Opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CMP, LLC CIVIL ACTION

VERSUS NO. 24-2298

BOARD OF COMMISSIONERS FOR THE SECTION: D (1)

LAFITTE AREA INDEPENDENT

LEVEE DISTRICT

ORDER AND REASONS

Before the Court is a Motion to Certify Interlocutory Appeal Pursuant to 28

U.S.C. 1292(b), filed by Defendant The Board of Commissioners for the Lafitte Area

Independent Levee District (“LAILD”).1 Plaintiff CMP, LLC (“CMP”) opposes the

Motion.2 After careful consideration of the parties’ memoranda and the applicable

law, the Court DENIES the Motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

In a previous Order and Reasons, the Court has set forth a detailed recitation

of the factual background in this matter.3 The Court therefore provides the factual

and procedural background solely as relevant to the instant Motion.

This case arises from LAILD’s actions to raise an existing levee located on

CMP’s land in Jefferson Parish, Louisiana, prior to passing an appropriating

resolution.4 On January 22, 2026, the Court issued an Order and Reasons (the “Order

and Reasons”) holding that LAILD engaged in partial taking through its activities on

1 R. Doc. 113.

2 R. Doc. 114. LAILD did not file a reply brief in support of the instant Motion.

3 See R. Doc. 97.

4 R. Doc. 1.

CMP’s land and that CMP is entitled to a judgment of liability for a constitutional

partial taking under both the United States and Louisiana constitutions.5

On February 4, 2026, LAILD filed the instant Motion, asking the Court to

certify its Order and Reasons “for interlocutory appeal pursuant to 28 U.S.C.

§ 1292(b).”6 In support, LAILD submits that (1) the Order and Reasons involves a

controlling question of law; (2) a substantial ground for difference of opinion exists;

and (3) an immediate appeal will materially advance the ultimate termination of the

litigation.7 As to the first element, LAILD contends that the controlling legal issue is:

Whether a governmental entity’s failure to adopt a formal appropriation

resolution prior to construction constitutes a taking under the Fifth

and/or Fourteenth Amendments or inverse condemnation when

Louisiana law holds that non compliance with the statutory

appropriation procedure by a levee board does not affect the property

owner’s substantive rights and is directory rather than mandatory.8

LAILD contends that “[t]his question is controlling because it goes directly to the

existence of a constitutional taking—the predicate for liability in this case.”9 Second,

LAILD argues that:

The Court’s Order determined that the failure to adopt an appropriation

resolution prior to construction was constitutionally dispositive,

effectively elevating a state procedural requirement, which at least one

Louisiana court has deemed legally immaterial, into the determinative

factor for federal takings liability. LAILD respectfully avers that

reasonable jurists could disagree as to whether a federal constitutional

taking may be predicated on non-compliance with a state statutory

procedure that state law does not treat as mandatory or substantive.

This disparity between Louisiana jurisprudence and the Court’s

5 R. Doc. 106.

6 R. Doc. 113-1 at p. 1.

7 Id. at pp. 1–2.

8 Id. at p. 2.

9 Id.

constitutional analysis presents a substantial difference of opinion on a

controlling legal issue, warranting appellate review.10

As to the final element, LAILD asserts that “[a]bsent interlocutory review, the parties

will be required to proceed through further litigation based on a constitutional

determination that may later be reversed on appeal, resulting in wasted judicial and

party resources. Section 1292(b) was designed to avoid such inefficiency and waste.”11

Thus, according to LAILD, its Motion should be granted.12

CMP opposes the Motion, arguing that LAILD “has failed to make a showing

that an interlocutory appeal is available under these circumstances.”13 As to the first

element, CMP contends that:

[T]he statute which is the subject of the Board’s proposed interlocutory

appeal is completely irrelevant to the taking which took place, or, the

question of how appropriation occurs, or, the authority for same which

can only be gained by a Resolution of Appropriation, which did not

happen here. Consequently, there is no “Controlling Question of Law” in

play.14

Second, CMP argues that “there is no difference of opinion in the courts related to a

non-existent exception to the well-established jurisprudential rule of law as to how

appropriation authority is obtained through a Resolution of Appropriation, which

must take place before a Levee Board invades private property to build a levee.”15 As

to the third element, CMP submits that “[t]his case is ‘nearly ready for trial’ and

therefore an interlocutory appeal at this time could hardly be viewed as advancing

10 Id. at pp. 3–4.

11 Id. at p. 4.

12 Id.

13 R. Doc. 114 at p. 2.

14 Id. at p. 5.

15 Id. at p. 6.

the termination of the litigation.”16 Accordingly, CMP argues that the instant Motion

should be denied.17

II. LEGAL STANDARD

The Court may certify an interlocutory order for immediate appeal if it finds

that: (1) the order involves a controlling question of law; (2) as to which there is

substantial ground for difference of opinion; and (3) “an immediate appeal from the

order may materially advance the ultimate termination of the litigation.”18 The Fifth

Circuit strictly construes the requirements of 28 U.S.C. § 1292(b), and all three

criteria must be met before this Court may certify an interlocutory appeal.19

According to the Fifth Circuit, “The basic rule of appellate jurisdiction restricts review

to final judgments, avoiding the delay and extra effort of piecemeal appeals. Section

1292(b) appeals are “exceptional.”20 Thus, “[a]n interlocutory appeal assuredly does

not lie simply to determine the correctness of a judgment of liability.”21 Further,

“Interlocutory appeals represent a rarely used exception to the strong judicial policy

disfavoring piecemeal appeals.”22 “The decision to certify an interlocutory appeal is

within the sound discretion of the district court.”23

16 Id. at p. 9 (quoting Scott v. Ruston Louisiana Hospital Company, LLC, Civil Action No. 16-0376,

2017 WL 1364219, at *1 (W.D. La. Apr. 12, 2017)).

17 Id.

18 28 U.S.C. § 1292(b).

19 Weams v. FCA US L.L.C., Civ. A. No. 17-4-RLB, 2019 WL 3812222, at *1 (M.D. La. July 9, 2019)

(Bourgeois, M.J.) (citing Ala. Labor Council v. Alabama, 453 F.2d 922, 924 (5th Cir. 1972)).

20 Clark-Dietz and Associates-Engineers, Inc. v. Basic Const. Co., 702 F.2d 67, 69 (5th Cir. 1983).

21 Id. at 68.

22 Complaint of L.L.P.&D Marine, Inc., Civ. A. Nos. 97-1668, 97-2992, 97-3349, 1998 WL 113937, at *2

(E.D. La. Mar. 11, 1998) (Clement, J.) (citing Clark-Dietz, 702 F.2d at 69).

23 Complaint of L.L.P.&D Marine, Inc., 1998 WL 113937, at *2 (citing Swint v. Chambers Cnty.

Comm’n, 514 U.S. 35, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995)).

III. ANALYSIS

LAILD asks the Court to certify its Order and Reasons for interlocutory appeal

pursuant to 28 U.S.C. § 1292(b). “Section 1292(b) sets out three criteria all of which

must be met before the district court may properly certify an interlocutory order for

appeal.”24 For the reasons set forth below, the Court finds that LAILD has failed to

satisfy the second and third elements of § 1292(b) and therefore declines to certify its

Order and Reasons for an interlocutory appeal.

As to the second element of § 1292(b), whether there is a substantial ground

for difference of opinion, a previous Section of this Court has explained that such

ground exists where:

[A] trial court rules in a manner which appears contrary to the rulings

of all Courts of Appeals which have reached the issue, if the circuits are

in dispute on the question and the Court of Appeals of the circuit has

not spoken on the point, if complicated questions arise under foreign

law, or if novel and difficult questions of first impression are presented.

But simply because a court is the first to rule on a question or counsel

disagrees on applicable precedent does not qualify the issue as one over

which there is substantial disagreement.25

Here, LAILD argues that a substantial ground for difference of opinion exists because

the Court’s Order and Reasons pertains to an issue of first impression within the

Fifth Circuit and because Louisiana caselaw, of which the Court found

distinguishable in its Order and Reasons, provides a different result based on

analogous factual scenarios.26 At its core, LAILD’s argument is a disagreement “on

24 Aparicio v. Swan Lake, 643 F.2d 1109, 1110 n.2 (5th Cir. 1981)(emphasis added).

25 Gulf Coast Facilities Management, LLC v. BG LNG Services, LLC, 730 F.Supp.2d 552, 565–66 (E.D.

La. Aug. 2, 2010)(Feldman, J.)(citation modified).

26 See R. Doc. 113-1.

applicable precedent[,]” which “does not qualify the issue as one over there is

substantial disagreement.”27 Thus, the Court finds that LAILD has failed to satisfy

the second element of § 1292(b).

As to the third element, whether an interlocutory appeal may advance the

termination of the litigation, a “key concern is whether permitting an interlocutory

appeal will speed up the litigation[,]” as “the institutional efficiency of the federal

court system is among the chief concerns motivating § 1292(b).”28 “For example, if a

case is nearly ready for trial, an interlocutory appeal is generally not proper, as

delaying such a case would actually hamper its progress towards termination.”29

Here, LAILD contends that “[a]bsent interlocutory review, the parties will be

required to proceed through further litigation based on a constitutional

determination that may later be reversed on appeal, resulting in wasted judicial and

party resources.”30 But this is true in every case at the district court level. If the

Court accepted that argument, interlocutory review would be available in almost any

matter, thereby contravening the “strong judicial policy disfavoring piecemeal

appeals.”31 Additionally, the above-captioned matter has been pending since

September 20, 2024, and trial is currently set for November 16, 2026.32 Liability has

been determined, and the three-day jury trial solely pertains to the determination of

damages, if any.33 This matter is therefore “nearly ready for trial[,]” and the Court

27 Gulf Coast Facilities Management, LLC, 730 F.Supp.2d at 566.

28 Ryan v. Floweserve Corp., 444 F. Supp. 2d 718, 723 (N.D. Tex. June 9, 2006)(citation modified).

29 Scott, 2017 WL 1364219, at *5.

30 R. Doc. 113-1 at p. 4.

31 Complaint of L.L.P.&D Marine, Inc., 1998 WL 113937, at *2 (citing Clark-Dietz, 702 F.2d at 69).

32 See R. Docs. 1 and 118.

33 See R. Doc. 106.

finds that certification of an interlocutory appeal would not materially advance the

ultimate termination of the litigation.34

Indeed, an appeal to the Fifth Circuit at this point would actually delay

termination of the litigation. Damages are the only matters to be resolved at trial,

which will conclude in November. Certifying an interlocutory appeal will result in a

delay while the Fifth Circuit undertakes its review. Accordingly, because the Court

has found that LAILD has failed to satisfy the second and third elements of § 1292(b),

the Court need not address the first element – whether the Order and Reasons

involves a controlling question of law.

In sum, interlocutory appeals are typically disfavored,35 and the certification

of an order for an interlocutory appeal falls squarely within the district court’s sound

discretion.36 Exercising this discretion, the Court determines that, based on the

absence of a substantial ground for difference of opinion and because an interlocutory

appeal will not advance the ultimate termination the litigation, this is not one of those

“exceptional circumstances justify[ing] a departure from the basic policy of

postponing appellate review until after the entry of a final judgment.”37 The Motion

is denied.

IV. CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that LAILD’s Motion

34 Scott, 2017 WL 1364219, at *5.

35 See Allen v. Okam Holdings, Inc., 116 F.3d 153, 154 (5th Cir. 1997)(“Interlocutory appeals are

generally disfavored, and statutes permitting them must be strictly construed.”).

36 Complaint of L.L.P.&D Marine, Inc., 1998 WL 113937 at *2.

37 Silverthorne Seismic, L.L.C. v. Sterling Seismic Services, Limited, 125 F.4th 593, 601–02 (5th Cir.

2025)(citation modified).

to Certify Interlocutory Appeal Pursuant to 28 U.S.C. 1292(b) is DENIED.

New Orleans, Louisiana, June 8, 2026.

______________________________

WENDY B. VITTER

United States District Judge