Sailboat Bay Apartments, LLC v. United States of America et al

Filing 45

ORDER denying 42 Motion for Entry of Judgment under Rule 54(b). FURTHER ORDERthat, not later than 7/17/2015, the plaintiff and remaining defendant must submit simultaneous papers addressing the basis (if any) of this Court's subject matter jurisdiction. Signed by Judge Martin L.C. Feldman on 6/17/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

SAILBOAT BAY APARTMENTS, LLC

CIVIL ACTION

v.

NO. 14-2344

UNITED STATES OF AMERICA, ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is the plaintiff's Rule 54(b) motion to
certify judgment as final. For the reasons that follow, the motion
is DENIED.
Background
This case arises from property damage allegedly caused by the
poor workmanship and oversight of the United States Army Corps of
Engineers in completing the Hurricane & Storm Damage Risk Reduction
System at the Lakefront levee around the 17th Street Canal.

Some

of the work occurred at or near the Sailboat Bay Apartment complex,
located at 8600 Pontchartrain Boulevard.

Sailboat Bay brought

claims for negligence, property damage, and trespass resulting from
that construction work.
The project included a contract that the Corps awarded to
Tetra Tech EC, Inc., for new T-wall and floodgates from the 17th
Street Canal to Topaz Street along West Marine Avenue and Lakeshore
Drive in the Lakeview area of New Orleans. The defendants used the

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plaintiff's parking garage to demolish the existing floodwall
adjacent to the apartment complex, along with a ten-foot strip of
parking paving adjacent and parallel to the floodwall.

The

defendants also demolished the existing drainage underneath the
parking lot pavement, and new drainage lines were installed.
Sailboat Bay Apartments holds its property under a lease with
the Orleans Levee District (OLD).

In that lease, the OLD reserved

some of its right to the property; the parties dispute the extent
of the reservation.

Sailboat Bay contends that the OLD retained

the rights to only a twelve-foot strip of property, and because the
Corps's work crossed that line, the Corps worked outside of its
easement

with

the

Corps

and

trespassed

onto

Sailboat

Bay's

property. According to the Corps, the lease -- when viewed in full
-- contemplates Sailboat Bay's control over its apartment building
and the OLD's control over the lands affecting flood-control
structures nearby.
The OLD granted the Corps a signed Authorization for and Right
of Entry for Access, Construction, Operation, Maintenance, Repair,
Rehabilitation, and Replacement. The Authorization states that the
OLD, as the property owner, "grants a partial right of entry to
existing Orleans Levee District rights-of-way, servitudes and
properties under its jurisdiction."

The OLD attested that it was

"vested with sufficient ownership interests in these immovable
property interests or rights of use thereof to support the Right of

2

Entry granted," and the grant was "expressly limited to the
descriptions of the immovable property interests and their extents,
with regard to property descriptions and boundaries, which are
owned by the Orleans Levee District."
The

Corps's

contract

with

Tetra

Tech

states

that

upon

completion of the Contractor's work, "rights-of-way furnished by
the Government shall be returned to its original condition prior to
construction unless otherwise noted."1

The project was completed

in summer 2011 and, shortly thereafter, Tetra Tech began repairing
or replacing the damaged portions of the parking lot, building, and
concrete wall using drawings that the Corps had produced. Alleging
that the replacement plans and the resulting work were grossly
inadequate, incomplete, deficient, and defective, the plaintiff
sued first the United States and the United States Army Corps of
Engineers, and then amended its complaint to add Tetra Tech EC,
Inc. as a defendant.

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It also states:

The Contractor shall be responsible for the
preservation of all public and private property, and
shall use every precaution necessary to prevent damage
thereto. If any direct or indirect damage is done to
public or private property by or on account of any act,
omission, neglect, or misconduct in the execution of
the work on the part of the Contractor, such property
shall be restored by the Contractor, at his expense, to
a condition similar or equal to that existing before
the damage was done, or he shall make good the damage
in another manner acceptable to the Contracting
Officer.
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On May 13, 2015 the Court granted two motions by the United
States and United States Army Corps of Engineers: a motion to
dismiss the plaintiff's property damage and negligence claims for
lack of subject matter jurisdiction and a motion for summary
judgment as to the plaintiff's trespass claim.

In so doing, the

United States and the Corps were dismissed as defendants.

The

plaintiff now moves for an order pursuant to Rule 54(b) certifying
the May 13 Order and Reasons as a final judgment.
I.
A.
When a court ruling resolves one or more, but fewer than all,
claims, Federal Rule of Civil Procedure 54(b) provides an avenue to
appeal part of the suit; the rule provides:
When an action presents more than one claim for relief –
whether as a claim, counterclaim, crossclaim, or thirdparty claim – or when multiple parties are involved, the
court may direct entry of a final judgment as to one or
more, but fewer than all, claims or parties only if the
court expressly determines that there is no just reason
for delay.
Otherwise, any order or other decision,
however designated, that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all
the parties does not end the action as to any of the
claims or parties and may be revised at any time before
entry of a judgment adjudicating all the claims and all
the parties’ rights and liabilities.
Pursuant to this rule, the Court may permit an interlocutory appeal
by expressly certifying that there is “no just reason for delay”,
and

directing

entry

of

a

final

judgment

on

the

issue.

In

determining whether there is no just reason for delay, the Court

4

should “take into account judicial administrative interests as well
as

the

equities

involved.”

Curtiss-Wright

Corp.

v.

General

Electric Co., 446 U.S. 1, 8, 100 S.Ct. 1460, 1465 (1980). However,
the Court should grant certification only when there is some danger
of hardship or injustice through delay that would be alleviated by
an immediate appeal.

Pyca Industries, Inc. v. Harrison County

Wastewater Mgmt. Dis., 81 F.3d 1412, 1421 (5th Cir. 1996).
Avoidance of piecemeal appeals is “[o]ne of the primary
policies

behind

certification.”

requiring
See id.

a

justification

for

Rule

Rule 54(b) motions are disfavored and

should be granted only when necessary to avoid injustice.
(citation omitted).

54(b)

Id.

Indeed, such motions “should not be entered

routinely as a courtesy to counsel.”

Id.

Rather, “[a] district

court should grant certification [in a Rule 54(b) case] only when
there exists some danger of hardship or injustice through delay
which would be alleviated by immediate appeal.”

Id. (citation

omitted).
As

a

threshold

matter,

the

Court

exercises

its

sound

discretion in determining whether “there is no just reason for
delay.” See Ackerman v. FDIC, 973 F.2d 1221, 1224 (5th Cir. 1992).
To make this determination, the Court balances the cost and
inconvenience of piecemeal review and the danger of injustice from
delay.

See Road Sprinkler Fitters Local Union v. Continental

Sprinkler Co., 967 F.2d 145, 148 (5th Cir. 1992). Accordingly, one

5

factor the Court must consider is whether the Fifth Circuit would
have to decide the same issues more than once if there were
subsequent appeals.

See H & W Indus., Inc. v. Formosa Plastics

Corp., 860 F.2d 172, 175 (5th Cir. 1988).
B.
Sailboat Bay requests that this Court certify its May 13 Order
and Reasons as a final judgment on the ground that "certification
is in the best interest of the parties and judicial economy" and
because

"[a]djudicating

the

matter

as

a

final

judgment

and

permitting the plaintiff to appeal immediately will avoid piecemeal
litigation and will provide for a more expedient resolution of the
above captioned matter."

Boilerplate.

Sailboat Bay falls well short of convincing the Court that an
immediate appeal of this Court’s Order and Reasons would alleviate
the potential danger of hardship or injustice caused by delay.
That Sailboat Bay's claims against Tetra Tech remain pending
demonstrates that there are unresolved issues that could result in
a later appeal and therefore present a danger of piecemeal review.
Sailboat Bay simply concludes, without establishing, that there is
no just reason for delaying final resolution of its claims against
the United States and the Corps; Sailboat Bay makes no attempt to
meaningfully suggest how a final resolution of the issues presented
by the government defendants is necessary to avoid injustice.

On

this record, the Court cannot expressly determine that there is no

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just reason for delay.2
IT IS ORDERED: that the plaintiff's Rule 54(b) motion to
certify judgment as final is hereby DENIED. IT IS FURTHER ORDERED:
that, not later than July 17, 2015, the plaintiff and remaining
defendant must submit simultaneous papers addressing the basis (if
any) of this Court's subject matter jurisdiction.

New Orleans, Louisiana, June 17, 2015

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

2

Although Tetra Tech did not file opposition papers to
Sailboat Bay's Rule 54(b) motion, the government submitted a
response, noting that Sailboat Bay "assumes, but does not
address, the existence of the Court's ongoing subject-matter
jurisdiction over the remaining claims against defendant, Tetra
Tech EC, Inc." A review of the pleadings suggests that Sailboat
Bay and Tetra Tech are both Louisiana citizens.
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