Comer Strikes Again - Comer State Law Claims Refiled
In a move that is largely flying under the radar, Ned Comer and fellow plaintiffs refiled their climate change tort action in the U.S. District Court for the Southern District of Mississippi on May 27, 2011. See Case No. 11-220. The new action, based on diversity jurisdiction, alleges public and private nuisance, trespass, and negligence causes of action under Mississippi law. The complaint claims that plaintiffs suffered damages in Hurricane Katrina as a result of the production, exploration, mining, or combustion activities by the coal, oil, and chemical companies. As in the prior action, they argue that the defendants’ GHG emissions made Hurricane Katrina more ferocious and damaging.
Recall that this court previously dismissed the case on political question doctrine and standing grounds. The Fifth Circuit had once reversed and let the case go forward. But then the decision was vacated and for procedural reasons the court could not hear the case. The court lost the quorum for en banc review. Application of court rules led to the reinstatement of the trial court decision. Plaintiffs filed a writ of mandamus with the Supreme Court but the Court did not grant it.
After all of those procedural machinations, now the case is back. Plaintiffs rely on the following Mississippi statutory provision as a basis for refiling some of the same claims:
If in any action, duly commenced within the time allowed, the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if, after verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on appeal, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit, or after reversal of the judgment therein, and his executor or administrator may, in case of the plaintiff's death, commence such new action, within the said one year.
Miss. Stat. § 15-1-69. Plaintiffs apparently wanted this action on file when AEP was decided or they simply wanted to file before the one-year deadline in this statute. It will be interesting to watch the reaction to this.
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