UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
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JAMES KELLY LAMBERT, ET AL. |
CIVIL ACTION |
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VERSUS |
SECTION: T (PORTEOUS) MAGISTRATE: ROBY |
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Board of CommissionERs of the Orleans Levee
District, ET AL. |
SUBSTITUTED THIRD supplemental and
amending
VERIFIED CLASS ACTION COMPLAINT
The Substituted Third Supplemental and Amending Verified Class Action Complaint for Preliminary and Permanent Prohibitory and Mandatory Injunctive Relief and for Damages of plaintiffs, JAMES KELLY LAMBERT, et al., on their own behalves and on behalf of all others similarly situated, with respect represents that they desire to supplement and amend their original class action petition and the first and second supplemental class action petitions/complaints, as follows:
I.
Plaintiffs amend paragraph 2A to read as follows:
2A. Defendant, the Board of CommissionERs of the Orleans Levee District (“OLD”), made original defendant herein by the original plaintiffs, is now operating under the auspices of the Louisiana Division of Administration, which at all times mentioned hereto was the manager of the non-flood assets of the Levee District, specifically including the Orleans Marina.
II.
Plaintiffs hereby add new paragraphs numbered consecutively from Paragraph 59.1 to Paragraph 59.4 under the existing heading “Class Action Allegations” to further define the classes to read as follows:
59.1.
The classes may be further subdivided and defined as two separate classes within the marinas—one being the “Damage Class” and one being the “Injunctive/Declaratory Relief Class”.
59.2.
The damage class consists of all owners of vessels in the Orleans Marina and SouthShore Harbor Marina as of the Hurricane Katrina (and Rita), who were denied the right to access, salvage, and repair their vessels or had the use of such rights delayed or made more difficult or expensive, had their vessels damaged or moved by defendants or under the authority of defendants without their permission after Katrina, were forced to pay substantially higher than market prices set by Marine Recovery and Salvage (“MRS”) and Resolve Marine Group (“Resolve”) pursuant to the authority granted by the Orleans Levee District (“OLD) as a result of a conspiracy between MRS, its principals, OLD, and its principles, and, inter alia, Resolve, and/or were denied, under color of law, constitutional, property, and/or contractual rights concerning their vessels and access to their vessels by salvors.
59.3.
The injunctive/Declaratory RELIEF class consists of all current tenants of Orleans Marina and SouthShore Marina. Plaintiff, James Kelly Lambert, a current tenant, is seeking, individually and on their behalf, to obtain declaratory and permanent injunctive relief against a repetition, in the event of another hurricane or similar destructive catastrophe, of those actions taken by defendants and their successors after Katrina that are contended to be violations of the lease agreements, unlawful, and/or anticompetitive.
59.4.
The injunctive class also seeks declaratory and injunctive relief from the actions of defendant OLD with regard to the 2007-2008 leases, as set forth in paragraphs 65, et seq., below.
III.
Plaintiffs hereby add new paragraphs numbered consecutively from Paragraph 65 to Paragraph 71 under a new heading entitled “Declaratory and Injunctive Relief from 2007-2008 Leases” to read as follows:
Declaratory
and Injunctive Relief from 2007-2008 Leases
65. In June of 2007, defendant OLD drafted and promulgated new leases for all tenants in the Orleans Marina and South Shore Harbor Marinas. See 2007 Lease, Exhibit “A”.
66. Those new leases contain the following provisions enacted and enforceable by defendant OLD under color of law, which are adhesionary, in violation of the antitrust laws, are breach of the fiduciary relationship by public officials to the public, here the marina tenants, violate the provisions of LSA-R.S. 38:§325 and LSA-R.S. 38: 307(C)(2) as not being “ fair and equitable;” attempt to excuse or cover up past violations of law, violate the Public Trust Doctrine and the provisions of LA Const Art. 9.1 and constitute a denial of the constitutional, civil, contractual, and/or property rights of the plaintiffs and the members of the class, so that the said provisions, described below, should be declared invalid and their enforcement enjoined.
67. Under the heading “IV. NATURAL OCCURRENCES”, the new lease states that, whenever the Marina Manager in his sole discretion believes it appropriate, the marinas may be closed for an indefinite period of time. During such time, the tenants are still required to pay rent, although OLD will be allowed to deny access to them, their agents, employees, representatives, and/or contractors for any amount of time the Marina Manager in his sole discretion sees fit.
68. Under that same heading, the lease further states that OLD shall have the right to unilaterally take any action that OLD in its sole discretion believes is “in the interest of public safety and to protect property in the marina,” including but not limited to the unfettered authority to unilaterally authorize any salvor of its choosing to perform salvage operations in the marinas.
69. Whereas the former lease required only liability coverage in the amount of $300,000.00, under the heading “XIII. CERTIFICATES OF INSURANCE & MARINA INSURANCE”, the new lease adds the provision that all marina tenants must now have comprehensive insurance coverage, and they specifically must have coverage that covers the salvage of their vessel by any OLD-appointed salvor in an amount of at least $300,000.00.
70. Under the
heading “XVII WAIVER OF NOTICE TO VACATE”, the OLD, a part of the state
government, compels its tenants to waive the right to receive a Notice to
Vacate under LSA-C.C. art. 4701. While waiver of this
notice is legal, plaintiff and the classassert that
such is unjust and inappropriate in a lease drafted by an arm of the State of
71. Under the heading “XIX. REMOVAL OF VESSELS AFTER TERMINATION”, the OLD requires tenants to remove vessels within 24 hours of OLD’s “termination” of the lease and further states that vessels which are not removed within 24 hours are subject to daily transient rates without due process of law and without further notice to the tenant.
72. That same paragraph also allows for illegal “self-help” on the part of OLD by stating that OLD has the unilateral right, without due process of law and “without further notice or formality, to seize and impound the boat/vessel to insure payment of rental or daily rental imposed or other costs incurred.”
73. Under the heading “XXXIV. INTERPRETATION”, the new lease provides that, by signing the lease, the tenants agree to waive any rights they have under any rule of law or decision of any court of law which holds that ambiguous terms in any contract are to be construed against the party who wrote the contract (i.e., OLD).
74. These new lease provisions are unjust, adhesionary, and ask the tenants to grant the defendant the unfettered right to violate the antitrust laws of this Nation and to deny the tenants their civil and constitutional rights. The new lease forces the tenants to give OLD their consent to repeat and extend the wrongful acts which necessitated the filing of the plaintiffs’ original claim after Hurricane Katrina. Furthermore, the lease is against public policy. Therefore, injunctive and declaratory relief on behalf of the plaintiffs’ previously-named injunctive class is appropriate.
75. Inasmuch as we are within the 2007 hurricane season, the plaintiffs ask for immediate declaratory and injunctive relief from this Honorable Court declaring that the clauses of the 2007-2008 OLD leases outlined hereinabove to be in violation of the plaintiffs’ constitutional, civil, contractual, and/or property rights, in violation of the laws of antitrust, adhesionary, and against public policy, and enjoining the defendants from enforcing and/or removing said lease clauses, so that the wrongful acts of the defendants outlined herein are not repeated in the event of another catastrophic event.
WHEREFORE,
plaintiffs James Kelly Lambert, et al., 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, the First Supplemental
and Amending Verified Class Action Petition for Preliminary and Permanent
Prohibitory and Mandatory Injunctive Relief and for Damages, and the Second
Supplemental and Amending Verified Class Actions Complaint as though set
forth at length herein, demand judgment as follows:
1. That their previous petitions/complaints
be supplemented and amended in the above particulars;
2. That there be
judgment herein in favor of the petitioners, JAMES KELLY LAMBERT, ET AL.,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, and against all
defendants for all the relief prayed for in the previous petitions/complaints;
3. That there be judgment for all relief prayed for herein, including declaring the 2007-2008 OLD leases to be invalid as adhesionary, in violation of the antitrust laws, are breaches of the fiduciary relationship owed by public officials to the public, here the marina tenants, violate the provisions of LSA-R.S. 38:§325 and LSA-R.S. 38: 307(C)(2) as not being “ fair and equitable” to marina tenants; attempt to excuse or cover up past violations of law, violate the Public Trust Doctrine and the provisions of LA Const Art. 9.1, and constitute a denial of the constitutional, civil, contractual, and/or property rights of the plaintiffs and the members of the class, and their enforcement enjoined, and
4. For all general
and equitable relief.
RESPECTFULLY
SUBMITTED BY:
/s/ Adam
S. Lambert
ADAM
S. LAMBERT (#25134)
Tel.: (504) 433-0289
Fax: (504) 433-0840
Email:
LSULawyer@aol.com
URL: http://www.Lambert-Law.com
Co-Counsel for the plaintiff
KOERNER LAW FIRM
/s/Louis R. Koerner, Jr.
Louis R. Koerner, Jr.
Louisiana Bar 7817
Telephone:
985-580-0350
Telecopier:
985-580-0980
e-mail:
koerner@koerner-law.com
URL:
http:/www.koerner-law.com
Trial Counsel for the plaintiffs