# In the United States Court of Federal Claims

No. 11

- 275L (Filed: January 11 , 2019 )

BIG OAK FARMS, INC., et al.,

Plaintiffs,

v. THE UNITED STATES,

Defendant. )

) ) ) ) ) ) ) ) ) ) Fifth Amendment Taking Claims; Motion to Dismiss; 28 U.S.C. § 25 0 1 ; Time

- barred; Relation Back; RCFC 15(c); Clas s Action Tolling; RCFC 12(b)(6).

Benjamin D. Brown , Washington, DC, and J. Michael Ponder , Cape Girardeau, MO, for plaintiff. Laura Alexander , Washington, DC, of counsel. Taylor Ferrell and Sean C. Duffy , U.S. Department of Justice, Environmental and Natural Resources Division, Washington, DC, with whom was Jean E. Williams , Deputy Assistant Attorney General, for defendant. Brigman Harman , U.S. Department of Justice, Washington, DC, of counsel. OPINION FIRESTONE , Senior Judge. Pending before the court is the United States ’ (the “ government ” ) motion filed on March 29, 2018 (ECF No. 125) to dismiss the claims of over 120 plaintiffs (hereinafter

“ additional plaintiffs ” ) on the grounds that t heir claims, identified for the first time in the2

Third Amended Complaint filed on March 16, 2018 (ECF No. 121) , 1 are time

- barred under 28 U.S.C. § 2501

. 2 This case was initially filed on May 3, 2011 (ECF No. 1) on behalf of 34 plaintiffs and an unidentified class of additional plaintiffs . In the original complaint, the plaintiffs claimed that they were bringing the action on behalf of themselves and an alleged class following flooding that began “ at approximately 10 p.m. on May 2, 2011 ” when the United States Arm y Corps of Engineers ( “ the Corps ” ) “ intentionally breached the Birds Point levee . . . and inundated approximately 130,000 acres of Mississippi and New Madrid Counties, Missouri with flood waters from the Mississippi River

. ” Compl. ¶ 20. Some of the original 34 plaintiffs had grant ed easements to the Corps to allow for their land to be flooded during certain conditions and received payments for their easement. The plaintiffs who had granted these easements to the Corps also alleged that, to the extent the easements were enforceable, that the Corps had exceeded the scope of its easements. Amend. Compl. ¶ ¶ 95

- 102 (ECF No. 32)

. The government moved to dismiss the takings claims set forth in the initial March 3, 2011 complaint on September 9, 2011 for failure to state a claim upon whic h relief can be granted (ECF No. 19) under Rule 12(b)(6) of the Rules of the United States Court of

1 On April 23, 2012, the plaintiffs filed a second amended complaint (ECF No. 32). On March 16, 2018, the plaintiffs filed their third amended complaint, but improperly filed and titled it as their second amended complaint (ECF No. 121). Thus, the court wil l refer to the March 16, 2018 complaint as the Third Amended Complaint.

2 “Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition is filed within six years after such claim first accrues.” 28 U .S.C. § 2501.3

Federal Claims ( “ RCFC 12(b)(6) ” ). On May 4, 2012, the court granted the government ’ s motion to dismiss the plaintiffs ’ takings claims (ECF No. 35). However, shortly thereafter the Supreme Court issued its decision in Arkansas Game & Fish Commission v. United States , 568 U.S. 23 (2012) and after additional briefing on the Supreme Court ’ s decision, the court reinstated the plaintiffs ’ takings claims on July 23, 2013 (ECF No. 61) and the parties began discovery. After fact discovery was completed in 2016, t he parties filed cross

- motions for partial summary judgment on plaintiffs ’ taking claims (ECF Nos. 100, 101). The court denied summary judgment on March 17, 2 017 stating that there were disputed issues of fact regarding whether the property damage suffered from activation of the Floodway was the same as would have occurred had the government not breached the levee or , if the flooding was greater than would have occurred without the breached levee, whether the benefits the plaintiffs have received from operation of the levee system outweigh ed the harm caused by the breach of the Birds Point Levee. Big Oak Farms, Inc. v

. United
States , 131 Fed. Cl. 45, 54 (2017)

. In a joint status report filed on November 21, 2017 (ECF No. 120), the plaintiffs informed the court that despite having earlier agreed to seek class certification after the

court ’ s ruling on summary judgment , the plaintiffs decided not to seek class certification.
Instead , the plaintiffs informed the court that they had decided to amend their complaint to remove the request for class certification and instead to amend their complaint to name additional individual plaintiffs. On March 16, 2 018, plaintiffs filed what is now their Third Amended Complaint (ECF No. 122). The Third Amended Complaint includes the4

claims of the original plaintiffs as set forth in the Second Amended complaint but does not include allegations to support a class actio n and now also adds t he claims of over 120 additional parties seeking just compensation under the Fifth Amendment based on the Corps ’ breach of the Birds Point Levee on May 2, 2011. On April 27, 2018, t he government filed the pending motion to dismiss the claims of the additional plaintiffs for lack of subject matter jurisdiction under RCFC 12(b)(1) on the grounds that the additional plaintiffs ’ clai ms, which were filed more than six years after the Corps breached the Birds Point levee, are barred by the si x - year statute of limitations in 28 U.S.C. § 2 501 (ECF No. 125) . The plaintiffs argue in response that the claims of the added plaintiffs relate back to the original complaint filed on May 3, 2011 under RCFC 15(c)(1)(B). 3 The plaintiffs also argue that because the initial complaint included allegations regarding a claim for a class action, the statute of limitations was tolled for the period of time the plaintiffs had maintained a claim for class certification

a nd thus the claims of the additional plaintiffs are timely. For the reasons that follow, the court finds that the claims of the additional plaintiffs do not relate back to the original May 3, 2011 complaint and that a claim for a class action does not toll the statu te of limitations where, as here, the court has never ruled on or has been ask ed to rule on class certification . Therefore, the court GRANTS

3 “ [A]n amendment of a complaint relates back to the date of the original complaint when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out

— or attempted to be set out

— in the origi nal pleading. ” RCFC 15(c)(1)(B).5

the government ’ s moti on to dismiss the claims of the additional plaintiffs first named in the Third Amended Complai nt on the grounds that their claims are time

- barred.
I. FACTUAL BACKGROUND The facts surrounding the breach of the Birds Point Levee which gave rise to this
case can be found at this court ’ s opinion in Big Oak Farms, Inc. v. United States , 131 Fed. Cl. 45 (2 017) denying summary judgment and will not be repeated here. Set forth below are the facts from the original, First, Second , and Third Amended complaints that the additional plaintiffs rely on in support of their contention that the c ourt has jurisdiction to hear the ir claims. These facts are deemed true unless otherwise noted. As noted above, 34 plaintiffs filed a Class Action complaint on May 3, 20 1 1, stating that the action was being brought “ on Behalf of a Class consisting of: all persons
and entities who owned property in the affect ed Birds Point New Madrid Count y Floodway at the time the levee was breached ” and that “ [t]he Class is so numerous a joinder of the individual members of the proposed Class is impracticable. ” Compl. ¶¶ 45

- 56. In the initial complai nt, the plaintiffs identified 34 plaintiffs. Id. ¶ 2

- 16. 4

4 The plaintiffs named in the Second Amended Complaint as listed in its caption are: Big Oak Farms, Inc.; Mt. Level Farms, Co., Inc.; Stallings Brothers Farms; Burke Land Co.; Emmitt Burke, Individually; Brad Hequembourg Fa rms; Brad and Susan Hequembourg, Individually; Terry and Judy Hequembourg, Individually; Wolf Island Farms, Inc.; Mark and Rebecca Dugan, Individually; M & M AG Farms, Investments; Mike Hutcheson and Marty Hutcheson, Individually; Jennifer T. Baker Trust; Lindsay and Monica Goodin, Individually; John and Clyda Goodin, Individually; Stephen and Janette Story Farms, Inc.; Shew & Presson Farms, Inc.; Roy Presson, Individually; Ray Presson, Individually; Jack Feezor, Individually; The Orvil Shew Marital Trust; Story Farms, Inc.; Story Land, Inc.; Sunburst Plantation, Inc.; Lester Goodin and Janet Goodin, Individually; Consolidated Drainage District No. 1 of Mississippi County, Missouri; Dee Goodin, Individually. In its initial complaint, Consolidated Drainage Di strict No. 1 of Mississippi County, Missouri was not listed as a plaintiff.6

On July 11, 2011, the plaintiffs filed an amended Class Action complaint (ECF No. 8). In that amended complaint, the plaintiffs expanded their class action allegations to include: All person s and entities who owned and/or leased real and/or personal property and/or who owned business in the Bird s Point

- New Madrid Floodway that were damaged or destroyed by floodwaters pursuant to Defendant ’ s operation of the Floodway on May 2, 2011. Excluded f rom the Class are Defendant, Defendant ’ s officers, legal representatives, and assigns. Amend. Compl. ¶ 66. The amended complaint further stated that the action was being brought “ as a class action because, upon information and belief, the Class includes hundreds if not thousands of members [

. ] ” Id. ¶ 67. In that same amended complaint, plaintiffs alleged that “ [a]ll Plaintiffs own real property within the Birds Point

- New Madrid Floodway. . . . ” Id. ¶ 31. The amended complaint also included a fact that “ [a] p p roximately 90 residences were destroyed by the intentional breaches of the levee and subsequent flooding. ” Id. ¶ 60. Plaintiffs filed a Second Amended Complaint on April 17, 2012 (ECF No. 31) but did not change any of the named plaintiffs or allegations regarding the nature of alleged class. 5 The parties filed a Joint Preliminary Status Report (“JPSR”) on August 9, 2012 (ECF No. 40), in which they agreed that “ [i]f members of the putative class wish to proceed in this case as named plaintiffs rather than absent class members, such elections

5 The Second Amended Complaint was brought by Big Oak Farm s, Inc. and included the same 33 plaintiffs , with the addition of Consolidated Drainage District No. 1 of Mississippi Co unty, Missouri, and was filed on behalf of a proposed class of persons or entities that owned land or business within the floodway. The aforementioned sections quoted from the amended complaint remained the same.7

[ needed to] be made by February 15, 2013. ” JPSR at 2. The parties further agreed that they planned to “ make a proposal to the Court regarding the schedule for

. . . briefing regarding class certification ” after the court ruled on the parties ’ cross - motions for summary judgment under RCFC 56. Id. at 5.
O n April 28, 2017, a fter the court denied the cro ss - motions for summary judgment , t he government filed a joint proposed schedule (ECF No. 116) which stated that because “ this is a complicated case due to the numerous properties involved

. . . fact discovery will require a significant amount of time. ” The parties proposed that plaintiffs submit their motion for class certification on September 22, 2017. Id. Th e court adopted the proposed schedule on May 30, 2017 , (ECF No. 117). On September 21, 2017, the parties filed a joint motion to extend the deadline for class certification for 60 days (ECF No. 118). 6 The court adopted the extension in a scheduling ord er t he next day (ECF No. 119). On November 21, 2017, the parties filed a joint status report (“JSR”) (ECF No. 120) in which the plaintiffs elected not to seek certification of a class but to instead proceed with only individual claims. The status report state d that the “ [p]laintiffs have elected not to seek to certify a class or multiple subclasses in this action, ” and “ [i]nstead, [the plaintiffs] will be proceeding with non

- class claims. ” JSR at 1

. Further, the JSR

6 That motion explained that the parties were conferring about “ whether a class action is the best vehicle for resolving the Plaintiffs ’ claims or whether other procedural avenues might be more efficient ” and that the extension would “ allow the parties to more fully consider the complexities of this case and the best manner in which to address them before burdening this Court with a class certification motion. ” Id

.8

indicated that the “ [p]laintiffs will be fil ing an amended complaint in coming weeks to reflect the absence of class claims. This amended complaint may or may not reflect the explicit addition of previously unnamed class members who wish to proceed in the litigation in light of the fact that their c laims will not be pursued in a class action. ” Id. In that same JSR , the government “ indicated that [the government] will move to dismiss any such claims as time

- barred. ” Id. Four months later, the plaintiffs filed a motion for leave to file the Third Amen ded Complaint on M arch 16, 2018 (ECF No. 121). Pl s . ’ Mot. for Leave to File Second Am. Compl. & Mem. In Supp. ( “ Mot. for Leave ” ). Plaintiffs asserted that “ absent class members ” were coming forward “ to convert their claims from class claims to individual claims

. . . . ” Mot. for Leave at 1. The Third Amended Complaint identified 123
additional plaintiffs and removed all references to class action claims in the complaint. Id. , Ex. 1

. 7 The United States did not oppose the motion to amend but alerted the cour t of

7 The Third Amended Complaint did not include nine of the plaintiffs named in the Second Amended Complaint. Those nine plaintiffs are M & M Ag Farms Investments; Story Land, Inc; Sunburst Planation, Inc; Emmitt Burke; Judy Hequembourg; Lester Goodin; Janet G oodin; and Dee Goodin. Therefore, only 25 plaintiffs included in the Second Amended Complaint were also identified in the Third Amended Complaint (hereinafter “original 25 plaintiffs”). The additional plaintiffs first identified in the Third Amended Compla int : Preston Adams, Brent Adams and Valarie Adams Smith; Larry and Cathy Allred; John and Joyce And erson; Bayou Du Chein, LLC; Roland and Carolyn Ashby; Sam G. Austin; Charles and Leslie Babb; Five Star Farms, Inc.; Daniel J. Babb Farms; Jackie L. and P a ul a F. Barker Trust; Abner M. B e ck Living Trust and Julia R. Beck Living Trust; Joe and Dora Brown; Fred and Cheryl Bryant; Fred Bryant Inc.; Susan H. Bryant; J Bryant, Inc.; Michael Bryant; Bryant Farms Inc.; Mildred Burnett; Carol A. and Ronnie L. Butler; Jeffrey D. Byrne; Nita S. Byrne; Richard Crawford; Rodney Crawfod; James M. Cullison Family Trust; William and Pam Deline; Deline Farms Partnership; Brian Dill Farms; William D. and Ginger Dill; William C. and Laverne Dunn; William Feezor for B & F Farms, Inc.; Alice B. Fox Family Trust; Leslie S. Fox Living Trust; Leslie Fox Farms, L.P.; Jay and Lucille Frazier; Leonard Gallion; Albert Goodin; R. E. Lee Goodin; Goodin Farms; Goodin Land Co.; Robert and Sharon Henry; Terry Hequembourg; Thomson Heirs; Amos F rank and9

its intention “ to separately move to dismiss the claims brought by the newly

- identified plaintiffs for the first time in the proposed amended complaint on the basis that those claims are barred by the applicable statute of limitations. ” Joint Mot. to Amend Schedule ¶ 1, ECF No. 123. The Third Amended Complaint stated that the “ actions are properly brought and litigated together and relate back to the initial complaint in this matter because certain questions of law or fact are common to all plaintiffs and have been put at issue since the initial complaint in this matter. .

. . ” Third Am. Compl. ¶ 187

.

Elizabeth Higgerson; Glenn M. Hillhouse Farms , Inc. ; Hillhouse Farms, Inc.; Hillhouse Family, LLC; Col. David K. Holland Revocable Living Trust; Claire M. Holland; Claire M. Holland Revocable Living Trust; Nancy N. Holland Revocable Living Trust; David K. Holland Jr. and Jennifer Kalfsbeek, Holland/Kalfsbeek Joint Revocabl e Living Trust; Mary Hough; Hunt er Padberg, LLC; Jon and Tammi Hutcheson; MKH Farms, LLC; Joe Hutchison; Jenita B. Jones; McIvan Jones; Jones Family Farms; McIvan Jones Farms, Inc .; Michael Kemp; Michael Kemp Inc.; Mary Beth Lee & Phyllis Aduddell; Terry and Mar y Beth Lee; Abbie Story LeFevre; Alan Long and Gary Long; Carolyn Luebke; Marshall Affi liates, Inc.; Arthur Mattingly for Virginia Dare Farms , Inc.; Stanley D. May; Laura B. Meek for Janet Bondurant Q

- tip Trust; Louis Miller for Ringo Farms Corp.; Michael and Janet Bogle Monk; James C. Moreton Living Trust and Eleanor P. Moreton Living Trust ; John C. and Nancy E. Moreton; Moreton Farms, Inc.; Moreton Farms, Inc.; Moreton Part nership; Robert and Donna Morgan; Moxl ey Farms, Inc.; E. Moxley, Inc.; P & J Moxley Farms, LLC; Kevin S. and Jonell L. Nally; D. Lowell and Joan J. Nally; Marilyn Nally; Joe Oliver and David Oliver for Bur Oak Farms; Robert and Gloria Osborn; Scott Peters; JSP Farms; Albert Peters; Pinhook Hunting Club, LLC; Pinhook Hunting Club Properties, LLC; John L. and Samm ie L. Ponder; Catherine Presson ; Daisy R. Reeves and Florence Canepari; O.A. Reeves Trust; David and Marilyn Renaud; Lindsay Camp Ringo, Sr.; Mary K atherine Servatius Family Trust; Roy and Barbara Smith; Bart Stallings; Jeff Stallings; JBS Farms, Inc. ; Bart & Jeff Stallings Farms; Martin Stallings; A.L. Story, Inc.; ABC Farms, Inc.; Ernest Story; Shelby Story; Stephen and Karen Story; Ernest Tate; Nea l Tinnon; Milus and Wanda Wallace; Mary Ellen Weaver and Gene R. McClay; Gene R. McClay Revocable Living Trust; White Oaks Ranch, L.P.; C. David Williams; Donald Williams Farms, Inc.; Donald Williams; Donald Williams Living Trust; Elizabeth Williamson Trus t; John R. Wilson

.10

II. LEGAL STANDARDS The standards upon which motions to dismiss for lack of subject matter jurisdiction can be granted are well

- settled. “ Whether this c ourt has subject matter jurisdiction is a threshold matter, and , if no jurisdiction exists, the C ourt must order dismissal without further proceedings. ” Vanquish Worldwide, LLC v. United States , 134 Fed. Cl. 72, 76 (2017) (citing PODS, Inc. v. Porta Stor. Inc. , 484 F.3d 1359, 1365 (Fed. Cir. 2007). The plaintiff has to establish the court ’ s subject matter jurisdiction “ by a preponderance of the evidence. ” Fid. & Guard. Ins. Underwriters, Inc. v. United States , 805 F.3d 1082, 1087 (Fed. Cir. 2015) (citing Brandt v. United States , 710 F.3d 1369, 1373 (Fed. Cir. 2013)). “ In deciding a motion to dismiss for lack of subject matter jurisdiction, the court accepts as true all uncontroverted factual allegations in the complaint, and construes them in the light mos t favorable to the plaintiff. ” Estes Exp. Lines v. United States , 739 F.3d 689, 692 (Fed. Cir. 2014). However, if the factual allegations in the complaint supporting jurisdiction are challenged o nly the uncontroverted factual allegations are accepted as tr ue. Id. (citations omitted). Additionally, the court can “ look beyond the pleadings and ‘ inquire into jurisdictional facts ’ to determine whether jurisdiction exists. ” BRC Lease Co. v. United States , 93 Fed. Cl. 67, 71 (2010) (quoting Rocovich v. United Sta tes , 933 F.2d 991, 993 (Fed. Cir. 199 1)). Claims under the Tucker Act are subject to the six

- year statute of limitations set forth in 28 U.S.C. § 2501. “ A claim under the Tucker Act accrues as soon as all the events have occurred that are necessary to ena ble plaintiff to bring suit. ” Fredericksburg11

Non

- Profit Housing Corp. v. United States , 113 Fed. Cl. 244, 252 (2013) (citing Goodrich v. United States , 434 F.3d 1329, 1333 (Fed. Cir. 2006 ) ). “ As a matter of law, a takings claim accrues when all the events have occurred which fix the liability of the Government and entitle the claimant to institute an action. ” CRV Enters., Inc. v. United
States , 86 Fed. Cl. 758, 769 (2009) (internal quotations and alterations omitted) (quoting John R. Sand & Gravel Co. v. Un ited States , 457 F.3d 1345, 1355

- 56 (Fed. Cir. 2006), aff ’ d 552 U.S. 130 (2008)), aff ’ d , 626 F.3d 1241 (Fed. Cir. 2010). The statute of limitations set in 28 U.S.C. § 2501 is jurisdictional. John R. Sand & Gravel Co. , 552 U.S. at 133. Rather than protecting “ a defendant ’ s case - specific interest in timeliness, ” a jurisdictional statute of limitations works “ to achieve a broader system

related goal, such as facilitating the administration of claims, limiting the scope of a government waiv er of sovereign immunity, or promoting judicial efficiency [

. ] ” Id. (citations omitted). Jurisdictional statutes of limitations require “ a court to decide a timeliness question despite a waiver ” and “ forbid [] a court to consider whether certain equitable co nsiderations warrant ex tending a limitations period. ” Id. at 134. Thus,

“ equitable tolling and estoppel do not extend the six

- year statute of limitations embedded in U.S.C. § 2501. ” CRV Enters. , 86 Fed. Cl. at 769 (citation omitted).
III. DISCUSSION
The government argues that the claims of the additional plaintiffs first identified in the Third Amended Complaint must be dismissed from the action for lack of jurisdiction because the claims of these plaintiffs were filed more than six years after the breach of the Birds Pointe levee on May 2, 2011 and are thus time

- barred under 28 U.S.C. § 2 501.12

The plaintiffs do not dispute that the claims of the additional plaintiffs have been filed outside the six

- year statute of limitations set under 28 U.S.C. § 2 501 but argue that the claims relate back to the original complaint under R CFC 15(c) and are therefore timely. In the alternative they argue the claims are timely because the statute of limitations was tolled while plaintiffs were seeking class action status under the Federal Circuit ’ s holding
in Bright v. United States , 603 F.3d 1273 (Fed. C ir. 2010). Both of the plaintiffs ’ contentions are examined below in turn. A. The Additional Plaintiffs ’ Claims Do Not Relate Back Under R CFC 15(c) R CFC 15(c)(1)(B) provides that “ an amendment of a complaint relates back to the date of the original complain t when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out

— or attempted to be set out

— in the original pleading. ” The Federal Circuit has allowed R CFC 15(c) to “ overcome the government ’ s challenge based upon the six

- year statute of limitations [ , ] ” when the claim

“ sufficiently relates back to [the] original complaint. ” Barron Bancshires, Inc. v. United
States , 366 F .3d 1360, 1370 (Fed. Cir. 2004); see also Snoqualmie Tribe of Indians ex rel. Skykomi sh Tribe of Indians v. United States , 178 Ct. Cl. 570, 588 (1967) (finding that the additional claim was “ sufficiently closely related ” to apply the relation back doctrine). In deciding whet her an amended complaint adding additional plaintiff s sufficiently relates back , this court generally appl ies a four

- factor test. See Holland v. United States ,13

62 Fed. Cl. 395, 407

- 8 (2004)

. 8 Under this test, relation back is favored where 1) the claim arose out of the ‘ same conduct, transaction, or occurrenc e ’ as the original complaint; 2) the new plaintiff shares an ‘ identity of interest ’ with the original plaintiff; 3) the defendant had ‘ fair notice ’ of the new plaintiff ’ s claim; and 4) the addition of the new plaintiff causes the defendant prejudice. These factors overlap to some degree, however, e ach factor will be individually examined below. Whether the additional claims arise out of the same conduct, transaction, or

occurrence for purposes of relation back turns on an examination of the government actions giving rise to the plaintiffs ’ claims. The government concedes that “ the claims of the new landowners arise out of the same event ” but argue that “ there are distinct transactions that give rise ” to each of the plaintiffs ’ claims. Def. ’ s Mot. to Dis miss at 1 0

. In making this argument the government states that “ because a taking analysis will require an evaluation of the particular property interests pertaining to each parcel,

8 The Federal Circuit has not ha d occasion to rule on this four

- factor test, but the se same factor s are relied upon in other circuits including the D.C. Circuit. Leachman v. Beech Aircraft Corp. , 694 F.2d 1301, 1309 (D.C. Cir. 1982) (We find persuasive the . . . need to limit relation back of claims asserted by additional plaintiffs in some way beyond the ‘conduct, transaction, or occurrence’ test that applies to relation back of amendments generally. Without some limit, total strangers w ith claims arising out of a multi

- victim incident might join pending actions long after the statute of limitations had lapsed”); In re Syntex Corp. Sec. Litig. , 95 F.3d 922, 935 (9th Cir. 1996) (finding that a change relates back “only when: 1) the origina l complaint gave the defendant adequate notice of the claims of the newly proposed plaintiff; 2) the relation back does not unfairly prejudice the defendant; and 3) there is an identity of interests between the original and newly proposed plaintiff”); Baya tfshar v. Aeronautical Radio, Inc. , 934 F. Supp. 2d 138 , 144 (D.D.C. 2013). Notably, some circuits do not permit adding additional plaintiffs under Rule 15(c) after the statute of limitations. See Asher v. Unarco Material Handling, Inc. , 596 F.3d 313, 318 (6th Cir. 2010) (“The precedent of this circuit clearly holds that an amendment which adds a new party creates a new cause of action and there is no relation back to the original filing for purposes of limitations”) (citation omitted).14

including the existence and terms of flowage easements, ” each claim contain s distinct evidentiary concerns. Id. at 10

- 11. Plaintiffs respond that “ [t]here is not a single allegation of conduct that differs between the initial Complaint and the Third Amended Complaint, nor are there descriptions of any additional

– or any fewer

– transactions or occurrences described in the Third Amended Complaint that were not present in the original pleading. ” Pls. ’ Resp . at 9

- 10. The plaintiffs argue that all of the flooding at issue in this case arises from the Corps ’ breach of the Birds Point Levee on a single day, May 2, 2011. The court agrees with the plaintiff that the takings claims arose from the same action or event

– the Corps ’ breach of the Birds Point Levee. The government is also correct that the takings claims of each individual prop erty owner are different

. However, the fact that the takings claims of each property owner is different and that each will have to establish their own taking claim under the multi

- factor test established for temporary taking s in Arkansas Game and Fish Comm ’ n v. United States , 568 U.S. 23 38

- 39 (2012) does not mean that the underlying government action giving rise to the taking is different for each plaintiff in this case. The court thus finds that this factor weighs in the additional plaintiffs ’ favor.
W hether the additional plaintiffs share an identity of interest with the original plaintiffs presents a more difficult issue. The government argues based on prior precedent that to meet this criteria , the additional plaintiffs and original plaintiffs must b e essentially one in the same in order to satisfy this factor test

. Snoqualmie Tribe , 178 Ct. Cl. at 588 ; Nielsen v. Prof’ l Fin. Mgmt., LTD. , 682 F. Supp. 429 (D. Minn. 1987) . The15

plaintiffs argue, in response , that the identity of interest factor is conce rned primarily with “ notice ” and whether the claims of the old and additional plaintiffs are sufficiently related that the government understood that additional plaintiffs also had takings claims arising from the same event. The court finds that both parti es have over

- stated their positions and that the identity of interest factor is intended to ensure that the old and additional plaintiffs are sufficiently related such that the claims of the additional plaintiffs were in effect part of the litigation from the outset of the litigation

. In this regard, t he plaintiffs argue that because the case was initially filed as a class action that the additional plaintiffs ’ claims were in effect part of the litigation from the outset. The government argues this is not true because the takings claims of the old and additional plaintiffs while based on the same event are inherently different and are not the

same for each

. A ccording to the government, e ach plaintiff will need to establish that the temporary flooding of his or her property amounts to a taking . As such, the government
argues the takings claims of the additional plaintiffs were not before the court at the

outset of the litigation

. T he court agrees with the government that it is not enough to have identified a potential class of persons with property that was flooded by the same event to meet the

“ identify of interest ” test

. Different from other class actions where perhaps all of the class plaintiff s suffer the same injury from the same event, in this case, there is no basis to conclude that each of the additional plaintiffs suffer ed the same level of temporary flooding that the original plaintiffs endured. W hether the additional plaintiffs can estab lish a takings claim will turn on their individual circumstances , as the Supreme16

Court explained in Arkansas Game and Fish , the duration and severity of the flooding must be assessed on a case by case basis along with the character of the land at issue and the landowner ’ s reasonable investment expectations

. 568 U.S. at 38

- 39

. Put another way,

w hile the flooding may have been caused by a single event, ea ch plaintiff will have to establish the government ’ s liability for a n individual temporary taking based on their own unique factual circumstances. For similar reasons, this court in an other flooding takings

case hel d that plaintiffs who sought to join the litigation after the statute of limitations had passed had filed too late because the “ geographic proximity of a discrete parcel of land to property owned by plaintiffs asserting a takings claim is not enough” t o satisfy the identify of interest test for purposes of RCFC 15 (c)

. Creppel v. United States , 33 Fed. Cl. 590, 596 (1995)

. The court finds that the reasoning in Creppel is applicable to this case and that regardless of whether the government understood that other landowners may also have been flooded by the breach of the Birds Pointe Levee, the additional plaintiffs have not shown that their claims for a temporary taking are sufficiently similar to the takings

c laims brought by the plaintiffs identified in the Second Amended Complaint that their claims were effectively before the court such that the additional plaintiffs can meet the id entit y of interest test. Regarding the third factor

– whether the defendant had fair notice of the additional plaintiffs ’ claims

– the court finds , for essentially the same reasons as discussed above, that th is factor weighs against permitting the additional plaintiffs ’ claims to relate back to the original complaint. While it is true that the government was on notice that the original plaintiffs planned to seek class certification on behalf of potentially “ thousands ” of other17

landowners who had pro perty flooded by the breach of the Birds Pointe Levee , t he court agrees with the government that “ mere reference to a class action in the original complaint did not apprise the United States of the identit y of the new claimants that would assert takings cl aims, nor of any property

- specific facts related to their takings claims. ” Def. ’ s Mot. to Dismiss at 10. Rule 15(c ) requires more than notice of a potential class to establish notice of individual plaintiff claims. In the Second Amended Complaint (ECF No. 32), filed before the statute of limitations had run, the plaintiffs described the class as follows: “ All persons and entities who owned and/or leased real and/or personal property and/or who owned business in the Birds Point

- New Madrid Floodway that were damaged or destroyed by floodwaters pursuant to Defendant ’ s operation of the Floodway on May 2, 2011. ” Sec. Amend. Compl. ¶ 66. This description did not put the government on notice of any specific location, property interest, or the damage to property fo r any of the newly named plaintiffs under the standards set in Arkansas Game and Fish

. Had the plaintiffs identified with some precision the facts giving rise to the temporary takings claims for various categories of landowners under the Arkansas Game and Fish criteria perhaps the Second Amended Complaint would have given the government fair notice of the additional plaintiffs’ claims

. However, this is not the case. As discussed above, because Arkansas Game and Fish establishes a multi

- factor test that must be satisfied on a case

- by

- case basis to establish liability for a temporary taking, something more than notice that many property owners were affected by flooding is required to meet the notice of the claim criteria. For these reasons, the cour t finds t hat t he government did not have fair notice of18

the additional plaintiffs ’ claims before the statute of limitations expired to satisfy R CFC 15(c )

. Finally, as to whether adding the additional plaintiffs ’ claims will cause the defendant prejudice t he court finds as follows. “ Undue prejudice may be found when an amended pleading would cause unfair surprise to the opposing party, unreasonably broaden the issues, or require additional discovery. ” Cooke v. United States , 79 Fed. Cl. 741, 742

- 43 (2007) ( citation omitted). The government argues that adding over 100 additional claim ants would lead to “ potentially significant expansion of discovery. ” Def. ’ s Mot. to Dismiss at 11. The plaintiffs respond that “ the newly

- named Plaintiffs are indeed all persons or entities who owned property in the affected floodway ” so “ no undue prejudice could possibly result from relation back. ” Pls. ’ Resp . at 17. Plaintiffs further argue that the additional plaintiffs ’ claims “ would not be subject to detailed discovery for

so me time ” and “ each scheduling proposal in this case has explicitly addressed the timing and mechanisms for resolving these claims. ” Id. The court again a grees with the government that allowing relation back to include
123 more plaintiffs would be prejudicial to the government in this case

. Increasing the number of plaintiffs by over 100 creates a clear litigation burden particularly given the years that have passed and the proof required to prove impacts to property more than

seven years after the flood ing in 2011. Accordingly, t his factor also weigh s against allowing for relation back of the additional 12 3 plaintiffs ’ claims. In sum, for the reasons stated above, the court finds that the majority of factors for allowing relation back we igh against plaintiffs and thus the court finds that the claims of19

the additional plaintiffs first identified in the Third Amended Complaint are barred by the

statut e of limitations in 28 U.S.C. § 2501 unless tolling of the statute of limitations applies.
B. The Class Action Tolling Doctrine Does Not Apply Here Where Plaintiffs Failed to File a Motion and Receive a Ruling On Class Certification The Federal Circuit has allowed for tolling of the statute of limitations in 28 U.S.C. § 2 501 under certain circumstances involving class actions. See Bright v. United
States , 603 F.3d 1273, 1285 (2010). 9 In Bright , the plaintiff, in a takings case, had filed a class action complaint and sought class certification before the statute of limitations had

run , but class member s did not have the opportunity to opt in until after the statute of limitations had run

. Id. at 1277. In allowing for tolling in that circumstance, the Federal Circuit held that “ when class certification is sought prior to the expi ration of [ section
2501 ’ s limitations ] period, but the complaint is not amended to add other named plaintiffs as putative class members until after the expiration of the period

. . . [ t ] he statute of limitations is tolled during the period the Court of Fed eral Claims allows putative class

9 There is no ques tion that the Tucker Act’s statute of limitations at 28 U.S.C. § 2501 cannot be tolled equitably by this court. In John R. Sand & Gravel Co. , the Supreme Court stated that Section 2501 was jurisdictional in that it “ seek[s] to achieve a broader system

- rela ted goal, such as . . . limiting the scope of a governmental waiver of sovereign immunity. ” 552 U.S. at 133. The Supreme Court later clarified that it has “ repeatedly held that [the Tucker Act ’ s] 6

- year limit [is] jurisdictional and thus not subject to equitable tolling. ” United States v. Kwai Fun Wong , 135 S. Ct. 1625, 1634 (2015). The Federal Circuit stated that “ the fact that equitable tolling is barred under section 2501 does not mean that class action statutory tolling is also barred. The two concep ts are different. ” Bright , 603 F.3d at 1287. The Federal Circuit distinguished equitable tolling which “ permits courts to modify a statutory time limit ” from class actions where courts do “ not modify a statutory time limit ” but “ suspend[] or toll[] the run ning of the limitations period for all purported members of a class once a class suit has commenced. ” Id. at 1287

- 88.20

members to opt in to the class

. ” Id. at 1290. In allowing for tolling under the factual circumstance in Bright , t he Federal Circuit left unanswered the question “ of whether tolling would be allowed where a class certification was soug ht after the limitations period

. ” Id. at 1290 n9. The Federal Circuit also had no occasion to consider the issue presented here, i.e. whether tolling is allowed where the original plaintiff s never sought class certification and then a fter the statute of limitations had run voluntarily amend ed their complaint to remove the request for class certification and instead added plaintiffs to the complaint as though they were “ opting into ” a case where class certification w as granted

. T he pla intiffs argue that this court should treat the additional plaintiffs lik e the plaintiffs allowed to opt in to Bright and allow for tolling because the plaintiffs in this case originally requested class certification in the prayer of relief of their Second Amended Complaint . Pls.’ Resp. at 23. The plaintiffs requested that “ the Court issue an appropriate Order certifying the Class pursuant to the Court ’ s Rule 23, designating the named Plaintiffs as the representatives for such Class, and appoin ting Plaintiffs ’ counsel as counsel for the Class. ” ). 10 Sec. Am. Compl. at 20 ¶ 1. According to the plaintiffs , the statute of limitations was tolled until the request for certification in the prayer for relief was abandoned in the Third Amended complaint w hen the additional plaintiffs join ed the lawsuit

.

10 “ At an early practicable time after a person sues as a class representative, the court must determine by order whether to certify the a ction as a class action. ” RCFC 23(c)(1)(A).21

The government argues that plaintiffs ’ reliance on Bright is misplaced because Bright only allows for tolling where class certification is granted and time is needed , after the limitations period has pass ed, to allow members of the class to join the case as parties under the court ’ s opt in class action procedure. 11 Here, the government explains, the plaintiffs never sought class certification and when they abandoned the ir request for class status after the statute of limitations had expired , they relinquished their tolling claim

. The court agrees with the government that Bright does not allow for tolling in this

case. H ad the plaintiffs in this case timely sought a ruling on class certification and the court had granted certification , t he y could rely on Bright . However , the plaintiffs did not follow the court ’ s class action procedure in this case and thus Bright does not apply. The plaintiffs argue that by filing a complaint which contains class claims and a request for class certification in the prayer for relief that the rationale that supported tolling in Bright should be extended to apply i n this case. In support of their argument, the plaintiffs cite two cases where th is court permitted class tolli ng where the motion for class certification was submitted after the statute of limitations had expired. Pl s . ’ Resp. at 22 (citing Geneva Rock Products, Inc. v. United States , 100 Fed. Cl. 778 (2011) and Toscano v. United States , 98 Fed. Cl. 152 (2011)). Plaintiffs argue that so long as the re

was a request for class certification in the complaint pending before the court, tolling
should be allowed.

11 The governmen t argues following the Supreme C ourt ’ s ruling in California Public Employees ’ Retirement System ( “ CalPERS ” ) v. ANZ Securities, Inc. , 137 S. Ct. 2042 (2017), that Bright may no longer be good law. Because the court agrees with the government that Bright does not authorize tolling in this case, it has no occasion to rule on whether Bright remains good law.22

T he government argues that plaint iffs ’ argument conflict s with the express holding
in Bright which rejected the “ contention that the filing of the original complaint satisfied the limitations requirement of section 2501 outright for all putative members of the class. ” Bright , 603 F.3d at 1283. The holding in Bright , the government argues , extend s only to cases where there was a motion and ruling on c lass certification. The court agrees with the government. Whereas here the plaintiffs never moved for ruling on their request for class certification in th eir prayer for relief, there was nothing more than a class c omplaint pending before the court and under the holding in Bright a class complaint is not sufficient to toll the statute of limitations. If by simply filing a class action complaint a party could unilaterally toll the statut e of limitations and then have new parties join the litigation as though the new parties were opting into a class
action without any court ruling on class certification , why would any party seek class certification before this court. Plaintiffs ’ approach, if adopted, would create a majo r jurisdictional loophole and is thus rejected

. 12
CONCLUSION For the forgoing reasons, the government ’ s motion to dismiss the additional plaintiffs ’ claims first listed in the Third Amended Complaint as time

- barred under RCFC 12(b)(1) is GRANTED

. The parti es shall file a proposed draft order dismissing the additional plaintiffs who se claims are time

- barred by the statute of limitations and file a

12 A s discussed at the oral argument, the statute of limitations problem in this case is a problem of the plaintiffs ’ own making. The plaintiffs were aware of Bright and the limits of its holding and had more than enough time to file an appropriate motion for class certification.23

joint status report proposing a schedule for next steps for resolving the litigation. T he plaintiff shall also file a Fifth Amended Complaint that reflects the court’s ruling in this opinion and identifies the remaining plaintiffs . The aforementioned draft order , joint status report, and amended complaint shall be filed by January 18, 2019

. I T IS SO ORDERED. s/Nancy B. Firestone NANCY B. FIRESTONE Senior Judge