Case: 19-30440 Document: 00515738374 Page: 1 Date Filed: 02/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-30440 February 9, 2021
Lyle W. Cayce
Clerk
In re: Deepwater Horizon
______________________________
Sergio Alvarado,
Plaintiff—Appellant,
versus
BP Exploration & Production, Incorporated; BP
America Production Company; BP, P.L.C,
Defendants—Appellees,
______________________________
Sandra A. Iames,
Plaintiff—Appellant,
versus
BP Exploration & Production, Incorporated; BP
America Production Company; BP, P.L.C.; Transocean
Holdings, L.L.C.; Transocean Deepwater,
Incorporated; Transocean Offshore Deepwater
Drilling, Incorporated; Transocea, Limited; Ttiton
Asset Leasing GMBH; Anadarko Petroleum Corporation
Company; Anadarko E&P Company, L.P.; Halliburton
Energy Services, Incorporated,
Defendants—Appellees,
Case: 19-30440 Document: 00515738374 Page: 2 Date Filed: 02/09/2021
______________________________
Sheri Allen Dorgan,
Plaintiff—Appellant,
versus
BP, P.L.C.; BP Exploration & Production ,
Incorporated; BP America Production Company,
Defendants—Appellees,
______________________________
Brian Gortney,
Plaintiff—Appellant,
versus
BP Products North America, Incorporated; BP America
Incorporated; BP, P.L.C,
Defendants—Appellees,
______________________________
Sergio Valdivieso,
Plaintiff—Appellant,
versus
BP, P.L.C.; BP Products North America, Incorporated;
BP America, Incorporated,
Defendants—Appellees.
2
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC Nos. 2:10-MD-2179, 2:12-CV-2004, 2:13-CV-1778,
2:15-CV-1047, 2:17-CV-3217, 2:17-CV-3367
Before Higginbotham, Elrod, and Haynes, Circuit Judges.
Per Curiam:
This case presents another in the line of cases related to the
Deepwater Horizon oil spill. Four appellants—Sandra Iames, Sheri Allen
Dorgan, Brian Gortney, and Sergio Valdivieso—seek reversal of dismissals
with prejudice for failure to comply with orders of the multidistrict litigation
(MDL) judge to file particular information about their claims. Another
appellant—Sergio Alvarado—seeks reversal of his dismissal with prejudice
for failure to timely opt out of the settlement class. We affirm the district
court’s dismissals with prejudice of the claims of Iames and Alvarado and
reverse and remand the dismissals of Dorgan, Gortney, and Valdivieso.
I.
A.
Thousands of claims arose out of the Deepwater Horizon oil spill—
including the five at issue here. The MDL panel consolidated common claims
before the district court, creating several “Pleading Bundles.” The claims
here were part of the B3 bundle claims for cleanup and personal injury. To
facilitate the efficient resolution of claims, the district court in turn issued a
series of pretrial orders (PTOs).
This appeal concerns PTO 66, issued on April 9, 2018, requiring
remaining B3 plaintiffs to “provide more particularized information
regarding their claims” to help “the Court and the parties to better
understand the nature and scope of the injuries, damages, and causation
alleged.” It required remaining B3 plaintiffs to complete, sign, and serve on
3
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counsel for BP and the Plaintiffs’ Steering Committee a “Particularized
Statement of Claim” (PSOC) form by July 9, 2018. The order warned that
plaintiffs who failed to comply “may be required to show cause to this Court
why his, her, or its claims should not be dismissed with prejudice.”
PTO 66 further noted that some remaining B3 plaintiffs appeared to
be members of the Medical Benefits Class Action Settlement Class (Medical
Settlement Class), an earlier-approved settlement. Members of the Medical
Settlement Class were given the opportunity to opt out of the settlement and
pursue ordinary litigation by submitting a written request no later than
November 1, 2012. 1 It further directed BP and the settlement’s claims
administrator to determine whether any remaining B3 plaintiffs were
members of the Medical Settlement Class.
On September 20, 2018, the district court issued the PTO 66 Show
Cause Order, identifying plaintiffs who either failed to respond to PTO 66 or
whose response was materially deficient, including plaintiffs who still
appeared to be members of the settlement class. The court ordered these
plaintiffs to “show cause in writing on or before October 11, 2018 why this
Court should not dismiss his/her/its B3 claim(s) with prejudice for failing to
comply with the requirements of PTO 66.”
On January 31, 2019, the district court issued the PTO 66 Compliance
Order, dismissing with prejudice B3 claims that were deemed noncompliant
with PTO 66, as well as those barred by settlement, including the claims of
appellants here, and denied their motions for reconsideration. All five now
seek reinstatement of their claims.
1
The original deadline to opt out was October 1, 2012, but it was later extended to
November 1, 2012.
4
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B.
In 2017, Iames, who cleaned beaches in Florida after the oil spill, filed
her B3 complaint alleging personal injury. Although subject to PTO 66, she
did not respond to it, nor did she respond to the subsequent show cause
order. Accordingly, the district court dismissed her claims with prejudice.
Iames has offered no evidence that she ever came into compliance with PTO
66 by submitting a PSOC form.
C.
In 2017, Dorgan, claiming to have been exposed to oil and dispersants
on the beach behind her house in Alabama, filed her B3 complaint alleging
personal injury. Valdivieso, who cleaned waters in Louisiana after the oil
spill, and Gortney, who lived near the oil spill’s clean-up operations in
Florida, filed their lawsuits in state court alleging personal injury. Both cases
were removed and transferred to the MDL court and placed into the B3
bundle. All three plaintiffs—represented by the same counsel—failed to
respond to PTO 66 but did respond to the district court’s subsequent show
cause order.
Gortney responded to the show cause order on October 11, 2018, with
his PSOC form attached. Valdivieso also responded on October 11, 2018, but
his response did not initially include his PSOC form. As his response
explained, he had mailed his form to counsel, but it was delayed by Hurricane
Florence. Valdivieso served a supplemental response eight days later with his
PSOC form attached. 2 Dorgan also responded to the show cause order on
October 11, 2018, 3 claiming that her PSOC form would be late because her
2
The form was dated October 8, 2018.
3
Although Dorgan’s initial response to the show cause order was not a part of the
record below, we grant her motion to take judicial notice of it, as BP concedes that it was
served this response on October 11, 2018. See FED. R. EVID. 201(b).
5
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husband had a stroke on October 8, 2018. 4 She submitted her PSOC form on
October 23, 2018. 5 All three concede that they mistakenly served their
responses to the show cause order and their PSOC forms only on BP and
failed to file them with the court.
BP filed various objections to the show cause responses,
acknowledging that it received responses from Dorgan, Validivieso, and
Gortney. 6 However, it argued that Dorgan and Gortney should be deemed
noncompliant with PTO 66 for submitting their PSOC forms past deadline.
It further argued that Valdivieso should be deemed noncompliant for failing
to submit his form at all, but BP then discovered it did receive a form from
him on October 19, 2018.
The district court dismissed Dorgan, Valdivieso, and Gortney’s
claims with prejudice, finding their PSOC forms were “significantly late or
not submitted at all.” The court further noted that these plaintiffs
“appear[ed] to have served a show cause response on BP, but did not file a
show cause response with the Court.”
D.
In 2011, Alvarado, who worked as a deckhand on a vessel responding
to the oil spill, filed a short-form joinder, a statement authorized by an earlier
pretrial order that allowed plaintiffs to adopt an already-filed master
complaint as their own. In 2013, Alvarado filed his individual B3 complaint
alleging personal injury.
The district court’s show cause order identified him as a plaintiff in
the Medical Settlement Class and required him to show cause why he should
4
In briefing to this Court, Dorgan claims the stroke occurred on October 1, 2018.
5
The form was dated October 7, 2018. When she submitted her PSOC form,
Dorgan noted that her husband had died on October 16, 2018.
6
It appears that BP was aware that these plaintiffs failed to file their responses with
the district court.
6
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not be dismissed with prejudice. In his response, Alvarado argued that he
demonstrated his intention to opt out of the settlement class by filing his
individual complaint. The district court rejected this argument and dismissed
Alvarado’s claims with prejudice, concluding he was a class member who had
failed to opt out. He then sought reconsideration arguing that his claims
should be allowed to proceed pursuant to Federal Rule of Civil Procedure
60(b) because his failure to opt out constituted excusable neglect. The court
denied his motion.
II.
We first consider whether the district court erred in dismissing the
claims of Iames, Dorgan, Gortney, and Valdivieso for their noncompliance
with PTO 66 before turning to Alvarado’s challenge to the district court’s
dismissal of his claims for failure to timely opt out of the Medical Settlement
Class.
A.
We review a district court’s dismissal for failure to comply with its
orders mindful that the court has “broad discretion and inherent authority to
manage its docket,” including “the power to dismiss a case for a party’s
failure to obey the court’s orders.” 7 We review docket management for abuse
of discretion, affording a district court “special deference . . . in the context
of an MDL.” 8
At the same time, “because a dismissal with prejudice is an extreme
sanction that deprives the litigant of the opportunity to pursue his claim, this
court has limited the district court’s discretion in dismissing cases with
7
In re Deepwater Horizon (Perez), 713 F.App’x 360, 362 (5th Cir. 2018)
(unpublished) (per curiam).
8
In re Deepwater Horizon (Barrera), 907 F.3d 232, 234–35 (5th Cir. 2018).
7
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prejudice.” 9 Dismissals with prejudice for violations of docket management
orders require “a clear record of delay or contumacious conduct by the
plaintiff . . . where lesser sanctions would not serve the best interests of
justice.” 10 “[I]n most cases where this Court has affirmed dismissals with
prejudice, we found at least one of three aggravating factors: (1) delay caused
by the plaintiff himself and not his attorney; (2) actual prejudice to the
defendant; or (3) delay caused by intentional conduct.” 11
1.
Iames makes several arguments contesting the dismissal of her case
with prejudice. First, she argues that PTO 66 should be treated as a discovery
order rather than a docket management order. Second, she argues that the
record does not show “delay or contumacious conduct” on her part, and, in
any event, “lesser sanctions” would have served “the best interests of
justice.” Third, she argues that no aggravating factors in favor of dismissal
are present. We address each argument in turn.
First, contrary to Iames’s claim, we conclude that PTO 66 is a case-
management order. PTO 66 was aimed at “streamlin[ing] the remaining B3
claims and facilitat[ing] the administration of this MDL.” We have held that
9
In re Deepwater Horizon (Graham), 922 F.3d 660, 666 (5th Cir. 2019) (cleaned up).
BP argues that the only orders properly before the Court as to Iames, Dorgan, Valdivieso,
and Gortney are the district court’s denials for reconsideration, since these plaintiffs first
filed objections to their dismissal in the district court through their motions for
reconsideration. BP cites no case law supporting this proposition, and even when plaintiffs
in this litigation have not responded to a pretrial order and its subsequent show cause order,
we have reviewed the underlying dismissal with prejudice. See In re Deepwater Horizon
(Park National), 805 F. App’x 262, 265 (5th Cir. 2020) (unpublished) (per curiam).
10
Barrera, 907 F.3d at 235 (internal quotation marks omitted) (quoting Sealed
Appellant v. Sealed Appellee, 452 F.3d 415, 417 (5th Cir. 2006)).
11
Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992) (internal
quotation marks and citation omitted).
8
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similar pretrial orders, requiring sworn statements, are lawful exercises of the
district court’s docket management discretion. 12
Second, the record shows a clear record of delay by Iames. While she
eventually acknowledged PTO 66 through her motions for reconsideration,
she never complied with the order by submitting her PSOC form. Under our
precedent, Iames’s repeated failure to comply with PTO 66 amounts to a
clear record of delay. 13 In Barrera, another Deepwater Horizon case, we held
that the record showed a clear record of delay when plaintiffs repeatedly
failed to comply with a similar PTO—even when those plaintiffs, unlike
Iames, responded to both the PTO and the show cause order in a timely
fashion. 14
And, it does not appear that lesser sanctions would have served the
best interests of justice here. Lesser sanctions include “[a]ssessments of
fines, costs, or damages against the plaintiff or his counsel, attorney
disciplinary measures, conditional dismissal, dismissal without prejudice,
and explicit warnings.” 15 At the time of her dismissal, Iames had already been
subject to explicit warnings: both PTO 66 and the subsequent show cause
order specifically warned that noncompliance could lead to dismissal with
prejudice. Given the district court’s interest in streamlining the proceedings
through PTO 66, additional lesser sanctions would only “further delay the
district court’s efforts to adjudicate the MDL expeditiously.” 16
12
See Park National, 805 F. App’x at 264–65 (addressing PTO 65); In re Deepwater
Horizon (Cepeda), 765 F. App’x 980, 981 (5th Cir. 2019) (unpublished) (per curiam)
(addressing PTO 64).
13
See Barrera, 907. F.3d at 235–36; Park National, 805 F. App’x at 265 (holding
that failure to respond to both the order and the corresponding show cause order warranted
dismissal with prejudice).
14
See Barrera, 907. F.3d at 235–36.
15
Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir. 1982).
16
Barrera, 907 F.3d at 236.
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Third, while we agree with Iames that there are likely no aggravating
factors present here, this alone does not warrant overturning a dismissal with
prejudice. 17 Because the record shows a clear record of delay and lesser
sanctions would not have served the best interests of justice, we conclude
that the district court did not abuse its discretion in dismissing Iames’s claims
with prejudice.
2.
Unlike Iames, plaintiffs Dorgan, Valdivieso, and Gortney responded
to the show cause order and submitted their PSOC forms. Because of their
ultimate compliance with PTO 66, they argue that their claims were
dismissed without a clear record of “delay or contumacious conduct.”
Moreover, they contend that no aggravating factors counseling in favor of
dismissal with prejudice are present. We agree.
In Barrera and Graham, we affirmed dismissals with prejudice after
plaintiffs’ total failure to comply with similar PTOs following “the district
court’s warnings and second chances.” 18 But unlike those plaintiffs, after
Dorgan, Valdivieso, and Gortney were alerted to their mistake by the district
court’s show cause order, they timely responded and came into compliance
with PTO 66 by submitting their PSOC forms. 19 Admittedly, both Valdivieso
17
See id. at 235 n.1 (“[A]ggravating factors are not required for a dismissal with
prejudice.”)
18
See Barrera, 907 F.3d at 236.
19
See id. (“In fact, aside from a few untimely individuals, Plaintiffs never filed sworn
declarations that complied with PTO 60.”); Graham, 922 F.3d at 666 (“[D]espite the
extension, as in Barrera, the Lindsay Appellants failed to file anything by the new
deadline.”). On appeal, BP argues that Dorgan, Valdivieso, and Gortney further delayed
proceedings by failing to initially file their show cause responses and PSOC forms with the
court. Similarly, it argues that failure to file with the district court amounts to a violation of
PTO 12, which explained the method for electronic service in this litigation. But BP did not
raise these arguments below, and thus, does not preserve them for appellate review. See
Celanese Corp. v. Martin K. Eby Const. Co., 620 F.3d 529, 531 (5th Cir. 2010) (“The general
rule of this court is that arguments not raised before the district court are waived and will
10
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and Dorgan served BP with their PSOC forms over a week past the show
cause order deadline, but ultimately, all three plaintiffs came into compliance
with PTO 66 a little over three months after its deadline and about a month
after receiving a warning via the show cause order. This does not rise to the
level of delay that justifies dismissal with prejudice. 20 Additionally, unlike the
plaintiffs in Barrera and Graham, Dorgan, Valdivieso, and Gortney explained
why they failed to timely comply with PTO 66 and included corroborating
evidence. 21
Further, the record in this case does not contain any of the three
aggravating factors supporting dismissal with prejudice. Plaintiffs’ attorney
has repeatedly argued that failure to timely comply with PTO 66 was due to
his fault alone. And BP has failed to show how it was prejudiced by plaintiffs’
belated compliance with PTO 66. It only argues that allowing plaintiffs to
return to the MDL would impede progression of the litigation and prejudice
its interest in bringing the MDL to a close. However, BP offers no evidence
not be considered on appeal.”). Either way, it appears that the district court dismissed
these plaintiffs only for belatedly complying with PTO 66, and it accepted compliance with
PTO 66 on the date that plaintiffs served BP with their PSOC forms.
20
See Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326–27 (5th Cir. 2008)
(“[D]elay which warrants dismissal with prejudice must be longer than just a few months;
instead, the delay must be characterized by significant periods of total inactivity.” (internal
quotation marks and citation omitted)); Berry, 975 F.2d at 1191 n.6 (“Generally, where a
plaintiff has failed only to comply with a few court orders or rules, we have held that the
district court abused its discretion in dismissing the suit with prejudice.”).
21
See Barrera, 907 F.3d at 235 (concluding that plaintiffs’ clear record of delay was
evidenced by their failure to submit “any documentation or other evidence to the district
court corroborating their explanation for the delay”); Graham, 922 F.3d at 666
(determining that plaintiffs’ record of contumacious conduct was evidenced by failure to
submit any explanation for failure to timely comply with pretrial order). All three plaintiffs
claimed that they failed to comply with PTO 66, because their counsel “did not see and
was not aware of PTO 66.” In their responses to the show cause order, all three plaintiffs
attached sworn affidavits by counsel attesting that he did not become aware of PTO 66 until
seeing the show cause order. When she submitted her PSOC form, Dorgan also attached
evidence corroborating the timing of her husband’s death.
11
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that plaintiffs’ three-month delay actually prejudiced its ability to defend the
lawsuit. 22 Finally, the delay was caused by counsel’s mistake, not plaintiffs’
conduct; there is no evidence that the delay was intentional; it was not
calculated to gain advantage and there is no suggestion that it impeded the
proceedings or was contumacious.
B.
Alvarado challenges the district court’s dismissal of his claims for
failure to opt out of the Medical Settlement Class. Although Alvarado
concedes that he is member of the settlement class and failed to opt out, he
argues that his claims should be allowed to proceed because his failure to opt
out constituted excusable neglect. 23
In considering whether a party should be excused from an untimely
filing, this Court applies the Pioneer factors. 24 We consider: (1) why the
movant missed the deadline; (2) the length of the delay; (3) prejudice; and
(4) evidence of good faith. 25
As to why he missed the opt-out deadline, Alvarado contends that his
wife mistakenly threw away the notices mailed to him. Alvarado admits that
his wife received at least three notices of the settlement at their home. In
addition to these mailed letters, notice of the settlement was broadly
disseminated via “email, an extensive schedule of local newspaper, radio,
television and Internet placement, well-read consumer magazines, a national
daily business newspaper, highly-trafficked websites, and Sunday local
22
Cf. Sealed Appellant, 452 F.3d at 418 (explaining that failure to serve process
within the statute of limitations may actually prejudice a defendant if it affects a defendant’s
preparations for suit).
23
We review the district court’s denial of Alvarado’s Rule 60(b) motion for an
abuse of discretion. See Silvercreek Mgmt., Inc., v. Banc of Am. Sec., LLC, 534 F.3d 469, 472
(5th Cir. 2008).
24
Id.
25
Id. (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 395 (1993)).
12
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newspapers,” plus the creation of a “neutral, informational notice website”
that was “rendered in English, Spanish, and Vietnamese.” Furthermore, it
appears Alvarado was represented by counsel when he filed his short-form
joinder in April 2011, and nothing in the record indicates that his counsel
withdrew before the opt-out deadline. Alvarado does not address these
additional notices or his counsel’s role in his failure to opt out. And
Alvarado’s long length of delay weighs against him. Even if Alvarado’s filing
of an individual complaint in April 2013 counted as an implicit attempt to opt
out—which we reject 26—it came at least five months after the court-imposed
deadline of November 1, 2012. 27 BP also offers the overarching contention
that it would be prejudiced by a late opt out because the opt-out deadline was
a negotiated term of the settlement. We agree that the interest in finality
through settlement, while not determinative, also weighs against allowing
Alvarado’s late opt out. 28
In sum, we conclude that the district court did not abuse its discretion
in finding that Alvarado’s failure to opt out was inexcusable.
Finally, Alvarado urges that the district court violated due process by
approving an opt-out deadline that preceded the running of the statute of
limitations. This argument fares little better, as this Court has, in this MDL
26
Alvarado argues that he implicitly opted out of the settlement class by filing his
individual complaint. But we have previously rejected this argument, holding that “[g]iven
the size and complexity of this MDL proceeding, the court and parties should not have to
intuit an opt out from vague statements made in one of thousands of filings before the
court.” See In re Deepwater Horizon (Mason), 819 F.3d 190, 197–98 (5th Cir. 2016).
27
See Silvercreek, 534 F.3d at 471–73 (concluding that the district court did not
abuse its discretion in refusing to extend the opt-out date where the plaintiff waited a month
after the deadline to file his opt-out request).
28
See In re Diet Drugs Prods. Liab. Litig., 92 F.App’x 890, 894-95 (3d Cir. 2004)
(unpublished) (concluding that the “importance of accurately calculating initial opt-outs”
weighs against a finding of excusable neglect).
13
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litigation, approved settlement with an opt-out deadline set before the
statute-of-limitations date. 29
III.
For these reasons, we affirm the district court’s judgment dismissing
Iames and Alvarado’s claims and reverse the dismissal of the claims of
Dorgan, Gortney, and Valdivieso, remanding them for further proceedings
consistent with this opinion.
29
See In re Deepwater Horizon (Deepwater Horizon II), 739 F.3d 790, 795 (5th Cir.
2014). This settlement had the same opt-out date of November 1, 2012.
14
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Haynes, Circuit Judge, concurring in part, dissenting in part:
I concur in the judgment with respect to Iames and Alvarado. I
respectfully dissent as to the other three. We review matters concerning
docket management for abuse of discretion, affording a district court “special
deference . . . in the context of an MDL.” In re Deepwater Horizon (Barrera),
907 F.3d 232, 234–35 (5th Cir. 2018); see also Coleman v. Sweetin, 745 F.3d
756, 766 (5th Cir. 2014) (reviewing for abuse of discretion a district court’s
dismissal with prejudice for failure to comply with a court order). That
“special deference” is important in these massive MDL cases: yes, of
course, everyone is entitled to due process, whether in a single case or in an
MDL. But “[t]he ability for ‘judges to enforce orders pertaining to the
progress of their cases’ is most important in ‘[MDL] cases, where the very
purpose of the centralization before the transferee judge is the efficient
progress of the cases . . . .’” Barrera, 907 F.3d at 235 (quoting In re Asbestos
Prod. Liab. Litig. (No. VI), 718 F.3d 236, 248 (3d Cir. 2013)). Accordingly,
the need to ensure efficient and fair handling of massive litigation like this
one warrants particular deference to the highly-involved district court’s
views on issues like the propriety of a delay—we should be hesitant to
supplant our own views on whether that delay should be ignored.
Yet the majority opinion does just that, suggesting that Dorgan’s,
Valdivieso’s, and Gortney’s repeated failures to meet deadlines set by the
district court can be overlooked because they “timely responded and came
into compliance” after the show cause order. Unfortunately, that is not the
case.
Dorgan admits in her brief that she did not respond to PTO 66 by the
July 9, 2018 deadline, nor did she seek an extension. After being named in the
show cause order, she sent a response to BP by the October 11, 2018
deadline—but she both failed to file that response with the court as required
by PTO 12 and the show cause order and failed to include a particularized
statement as required by PTO 66. On October 23, she then served a
15
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“Supplemental Response to Court’s Order to Show Cause Regarding PTO
66,” this time including a particularized statement. In violation of PTO 12
and the show cause order, however, Dorgan did not file that response with
the court. After her complaint was dismissed, she sought reconsideration
acknowledging that her counsel “did not see and was not aware of PTO 66,”
“failed to follow the requirements of PTO 66,” and “erroneously thought”
that various documents, like the response to the show cause order, had been
filed when in fact they had not. The district court denied Dorgan’s motion
for reconsideration, explaining that her “attorneys’ own fault” in complying
with various orders did not warrant relief. Several motions later, she finally
provided to the court her PTO 66 submission and response to the show cause
order. The district court denied that motion and warned that monetary
sanctions would be imposed if she filed another motion for reconsideration
or similar request.
Similarly, Valdivieso and Gortney did not file their response to PTO
66 by the deadline. After being named in the show cause order, they did serve
a response on BP by the October 11, 2018 deadline, but they did not file that
document with the district court, a violation of both the show cause order and
PTO 12. More importantly, the document they served on BP was deficient
as to Valdivieso: although the unfiled response included a particularized
statement for Gortney as required by PTO 66, it did not include one for
Valdivieso. Hence, on October 19, 2018—more than a week after the show-
cause deadline—Valdivieso and Gortney served a “supplemental” response,
this time with the required particularized statement for Valdivieso. But they
also failed to file this supplemental response with the district court, only
including the document in a motion for reconsideration approximately four
months later. Like Dorgan, Valdivieso and Gortney blamed their lawyers, a
point the court found unavailing as their “attorneys’ own fault” in failing to
know about or comply with various orders did not justify relief.
16
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Notably, it was not until the court dismissed their cases that
Valdivieso and Gortney and, ultimately, Dorgan, filed their PTO 66 with the
court. BP makes a good argument that our review on appeal is limited to the
motions for reconsideration such that only Federal Rule of Civil Procedure
60 is at play here. Under Federal Rule of Civil Procedure 60(b)(1), the court
may relieve a party from a final judgment for “mistake, inadvertence,
surprise, or excusable neglect.” However, the admitted attorney mistakes
here—essentially, failures to meet clear filing deadlines—do not qualify. See
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392
(1993) (“[I]nadvertence, ignorance of the rules, or mistakes construing the
rules do not usually constitute ‘excusable’ neglect.”); Edward H. Bohlin Co.
v. Banning Co., 6 F.3d 350, 356–57 (5th Cir. 1993) (concluding that denial of
a Rule 60(b)(1) motion to set aside a dismissal “is not an abuse of discretion
when the proffered justification for relief is the ‘inadvertent mistake’ of
counsel”); see also Rayford v. Karl Storz Endoscopy Am., Inc., 740 F. App’x
435, 436–37 (5th Cir. 2018) (noting that “[c]alendaring errors and mistakes
about deadlines qualify as a careless mistake of counsel” and therefore do not
entitle a movant to relief from judgment); Brittingham v. Wells Fargo Bank,
N.A., 543 F. App’x 372, 374 (5th Cir. 2013) (same). Indeed, because “[g]ross
carelessness, ignorance of the rules, or ignorance of the law are insufficient
bases for Rule 60(b)(1) relief,” a district court “would abuse its discretion if it
were to reopen a case under Rule 60(b)(1) when the reason asserted as
justifying relief is one attributable solely to counsel’s carelessness with or
misapprehension of the law or the applicable rules of court.” Bohlin, 6 F.3d
at 356–57 (emphasis added).
Even if we ignore that the appeal concerns only the Rule 60 motions
and we address the underlying dismissals themselves, I respectfully disagree
with the majority opinion’s analysis. The majority opinion says that
Dorgan’s, Valdivieso’s, and Gortney’s conduct does not qualify as delay and
does not contain the necessary aggravating factors. First of all, it is not
necessary to show aggravating factors here, as the majority opinion
17
Case: 19-30440 Document: 00515738374 Page: 18 Date Filed: 02/09/2021
No. 19-30440
acknowledges with respect to Iames. 1 Barrera, 907 F.3d at 235 n.1
(“[A]ggravating factors are not required for a dismissal with prejudice.”).
Second, there was more than enough delay for the district court to justifiably
dismiss the complaints with prejudice. The original deadline which Dorgan,
Valdivieso, and Gortney all failed to comply with was July 9, 2018. Dorgan
did not actually submit her PTO 66 submission to the court until May 28,
2019. Valdivieso and Gortney did not submit a proper PTO 66 submission
to the court until after the dismissal as part of their motion for
reconsideration on February 8, 2019. Given the need to manage such a
mammoth number of cases in this MDL, timeliness is important, and their
failure to comply with deadlines constitutes the requisite delay. Thus, we
should affirm in full. Because the majority opinion fails to do so, I respectfully
dissent in part.
1
Curiously, although the majority opinion (correctly) states that the lack of
aggravating factors “does not warrant overturning” the dismissal of Iames’s claims, it
proceeds to treat the absence of aggravating factors as a primary reason for overturning the
dismissal of Dorgan’s, Valdivieso’s, and Gortney’s claims. Why it applies different
analyses here is a mystery. The same rule applies to all four of these plaintiffs: the district
court did not need to find aggravating factors to dismiss any of their claims. See Barrera,
907 F.3d at 235 n.1.
18