Case: 20-30689 Document: 00515963806 Page: 1 Date Filed: 08/03/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
August 3, 2021
No. 20-30689 Lyle W. Cayce
Clerk
In re: Deepwater Horizon
Albert B. Moore, III; A’Donna Richardson; Rashawn
White; Yen Do; Ellasha Galloway, for the minor child B.S.;
Frances Roberts; George Pickett; Scott Porter,
Plaintiffs—Appellants,
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; Halliburton Energy Services,
Incorporated,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:10-MD-2179
Before Clement, Haynes, and Wilson, Circuit Judges.
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No. 20-30689
Per Curiam:*
This case is another in the line of cases related to the Deepwater
Horizon oil spill. Eight individuals (collectively, “Plaintiffs”) appeal the
district court’s order dismissing their claims with prejudice. We AFFIRM.
I. Background
To effectively resolve claims arising under MDL 2179—the
multidistrict litigation handling all lawsuits against BP and other related
defendants (collectively, “BP”) stemming from the Deepwater Horizon oil
spill—the district court established pleading bundles for different categories
of cases. Plaintiffs are all part of the B3 pleading bundle, which includes
personal-injury claims, and allege that they sustained medical conditions
arising from exposure to the oil spill. As B3 plaintiffs, Plaintiffs were required
to comply with several pretrial orders (“PTOs”). They complied with all
PTOs up until PTO 68, which was issued on October 21, 2019. The question
of compliance with that order prompted this appeal.
Of relevance, PTO 68 required Plaintiffs to provide past and present
information about their medical conditions, which would be treated as
interrogatory answers: the dates those conditions were diagnosed and first
treated, names of their diagnosing healthcare providers, and whether
treatment was currently being obtained. After requesting and receiving one
extension, Plaintiffs responded to PTO 68 with conflicting information; they
answered “N/A” or “Did not seek treatment” as to the past, but they then
indicated they were still receiving treatment in the present. Plaintiffs revised
their answers after conferring with BP, but the inconsistencies remained.
Thus, BP noted Plaintiffs’ noncompliance with PTO 68 in its status report to
the district court.
*
Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.
2
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The district court agreed that Plaintiffs’ responses were noncompliant
and issued a show cause order requiring Plaintiffs to explain by May 18, 2020
“why their claims should not be dismissed for failing to comply with PTO
68.” Plaintiffs conceded that their initial responses were internally
inconsistent; but they argued that they could sufficiently cure those
inconsistencies with another revision by saying they “d[id] not recall” as to
the past. Plaintiffs accordingly filed another revision. In sum, Plaintiffs
thrice attempted to comply with PTO 68, answering “N/A,” “Did not seek
treatment,” or “does not recall” about the past but also answering that they
were currently seeking treatment. 1
Concluding that Plaintiffs’ responses were “puzzling” and “hard to
make sense of” at the show cause hearing, the district court held that
Plaintiffs failed to comply with PTO 68 and dismissed their claims with
prejudice. Plaintiffs timely appealed.
II. Standard of Review
We review docket-management matters for an abuse of discretion. In
re Deepwater Horizon (Barrera), 907 F.3d 232, 234 (5th Cir. 2018) (per
curiam). A district court abuses its discretion when “its ruling is based on an
erroneous view of the law or a clearly erroneous assessment of the evidence.”
Id. (quotation omitted).
III. Discussion
Plaintiffs argue that the district court abused its discretion in
dismissing their claims with prejudice. The parties agree that dismissal with
1
Certain Plaintiffs answered that they did not recall the requested dates and
diagnosing doctor in their initial response and/or their first revision. Despite the district
court finding those answers noncompliant, those Plaintiffs did not revise their answers;
instead, all other Plaintiffs followed suit, copying their “d[id] not recall” answers.
3
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prejudice is permissible here only when two conditions are satisfied: (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. at 235
(quotations omitted). Because our “independent review of the record
confirms that both prongs are satisfied,” we hold that the district court did
not abuse its discretion. See In re Taxotere (Docetaxel) Prods. Liab. Litig., 966
F.3d 351, 359 (5th Cir. 2020) (noting that district courts need not make
“specific factual findings” on each prong to dismiss with prejudice).
A. Clear Record of Delay
There is a clear record of delay by Plaintiffs in complying with PTO
68. Plaintiffs had nearly seven months—from the date of PTO 68’s issuance
on October 21, 2019 to the date when Plaintiffs were required to respond to
the show cause order on May 18, 2020—to obtain the necessary medical
records and recall the required dates and diagnosing doctor to submit
compliant responses. That time period included an extension and two
additional opportunities to comply that Plaintiffs failed to take advantage of.
Although PTO 68 required Plaintiffs to provide information
concerning their alleged claims of personal injuries that occurred about ten
years ago, their inability to remember (or, at least, keep track of) such
foundational information is suspect. They knew or should have known that
they were going to pursue a claim against BP immediately upon the Deepwater
Horizon oil spill. Consequently, Plaintiffs should have been keeping track of
their claims. Thus, the information concerning when they first sought
treatment for their alleged injuries and who their diagnosing doctor was
should have been “reasonably available” to them. Areizaga v. ADW Corp.,
314 F.R.D. 428, 437 (N.D. Tex. 2016). At the very least, Plaintiffs should
have been “diligent” and made a “good-faith” effort to obtain the necessary
medical information in the nearly seven months the district court provided.
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They also should have explained, with a description of their efforts, why they
could not obtain such records in the time provided. McLeod, Alexander, Powel
& Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485–86 (5th Cir. 1990). Therefore,
Plaintiffs’ “N/A,” “Did not seek treatment,” and “does not recall” answers
fail to meet PTO 68’s directive that Plaintiffs provide responses equivalent
to interrogatory answers. Further, the internal inconsistencies in Plaintiffs’
answers and revisions yet again constitute part of the delay; Plaintiffs’
briefing does not provide any cogent explanation. 2
Accordingly, Plaintiffs’ continuous and self-imposed failure to
comply with PTO 68 amounts to clear delay. See Barrera, 907 F.3d at 234–
37 (affirming the district court’s dismissal of the plaintiffs’ claims with
prejudice for failure to comply with PTO 60’s deadline because the plaintiffs
had been given one extension and a show cause order to come into
compliance and failed to explain, with corroboration, why they could not
comply within the given amount of time); 3 cf. In re Deepwater Horizon
(Graham), 922 F.3d 660, 667–68 (5th Cir. 2019) (reversing the district
court’s dismissal of certain plaintiffs’ claims with prejudice for failure to
2
Plaintiffs state that in some cases, they provided “N/A” because the deadline
was too short; per Plaintiffs, they “had not sought medical treatment until shortly before
the issuance of PTO 68, which was recently enough that [their] counsel did not have time
to obtain the medical records from the providers.” Plaintiffs, however, did not provide this
explanation to the district court, so it does not affect our analysis. See Barrera, 907 F.3d at
234 (noting that an abuse of discretion requires a clearly erroneous assessment of the
evidence before the district court). Even if we considered it, their argument continues to
have inconsistencies.
3
Although Plaintiffs met PTO 68’s deadline—unlike the Barrera plaintiffs, who
failed to submit any documentation by the deadline (or submitted it late)—that difference
is not dispositive. Receiving noncompliant filings is in many ways just as bad as receiving
no filings at all. See Moore v. CITGO Refin. & Chems. Co., L.P., 735 F.3d 309, 314, 317 (5th
Cir. 2013) (affirming a district court’s dismissal with prejudice of plaintiffs’ claims because
they responded, but failed to comply with, the district court’s two discovery orders).
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comply with a PTO because the plaintiffs had followed erroneous advice
from the Plaintiffs’ Steering Committee).
B. Lesser Sanctions
No lesser sanction than dismissal with prejudice would serve the
interests of justice. Indeed, the district court already tried a lesser sanction—
its show cause order. See Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir.
1982). Because that lesser sanction did not produce compliance, it is unclear
what other lesser sanctions could have been appropriate, since “[a]ny
sanction other than dismissal would not achieve the desired effect of [a]
PTO[], and would further delay the district court’s efforts to adjudicate the
MDL expeditiously.” Barrera, 907 F.3d at 236.
IV. Conclusion
Plaintiffs’ conduct satisfies both prongs for the standard for
dismissing with prejudice. The district court did not abuse its discretion in
dismissing Plaintiffs’ claims with prejudice. 4 Accordingly, we AFFIRM.
4
In so holding, we reiterate that, in the MDL context, we do not require—and need
not consider—any aggravating factor for a dismissal with prejudice. See Barrera, 907 F.3d
at 235–37, 235 n.1 (noting that “aggravating factors are not required for a dismissal with
prejudice” and affirming the district court’s dismissal with prejudice for failure to comply
with PTO 60 without addressing those factors); In re Deepwater Horizon (Cepeda), 765 F.
App’x 980, 982–83 (5th Cir. 2019) (per curiam) (affirming the district court’s dismissal
with prejudice for failure to comply with a PTO without addressing the aggravating
factors); see generally In re Taxotere, 966 F.3d at 358–59 (noting that, due to the complexity
of managing an MDL, district courts require “greater flexibility to dismiss a plaintiff,” and
that the two-pronged test, sans aggravating factors, “helps animate the goals of strict
enforcement and efficient management”).
6