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Concepcion v. BP Exploration & Production, Inc.

United States District Court, E.D. Louisiana

February 23, 2018

FABIO CONCEPCION
v.
BP EXPLORATION & PRODUCTION, INC. ET AL. MICKEY JOSEPH THIBODAUX
v.
BP EXPLORATION & PRODUCTION, INC. ET AL. Related to: 12-968 BELO in MDL 10-2179

         Related to: 12-968 BELO in MDL 10-2179

         SECTION “J” (2)

          REPORT AND RECOMMENDATION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.

         Fabio Concepcion and Mickey Joseph Thibodaux, plaintiffs in these two cases, were employed as clean-up workers along the Louisiana Gulf coast, where they both also lived, after the BP/Deepwater Horizon explosion and oil spill on April 20, 2010. Complaint, Record Doc. No. 1 in Civil Action Nos. 18-65 and 18-66. Both plaintiffs, who are represented by the same counsel, filed their respective complaints pursuant to the Back-End Litigation Option (“BELO”) provisions of the BP/Deepwater Horizon Medical Benefits Class Action Settlement Agreement (“Medical Settlement Agreement”). Record Doc. Nos. 6427-1 and 8218 in MDL No. 10-md-2179. As members of the BELO settlement class, plaintiffs seek compensatory damages and related costs for later-manifested physical conditions that they allegedly suffered as a result of exposure to substances released after the oil spill. Record Doc. No. 1 at ¶¶ 18-28 in C.A. Nos. 18-65 and 18-66.

         Defendants, BP Exploration & Production Inc. and BP America Production Company (collectively “BP”), filed identical motions to dismiss each plaintiff's complaint. Record Doc. No. 4 in C.A. Nos. 18-65 and 18-66. BP argues that each plaintiff failed properly to file his individual BELO lawsuit by the Medical Settlement Agreement's filing deadline and that the complaints should be dismissed with prejudice as time-barred.

         Plaintiffs filed untimely opposition memoranda without seeking leave of court. Record Doc. No. 6 in C.A. Nos. 18-65 and 18-66. Nonetheless, the court has considered their memoranda.

         Plaintiffs admittedly did not file their separate, individual BELO lawsuits until after the Medical Settlement Agreement's deadline had passed. However, they timely, but erroneously, filed their complaints in the multi-district litigation, instead of filing separate lawsuits as the court ordered in its Case Management Order (“CMO”) entered in the multi-district litigation on January 30, 2015. Record Doc. No. 14099 at §§ I(2), VI(3) in 10-md-2179; Record Doc. No. 3 in C.A. Nos. 18-65 and 18-66; see also Preliminary Order Controlling BELO Lawsuits entered on December 8, 2014, Record Doc. No. 13787 at p. 1 (“Each lawsuit must be initiated by a complaint with a caption in the form attached to this order . . . .;” “No BELO Lawsuit may be filed as a class, mass, or aggregate action.”). Plaintiffs' counsel assert that they were not aware of the CMO and that the Clerk of Court did not advise them of their mistake when they filed their complaints in the multi-district litigation. They argue that their error should be excused because BP was not prejudiced by their late filing of identical, individual complaints that had been timely filed in the multi-district litigation. Plaintiffs contend that dismissal of their complaints with prejudice is too severe a sanction for their technical delay.

         Having considered the motions, the complaints, the record and the applicable law, I recommend that BP's motions to dismiss be DENIED for the following reasons.

         ANALYSIS

         The Medical Settlement Agreement is an unambiguous, binding contract that cannot be modified or altered without the express written consent of the Medical Benefits Class Counsel and BP's counsel. Record Doc. No. 6427-1 at § XXX(C) IN 10-md-2179. The BELO lawsuit process is the exclusive remedy for class members who seek compensation for Later-Manifested Physical Conditions, as defined in the agreement. Id. at § II(VV).

         As a condition precedent to filing a BELO suit, a class member must submit a Notice of Intent to Sue to the Medical Settlement Agreement Claims Administrator (the “Claims Administrator”), who must transmit the notice to BP within ten days. BP then has 30 days to decide whether to mediate the claim. If, as in the two instant cases, BP chooses not to mediate, the claimant must file his BELO lawsuit within six months of being notified by the Claims Administrator of BP's election not to mediate. Id. at §§ VIII(A), (C)(1), (C)(2), (G)(1)(b).

         Plaintiffs admit that the Claims Administrator notified them on May 9, 2017 that BP had declined mediation, which made their deadline to file a complaint six months later, on November 9, 2017. Complaints, Record Doc. No. 1 at ¶ 24, and opposition memoranda, Record Doc. No. 6 at p. 1, in C.A. Nos. 18-65 and 18-66. They also admit that they did not file their separate lawsuits until January 2, 2018, although they filed the same complaints in the multi-district litigation on November 6, 2017, three days before the deadline.

         The CMO permits the parties to move to dismiss an individual BELO complaint without prejudice for failure to complete the conditions precedent to filing a lawsuit. Record Doc. No. 3, CMO at § IV(1)(A). BP argues that the instant actions should be dismissed with prejudice because plaintiffs' untimely filing of their separate lawsuits cannot be cured by amending the complaints or granting them additional time to comply with the conditions precedent. Plaintiffs respond that they were not aware of the CMO's requirement to file separate lawsuits, that the Clerk did not advise them of their mistake when they filed their complaints in the multi-district litigation, and that their good faith attempt to comply with the Medical Settlement Agreement's deadline is evident from their incorrect filings three days before the deadline.

         BP relies on the multi-district litigation docket record, on which the Clerk marked plaintiffs' complaints as filed in error on November 6, 2107. Record Doc. Nos. 23627, 23628, 23639, 23640 in C.A. 10-md-2179; Defendant's Exh. A, Record Doc. No. 4-4 in C.A. Nos. 18-65 and 18-66. The Clerk made text entries on the docket that the complaints should be re-filed as individual lawsuits and that, when re-filing, counsel should select the option that the filing fee had been previously paid. Plaintiffs allege that they did not receive any notice from the Clerk that their filings were erroneous, but received only acknowledgments that the filing fees had been paid. Plaintiffs' ...


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