Case: 18-31292 Document: 00515309067 Page: 1 Date Filed: 02/13/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 13, 2020
No. 18-31292 Lyle W. Cayce
Clerk
In re: DEEPWATER HORIZON
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PARK NATIONAL CORPORATION, and its wholly owned entities and
subsidiaries including; VISION PARK PROPERTIES, L.L.C.; SE PROPERTY
HOLDINGS, L.L.C., individually and as successor in interest to; VISION
BANK,
Plaintiffs - Appellants
v.
BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C.; TRANSOCEAN OFFSHORE
DEEPWATER DRILLING, INCORPORATED; TRANSOCEAN
DEEPWATER, INCORPORATED; TRANSOCEAN HOLDINGS, L.L.C.;
TRITON ASSET LEASING GMBH; HALLIBURTON ENERGY SERVICES,
INCORPORATED; SPERRY DRILLING SERVICES, a division of
Halliburton Energy Services, Incorporated, formerly known as Sperry Sun
Drilling Services,
Defendants - Appellees
___________________________________________________________
Consolidated with No. 19-30001
In re: DEEPWATER HORIZON
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DESTIN DEVELOPMENT, L.L.C.,
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No. 18-31292 c/w No. 19-30001
Plaintiff - Appellant
v.
BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C.; TRANSOCEAN OFFSHORE
DEEPWATER DRILLING, INCORPORATED; TRANSOCEAN
DEEPWATER, INCORPORATED; TRANSOCEAN HOLDINGS, L.L.C.;
HALLIBURTON ENERGY SERVICES, INCORPORATED; SPERRY
DRILLING SERVICES, a division of Halliburton Energy Services,
Incorporated, formerly known as Sperry Sun Drilling Services,
Defendants - Appellees
----------------------------------
RODERIC WRIGHT,
Plaintiff - Appellant
v.
BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C.; TRANSOCEAN OFFSHORE
DEEPWATER DRILLING, INCORPORATED; TRANSOCEAN
DEEPWATER, INCORPORATED; TRANSOCEAN HOLDINGS, L.L.C.;
HALLIBURTON ENERGY SERVICES, INCORPORATED; SPERRY
DRILLING SERVICES, Halliburton division, formerly known as Sperry Sun
Drilling Services,
Defendants - Appellees
----------------------------------
BARBARA WRIGHT,
Plaintiff - Appellant
v.
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Case: 18-31292 Document: 00515309067 Page: 3 Date Filed: 02/13/2020
No. 18-31292 c/w No. 19-30001
BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C.; TRANSOCEAN OFFSHORE
DEEPWATER DRILLING, INCORPORATED; TRANSOCEAN
DEEPWATER, INCORPORATED; TRANSOCEAN HOLDINGS, L.L.C.;
HALLIBURTON ENERGY SERVICES, INCORPORATED; SPERRY
DRILLING SERVICES, a division of Halliburton Energy Services,
Incorporated,
Defendants - Appellees
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:10-MD-2179
USDC No. 2:13-CV-2862
USDC No. 2:13-CV-1091
USDC No. 2:13-CV-2420
USDC No. 2:13-CV-834
Before DAVIS, HAYNES, and OLDHAM, Circuit Judges.
PER CURIAM:*
Park National Corporation (“Park National”) and Destin Development,
L.L.C. (“Destin”) appeal the dismissal of their claims with prejudice. For the
following reasons, we AFFIRM.
I. Background
After the 2010 Deepwater Horizon oil spill, many cases—including the
two at issue here—were consolidated into a multidistrict litigation (“MDL”)
proceeding. As part of its efforts to organize the many claims, the district court
created different “pleading bundles”; the claims here were part of the B1
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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bundle, which covers certain claims for economic loss and property damage.
The district court has issued different pretrial orders (“PTOs”) to help the
remaining claims progress toward resolution.
This appeal concerns PTO 65, which required remaining B1 plaintiffs to
provide sworn answers to four questions by April 11, 2018. The PTO was filed
only in the master docket and not in the B1 plaintiffs’ individual dockets. On
May 25, 2018, the district court issued a Show Cause Order and required that
any plaintiff who failed to file a PTO 65 submission show cause by June 15,
2018, why that plaintiff’s claims should not be dismissed with prejudice. The
Show Cause Order included a list of plaintiffs, including Park National and
Destin, who had failed to file a PTO 65 submission.
Destin filed a response to the Show Cause Order on June 15, 2018. It
argued that its attorney was not served with PTO 65 and had reviewed his
clients’ individual dockets but had not seen the order. The district court
dismissed Destin’s claims with prejudice, noting that the attorney had failed
to sign up for electronic service as required by an earlier PTO, and that most
filings in the MDL occur only in the master docket. Park National did not
timely respond to the Show Cause Order, so the court dismissed its claims with
prejudice.
II. Standard of Review
We review the district court’s docket-management determinations for an
abuse of discretion and afford the district court “special deference” because
these cases are part of an MDL. In re Deepwater Horizon (Graham), 922 F.3d
660, 666 (5th Cir. 2019) (quoting In re Deepwater Horizon (Barrera), 907 F.3d
232, 235 (5th Cir. 2018) (per curiam)). However, because dismissals with
prejudice are “extreme sanction[s],” we will affirm them only if (1) there is a
clear record of delay or contumacious conduct by the plaintiff and (2) lesser
sanctions would not serve the best interests of justice. Id.
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III. Discussion
We hold that the district court did not abuse its discretion because the
record reflects contumacious conduct and a lesser sanction would not better
serve the interests of justice.
A. Clear Record of Delay or Contumacious Conduct
“Contumacious means a willful disobedience of a court order.” Id. at 666
(cleaned up). In Barrera, we upheld a dismissal with prejudice when the
plaintiffs failed to comply with a PTO even after receiving an extension and
did not submit evidence to corroborate their reasons for delay in response to a
show cause order. 907 F.3d at 235. Then, in Graham, we affirmed a similar
dismissal where the PTO warned that noncompliance would result in dismissal
with prejudice and the plaintiffs thereafter failed to comply. 922 F.3d at 666.
But we reversed a dismissal with prejudice for a different group of plaintiffs
who, after seeking guidance from the MDL’s plaintiffs’ steering committee,
mistakenly believed that they were in a group of plaintiffs instructed to file
sworn statements instead of individual lawsuits and accordingly filed the
wrong documents. Id. at 665, 667–68.
Here, Park National failed to respond to both PTO 65 and the
corresponding Show Cause Order. This repeated failure to respond shows a
record of contumacious conduct. Destin’s situation presents a slightly closer
question, as Destin responded to the Show Cause Order. However, its counsel’s
failure to sign up for electronic service is not the type of good-faith mistake we
considered in Graham. Instead, the error shows that Destin’s counsel
disregarded not only PTO 65 but also the district court’s instructions in an
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earlier PTO. Destin’s failure to comply with multiple PTOs demonstrates a
record of contumacious conduct.
B. Lesser Sanctions and the Best Interests of Justice
“Lesser sanctions include assessments of fines, costs, or damages against
the plaintiff, conditional dismissal, dismissal without prejudice, and explicit
warnings.” Barrera, 907 F.3d at 236 (cleaned up). We do not think a lesser
sanction would better serve the interests of justice. In fact, during argument,
counsel for plaintiffs did not identify an effective lesser sanction. Counsel
suggested that the district court could have warned the plaintiffs that another
failure to comply with its orders would result in dismissal with prejudice. But
especially in large MDLs like this one, a warning may not help the district
court effectively manage the numerous claims. Timely responses to PTOs are
necessary for long-pending cases to move toward resolution, and counsel has
not identified a lesser sanction that would have effectively served this aim.
Additionally, even though PTO 65 did not state that noncompliance
would result in dismissal with prejudice, we do not think the interests of justice
require a different result. PTO 65 “require[d]” the B1 plaintiffs to file sworn
statements. Thereafter, the Show Cause Order mandated that the plaintiffs
“show cause in writing . . . why [the district court] should not dismiss his/her/its
B1 claim(s) with prejudice for failing to comply with the requirements of PTO
65.” In addition to being advised that an initial response to the PTO 65 was
required, Park National and Destin were provided notice that an
unsatisfactory response to the Show Cause Order might result in dismissal
with prejudice. One filed an unsatisfactory response; the other, no response at
all. The district court did not abuse its discretion in dismissing their cases.
AFFIRMED.
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