UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JAMES KELLY LAMBERT, ET AL	CIVIL ACTION NO. 05-5391
VERSUS
Board of Commissioners of the Orleans Levee District, ET AL

second supplemental and amending VERIFIED CLASS ACTION PETITION FOR PRELIMINARY AND PERMANENT PROHIBITORY AND MANDATORY INJUNCTIVE RELIEF AND FOR DAMAGES FILED PRIOR TO ANSWER AND WITHOUT OBJECTION

The Second Supplemental and Amending Verified Class Action Complaint for Preliminary and Permanent Prohibitory and Mandatory Injunctive Relief and for Damages of plaintiffs, JAMES KELLY LAMBERT and DONALD J. SCOTT, joined by newly-added named plaintiff, W. ROBIN LOVELOCK, with respect represents that they desire to supplement and amend Verified Class Action Petition For Preliminary and Permanent Prohibitory and Mandatory Injunctive Relief and for Damages and the First Supplemental and Amending Verified Class Action Petition for Preliminary and Permanent Prohibitory and Mandatory Injunctive Relief and for Damages, as follows:

Plaintiffs hereby add a new section with the heading "Statement of Named Plaintiff W. Robin Lovelock," and add new paragraphs numbered consecutively from Paragraph 29.15 to Paragraph 29.27 to read as follows:

statement of Named plaintiff W. RObin Lovelock

29.15.

Plaintiff W. Robin Lovelock ("Lovelock") is a resident and domiciliary of the Parish of Orleans, State of Louisiana, and was and is the owner of a 34 foot Hunter Sailboat formerly located in the South Shore Harbor Marina at Slip 3W9.

29.16.

Lovelock has a written lease agreement with OLD.

29.17.

Lovelock’s vessel was damaged by Hurricane Katrina and was sunk inside the South Shore Marina some time during or after the storm. On account of the events described hereinbelow, Lovelock does not now know how or why his vessel sank.

29.18.

Upon returning to New Orleans after Hurricane Katrina, Lovelock discovered not only that his vessel had sunk, but that it had already been raised by defendant Resolve without his knowledge or authorization and placed by Resolve into a parking lot in a haphazard manner.

29.19.

Lovelock discovered that his vessel had also been looted after its being placed into the parking lot by Resolve. Upon inspecting the vessel on October 29, 2005, Lovelock discovered that his stainless steel wheel, worth approximately $400.00, and his autopilot, worth approximately $900.00, had been removed from the vessel and apparently stolen after it was raised from the water and placed into the parking lot by Resolve.

29.20.

Lovelock spoke to Tim, an employee of Resolve, on that day. Lovelock informed Tim that his vessel had been opened and looted. Tim informed Lovelock that Resolve may have opened his vessel during the lifting operations in order to pump the water out of the vessel. Tim blamed the looting losses on Mexican workers who were cleaning out Bally’s Casino nearby, stating that he saw some of them "scurrying around with some things from these boats."

29.21.

Lovelock informed Tim that neither he nor his insurer had given any permission to Resolve to raise his vessel. Tim stated that Lovelock’s vessel had been raised by mistake by Resolve, but that Lovelock would nevertheless be liable for the services performed by Resolve in lifting and storing the vessel, even though the vessel had not carefully been stored. At that time, Tim informed Lovelock that Resolve would not block him from removing his personal possessions from the vessel.

29.22.

On Monday, October 31, 2005, Lovelock returned to the parking lot to get some personal possessions from the vessel. The parking lot entrance was blocked by a Resolve crane, but no Resolve or OLD personnel were present at the parking lot. Lovelock removed some additional personal items from his vessel and left.

29.23.

About a week later, Lovelock again returned to the parking lot to look for his sea kayaks. He saw Tim and asked him if he had seen the kayaks. Tim said yes and directed plaintiff Lovelock to the area where the kayaks should have been but were no longer.

29.24.

Lovelock’s vessel was declared a total loss by his insurer.

29.25.

Resolve is presently still demanding payment for the salvaging and storage of the plaintiff’s vessel, although such salvage was done without notice or permission from either Lovelock or his insurer. While Resolve has been unwilling to send Lovelock and his insurer an actual invoice or description of their fees, Lovelock has been informed by other vessel owners that Resolve’s fees far exceed the fees which are being quoted by others for similar salvage operations.

29.26.

Due to the actions of Resolve, Lovelock believes that he will be indebted for significant storage fees and possibly penalties for the storage of his vessel during this time that the billing issue between himself and Resolve has been pending. Lovelock avers that Resolve has needlessly delayed the process by refusing to send him any written invoice and by failing to be present at agreed-upon times when Lovelock was told by Resolve employees to meet with them in person for the purposes of working these issues out amicably.

29.27.

Lovelock adopts and avers all the stated claims and averments of fact of the original Verified Class Action Petition For Preliminary And Permanent Prohibitory And Mandatory Injunctive Relief And For Damages and the First Supplemental and Amending Verified Class Action Petition For Preliminary And Permanent Prohibitory And Mandatory Injunctive Relief And For Damages as if set forth here in full.

Plaintiffs hereby add a new section with the heading "Fifth Cause of Action – Breach of Compensated Depositary Contract and/or Duties of Gestor and adds new paragraphs numbered consecutively from Paragraph 43.1 to Paragraph 43.3, to read as follows:

Fifth cause of action – breach of compensated depositary contract and/or negligence on
the part of a negotiorum gestor

43.1.

Made defendant in this cause of action are all defendants.

43.2

The defendants are "compensated depositaries" under Louisiana law with respect to the vessels and other movables stored by them and the defendants thus have obligations to the plaintiffs which have been regularly breached by the defendants. Alternatively, on account of the fact that the vessels were moved without permission, defendants are negotiorum gestors, with quasi-contractual obligations analogous of those of a compensated depositary.

43.3

The defendants have breached their duties as compensated depositaries/negotiorum gestors as follows:

A) The defendants have failed to secure the plaintiffs’ vessels and other movable property in a safe and secure location and have failed to provide adequate security for those stored vessels and other movables.

B) The defendants have damaged the property of the plaintiffs and have failed or refused to restore the damaged movables to their pre-deposit condition.

C) The defendants have broken into the plaintiffs’ vessels and have sought to discover what things are inside the vessels, in violation of their duties.

D) The defendants have delayed improperly to restore the plaintiffs’ things and have caused additional damage to their property while in storage.

E) The defendants have failed to timely restore the plaintiffs’ property to them or to their proper agents.

F) The defendants have failed to restore the property of the plaintiffs’ which was stolen while in storage.

G) The defendants have failed to restore property to its owners despite having been informed that the property was taken without the owner’s consent.

H) The defendants failed to timely notify the plaintiffs that their property had been salvaged and stored in the first instance.

I) The defendants have unlawfully retained the plaintiffs’ property subject to the deposit or quasi-contractual obligation on pretenses of alleged debts due to the depositary which are related only to the salvage of the vessels and unrelated to the actual storage of the vessels and other movables property.

WHEREFORE, plaintiffs Lambert, Scott, and Lovelock, on their own behalves and on behalf of all others similarly situated, reiterating the prayer of the original Verified Class Action Petition for Preliminary and Permanent Prohibitory and Mandatory Injunctive Relief and for Damages and the First Supplemental and Amending Verified Class Action Petition for Preliminary and Permanent Prohibitory and Mandatory Injunctive Relief and for Damages as though set forth at length herein, pray that the Original Verified Class Action Petition For Preliminary and Permanent Prohibitory and Mandatory Injunctive Relief and for Damages and the First Supplemental and Amending Verified Class Action Petition for Preliminary and Permanent Prohibitory and Mandatory Injunctive Relief and for Damages be supplemented and amended in the above particulars and demand, after due proceedings had, judgment herein in favor of the petitioners, JAMES KELLY LAMBERT, DONALD L. SCOTT, and W. ROBIN LOVELOCK, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, and against all defendants for all the relief prayed for in the original Verified Class Action Petition for Preliminary and Permanent Prohibitory and Mandatory Injunctive Relief and for Damages and the First Supplemental and Amending Verified Class Action Petition for Preliminary and Permanent Prohibitory and Mandatory Injunctive Relief and for Damages; and for all relief prayed for herein; and for all general and equitable relief.

RESPECTFULLY SUBMITTED BY:

(ALL PLAINTIFFS' COUNSEL)