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Gadsden Industrial Park, LLC v. United States

United States District Court, N.D. Alabama, Middle Division

October 3, 2017



          John E. Ott Chief United States Magistrate Judge

         In this action, Plaintiff Gadsden Industrial Park, LLC (“GIP”) has sued the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq., and two government contractors, CMC, Inc. (“CMC”) and Harsco Corporation (“Harsco”) (hereinafter collectively “Defendants”) under Alabama tort law. (Doc.[1] 27, Amended Complaint (hereinafter “Complaint” or “Compl.”). The cause comes to be heard on two pending motions. The first is a joint motion filed by CMC and Harsco (collectively the “Contractors”) in which they seek a dismissal or, in the alternative, a stay of the proceedings on the claims against them, based on an argument that GIP has engaged in improper claim-splitting. (Doc. 36 (incorporating Docs. 7 & 8)). In the other pending motion, the United States seeks a dismissal for lack of jurisdiction, based on the discretionary-function exception to the FTCA's waiver of sovereign immunity. (Doc. 37). The parties have exhaustively briefed the motions. (Docs. 45-47, 48-1, 50, 51, 54-55, 59, 61). Upon consideration, the court[2] concludes that both motions to dismiss are due to be granted.



         The salient allegations of the Complaint are these: Prior to the events giving rise to this lawsuit, a company known as Gulf States Steel, Inc. of Alabama (“Gulf States”) owned and operated a 761-acre steel manufacturing facility in Gadsden, Alabama (the “Site”). (Compl. ¶ 11). In 1999, Gulf States filed for bankruptcy, and, in connection with that proceeding, various of its assets were sold off. (Id.) One such asset was a railroad track system installed on the Site, which was purchased in 2001 by the Williams Family Limited Partnership (“Williams”). (Id. ¶ 13). In 2002, Plaintiff GIP purchased other Gulf States assets, including about 434 acres of the Site real estate. (Id. ¶ 14). GIP also purchased other assets situated on an approximately 200-acre portion of the Site that GIP did not buy, an area of land the Complaint refers to as the “Excluded Real Property.” (Id. ¶¶ 15, 16). In particular, GIP purchased all of the “kish” as well as 420, 000 cubic yards of “slag” located on the Excluded Real Property. (Compl. ¶ 16). Kish is a by-product of the steelmaking process and contains recyclable metal particulates, while slag is the unrefined result of the first step of the steelmaking process. (Id. ¶ 17). Both had been “dumped and/or stockpiled” at various locations on the Excluded Real Property during the approximately 97-year period that Gulf States and its predecessors used the Site for metal manufacturing. (Id.)

         After GIP's purchase, it partnered with Williams to operate a railroad car storage business on the Site, using the tracks that Williams had bought. (Id. ¶ 18). That partnership later dissolved, and Williams sold the entire track system to GIP in 2005. (Id. ¶ 19). After refurbishing parts of the system and purchasing locomotives, GIP commenced running its own railroad car storage business on the Site in January 2008. (Compl. ¶ 21).

         In 2007 or 2008, however, the United States Environmental Protection Agency (“EPA”) began remedial work on the Excluded Real Property as part of a “Superfund” site project under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9657 (Id. ¶ 23). In undertaking that operation, the EPA barred GIP from entering the Excluded Real Property, thereby preventing it from using any of the rail spur lines located thereupon. (Id. ¶ 24). Further, although GIP says that it “had been making preparations” to retrieve and sell its kish on the Excluded Real Property (id. ¶ 31), the EPA's denial of access also prevented GIP from carrying out such plans. (Id. ¶¶ 24, 31, 36).

         In about 2007, the EPA hired Defendant CMC to be its “emergency response contractor and/or site manager at the Site.” (Compl. ¶ 25). In about 2008, the EPA, by and through CMC, hired Defendant Harsco to conduct a pilot study of the materials located on an eight-acre portion of a “non-hazardous permitted landfill situated on the Excluded Real Property, for the sole purpose of determining whether and to what extent those materials contained valuable metal-bearing items that could be marketed and resold for profit.” (Id. ¶ 26). After that study concluded that mining portions of the Excluded Real Property for recyclable metals would be profitable, the EPA, again acting by and through CMC, hired Harsco in October 2009 to conduct a full-scale “slag processing” operation, pursuant to which Harsco agreed to mine the eight-acre portion of the Excluded Real Property for the purpose of extracting and selling valuable metal-bearing materials. (Id. ¶¶ 28, 29). In return, Harsco would remit a percentage of the gross proceeds from such sales to CMC, which, in turn, would credit the EPA for amounts it otherwise owed on the project to CMC. (Id.) Pursuant to that agreement, from early 2010 through sometime in 2013, Harsco proceeded to mine, process, market, and sell to third parties “many, many millions of dollars” worth of metal-bearing materials from the kish and slag that GIP had purchased out of the Gulf States bankruptcy. (Id. ¶¶ 30, 32, 33, 34). Harsco did not, however, limit those efforts to the eight-acre portion of the parcel originally agreed upon, nor to only the non-hazardous permitted landfill portions of the Excluded Real Property. (Compl. ¶ 33). Rather, GIP maintains, with the knowledge and approval of the EPA and CMC, Harsco mined the Excluded Real Property wherever it determined metallic items of value existed. (Id. ¶ 34). And despite the fact that Defendants were at all times aware of GIP's claimed interest in the kish and slag, they continued to prohibit GIP from itself retrieving and selling them. (Id. ¶¶ 32, 35, 36).

         In addition, GIP alleges that “during the course of its work mining for ‘kish, ' [the Contractors, ] with the EPA's knowledge and approval, also uninstalled, cut, severed, tore up from the ground, and removed roughly 1, 400 feet of track [on the HS-1 and HS-2 spur lines] owned by [GIP] on the [Excluded Real Property, along with all accompanying ties, plates, spikes, and the like.” (Id. ¶ 37). Defendants then discarded those materials “and/or” sold them to third parties. (Id. ¶ 38). Similarly, GIP claims that the EPA, by and through the Contractors or other employees or agents, “completely covered” another 1, 000 feet of track on the HN-1 spur line owned by GIP on the Excluded Real Property with “non-saleable mined material, ” thereby rendering those tracks unusable. (Compl. ¶ 39). GIP ultimately insists that “no condition existed at the Site which would have authorized, necessitated or required the Defendants under CERCLA to have removed [GIP]'s property, ... to have covered or discarded [GIP's] property and/or to have conveyed it to third parties.” (Id. ¶ 42). Despite numerous demands by GIP, neither the EPA nor the Contractors have remitted any compensation to GIP for the destruction or removal of its property at the Site. (Id. ¶ 43; see also Docs. 27-1, 27-2, 27-3).

         GIP filed this action on June 5, 2015. (Doc. 1). In its now-governing amended pleading filed in August 2015, GIP brings claims under the FTCA and Alabama tort law against Defendants, set forth in four counts. (Doc. 27, Compl.). Count I alleges that all three Defendants are liable for conversion of GIP's kish and slag located on the Excluded Real Property, while Count II similarly alleges that those Defendants acted negligently by “removing, destroying, discarding and/or selling” same. Counts III and IV assert that the United States, but not either of the Contractors, is also liable for conversion and negligence, respectively, based upon the removal and burial of the aforementioned sections of railroad track on the Excluded Real Property.

         In support of its pending motion to dismiss, the United States has filed an affidavit sworn by Terrence Byrd, an “On-Scene Coordinator” in the EPA's “Superfund Division.” (Doc. 37-2 (“Bryd Aff.”) ¶¶ 1, 3). In his affidavit, Byrd recites the following: The EPA designated the Gulf States Site as a Superfund removal site in 2001 when it initiated an investigation there and that associated removal operations began in 2003 and concluded in 2013. (Byrd Aff. ¶ 5). The site had “two large waste piles” that “contained certain hazardous substances that were leaching into the ground, nearby water sources, and the sediments of Black Creek and Lake Gadsden.” (Id. ¶ 6). In response, the “EPA sought a way to remove the hazardous substances and decrease the volume of the waste piles to lessen the environmental impact.” (Id.)

         Byrd's affidavit also contains a number of allegations that confirm or are otherwise generally consistent with those GIP pleads in its Complaint. According to Byrd, CMC, as the project manager hired by the EPA, offered several options for proceeding, including by “recycling the metallic content of the waste piles.” (Id. ¶ 7). CMC then hired Harsco to conduct a pilot study, based upon which “Harsco determined that the waste material would yield sufficient metal content to make processing the material from an engineering and economic standpoint.” (Id. ¶ 9). That study, Byrd says, “also demonstrated to EPA that removal of the metallics would reduce the volume, toxicity, and mobility of the hazardous substances in the waste piles and was more cost effective that the other removal alternatives considered.” (Byrd Aff. ¶ 10). Harsco then entered into a subcontract with CMC, under which the former would conduct the removal operation, extract metallic content from the waste piles, sell it, and pay CMC a royalty that would be credited against amounts the EPA owed to CMC on the project. (Id. ¶ 11).

         Finally, Byrd's affidavit makes a number of claims related to the scope of the EPA's alleged supervision and oversight of the Contractors' removal operation. For example, he states that the “EPA directed CMC who in turn directed Harsco when and where to mine within the two waste piles, ” while Harsco was responsible for determining more specifically what recyclable metallics were present and whether to remove them and for finding a buyer for extracted materials at market price. (Id. ¶ 13). Byrd also states that, throughout the removal operation, an EPA representative “was on-site or in contact” (id. ¶ 14) and “was consulted ... whenever Harsco encountered something in the waste piles unusual or out of the ordinary, such as its discovery of rail track HN-1 in the North Waste Pile and rail tracks HS-1 and HS-2 in the South Waste Pile.” (Id. ¶ 15). Byrd maintains that those “spur lines were cut and removed or buried at the specific direction of the EPA, through its contractor CMC, because the spur lines interfered with the progress of the removal operation and the construction of the cap.” (Byrd Aff. ¶ 16).


         GIP, the United States, CMC and Harsco have also been involved in no less than four prior lawsuits related to the EPA cleanup at the Site. The first two of those actions were filed by GIP in the United States Court of Federal Claims, asserting in each that the United States is liable for having taken GIP's property without just compensation, in violation of the Fifth Amendment. The first such action, filed in November 2010, was based on allegations that the United States and its contractor, then otherwise unidentified, had prevented GIP from accessing its kish on the Excluded Real Property and had been themselves removing the kish and selling it to offset expenses of the EPA cleanup at the Site. Gadsden Indust. Park, LLC v. United States, 1:10-cv-757-EGB (the “2010 Claims Case”), Complaint (Fed. Cl. Nov. 3, 2010); (Doc. 7-7). In March 2016, the Court of Federal Claims denied the United States' motion for summary judgment. (2010 Claims Case Docs. 110, 129). Thereafter, that court held a bifurcated trial, which concluded in late July 2017. (2010 Claims Case Docs. 169, 171, 173, 175, 178, 180, 182). Post-trial briefing is expected to be complete in by early January 2018. (2010 Claims Case Doc. 184). As such, no final judgment has been entered.

         GIP filed its second action in the Court of Federal Claims in November 2013. Gadsden Indust. Park, LLC v. United States, 1:13-cv-924-EGB (“2013 Claims Case”), Compl. (Fed. Cl. Nov. 22, 2013); (Doc. 7-6). There GIP raised a Fifth Amendment takings claim based on allegations that “the EPA, by and through its employees, servants, agents, and/or contractors, ” had removed, destroyed, and/or buried the two aforementioned sections of spur line railroad track on the Excluded Real Property. (Id.; see also Doc. 7-4, Amended Complaint in the 2013 Claims Case). In January 2017, the United States filed a motion for summary judgment, which GIP did not contest. (See 2013 Claims Case Docs. 92, 94, 110). Accordingly, on March 31, 2017, the court granted summary judgment to the United States on GIP's claim.[3] (2013 Claims Case Docs. 94, 110). On August 21, 2017, the court entered a final judgment in the case.[4] (See 2013 Claims Case Doc. 111).

         The third and fourth prior actions related to the EPA cleanup at the Site were both filed in this court. First, in January 2014, GIP filed a tort action against the same three Defendants sued in this case, i.e., the United States, CMC, and Harsco. See Gadsden Indus. Park, LLC v. United States, No. 4:14-CV-0039-KOB (the “2014 Tort Case”), Doc. 1, Complaint (N.D. Ala. Jan. 8, 2014); (Doc. 8-1 at 3-12). As here, GIP sought in the 2014 Tort Action to recover under the FTCA and Alabama tort law, asserting claims for conversion and negligence based, as in the 2013 Claims Case, on allegations that, “in or around the summer of 2012, ” Defendants had removed and buried the sections of railroad track on the Excluded Real Property. (2014 Tort Case Doc. 1, ¶¶ 19-21). Unlike in the case sub judice, however, GIP's complaint in the 2014 Tort Action did not reference efforts by Defendants to mine and sell the kish and slag.

         On June 26, 2015, this court dismissed the United States from the 2014 Tort Case on the ground that GIP had failed to exhaust administrative remedies as required by 28 U.S.C. § 2675(a). (2014 Tort Case Docs. 36, 37; Docs. 7-8, 7-9). By contrast, the court denied the Contractors' joint motion to dismiss, as well as a later one for summary judgment. See Gadsden Indust. Park, LLC v. United States, 111 F.Supp.3d 1218 (N.D. Ala. 2015). And while GIP did not formally assert a claim in the 2014 Tort Action based upon the removal of the kish from the slag piles on the Excluded Real Property, the court's opinion denying summary judgment on GIP's claims for the removal and burial of the spur line tracks nevertheless discussed at some length the Contractors' mining of the slag piles. See id., at 1224-26, 1229-32.

         Following the denial of summary judgment in the 2014 Tort Case, GIP abandoned its negligence claims and elected to proceed at trial against the Contractors on its conversion theory only. (2014 Tort Case Doc. 139). At the close of GIP's case, the court granted the Contractors' joint motion for judgment as a matter of law, holding that no liability could lie under Alabama law for conversion of the railroad tracks because they were a fixture to real property that GIP did not own. (2014 Tort Case Doc. 152); Gadsden Indust. Park, LLC v. CMC, Inc., 2016 WL 4158138 (N.D. Ala. Aug. 5, 2016). The court entered a final judgment accordingly on August 5, 2016. (2014 Tort Case Doc. 153). After the time to appeal expired, the United States used that judgment to obtain its summary judgment in the then-still-pending 2013 Claims Case, successfully arguing that GIP was collaterally estopped from asserting that it owned the railroad tracks, as required to establish its associated Fifth Amendment takings claim. (See 2013 Claims Case Docs. 92, 94).

         Meanwhile, in May 2014, the United States filed the fourth and final prior related lawsuit, suing GIP in this court under CERCLA. See United States v. Gadsden Indus. Park, LLC, No. 4:14-cv-0992-KOB (the “CERCLA Case”), Doc. 1 (N.D. Ala. May 27, 2014). There, the United States sought to recoup costs incurred by the EPA in responding to the release and threatened release of hazardous substances from the slag piles owned by GIP. (Id.) That claim relied on CERCLA § 107(a), 42 U.S.C. § 9607(a), under which certain enumerated potentially responsible parties (“PRPs”) may be liable to reimburse the government for amounts expended in performing an environmental clean up.[5] See Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 608-09 (2009); Cooper Indust., Inc. v. Aviall Services, Inc., 543 U.S. 157, 161 (2004). For the basis of its claim, the United States alleged that GIP was a PRP as the “owner” or “operator” of a “facility” under CERCLA § 107(a)(1), based upon GIP's ownership of the slag piles. On April 1, 2015, however, this court granted GIP's motion to dismiss, holding that the slag piles themselves were not a “facility” as defined by CERCLA, so GIP's ownership of them was insufficient to make it a PRP. (CERCLA Case Docs. 34, 35); United States v. Gadsden Indust. Park, LLC, 2015 WL 1499203 (N.D. Ala. Apr. 1, 2015); (see also CERCLA Case Docs. 22, 31); United States v. Gadsden Indust. Park, LLC, 2015 WL 1499142 (N.D. Ala. Feb. 11, 2015); id., 2015 WL 1499156, at *1 (N.D. Ala. Mar. 19, 2015). There was no appeal.


         All three Defendants in the instant action have moved to dismiss. First, the Contractors have filed a joint motion to dismiss citing Fed.R.Civ.P. 12(b)(6), or, in the alternative, to stay the proceedings as to the claims against them pending the resolution of the 2010 Claims Case and the 2014 Tort Case. (See Docs. 7, 8, & 36). In support, the Contractors argue that GIP's claims against them are part of the same cause of action underlying the 2014 Tort Case. (Doc. 7 at 1). As such, the Contractors assert, GIP is guilty of “improper claim-splitting” and of violating Fed.R.Civ.P. 15(a)(2) and Fed.R.Civ.P. 16(b). (Id.) For its part, GIP denies that it has split its claim or violated either of the Federal Rules cited by the Contractors.

         The United States also moves for a dismissal, for lack of subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1). (Doc. 37). The United States argues that GIP's claims against it are barred under 28 U.S.C. § 2680(a), which imposes a discretionary-function exception to FTCA liability. (See id.; Doc. 37-1). In support, the United States has also submitted Byrd's previously-described affidavit.

         In opposing that motion, GIP first argues that the United States is collaterally estopped from asserting that it is shielded by the discretionary-function exception. (Doc. 46 at 1-2, 6-9). That is so, GIP asserts, based on this court's determination in the CERCLA Action that the United States is not entitled to reimbursement for its response costs from GIP under CERCLA § 107(a). (Id.) Alternatively, GIP contends that, irrespective of collateral estoppel, the discretionary-function exception does not apply to the United States' conduct, which GIP characterizes as “knowing theft of [GIP's] property for purely profiteering motive.” (Id. at 9-13). Finally, GIP maintains that even if the discretionary function exception might apply, it would be premature to dismiss the action on that basis without affording GIP an opportunity to conduct discovery to counter allegations in Byrd's affidavit. (Id. at 13-19).


         Federal Rule of Civil Procedure 12(b)(1) authorizes a motion to dismiss a complaint for “lack of subject-matter jurisdiction.” Such jurisdictional attacks come in two separate forms - a “facial” challenge or a “factual” challenge.

         The Eleventh Circuit has summarized:

“Facial attacks” on the complaint “require[ ] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.” Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449 U.S. 953 (1980) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). “Factual attacks, ” on the other hand, challenge “the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.” Id.

Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). When the attack is factual, “no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Id. at 1529 (quoting Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir. 1981)).

         Federal Rule of Civil Procedure 12(b)(6), Fed. R. Civ. P., authorizes a motion to dismiss a complaint on the ground that its allegations fail to state a claim upon which relief can be granted. On such a motion, the “‘issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'” Little v. City of North Miami, 805 F.2d 962, 965 (11th Cir. 1986) (quoting Scheur v. Rhodes, 416 U.S. 232, 236 (1974)). The court assumes the factual allegations in the complaint are true and gives the plaintiff the benefit of all reasonable factual inferences. Hazewood v. Foundation Fin. Group, LLC, 551 F.3d 1223, 1224 (11th Cir. 2008) (per curiam).

         Rule 12(b)(6) is read in light of Rule 8(a)(2), Fed. R. Civ. P., which requires only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (citations, brackets, and internal quotation marks omitted). “Factual allegations must be enough to raise a right to relief above the speculative level ....” Id. Thus, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face, '” i.e., its “factual content ... allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).



         The court first considers the Contractors' motion, which asks for a dismissal or, in the alternative, a stay of these proceedings pending the resolution of the 2010 Claims Case and the 2014 Tort Case. (Doc. 36). In support, the Contractors argue that GIP has engaged in “improper claim-splitting.” (Doc. 8 at 1). More particularly, they maintain that GIP's claims against them, which are based on the removal of kish and slag from the Excluded Real Property, are part of the same cause of action underlying the 2014 Tort Case, in which GIP sought to recover based upon the removal and burial of the sections of the spur line tracks, also on the Excluded Real Property. The Contractors concede that, in the 2014 Tort Case, GIP did not plead a right to recover based on the removal of the kish and slag. (See Id. at 13 (observing that the 2014 Tort Case differs from the present action insofar as GIP has “added ‘kish' and ‘slag' to the property allegedly taken by the Defendants”). Nevertheless, the Contractors maintain that such claims made here are barred under the claim-splitting doctrine because GIP's claims in both cases are, the Contractors say, “based on the same set of operative facts--that [the United States], CMC, and Harsco tortiously converted private property and negligently exceeded their powers and authority while performing [an] EPA[-] directed cleanup of the Site.” (Id. at 6 (internal quotation marks and citation omitted)).

         GIP does not contest that the federal courts recognize a rule against claim-splitting. Rather, GIP argues that it has not, in fact, split its claim against the Contractors. That is, GIP insists that its conversion and negligence claims against the Contractors in this action, based on the removal of the kish and slag, are “entirely distinct and independent from GIP's prior claims relating to [the] conversion of GIP's railroad track.” (Doc. 45 at 8).

         In Vanover v. NCO Financial Services, Inc., 857 F.3d 833 (11th Cir. 2017), the Eleventh Circuit recently addressed, as an issue of first impression, the rule against claim-splitting, which “requires a plaintiff to assert all of its causes of action arising from a common set of facts in one lawsuit.” Id. at 841 (quoting Katz v. Gerardi, 655 F.3d 1212, 1217 (10th Cir. 2011). In other words, “a plaintiff may not split up his demand and prosecute it by piecemeal, or present only a portion of the grounds upon which relief is sought, and leave the rest to be presented in a second suit, if the first fails.” Id. (internal quotation marks and citation omitted). The claim-splitting doctrine thus ensures fairness to litigants, conserves scarce judicial resources, and promotes the efficient and comprehensive disposition of cases. Id.

         The court further recognized in Vanover that the claim-splitting doctrine derives from, and is analyzed as an aspect of res judicata known as claim preclusion. 857 F.3d at 836 n. 1, 841-42. So like res judicata, the claim-splitting doctrine may be raised by way of a Rule 12(b)(6) motion to dismiss. Id. at 836 n. 1. However, the Eleventh Circuit explained, whereas res judicata might apply only after the first suit has reached a final judgment, the claim-splitting doctrine applies where a second suit has been filed but no final judgment has yet been reached. Id. at 840 n. 3, 841. Nevertheless, Vanover held that the test for determining whether the rule against claim-splitting applies effectively incorporates the other requirements of res judicata by asking “whether the first suit, assuming it were final, would preclude the second suit.” Id. at 841 (quoting Katz, 655 F.3d at 1218). That is, the Eleventh Circuit recognized, a court is to examine whether both cases (1) “involve[ ] the same parties [or] their privies” and (2) “arise from the same transaction or series of transactions.” Id. at 841-42. “Successive causes of action arise from the same transaction or series of transactions when the two actions are based on the same nucleus of operative facts.” Id. at 842 (citing Petro-Hunt, LLC v. United States, 365 F.3d 385, 395-96 (5th Cir. 2004)).

         At the outset, the court observes that when the Contractors filed their motion to dismiss, the 2014 Tort Case was, of course, still pending. So with no final judgment in that case, res judicata could not have itself applied to GIP's claims in this action. Therefore, the Contractors' motion correctly invoked the related rule against claim-splitting. Since then, however, Judge Bowdre has entered a final judgment on the merits of GIP's claims in the 2014 Tort Case, ruling in favor of the Contractors. As such, it makes little sense for this court to ask whether this suit “would be” precluded as res judicata by the 2014 Tort Case, “assuming it were final, ” as the court would do in a claim-spitting inquiry under Vanover. Rather, since the ...

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