Hello everyone. We wanted to send out an update on the status of this litigation. If you recall, we brought four claims in the case: (1) a federal takings claim, (2) a state takings claim, (3) a federal substantive due process claim, and (4) a federal procedural due process claim. While we won on the State’s motion to dismiss at the trial court, the appellate court sided with the State on some of the claims. As a result of the appellate court’s ruling, those claims are currently split between the trial court in Galveston and the United States Supreme Court in Washington, D.C. This posture is not fatal to the case. But getting it resolved will take time. And how those courts decide the matters pending before them will determine how the case proceeds.
The federal takings claim is pending before the U.S. Supreme Court. After the federal district court in Galveston denied the State’s request to dismiss this claim, the State appealed that ruling to the United States Court of Appeals for the Fifth Circuit which ruled in favor of the State and held there is no right to sue a state under the Takings Clause of the U.S. Constitution. We have now asked the U.S. Supreme Court to take up the case and reverse the Fifth Circuit’s dismissal of the federal takings claim. The fact is, however, that the Supreme Court does not have to take the case. And, because the Supreme Court is on summer recess, we will not know whether it will hear and decide the case until late September.
Meanwhile, the state takings claim and the two federal due process claims are pending before the federal district court. We have asked that court to certify the case as a class action with regard to the issue of liability but not damages. If it grants that motion, the liability of the State for all plaintiffs will be decided in one fell swoop and, if the State is found to be liable, everyone’s claim for compensation will then be determined on a case-by-case basis since everyone’s property and losses are unique to them.
We have also fully briefed motions for summary judgment and motions wherein the State has asked to have our experts precluded form testifying. Those motions are also ready for decision by the trial court, we just have to wait for the trial court to rule. There is no timetable setting a date by which the trial court must rule on anything. We believe that the trial court might be waiting to see what the U.S. Supreme Court does regarding our appeal before it rules on the motions pending before it. There’s just no way to know for sure.
The good news is that it is only those rulings that we are waiting on. Discovery in the case is complete and we are ready to prepare for and go to trial on every claim. And we remain convinced we can win at trial; we just need the chance.
Thank each and every one of you for the faith you have shown in asking us to handle your case.
And for your patience with the progress of your case through our court system. While we are used to these delays, rest assured that we are anxious to proceed as well!