines Parish government.
Under these agreements, the Corps
agreed to identify the properties needed for the repair and
reconstruction project.
The Parish, in turn, agreed to use its
powers to commandeer the properties identified by the Corps under
the Louisiana Homeland Security and Emergency Assistance and
Disaster Act1 and thereafter to grant the Corps a right of entry
thereon.
In exchange, the Corps agreed to provide the owners of
the commandeered properties the constitutionally required “just
compensation” and to subsequently undertake the actual
rehabilitation and reconstruction efforts.
In the event that the
Corps was unable to obtain unencumbered title to the property or
to otherwise reach a settlement with the property owners, the
agreements specified that the United States would use its power
of eminent domain to take the property.
On January 26, 2006, Plaquemines Parish commandeered
interests in property allegedly owned by Defendant National Food
and Beverage Company, Inc (“National”).2
The order commandeered
assignable rights and easements in Defendant’s property and
provided that it was to be used as a “work area . . . to obtain
borrow, to stockpile borrow material, to excavate and remove
soil, dirt, and other materials from said property” as well as to
“to perform any other work necessary and incident to the
1
See La. R.S. 29:727F(4) (providing Parish Presidents the
power to “commandeer or utilize any private property if he finds
this necessary to cope with the local disaster”).
2
See Commandeering Order, Rec. Doc. 7-5.
construction of the Project.”3
It further granted a right of
entry to the Corps and its contractors to “gain access to obtain
borrow, to stockpile and process material, and to construct
(repair and rehabilitate) said levee.”
The Corps’ contractors
subsequently entered the property, and in accordance with the
order, removed certain materials – namely a large quantity of
clay – which were used for the construction and rehabilitation of
levees damaged in Hurricane Katrina.
Subsequent to the commandeering order, the parties
negotiated for a period of almost four years in an attempt to
arrive at a mutually agreed upon amount owed for the diminution
in value to National’s property resulting from removal of the
clay and to acquire title to the 18.3-acre pit.
After
negotiations were unsuccessful, National filed suit in the Court
of Federal Claims (“CFC”) on March 9, 2010 under the Tucker Act,
28 U.S.C. § 1346, bringing claims for inverse condemnation and
breach of contract and seeking compensation for the clay removed
from the land, the costs of remediating the borrowing pit, and
repairing other damaged areas of its property.
Shortly thereafter, the United States filed a Complaint and
Declaration of Taking in this Court on September 14, 2010.
The
Declaration of Taking granted the United States a fee simple
interest, excluding existing easements and oil and gas rights in
18.30 acres described therein, as well as a temporary work
3
See Rec. Doc. 7-5, p. 1.
easement and a perpetual road easement over other acreage.4
The
Court subsequently granted the United States’ motion for an order
of possession, as well as its motion to strike National’s
defenses and objections.5
Meanwhile, in the CFC, the United States moved to dismiss
National’s inverse condemnation claim and, subsequently, to stay
the proceedings pending the outcome of the instant condemnation
suit.
The CFC denied both motions on December 16, 2010.
The CFC
found that National had stated a claim for inverse condemnation
and that there was no need to stay the proceedings because the
case pending in this Court and the CFC claim involve “distinct
and separate takings which address land that overlaps only in
part, occurred at different times, and involve entirely separate
operative facts.”
National Food & Beverage Co., Inc. v. U.S., 96
Fed. Cl. 258, 268 (Fed. Cl. 2010).
National filed the instant motion to stay these proceedings
pending the CFC’s ruling in the Tucker Act case.
While this
motion was pending, however, the United States learned that
another entity, CLL Limited Partnership, Ltd. (“CLL”), may have
an interest in the property at issue that is superior to that of
National.
CLL is the company that sold the subject property to
4
See Rec. Doc. 1-2.
5
See Rec Doc. 11; 91.
National in 1999.
During a deposition conducted in the related
CFC proceeding, the United States discovered that CLL, who was in
the business of selling clay, had specifically excepted all
“materials” when it sold the subject property to National.
Based
on this newly discovered information, the United States amended
its complaint to add CLL as a party to the instant proceeding.
Shortly thereafter, it filed the other motion currently pending
before the Court, seeking a continuance of the trial of this
matter in order to afford additional time to determine whether
National or CLL is the proper party to which just compensation is
due.
PARTIES’ ARGUMENTS
The United States argues in its motion that a continuance is
necessary in order to afford additional time for the parties to
conduct additional discovery and to brief the Court on the issue
of which party was the owner of the property taken, and when this
taking occurred.
Given that CLL was only added as a party at the
end of January, 2012 , it argues that the trial and other pretrial deadlines must be reset to afford them the opportunity to
prepare to litigate these issues.
National agrees that a continuance is warranted, but
disagrees as to the basis for such.
It argues that this case
should be continued indefinitely and/or stayed in order to allow
the CFC to issue its ruling in the pending Tucker Act case.
Because the CFC has determined that it has exclusive jurisdiction
over the 2006-2007 takings, National additionally moves the Court
to refrain from adjudicating any issues relating to such on the
grounds of comity and judicial economy.
In response, the United States argues that National is
misinformed in suggesting that this Court lacks jurisdiction to
decide issues which may bear on the 2006-2007 taking.
The United
States’ position is that the CFC was in error in not staying the
Tucker Act case, because this Court
– not the CFC – has
jurisdiction to determine the date that the taking occurred.
Should this Court decide that the taking occurred when United
States was granted a right of entry on the subject property from
the Parish in 2006, this direct condemnation action would
essentially subsume the taking of the clay at issue in the Tucker
Act case before the CFC, according to the United States.
DISCUSSION
A district court has inherent power to stay any matter
pending before it.
See Coastal (Bermuda) Ltd. v. E.W. Saybolt &
Co., 761 F.2d 198, 204 n.6 (5th Cir. 1985)(citing
Am. Co., 299 U.S. 248, 254-55 (1936)).
has the burden of justifying it.
Landis v. N.
The party seeking a stay
Wedgeworth v. Fibreboard Corp.,
706 F.2d 541, 545 (5th Cir. 1983).
Here, both parties essentially agree that a continuance is
warranted, and the Court agrees.
At the present time, however,
the Court will defer ruling on the other jurisdictional issues
raised by the parties.
CLL has only recently been added as a
party to the instant dispute, and because it may have a
substantial interest in the resolution of such matters, it should
be given the opportunity to be fully heard on these issues before
the Court issues a ruling on such. Accordingly,
IT IS ORDERED that the United States’ Motion to Continue
Trial and All Pre-Trial Dates (Rec. Doc. 103) is GRANTED.
The
trial, currently set for March 26, 2012, as well as the pretrial
conference, currently set for March 7, 2012, are hereby
CONTINUED, to be reset at a telephone scheduling conference
before the Court’s case manager on Friday, March 9, 2012, at
11:00 a.m.
IT IS FURTHER ORDERED that Defendant National Food and
Beverage Company, Inc.’s Motion to Continue Trial Pending Court
of Federal Claims’ Ruling in Tucker Act Trial (Rec. Doc. 92) is
DENIED WITHOUT PREJUDICE.
National may re-urge any of the
jurisdictional issues raised in its motion after a new trial date
is set.
New Orleans, Louisiana this 27th day of February, 2012.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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