CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS

CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS

STATE OF LOUISIANA

NO. DIVISION: DOCKET

JAMES KELLY LAMBERT,
individually and on behalf of all others similarly situated (Class Action)

VERSUS

BOARD OF COMMISSIONERS OF THE ORLEANS LEVEE DISTRICT
MARINE RECOVERY AND SALVAGE, LLC, JAMES P. HUEY,
GEORGE L. CARMOUCHE, DOUGLAS SCOTT CARMOUCHE,
MICHAEL GEORGE MAYER, RESOLVE MARINE GROUP,
and ST. TAMMANY PEARL RIVER SALVAGE

FILED: __________________________ DY. CLK.:_____________________

VERIFIED CLASS ACTION PETITION FOR PRELIMINARY AND PERMANENT PROHIBITORY AND MANDATORY INJUNCTIVE RELIEF, FOR DAMAGES AND FOR NON-RESIDENT ATTACHMENT

The petition of JAMES KELLY LAMBERT, a person of the full age of majority and a resident of the Parish of Orleans, State of Louisiana, individually and on behalf of all others similarly situated, with respect, represents that:

The loss and injury hereinafter set forth occurred in this Parish and has caused or will cause actual damage and loss to the property of petitioner and others similarly situated located in this Parish.

Made defendants herein are the following parties:

BOARD OF COMMISSIONERS OF THE ORLEANS LEVEE DISTRICT ("OLD"), a political entity within the State of Louisiana capable of suing and being sued in its own name, which operates two marinas in this Parish—the South Shore Harbor Marina and the Orleans Marina.

MARINE RECOVERY AND SALVAGE, LLC, ("MRS") a Louisiana Limited Liability company organized on September 8, 2005, and domiciled at 620 Ursuline Drive, Baton Rouge, Louisiana, 70124.

JAMES P. HUEY ("Huey" and/or "Jim Huey"), an individual of the age of majority and is believed to be a resident and domiciliary of the Parish of Orleans, State of Louisiana, and was, until October 27, 2005, the President of the Orleans Levee Board.

GEORGE L. CARMOUCHE, an individual of the age of majority and a practicing attorney in Louisiana, is believed to be a resident and domiciliary of the Parish of East Baton Rouge, State of Louisiana, was an attorney for the Orleans Levee Board, is also a relative of defendant Jim Huey, and is also the father of defendant Douglas Scott Carmouche.

DOUGLAS SCOTT CARMOUCHE, an individual of the age of majority and believed to be a resident and domiciliary of the Parish of East Baton Rouge, State of Louisiana, and is a co-owner of Marine Recovery and Salvage, LLC is also the son of defendant George Carmouche and a relative of defendant Jim Huey.

MICHAEL GEORGE MAYER, an individual of the age of majority and is believed to be a resident and domiciliary of the Parish of Orleans, State of Louisiana, is a co-owner of Marine Recovery and Salvage, LLC.

RESOLVE MARINE GROUP ("RESOLVE"), a foreign business entity doing business in the State of Louisiana this is not admitted to or domesticated within the State of Louisiana or registered with the Secretary of State of Louisiana, but who, with its operation of watercraft, has appointed the Secretary of State of Louisiana as its agent.

ST. TAMMANY SALVAGE PEARL RIVER, believed to be a Louisiana d/b/a of an unknown principal operating and doing business in the State of Louisiana with or without legal authority.

STATEMENT

Petitioner, JAMES KELLY LAMBERT ("Lambert") is the owner of the 50 foot diesel powered marine vessel "Phoenix", which at all times relevant hereto was docked at the Orleans Marina at Pier 5, Slip 48 by virtue of a valid standard form written Lease Agreement between Lambert and OLD, whereby Lambert and other tenants and other persons similarly situated with the same form of Lease Agreement were required to pay quarterly slip rental fees to OLD in the months of January, April, July, and October of each year.

Just prior to Hurricane Katrina and due to the imminent threat of severe flooding of the Lakeview area from Lake Pontchartrain, OLD closed the flood gates at the Orleans Marina and evacuated the Orleans Marina and the South Shore Harbor Marina for the storm. Pursuant to custom and practice, said gates were to remain closed until the imminent threat of flooding subsided, whereupon said gates were to be reopened to allow the residents and tenants of the marinas access to their leased slips.

After the storm passed, the plaintiff’s vessel was inspected by a trained insurance adjuster, who took photographs of the Phoenix and informed the plaintiff that the vessel had come to rest out of the water with the port bow on the railing of the sidewalk adjacent to the slip and the starboard stern on the finger pier, but that the vessel was in no way damaged by hurricane Katrina. He also informed the plaintiff that there were many vessels in the marina which had sustained no damage, light damage, or moderate damage, but which needed immediate attention. He also informed the plaintiff that the gates to the marina were still closed and that the only access to the Orleans Marina was through a "walk-through" gate at the west end of the parking lot.

Plaintiff immediately tried to contact the marina manager and the OLD to make arrangements for access by a mobile crane to lift his vessel back into the water so that damage to his vessel could be avoided. There was no answer and no recorded message with any information on any means of contacting any OLD entity at any other land-line or cellular telephone number nor was there any new contact information on any web-site that plaintiff could access.

The insurance adjuster continued to go into the marina through the "walk-through" gate on a routine basis and checked the Phoenix each time. After hurricane Rita, there was still no substantial damage to the plaintiff’s vessel. Plaintiff was still not able to contact any OLD entity nor gain access for a mobile crane as the gates to the marina parking lot were still closed.

Plaintiff maintained contact with the aforementioned insurance adjuster who informed plaintiff that the bow of the plaintiff’s vessel was beginning to show stress cracks on the bow where it was resting on the sidewalk railing. As time passed, the cabin walls started to crack due to the abnormal stress caused by the extreme angle at which the vessel was resting.

10.

After all of the storms had passed, after the imminent threat of severe flooding had passed at the Orleans Marina and the South Shore Harbor Marina, and after all the other floodgates in areas surrounding the Orleans Marina had already been opened, OLD refused to open the floodgates and refused to give the plaintiff and other tenants full access to their property and boat slips.

11.

On September 27, 2005, the plaintiff traveled to the Orleans Marina and found one of the drive-through gates of the marina open. The plaintiff observed vehicles and persons inside the marina, who had used the opened drive-through gate, including the Marina Manager, BETH AUGUSTINE, who on information and belief is an OLD employee.

12.

After entering the marina on that date, the plaintiff was told by Ms. Augustine that access to the marina was restricted and that the plaintiff would not be allowed to move or lift the vessel Phoenix, but that the Phoenix would have to be moved only by MRS—the hand-picked company designated by OLD and/or Huey personally to handle all salvage and recovery efforts in both the Orleans Marina and the South Shore Harbor marina. The plaintiff informed Ms. Augustine that his boat, which was undamaged by Katrina and Rita, was suffering severe damage due to its position out of the water and that the boat could become a total loss if it was not moved immediately.

13.

Augustine acknowledged that she was well aware of the Phoenix’s damage and position, as well as other boats in the marina in similar situations, but that OLD nevertheless would not allow any contractor except MRS into the marina; that the drive-through gates would be closed again and not reopened for anyone but MRS and its designated agents; and that anyone attempting to enter the marina without OLD permission would be arrested by the Orleans Levee Board Police. Augustine further informed plaintiff that all information concerning the lifting and recovery of boats was available on the OLD website at www.orleanslevee.com. The plaintiff checked the OLD website, as instructed by Ms. Augustine, on that same day and found no information relevant to the lifting of any vessels.

14.

On or about September 29, 2005, plaintiff went to the Orleans Marina with the crane operator with whom he was contracting to move his boat. The crane operator said that they could lift the plaintiff’s vessel as soon as access to the marina was possible but not so long as access was limited to only MRS and its agents.

15.

On or about October 1, 2005, plaintiff went to the marina and affixed chains from the starboard cabin top of the vessel to the port deck side of the vessel in an attempt to stop or at least slow the cracking of the superstructure of the boat. This met with limited success as the cracking seemed to slow but did not stop.

16.

On or about October 3, 2005, a notice authored and signed by MRS was posted on the OLD website informing all boat owners and marina tenants at both Orleans Marina and South Shore Harbor Marina that OLD had unilaterally granted sole and exclusive access to the Orleans Marina and the South Shore Harbor Marina to defendant MRS and that no other persons or companies would be allowed to salvage, lift, or in any way move or access any vessels within those marinas. According to the letter by defendant MRS which was placed on the OLD website, "With permission from the Orleans Levee District, our company [Marine Recovery and Salvage, LLC] will handle the safe recovery and storage of all of these damaged vessels in a safe and secure environment." (bracketed text added; bold emphasis added).

17.

On October 4, 2005, a crane operator went to the Orleans Marina at plaintiff’s request and checked the vessel Phoenix. He was informed by OLD representatives that he would not be allowed to bring a crane into the marina (neither by land nor by sea) and that only MRS would be allowed access to OLD’s two marinas.

18.

On October 5, 2005, at the request of the plaintiff, a professional boat repairman went to the Orleans Marina to check the vessel Phoenix. He went to Beth Augustine to inquire as to when the plaintiff would be allowed to bring in a crane to lift the Phoenix, as the damage had become severe and the vessel could become a total loss if not lifted soon. Ms. Augustine informed him that plaintiff would not be allowed to bring a crane into the Orleans Marina and that only MRS and its designated agents would be allowed access to OLD’s marinas.

19.

The plaintiff timely and fully paid all rental fees for his slip prior to the storms and was fully paid in his rental fees for the first three (3) quarters of 2005, through the last day of September 2005. Upon viewing the OLD website on October 5, 2005, the plaintiff further learned that OLD was making full demand for all Orleans Marina slip rentals for the fourth (4^th) quarter of 2005 as well. The Plaintiff timely and fully paid his fourth (4^th) quarter payment to OLD by check sent via Certified Mail on October 5, 2005. The plaintiff believes and alleges that other similarly situated marina tenants likewise paid their rent timely.

20.

Despite the fact that OLD demanded and accepted full rent under the Lease Agreement for both the third and fourth quarters of 2005, OLD and its employees, agents, and representatives continued to deny the plaintiff and his salvage contractors, as well as other similarly situated tenants and vessel owners and their designated contractors and agents, any access to their property or their rented slips in the OLD-operated marinas without just or any cause.

21.

The decision of OLD to stop the plaintiff and others from entering or moving his vessel and other vessels was enforced by OLD employees and by the Orleans Levee Board Police, whom the plaintiff believes and alleges were under the continued instruction and direct orders of OLD, JIM HUEY, and MRS.

22.

Several insurance companies and boat management companies filed suit against OLD and MRS in the 19^th Judicial District Court for the Parish of East Baton Rouge on or about October 3, 2005, No. 536-908, wherein they alleged that OLD should be estopped from giving exclusive access to the Orleans Marina and South Shore Harbor marina to MRS and that MRS was charging excessive fees. According to newspaper reports, on October 4, 2005, the Baton Rouge court issued a Temporary Restraining Order enjoining OLD and MRS from enforcing their exclusive agreement on the public, at least until a hearing could be had in that court on October 13, 2005. Plaintiff is informed that, on October 13, 2005, that said order was made permanent without objection from OLD or MRS and that OLD agreed that MRS would no longer have exclusive access to the Orleans Marina and the South Shore Harbor marina.

23.

Despite that court ruling, according to the OLD website and to the OLD employees/representatives to whom the plaintiff and his contractors and representatives spoke between October 5, 2005, and October 25, 2005, OLD and MRS continued to enforce said exclusive agreement at least through October 25, 2005, without interruption or suspension; and the plaintiff and his contractors and agents were repeatedly told by OLD employees and agents that they could not salvage, lift, or in any way move the plaintiff’s vessel unless they went through the companies hand-picked by MRS to handle salvage—to wit, defendants RESOLVE MARINE GROUP and ST. TAMMANY PEARL RIVER SALVAGE. Until at least October 25, 2005, said OLD website, which the plaintiff was informed by OLD representatives and employees is the "official website for all information from OLD", still contained a notice from MRS stating, "With permission from the Orleans Levee District, our company [Marine Recovery and Salvage, LLC] will handle the safe recovery and storage of all of these damaged vessels in a safe and secure environment." (bracketed text added; bold emphasis added).

24.

By October 21, 2005, having been left with no realistic option but to pay the exorbitant prices demanded by RESOLVE and ST. TAMMANY (by virtue of their exclusive agreement with MRS) or suffer the total loss of his vessel, the plaintiff was forced to give Resolve a cashier’s check no. 727967826 from Chase Bank in the amount of $6,795.00 in order to have the vessel Phoenix lifted to safety. After several delays, RESOLVE began the lifting operation on October 28, 2005, but then stopped the operation and demanded another $4,000.00 in addition to the original payment. The operation was finally completed on October 29, 2005, after RESOLVE stated its intent to recover the entire $10,795.00 from the plaintiff’s liability insurer.

25.

The sums demanded by RESOLVE were far in excess of the amounts that plaintiff had been quoted by other crane operators, all of whom were prepared to lift the vessel for a fraction of that cost, but were denied access to the plaintiff’s vessel by OLD and the Levee Police. The plaintiff alleges that many other similarly situated persons were denied access to their vessels, also had access denied to their agents and contractors, were forced by those circumstances to do business with RESOLVE, and were forced to pay exorbitant prices to RESOLVE.

26.

Sometime between October 25, 2005 and October 28, 2005 (after Huey resigned), OLD changed its website by removing the open letter from MRS which stated MRS’s sole and exclusive authority to operate in the marinas, and inserting a different notice to marina tenants which stated a new policy. That new policy stated that two and only two salvage companies are currently "authorized" by OLD to perform operations in the South Shore Harbor and Orleans Marina—defendants Resolve and St. Tammany Pearl River SALVAGE.

27.

According to the OLD’s new policy, any contractor or salvage operator besides Resolve and St. Tammany Pearl River SALVAGE would be required to perform several time consuming tasks before they would be allowed to enter into the marinas or access any tenant’s vessel. They would have to (1) provide OLD with proof of insurance showing OLD as an additional named insured on their policy, (2) provide a written list of all vessels which they intended to move in the marina, including the vessel owner’s name, (3) provide written authorization from each insurance company insuring each vessel which the contractor intended to move, (4) submit their information and wait for OLD to "review all documents provided and provide written authorization for the salvage company to enter the Harbor." and then (5) schedule all their operations in the marina with the Baton Rouge office of OLD.

28.

The plaintiff is informed and believes and upon such information and belief alleges that OLD does not require defendants Resolve and St. Tammany Pearl River SALVAGE to perform these cumbersome and time consuming tasks and that those defendants still agreed to pay and paid to defendant MRS no less than ten percent (10%) of their total income from all their marina operations in return for being a "favored" OLD contractor and for not having to perform those said tasks. Plaintiff is informed and believes and upon such information and belief alleges that MRS performs no valuable or necessary service whatsoever which would warrant the 10% "commission" that MRS receives on all the operations which Resolve and St. Tammany Pearl River perform inside OLD’s marinas. Plaintiff is further informed and believes and upon such information and belief alleges that Mayer keeps three percent (3%) of that "commission" and apparently passes the other seven percent (7%) on to some other party or parties.

29.

The plaintiff never gave OLD or MRS permission to salvage, lift, or move the vessel Phoenix, nor did he ever give OLD permission to bind him to any contract to salvage, lift, or move the vessel Phoenix, nor did MRS perform any services for the plaintiff for which it should have been compensated directly or indirectly. The plaintiff believes and alleges that no consensual permission was given by other persons similarly situated and that MRS and its agents, including defendants RESOLVE and St. Tammany Pearl River Salvage, have routinely and continually lifted, moved, salvaged, accessed, and damaged many vessels in the marinas without prior valid authority from the vessel owners. Moreover, those defendants are also charging exorbitant prices to the vessel owners for their unwanted services, including additional markups in their prices to accommodate and pass on to the consumer the 10% "commission" which RESOLVE and ST. TAMMANY are paying to MRS (and apparently others) on all their OLD marina operations.

FIRST CAUSE OF ACTION – BREACH OF LEASE CONTRACT

30.

Made defendant in this cause of action are defendant THE BOARD OF COMMISSIONERS OF THE ORLEANS LEVEE DISTRICT ("OLD") and defendant HUEY.

31.

The refusal of OLD and the Orleans Levee Police to allow the plaintiff and others similarly situated peaceful possession of their leased slips and to allow them to recover their own property constituted a breach of the Lease Agreements between the parties for which OLD is responsible to pay the actual damages caused thereby in an amount deemed by the Court to be reasonable in the premises.

32.

The actual damages suffered by petitioner, which is typical of that suffered by other class members similarly situated include, among others to be shown at the trial of the case, the damages caused to the vessel Phoenix as a result of its remaining out of the water and in a damaging position after the storms; the loss of the plaintiff’s personal items which were onboard the vessel Phoenix and were ruined and/or lost as a result of the damage sustained by the vessel after the storms; the money expended and lost by the plaintiff in having to obtain alternative housing; as well as the costs expended by the petitioner in retaining contractors and equipment to move the vessel, who were turned away by OLD and told that they could not enter the marina.

SECOND CAUSE OF ACTION – VIOLATION OF THE ANTITRUST LAWS OF LOUISIANA

33.

Made defendant in this cause of action are all defendants.

34.

As is set forth hereinabove, defendants have entered into illegal contracts, combinations, and/or conspiracy in restraint of the trade or commerce of this state in that they made agreements to refuse to deal with petitioner and his retained contractors and agents as well as members of the class and their retained contractors and agents in a concerted manner and then committed overt acts, as are also set forth hereinabove, in furtherance of such contracts, combinations, and/or conspiracies. The plaintiff asserts that defendants HUEY and GEORGE L. CARMOUCHE abused their positions of authority and under color of law entered into a conspiracy to allow defendants DOUGLAS SCOTT CARMOUCHE, MICHAEL GEORGE MAYER, RMS, RESOLVE, and St. Tammany Pearl River Salvage to have sole and exclusive access (and subsequently at least greatly favored access) to the New Orleans Marina and the South Shore Harbor Marina and to charge exorbitant fees to boat owners for the lifting and/or salvaging of their boats in those marinas. Plaintiff is informed and believes and upon such information and belief alleges that the quid-pro-quo for this exclusive and/or favored access involves unearned "commissions" paid to relatives and political cronies of Jim Huey and George L. Carmouche through MRS.

35.

The actions of defendants, as described hereinabove, constitute attempts to monopolize and/or combinations and/or conspiracies among themselves and also with other persons to monopolize the retention of contractors and persons to move, lift, salvage, etc., privately-owned vessels within the Orleans Marina and South Shore Harbor Marina, which constitutes a part of the trade or commerce within this state.

36.

Petitioner, as a party who has been injured in his business or property by defendants by reason of violations of the antitrust laws of Louisiana, is entitled to recover threefold the damages by him sustained, as described herein, the cost of suit, and a reasonable attorney's fee.

THIRD CAUSE OF ACTION – VIOLATION OF
THE LOUISIANA UNFAIR TRADE PRACTICES ACT

37.

Made defendant in this cause of action are all defendants.

38.

Petitioner is a "consumer" as defined by the Louisiana Unfair Trade Practices Act.

39.

The actions described hereinabove of the defendants herein constitute unfair trade practices and unfair methods of competition and otherwise constitute violations of the Louisiana Unfair Trade Practices Act.

40.

Upon notification of the Attorney General of Louisiana, petitioner will be entitled to treble its actual damages as set forth hereinafter. Petitioner is also entitled to reasonable attorney’s fees and statutory penalties against each defendant, as set for in the Louisiana Unfair Trade Practices Act.

FOURTH CAUSE OF ACTION – INTENTIONAL DELICTS,
DENIAL OF CIVIL RIGHTS, AND CRIMINAL ACTS

41.

Made defendants in this cause of action are all defendants.

42.

The actions set forth hereinabove were done intentionally and without privilege under color of law, and were done in order to keep petitioner and other persons similarly situated from salvaging, lifting, moving, or even accessing their personal property and were done with an intention to defraud the plaintiff and other persons similarly situated and to illegally profit the defendants and their political cronies, including defendants HUEY, GEORGE L. CARMOUCHE, Douglas Scott Carmouche, MICHAEL GEORGE MAYER, MRs, resolve, and St. Tammany Pearl River Salvage, at the expense of the plaintiff and others similarly situated; that the private parties acted under color of law because the illegal actions of HUEY and CARMOUCHE, state officials, benefited MRS, RESOLVE, AND ST. TAMMANY PEARL RIVER SALVAGE and the Levee Board Police, which enforced their actions, acted under color of state law.

43.

The plaintiff is further informed and alleges that the defendants conspired to charge the plaintiff and other vessel owners in the Orleans Marina and South Shore Harbor Marina exorbitant prices to move their vessels and further conspired to charge exorbitant prices for the services of MRS, which were unnecessary in the first instance. The plaintiff alleges that these actions of the defendants also amount to illegal Price Fixing and illegal Price Gouging, as defined by law and that said acts and conspiracies were done intentionally by the defendants under color of law and that they also amount to a denial of civil rights under color of law, and the plaintiff specifically alleges that HUEY did personally and knowingly deny the plaintiff his civil rights under color of law maliciously and without legal authority as did his agents, Max Hearn and Beth Augustine, pursuant to his direction and again under color of Louisiana law.

ACTUAL DAMAGES

44.

Defendants are responsible to pay petitioner and other persons similarly situated the actual damages caused by their actions in an amount deemed by the Court to be reasonable in the premises.

45.

The actual damages suffered by petitioner include, among others to be shown at the trial of the case, the damages caused to the vessel Phoenix and other vessels as a result of its remaining out of the water and in a damaging position after the storms; the loss of personal items which were onboard the vessels and were ruined and/or lost as a result of the damage sustained by the vessel after the storms; any actual damage done to the vessels by the defendants; the money expended and lost by the plaintiff and others living on their said vessels in having to obtain alternative housing during the time that they were denied access to vessels, which were their home and residence; the costs expended by the petitioner and the members of the class in retaining contractors and equipment to move the said vessels, who were turned away by OLD and told that they could not enter the marina; as well as the additional costs incurred as a result of having to retain the "favored" contractors of OLD and MRS, who are paying "commissions" to MRS.

46.

According to the OLD website, MRS and its agents, including defendants RESOLVE and ST. TAMMANY PEARL RIVER SALVAGE have actually and intentionally damaged some vessels in the OLD marinas by painting on the hulls of the vessels with permanent orange paint the letters "MRS", as an indication to any other contractor or person that only MRS and its agents would be allowed to access that vessel.

INJUNCTIVE RELIEF

47.

Although petitioner and others similarly situated may be entitled to monetary compensation for their special and general damages in an amount determined just in the premises by this Honorable Court on account of current and future damages, petitioner and others similarly situated continue to suffer from the effect of the illegal actions of the defendants which have been done intentionally and is not compensable in money, so that the plaintiff and other persons similarly situated are entitled to injunctive relief.

48.

Many of the vessels in the New Orleans Marina and South Shore Harbor Marina have still not been moved and many are still being further damaged every day they are not placed in an upright position either in the water or in a safe position on land, thus vessel owners are suffering damage on a daily and continuing basis; while other vessels are being moved by MRS and its agents without authority from the vessel owners, who are being charged exorbitant fees by MRS and its agents for their unwanted services; thus, plaintiff fears that he will be unable to obtain a hearing on a permanent injunction prior to the time that these vessels will have suffered irreparable damage (i.e., the complete loss of the vessels) and prior to the time that more persons become unknowing victims of the exorbitant fees charged by MRS and its agents, so that it the plaintiff is entitled to the issuance of a preliminary injunctive relief prior to a hearing on the merits.

49.

Petitioner respectfully requests and reserves the right to amend, after discovery, in order to add as individual defendants anyone else who has committed or conspired to commit wrongful acts such as those set forth hereinabove.

CLASS ACTION ALLEGATIONS

50.

Plaintiff brings this action on behalf of himself and all others similarly situated in accordance with the Louisiana Code of Civil Procedure Articles 591, et. seq.

51.

The class is defined as those individuals who are owners of vessels located in the marinas operated by OLD in Orleans Parish—the Orleans Marina and the South Shore Harbor Marina, whether insured or not—who were denied access to their vessels by OLD and whose designated representatives were also denied access to their vessels, in furtherance of the conspiracies alleged herein.

52.

The members of the Class are so numerous that joinder of all members is impracticable. Plaintiff does not know the exact number of Class members, but is informed and believes that the number of members of the Class exceeds several hundred and perhaps over one thousand members.

53.

There are common questions of law and fact affecting the Class members, including but not limited to:

Whether the acts and/or omissions of the OLD and JIM HUEY amounted to a breach of the lease contracts between OLD and the tenants;

Whether the defendants violated the anti-trust laws of Louisiana;

Whether the acts of the defendants amounted to a conspiracy to violate the anti-trust laws of Louisiana;

Whether the defendants violated Louisiana’s Unfair Trade Practices Act;

Whether the acts of the defendants amounted to a conspiracy to violate Louisiana’s Unfair Trade Practices Act;

Whether the defendants conspired to commit fraud and intentional delicts with regard to granting sole and exclusive access to the marinas to their political cronies and relatives and at the same time conspired to and did prohibit the class members and their representatives access to their vessels;

Whether the defendants actions are actionable under 42 USC § 1983, as an abuse of power under color of law and a subsequent denial to the class members of their civil rights under color of law;

Whether defendant JIM HUEY acted without legal authority from OLD or acted beyond his legal authority in granting sole and exclusive access to MRS and their agents to the marinas;

Whether the defendants are liable for actual damage done to vessels and vessel owners in the class;

Whether the defendants’ actions amount to negligence;

Whether the non-governmental defendant acted under color of state law because their agreement with OLD, through HUEY, was enforced by the Levee Board Police, and

Whether the defendants should be enjoined from continuing their practices.

54.

The claims of the representative plaintiff are typical of the claims of the Class as a whole and plaintiff is a member of the class and has suffered harm due to the acts and/or omissions of the defendants.

55.

The representative plaintiff will fairly and adequately protect the interests of the Class. The interests of the representative plaintiff are consistent with and not antagonistic to the interests of the Class. The named plaintiff has retained counsel experienced in the handling and prosecution of class actions.

56.

The prosecution of separate actions by individual members of the Class would create the risk that inconsistent or varying adjudications with respect to individual members of the Class would establish incomparable standards of conduct for the parties opposing the Class and would substantially impair or impede the interests of the other members of the Class to protect their interests.

57.

The Class Action is superior to other available methods for the fair and efficient adjudication of the controversy between the parties. Plaintiff is informed and believes and upon such information and belief alleges that the interests of the members of the Class in individually controlling the prosecution of separate actions is low, in that most Class members would be unable to individually prosecute any action at all. Plaintiff is informed and believes and upon such information and belief alleges that the amounts at stake for many individual Class Members may be relatively small and that for most or all Class members separate suits would be impracticable and most members of the Class would be unable to find counsel to represent them. Plaintiff is further informed and believes and upon such information and belief alleges that it is desirable to consolidate all litigation into one forum because it will promote judicial efficiency to resolve the common questions of law and fact in one forum, rather than in multiple courts over varying periods of time.

58.

Individual litigation also presents a potential for inconsistent and/or contradictory judgments. By contrast, the Class Action device presents far fewer management difficulties, allows the hearing of claims that might otherwise not be addressed because of the relative expense of bringing individual lawsuits, and provides the benefits of single adjudication, economies of scale, and comprehensive supervision by a single Court.

59.

Plaintiff is informed and believes that the records and files of defendant OLD contain, in computer and/or otherwise readable format, a last known address, other identifying information for Class members, and information necessary and convenient to locate and identify Class members, determine their damages and prosecute this case expeditiously as a Class Action.

NON-RESIDENT ATTACHMENT ALLEGATIONS

60.

At all times mentioned herein, Resolve Marine Group was a foreign corporation doing business in Louisiana through the ownership, inter alia, of the RMG300 or such crane barge that is located in the Orleans Marina with the logo "American" on the rear of the said pedestal crane, the operation of this vessel and other lifting equipment in Louisiana, its position as subcontractor to MRS, the receipt of funds from boat owners, including plaintiff, in the Orleans and South Shore Harbor Marinas, and the giving of "commissions" to MRS and others from such funds.

61.

As a result of the operation of a watercraft in this state, Resolve is deemed to have appointed the Secretary of State of Louisiana as its agent for service of process.

62.

This is an action, inter alia, for a money judgment.

GROUNDS FOR ISSUANCE OF WRIT OF ATTACHMENT
OF PROPERTY OF NON-RESIDENT

63.

Pursuant to La. C.C.P. Art. 3541, a writ of attachment should issue herein in that defendant Resolve is a nonresident corporation who has no duly appointed agent for service of process within this state.

64.

Plaintiff is entitled to and desires the issuance of a writ of attachment against the property of defendant, Resolve, in whatever hands it may be found, to satisfy the demand brought herein.

WHEREFORE petitioner, individually and on behalf of all others similarly situated, prays that:

1. The defendants be cited to appear and answer this Class Action Petition for damages, all as provided by law;

2. That this Court issue an Order certifying the Class and designating plaintiff as the Class Representative;

3. That this Court issue an order designating plaintiff’s attorneys as Class Counsel; and

4. That after due proceedings there be judgment in favor of JAMES KELLY LAMBERT, individually and on behalf of all others similarly situated, and against all defendants, jointly, severally, and in solido in actual and special damages in an amount determined just in the premises by this Court, including all treble damages, attorney’s fees, and statutory damages and all other damages allowed by law.

AND WHEREFORE PETITIONER FURTHER PRAYS THAT Petitioner, individually and on behalf of all others similarly situated, is further entitled to mandatory and prohibitory preliminary and permanent injunctive relief from the defendants as follows:

1. Ordering THE BOARD OF COMMISSIONERS OF THE ORLEANS LEVEE DISTRICT ("OLD") to allow the plaintiff and his retained contractors, as well as all other persons similarly situated and their retained contractors and/or designated agents and representatives into the Orleans Marina and the South Shore Harbor Marina to move and/or recover and/or access the plaintiff’s and other Class members’ vessels, so that further damage to the vessels and their contents may be prevented;

2. Enjoining the defendants, THE BOARD OF COMMISSIONERS OF THE ORLEANS LEVEE DISTRICT ("OLD") and MARINE RECOVERY AND SALVAGE, LLC, and their officers, agents, etc, including but not limited to MICHAEL GEORGE MAYER and DOUGLAS SCOTT CARMOUCHE, as well as the ORLEANS LEVEE POLICE, from in any way stopping or obstructing the efforts of the plaintiff and his contractors and agents, as well as all other persons similarly situated and their retained contractors and/or designated agents and representatives, into the Orleans Marina and the South Shore Harbor Marina to move and/or recover and/or access the plaintiff’s and other Class members’ vessels, and, in due course, for a permanent injunction to the same effect.

3. Enjoining defendants MARINE RECOVERY AND SALVAGE, LLC, RESOLVE MARINE GROUP, and St. Tammany Pearl River Salvage from moving and/or recovering and/or accessing any additional vessels located in the Orleans Marina and the South Shore Harbor Marina without specific prior authority to do so from the vessel owner and/or the vessel owner’s duly authorized agent.

That the hereinafter verification being considered and upon plaintiff giving bond for $250.00, the amount fixed by the Court, with good and solvent surety, conditioned as the law directs, that a writ of attachment be issued commanding the Civil Sheriff of the Parish of Orleans to seize and attach and take into his possession, according to law, property, credits, or rights belonging to defendant, Resolve Marine Group, sufficient to satisfy the demands brought in the petition and, in particular the crane barge located at the South Shore Harbor Marina, which is believed to be the RMG300, and a cashier’s check no. 727967826 drawn on Chase Bank in the amount of $6,795.00, and to hold said vessel and said funds subject to further order of this Court and the judgment to be rendered herein;

That the writ of attachment herein be maintained and that the lien and privilege of petitioner, resulting from the attachment and garnishment be recognized and enforced and the said property and debts be sold, and that petitioner’s claim, interest, and costs, including applicable attorney's fees, be paid by preference and priority over all other creditors of the said defendant, Resolve Marine Group, out of the proceeds of the property or the cash so attached.

4. For all just and equitable relief.

RESPECTFULLY SUBMITTED BY:

______________________________________
ADAM S. LAMBERT (#25134)
517 Huntlee Drive
New Orleans, LA 70131-5221
Tel.: (504) 433-0289
Fax: (504) 433-0840
Email: LSULawyer@aol.com
URL: http://www.Lambert-Law.com
Co-Counsel for the plaintiffs

AND

KOERNER LAW FIRM

By: _________________________________
Louis R. Koerner, Jr.
Louisiana Bar 7817
400 Lafayette Street
P.O. Box 4297
Houma, Louisiana 70361
Telephone: 985-580-0350
Telecopier: 985-580-0980
Cellular: 985-232-7547
New Orleans: 504-581-9569
Lafayette: 337-289-9225
e-mail: koerner@koerner-law.com
URL: http:/www.koerner-law.com
Trial Counsel for the plaintiffs

AND

______________________________________
Andre’ P. Guichard # 6423
2071 West Bend Parkway, Unit # 284
New Orleans, LA 70114
Telephone: (504) 366-6180
Co-Counsel for the plaintiffs

PLEASE SERVE:

(SERVICE INSTRUCTIONS REMOVED FOR POSTING ON WEBSITE)