CMP, L.L.C. v Board of Commissioners for the Lafitte Area independent Levee District

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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.
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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.
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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.
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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)).
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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.
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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.
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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).
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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
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