Case: 20-30673 Document: 00516060594 Page: 1 Date Filed: 10/19/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 19, 2021
No. 20-30673
Lyle W. Cayce
Clerk
In re: Deepwater Horizon,
______________________________
Darleen Moore, Individually and as Personal
Representative of the Estate of Sandra Morse,
Plaintiff—Appellant,
versus
BP Exploration; Production, Incorporated; BP America
Production Company,
Defendants—Appellees,
consolidated with
_____________
No. 20-30675
_____________
In re: Deepwater Horizon,
______________________________
Barry Dumoulin,
Plaintiff—Appellant,
versus
Case: 20-30673 Document: 00516060594 Page: 2 Date Filed: 10/19/2021
No. 20-30673
c/w Nos. 20-30675, 20-30729
BP Exploration; Production, Incorporated; BP America
Production Company,
Defendants—Appellees,
consolidated with
_____________
No. 20-30729
_____________
In re: Deepwater Horizon
______________________________
Judy Jones, Individually and as Personal
Representative of the Estate of Hugh Lee Jones, Jr.,
Plaintiff—Appellant,
versus
BP Exploration; Production, Incorporated; BP America
Production Company,
Defendants—Appellees.
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CV-1787
USDC No. 2:20-CV-1785
USDC No. 2:20-CV-1993
USDC No. 2:10-MD-2179
Before Owen, Chief Judge, and Clement and Duncan, Circuit Judges.
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Per Curiam:*
Appellants challenge the district court’s dismissal of their claims
against BP Exploration and Production, Inc. (“BP”), stemming from the
Deepwater Horizon oil spill in 2010. The district court dismissed the claims
as untimely. We agree with the district court and affirm.
I.
A.
The Deepwater Horizon oil spill prompted hundreds of claims, which
were ultimately assigned to the Honorable Carl J. Barbier as part of a multi-
district litigation (“MDL”). This appeal concerns the claims for personal
injuries resulting from spill-related exposures.
In 2012, BP and class counsel entered into the Medical Benefits Class
Action Settlement Agreement, which the court approved. In re Oil Spill by
Oil Rig Deepwater Horizon, 295 F.R.D. 112 (E.D. La. 2013). The Settlement
Agreement provided two procedures for the class members to seek recovery
for physical conditions allegedly caused by the spill or related activities—the
second of which is relevant to this appeal.
For class members who alleged physical conditions that were
diagnosed after April 16, 2012, the Settlement Agreement established an
exclusive remedy: the Back-End Litigation Option (“BELO”). The BELO
process required class members to submit a Notice of Intent (“NOI”) to the
claims administrator prior to filing a lawsuit. The claims administrator had
to transmit compliant NOIs to BP within ten days of receipt and BP was then
required to decide within thirty days whether to mediate the claim. In cases
*
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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in which BP decided not to mediate the claim, the class members were given
six months to file their BELO lawsuits. Where this final timing requirement
was not met, the class members released their claims.
B.
Of those who pursued the BELO process, three class members—
Darleen Moore, Barry Dumolin, and Judy Jones—confronted issues with
these requirements. Moore submitted her NOI on March 16, 2018; Dumolin
submitted his on February 14, 2018; and Jones submitted hers on February
15, 2018. 1
BP decided not to mediate any of the three claims, and it contends that
the claims administrator issued all three notices of BP’s elections on
November 2, 2018. BP also contends that electronic copies of these notices
were uploaded to the claim administrators’ online Attorney Portal on or
around the same day. BP asserts that this triggered the six-month clock for
filing the BELO lawsuits. The class members, on the other hand, claim that
they received the notices on January 27, 2020 and March 23, 2020.
Accordingly, Moore, Dumolin, and Jones argue that their lawsuits were
timely filed on June 22, 2020 and July 13, 2020.
Following the filing of these lawsuits, BP filed motions to dismiss on
the grounds that the lawsuits were untimely and that equitable tolling did not
apply. The magistrate judge issued a report and recommendation,
recommending that the district court grant BP’s motion and dismiss the class
members’ complaints with prejudice. The district court adopted the
1 The dates on which the claims administrator transmitted these NOIs to BP
are not clear from the record.
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magistrate judge’s report and recommendation and so dismissed the
complaints. Moore, Dumolin, and Jones timely appealed.
II.
“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 554, 570 (2007)). The court reviews Rule 12(b)(6)
dismissals de novo. Lampton v. Diaz, 639 F.3d 223 (5th Cir. 2011) (citation
omitted).
A.
The principal issue on appeal concerns the timing of the notices
indicating that BP decided not to mediate. If, as the class members impliedly
contend, the issuance of the notices alone was insufficient to put them on
notice of BP’s election, then dismissal of the class members’ complaints was
inappropriate at the 12(b)(6) stage. 2 However, if the issuances themselves
were sufficient to put the class members on notice, then the class members’
complaints about the dates of receipt are irrelevant.
We need not delve into interpretation of the terms of the Settlement
Agreement because the parties had both constructive and actual knowledge
of the November 2 notices at least a year prior to filing suit. In addition to
the notices issued by first-class mail on November 2, electronic copies were
2 The class members’ contention that the magistrate judge and district court
impermissibly considered the notices is unavailing. See Collins v. Morgan Stanley
Dean Witters, 224 F.3d 496, 499–500 (5th Cir. 2000) (noting approvingly the rule
in other circuits that “[d]ocuments that a defendant attaches to a motion to dismiss
are considered part of the pleadings if they are referred to in the plaintiff’s
complaint and are central to her claim”).
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uploaded to the claim administrators’ online Attorney Portal on or around
the same day. None of the plaintiffs alleged that their counsel did not have
access to the Attorney Portal nor that their counsel attempted, but were
unable, to access the notices. 3 In addition, the plaintiffs conceded knowledge
of the November 2, 2018, notices in June 2019 – more than a year prior to
filing suit in June and July of 2020.
We hold that the plaintiffs had knowledge of the November 2 notices
over six months prior to filing suit; thus, their complaints are untimely. 4
B.
This leaves one remaining issue: whether equitable tolling should have
applied to the class members’ claims. As best as can be discerned from the
class members’ brief, they contend that—because the notices were posted on
an online portal rather than placed in the mail—the six-month deadline for
filing their BELO complaints should have been equitably tolled.
For a court to apply equitable tolling, a plaintiff typically must
demonstrate that (1) extraordinary circumstances prevented him from timely
filing and that (2) he pursued his rights diligently. Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005); see Heimeshoff v. Hartford Life & Accident Ins. Co., 571
U.S. 99, 114 (2013) (“To the extent the participant has diligently pursued
both internal review and judicial review but was prevented from filing suit by
extraordinary circumstances, equitable tolling may apply.” (citing Irwin v.
3 The record supports that plaintiffs’ counsel periodically logged into the
portal.
4
Because we hold that the plaintiffs had constructive knowledge of the
November 2 notices at least a year prior to filing suit, we reserve judgment on
whether the Settlement Agreement required class members to file BELO lawsuits
within six months of the issuance of the notices or within six months of the receipt
of the notices.
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Dep’t of Veterans Affs., 498 U.S. 89, 95 (1990)). Federal courts apply the
doctrine “sparingly,” exercising little forgiveness where “the claimant failed
to exercise due diligence in preserving his legal rights.” Irwin, 498 U.S. at
96; see id. (“[T]he principles of equitable tolling . . . do not extend to . . . a
garden variety claim of excusable neglect.”). The party seeking equitable
tolling bears the burden of satisfying these requirements. Pace, 544 U.S. at
418.
“Time requirements in lawsuits between private litigants are
customarily subject to ‘equitable tolling.’” Irwin, 498 U.S. at 95 (citing
Hallstrom v. Tillamook Cnty., 493 U.S. 20, 27 (1989)). And, we have applied
equitable tolling under various circumstances. See, e.g., Granger v. Aaron’s
Inc., 636 F.3d 708 (5th Cir. 2011) (Title VII); United States v. Patterson, 211
F.3d 927 (5th Cir. 2000) (habeas); Perez v. United States, 167 F.3d 913 (5th
1999) (FTCA). The class members cite Heimeshoff in support of its
application. But, we need not decide whether the doctrine of equitable tolling
applies in this context because, even if it did, the class members’ complaints
fail to provide us with any plausible reason it would apply here. 5
The class members make much of the district court’s alleged error in
reviewing materials unsuited for Rule 12(b)(6) review. But, the class
members have not made a single allegation that they exercised diligence in
5 Ordinarily, any further determination regarding the applicability of
equitable tolling would require us to remand to the district court for further factual
findings. See Socha v. Boughton, 763 F.3d 674, 684 (7th Cir. 2014) (“[T]he realm of
equitable tolling is a ‘highly fact-dependent area’ in which courts are expected to
employ ‘flexible standards on a case-by-case basis.’”). But, the class members’
contentions that equitable tolling should have applied fail to reach even the Rule
12(b)(6) pleading standard, requiring only “enough facts to state a claim to relief
that is plausible on its face.” See Twombly, 550 U.S. at 570. Therefore, remand
would be inappropriate.
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pursuing their rights. Neither their complaints nor their briefs assert that
they made any conscientious effort to comply with the six-month deadline set
forth in the Settlement Agreement. Thus, as it is plain from the face of their
complaints that they cannot plausibly satisfy the element for equitable tolling
requiring diligence, we need not analyze whether extraordinary
circumstances prevented them from timely filing. 6 Therefore, the district
court did not err in finding that the deadline for filing the BELO complaints
was not equitably tolled. 7
6 Although the court below decided this issue on the extraordinary
circumstances element, “[w]e may affirm a district court’s dismissal based
on [R]ule 12(b)(6) on any basis supported by the record.” Ferrer v. Chevron Corp.,
484 F.3d 776, 780–81 (5th Cir. 2007).
7 Furthermore, Jones conceded that she learned of the notice and still failed
to file her complaint within six months of having actual knowledge. This concession
emphatically resolves the matter where Jones is concerned.
At the September 23, 2020 hearing on the motion to dismiss, Jones’s
counsel admitted to actual knowledge of the notice by June 2019.
THE COURT: Do you dispute, Mr. Durkee, that you knew that the
claims administrator issued the notice on November 2nd of 2018?
Do you dispute that? . . . .
MR. DURKEE: I do not dispute that, as of June, we knew it about
[sic].
See Turnage v. McConnell Techs., 671 F. App’x 307, 309 (5th Cir. 2016) (mem.)
(“[O]ral arguments in connection with the motion are not considered matters
outside the pleadings for purposes of [converting a motion under Rule 12(b)(6) to
one under Rule 56].” (cleaned up) (quoting Gen. Retail Servs., Inc. v. Wireless Toyz
Franchise, LLC, 255 F. App’x 775, 785 (5th Cir. 2007) (unpublished))). But, Jones
did not file her BELO complaint until July 13, 2020. “[She] waited [a] year[],
without any valid justification, to assert [her] claims . . . . Had [she] advanced [her]
claims within a reasonable time of their availability, [she] would not now be facing
any time problem[.]” See Pace, 544 U.S. at 419. Thus, equitable tolling would not
save her complaint because—at best—its application would toll the deadline for
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III.
We have said before that, to invoke equitable tolling and survive a
motion under Rule 12(b)(6), a party “must make some minimal effort [] to
apprise the District Court . . . of facts which would justify such an exceptional
step. [A] complaint, time-barred on its face, cannot serve as a fishing pole to
discover down the road some reason which [that party] can use to justify his
failure” to obey the rules. Quina v. Owens-Corning Fiberglas Corp., 575 F.2d
1115, 1119 (5th Cir. 1978). The class members failed to satisfy this edict.
Accordingly, we AFFIRM the decision of the district court.
filing her BELO complaint from November 2, 2018 until June of 2019, which—in
turn—would have granted her an extension only to December 2019.
9