Case: 20-30617 Document: 00515970959 Page: 1 Date Filed: 08/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 9, 2021
No. 20-30617
Lyle W. Cayce
Clerk
In re: Deepwater Horizon
-------------------------------------------------------
Christopher Green,
Plaintiff—Appellant,
versus
BP Exploration & Production, Incorporated; BP
America Production Company; BP, P.L.C.,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
MDL No. 2:10-md-2179; USDC No. 2:17-cv-3191
Before Jolly, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
Christopher Green failed to opt out of a settlement agreement
established after BP’s Deepwater Horizon oil spill. The question presented
*
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opinion should not be published and is not precedent except under the limited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.
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No. 20-30617
is whether his failure should be excused. The district court said no. We
affirm.
I.
Christopher Green was allegedly injured while removing oil from the
Gulf of Mexico after the Deepwater Horizon oil spill in 2010. Green joined a
class of personal-injury plaintiffs participating in MDL 2179. The class
negotiated with BP, and the parties eventually agreed upon the Medical
Settlement Agreement (“MSA”). In re Deepwater Horizon, 295 F.R.D. 112,
119 (E.D. La. 2013) (MSA approval). In the final version of the MSA, BP
agreed to provide class members with compensation including payment for
injuries and the right to ongoing medical consultation and treatment. See id.
at 120–25. In exchange for that compensation, class members “fully, finally,
and forever . . . resolve[d], discharge[d], and settle[d]” all covered personal-
injury claims against BP and other defendants. See id. at 125.
The MSA was not compulsory, however. It provided a deadline by
which class members could opt out and pursue their claims separately, and it
detailed opt-out instructions to streamline the process and prevent fraud. See
In re Deepwater Horizon, 819 F.3d 190, 197 (5th Cir. 2016). The MSA’s opt-
out provision instructed:
[T]o OPT OUT validly . . . a . . . CLASS MEMBER must
submit a written request . . . to the CLAIMS
ADMINISTRATOR . . . . A written request to OPT OUT may
not be signed using any form of electronic signature, but must
be signed by hand by the NATURAL PERSON seeking to
exclude himself or herself from the MEDICAL BENEFITS
SETTLEMENT CLASS or, where applicable, his or her
AUTHORIZED REPRESENTATIVE.
An “authorized representative” could sign on a class member’s behalf if the
member was (1) a minor, (2) lacking capacity or incompetent, or
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(3) deceased. Under all other circumstances, a class member was required to
include his own wet-ink signature on the opt-out form.
On October 29, 2012, Green filed a timely but noncompliant opt-out
form—that is, a form that was submitted three days before the November 1,
2012, deadline but that lacked Green’s personal signature. Green’s opt-out
form was instead signed by his mother, Mary Morris. Morris had held
Green’s power of attorney for years before the oil spill, so Green and his
counsel believed she constituted an “authorized representative” under the
MSA.
In 2018, the district court ordered BP to file a motion for summary
judgment to dismiss any plaintiffs whose claims were barred by the MSA. BP
filed a motion for summary judgment asking the district court to dismiss 12
cleanup workers—including Green—who had failed to validly opt out.
The district court granted the motion with respect to Green, and it
dismissed his personal-injury claim against BP. Specifically, the district court
upheld the MSA claims administrator’s determination that Green’s
“request[] [was] invalid because [it was] not signed by the class member”
and was instead “signed by a person purporting to have power of attorney.”
Green did not file a motion for reconsideration. Instead, he timely
appealed to this court. We review the district court’s grant of summary
judgment de novo. See In re Deepwater Horizon, 857 F.3d 246, 249 (5th Cir.
2017). And we review the district court’s finding that Green failed to opt out
of the MSA for abuse of discretion. See In re Deepwater Horizon, 819 F.3d at
195.
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II.
Green first argues that BP failed to prove that his opt-out form
violated the MSA’s wet-ink requirement. Green then argues the interests of
justice warrant reversal in any event. Both arguments fail.
A.
First, the wet ink. The MSA allowed a dissatisfied class member to
opt out of the settlement by submitting a written request, signed by the class
member himself in wet ink. Only by following that procedure could a class
member forgo the MSA’s compensation scheme and litigate individually.
Green’s opt-out form is facially deficient. Where the signature line
should read “Chris Green,” it instead reads “Chris Green, by Mary Morris
POA.” There is no dispute that Green did not personally sign his opt-out
form. Nor is there any dispute that he is not a minor, does not lack capacity,
is not incompetent, and is alive—so nothing in the text of the MSA indicates
an authorized representative was entitled to sign for him.
Green’s counterarguments lack merit. Green claims he had good
reason to authorize his mother to sign on his behalf. And Green complains
that the district court and BP relied on other documents, which he claims are
inadmissible or inaccessible. † But all of that is irrelevant. All that matters here
†
Much of the parties’ briefing focuses on four pieces of record evidence: (1) a May
2018 report by the class administrator; (2) an unidentified business record stating that
Green’s “Opt Out received [was] not valid”; (3) a district court order regarding Green’s
compliance with an unrelated pretrial order; and (4) a declaration by the claims
administrator, which Green claims was sealed and thus inaccessible. BP cited the first three
in its motion for summary judgment, and the district court relied on the fourth in its order
granting BP’s motion. But each of these documents could only serve to benefit BP, which
is entitled to summary judgment with or without the extra support. Therefore, we rely only
on the language of the MSA and the opt-out form and do not address the four disputed
documents.
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is that the MSA required Green to sign the form personally in wet ink; he
indisputably did not. Therefore, the district court was correct to conclude
that Green’s opt-out form was deficient under the MSA.
B.
Green next argues that even if his opt-out form is technically deficient,
the interests of justice require reversal. Specifically, Green claims he lacked
notice that he violated the wet-ink requirement and hence could not beg for
leniency before the district court. But Green did not lack notice. And he
forfeited his equitable arguments by failing to raise them before the district
court.
1.
Under Rule 56(f), a district court may grant summary judgment sua
sponte “[a]fter giving notice and a reasonable time to respond.” Fed. R.
Civ. P. 56(f). Green argues the district court violated the Rule’s notice
requirement by reaching beyond BP’s cited evidence and relying on an
allegedly sealed declaration without giving Green a chance to review it and
respond. See supra n.†. Green is wrong for two reasons.
First, Green had adequate notice that he was subject to a summary-
judgment ruling on his noncompliance with the MSA’s opt-out provision.
Though Green claims he lacked notice of the specific deficiency—namely, the
absence of his personal wet-ink signature—neither the Rule nor our
precedent includes a specificity requirement. Rather, Rule 56(f) applies when
the court “(1) grant[s] summary judgment for a nonmovant; (2) grant[s] the
motion on grounds not raised by a party; or (3) consider[s] summary
judgment on its own after identifying for the parties material facts that may
not be genuinely in dispute.” Fed. R. Civ. P. 56(f). A district court can
violate Rule 56(f) by failing to provide notice before “grant[ing] summary
judgment on [a plaintiff’s] claim despite there being no pending motion for
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summary judgment on that claim.” D’Onofrio v. Vacation Publ’ns, Inc., 888
F.3d 197, 210 (5th Cir. 2018) (emphasis added).
But that’s not what happened here. The district court merely granted
summary judgment for the movant (BP) on the grounds raised (failure to
comply with the MSA’s opt-out provision) after considering the record
evidence (including the MSA and Green’s opt-out form). The fact that the
district court also considered other evidence is irrelevant, and D’Onofrio says
nothing to the contrary.
Second, even if Green had not received adequate notice of the district
court’s basis for summary judgment, any Rule 56(f) violation would have
been harmless. See id. (“[T]he harmless error doctrine applies to lack of
notice required by rule 56(f) . . . .” (quoting Leatherman v. Tarrant Cnty.
Narcotics Intel. & Coordination Unit, 28 F.3d 1388, 1398 (5th Cir. 1994))).
Under our Rule 56(f) harmless-error standard, we may affirm the district
court’s sua sponte grant of summary judgment “‘if the nonmoving party
admits that he has no additional evidence anyway’ or if ‘the appellate court
evaluates all of the nonmoving party’s additional evidence and finds no
genuine issue of material fact.’” Id. (quoting Leatherman, 28 F.3d at 1398).
Green says he would have produced a new piece of evidence had the
district court provided notice: a declaration that explained his reasons for
using a power of attorney to sign the opt-out form. This declaration would do
nothing to create a material dispute of fact because it would remain
undisputed that Green violated the MSA’s wet-ink requirement.
Accordingly, any notice violation under Rule 56(f) would be harmless.
2.
Finally, Green makes several arguments regarding why the district
court ought to have excused his technical noncompliance with the MSA.
Green did not raise these equitable arguments before the district court ruled
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nor afterward in a motion for reconsideration. He therefore forfeited these
arguments on appeal.
AFFIRMED.
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