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In re Oil Spill by the Oil Rig "Deepwater Horizon" In Gulf of Mexico

United States District Court, E.D. Louisiana

September 21, 2017

In Re Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010 This Document Relates To: Certain s Remaining in the B1 Pleading Bundle

         SECTION: J

          WILKINSON, MAG. JUDGE

          ORDER & REASONS [AS TO BP'S DISPOSITIVE MOTION AS TO PRESENTMENT (REC. DOC. 22480)]

          BARBIER, JUDGE

         Before the Court is BP's Dispositive Motion as to Presentment (Rec. Doc. 22480), responses by various plaintiffs, [1] and BP's reply (Rec. Doc. 23269).

         Introduction

         The Oil Pollution Act of 1990 (“OPA”) typically requires claimants to first present claims for “removal costs” or “damages” to the responsible party and wait until that party denies all liability or until 90 days have passed before the claimant may commence an action in court against the responsible party. See 33 U.S.C. § 2713; Nguyen v. Am. Commercial Lines L.L.C., 805 F.3d 134, 139 (5th Cir. 2015). This “presentment” requirement is a mandatory condition precedent to bringing an OPA claim in litigation. See id.; In Re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2011, No. 10-md-2179, 2011 WL 5520295, at *9 (E.D. La. Nov. 14, 2011). BP's motion asserts that 39 plaintiffs have made no presentment whatsoever and, therefore, those plaintiffs' claims should be dismissed.

         BP's Motion is Moot and/or Withdrawn With Respect to 17 Plaintiffs

         In its reply brief, BP withdraws its motion with respect to 17 plaintiffs. (Rec. Doc. 23269 at 7).[2] Thus, BP's motion now targets only 22 plaintiffs.

         19 Plaintiffs Did Not Oppose BP's Motion

         The Court ordered that any oppositions to BP's motion be filed by August 8, 2017. (Rec. Doc. 23049). Of the 22 plaintiffs who are still subject to BP's motion, 19 did not file an opposition. These plaintiffs have effectively conceded that they failed to make presentment. Ordinarily, the Court would dismiss these plaintiffs' claims without prejudice, giving them the opportunity to comply with presentment and then refile their complaints. See In Re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, 808 F.Supp.2d 943, 964-65 (E.D. La. 2011). However, because OPA's 3-year statute of limitations has long since run, dismissal will be with prejudice. See 33 U.S.C. § 2717(f)(1); Nguyen, 805 F.3d at 143 (“Because [OPA's presentment requirement and OPA's statute of limitations] operate independently, the claimants cannot, as a general rule, rely on compliance with one to excuse non-compliance with the other.”); Order of July 14, 2016 Re: Compliance with PTO 60, p.5, Rec. Doc. 20996 (“As to all Plaintiffs in the B1 bundle, only those Plaintiffs who have not previously released their claims, have made timely presentment as required by OPA, have previously filed an individual lawsuit, and have otherwise complied with the requirements of PTO 60 have preserved their individual claims. All other B1 bundle claims are time-barred.”).

         Accordingly, the Court will dismiss with prejudice all claims asserted by the following 19 plaintiffs:

10-cv-2771

Louisiana Workers' Compensation Corporation

16-cv-06349

Dailey's Iron & Machine Works, Inc.

16-cv-06334

Midnite Energy, Inc.

16-cv-07295

Monster Heavy Haulers, LLC

16-cv-07262

Fred Gossen Company, LLC

16-cv-06337

The Carmel Group, Inc.

16-cv-06383

Finance Motors of Crowley, LLC

16-cv-07269

Hernandez Properties, LLC

16-cv-06009

James Crocker

16-cv-06233

Hilton Creel

16-cv-06339

Carmel Enterprises, LLC

13-cv-01146

16-cv-04184

Ballay, Braud & Colon, PLC

16-cv-04104

Sanderson Realty, Inc.

16-cv-06384

Deep South Machine, Inc.

16-cv-06364

Fred Gossen Carmel Foods, LLC

15-cv-01943

Williams Fabrication Inc.

16-cv-07273

Highway 14 Cattle Company

16-cv-06017

Barfield Produce, LLC

16-cv-03927

Ladner, Bunni J.

         The McConaghys

         Kent McConaghy and Kara McConaghy, who assert claims on behalf of themselves and their minor children (collectively, “the McConaghys”), are plaintiffs in four cases: 13-5369, 13-5371, 16-5862, and 17-3116. Civil Actions nos. 13-5369 and 13-5371 contain many plaintiffs in addition to the McConaghys and generally assert claims for economic loss due to the oil spill (i.e., claims falling within the “B1” bundle) and personal injury claims due to exposure to oil and/or dispersant (i.e., claims falling within the “B3” bundle). Civil Action no. 16-5862, which was filed in response to Pretrial Order No. 60 (“PTO 60”), names only the McConaghys as plaintiffs and asserts both B1 and B3 claims. Civil Action no. 17-3116, which was filed in response to Pretrial Order No. 63 (“PTO 63”), names ...


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