McKendall v. U.S. Army Corps of Engineers New Orleans District

Filing 31

ORDER that Plaintiff shall file a second amended complaint no later than April 26, 2013, as stated herein. FURTHER ORDER denying without prejudice 10 Motion for Preliminary Injunction and 30 Motion for Partial Summary Judgment, as stated herein. FURTHER ORDER dismissing as moot 21 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Susie Morgan on 3/29/2013. (tsf)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LARRY J. MCKENDALL,
Plaintiff

CIVIL ACTION

VERSUS

No.

U.S. ARMY CORPS OF ENGINEERS
NEW ORLEANS DISTRICT
Defendant

SECTION “E”

11-2964

ORDER
The Court is in receipt of the motion for summary judgment filed by Plaintiff, Larry
J. McKendall (“Plaintiff”).1 Plaintiff seeks summary judgment on several claims that are not
pled in Plaintiff’s amended complaint.2 For example, Plaintiff argues that summary
judgment is appropriate on his fraud claim but no fraud claim has been pled. The Court
recognizes that Plaintiff is proceeding pro se. Nevertheless, before Plaintiff may seek
summary judgment on a claim, such claim must be specifically pled in Plaintiff’s complaint.
In the interests of justice, the Court will afford Plaintiff one final opportunity to file an
amended complaint setting forth all of his claims so that Defendant, U.S. Army Corps of
Engineers, New Orleans District (the “Corps”), is properly on notice of every claim for
which he seeks relief.
The Corps has filed a motion to dismiss Plaintiff’s amended complaint pursuant to

1

R. Doc. 30.

2

R. Doc. 20. Plaintiff’s amended complaint alleges a tort claim, pursuant to the Federal Tort
Claims Act, and a breach of contract claim.

1

Rule 12(b)(1) of the Federal Rules of Civil Procedure.3 The Court will dismiss the Corps’
motion as moot at this time. The Corps may reurge its motion to dismiss to address
Plaintiff’s additional claims after Plaintiff files his second amended complaint.
Finally, Plaintiff also has filed a motion for a preliminary injunction.4 The decision
to grant or deny a preliminary injunction lies within the sound discretion of a U.S. District
Court. Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir.
1985). “Any injunctive relief is considered ‘an extraordinary and drastic remedy, not to be
granted routinely, but only when the movant, by a clear showing, carries the burden of
persuasion.’ ” Harris Cty. v. CarMax Auto Superstores, Inc., 177 F.3d 306, 312 (5th Cir.
1999) (quoting White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989)). To obtain a
preliminary injunction, the movant must show: (1) a substantial likelihood that the movant
will ultimately prevail on the merits5; (2) a substantial threat that the movant will suffer
irreparable injury if the preliminary injunction is denied; (3) that the potential injury to the
movant outweighs whatever damage the proposed injunction may cause the opposing party;
and (4) that granting the preliminary injunction will not disserve the public interest. Guy
Carpenter & Co. v. Provenzale, 334 F.3d 459, 464 (5th Cir. 2003). Plaintiff has not
addressed these four elements and also now advances additional claims he has not pled.
Consequently, he has not made the necessary showing in order to be afforded injunctive
relief. As a result, the Court, in its discretion, declines to grant Plaintiff injunctive relief at
3

R. Doc. 21.

4

R. Doc. 10. The Court also permitted Plaintiff to supplement the record with additional
documents regarding his motion for a preliminary injunction. See R. Docs. 19 and 30. The Corps opposes
Plaintiff’s motion. R. Doc. 14.
5

And what Plaintiff must show in order to demonstrate a substantial likelihood that he will
ultimately prevail on the merits necessarily turns on exactly what claims Plaintiff has pled.

2

this time.
Accordingly,
IT IS ORDERED that Plaintiff shall file a second amended complaint setting forth
all of his claims with particularity no later than April 26, 2013. This is Plaintiff’s final
opportunity to amend his complaint. The Court will not consider any additional claim that
Plaintiff fails to plead in his second amended complaint.
IT IS FURTHER ORDERED that Plaintiff’s motion for summary judgment is
DENIED WITHOUT PREJUDICE.6 Plaintiff may reurge his motion for summary
judgment, no later than May 27, 2013, provided he complies with the Court’s order to file
a second amended complaint.
IT IS FURTHER ORDERED that the Corps’ motion to dismiss is DISMISSED
AS MOOT.7 The Corps may reurge its motion to dismiss after Plaintiff files his second
amended complaint.
IT IS FURTHER ORDERED that Plaintiff’s motion for a preliminary injunction
is DENIED WITHOUT PREJUDICE.8

New Orleans, Louisiana, this 29th day of March, 2013.

_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

6

R. Doc. 30.

7

R. Doc. 21.

8

R. Doc. 10.

3