United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
Adiel Cortez Guerra, a resident of Florida, was employed as a
clean-up worker along the Florida Gulf Coast after the
BP/Deepwater Horizon explosion and oil spill on April 20,
2010. Record Doc. No. 1. Plaintiff filed his complaint
pursuant to the BackEnd 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 a member of
the BELO settlement class, plaintiff seeks compensatory
damages and related costs for later-manifested physical
conditions that he allegedly suffered as a result of exposure
to substances released after the oil spill. Record Doc. No. 1
at ¶¶ 23-33.
BP Exploration & Production Inc. and BP America
Production Company (collectively “BP”), filed a
motion to dismiss plaintiff's complaint. Record Doc. No.
4. BP argues that plaintiff failed properly to file his
individual BELO lawsuit by the Medical Settlement
Agreement's filing deadline and that the complaint should
be dismissed with prejudice as time-barred. Plaintiff did not
file his BELO lawsuit until January 18, 2019, four (4) days
after the Medical Settlement Agreement's
deadline of January 14, 2019, had passed. Record Doc. Nos. 1,
1-1. Plaintiff did not file an opposition to this motion.
considered the motion, the complaint, the record and the
applicable law, I recommend that BP's motion to dismiss
be GRANTED and that plaintiff's complaint be DISMISSED
WITH PREJUDICE for the following reasons.
court-approved Medical Settlement Agreement is not a
case management order. Instead, it 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 did not opt out of the
settlement and who seek compensation for Later-Manifested
Physical Conditions, as defined in the agreement.
Id. at § II(VV).
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 instant case, 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).
governs basic procedural matters at the outset of BELO cases.
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 action should be dismissed with prejudice
because plaintiff's untimely filing of his lawsuit cannot
be cured by amending the complaint or granting her additional
time to comply with the conditions precedent. BP asks the
court to modify the CMO in this particular case, as provided
in Paragraph IV(1)(D), to allow for a dismissal with
prejudice. The CMO governs limited initial proceedings,
principally to determine the appropriate venue in which each
case should proceed, but also to ensure compliance with
pre-suit filing procedures set out in the Medical Settlement
Agreement. At the time it was issued, I optimistically
anticipated only curable pre-filing administrative
deficiencies, not that a plaintiff's failure
would be to miss one of the absolute deadlines established in
the Medical Settlement Agreement.
clear language of the Medical Settlement Agreement emphasizes
the binding and enforceable nature of the subject deadline.
It mandatorily requires that "[a]ny BACKEND LITIGATION
OPTION LAWSUIT against a BACK-END LITIGATION OPTION DEFENDANT
must be filed within 6 months of .
. . (a) notice by the CLAIMS ADMINISTRATOR to the MEDICAL
BENEFITS SETTLEMENT CLASS MEMBER of the election of all BP
defendants named in the NOTICE OF INTENT TO SUE not to
mediate . . . ."
number of other contexts, including in the captioned
underlying Multi-District Litigation ("MDL"),
courts have emphasized the importance of complying with
mandatory deadlines. For example, in the context of Section
1983 litigation involving significant constitutional rights
issues, the United States Supreme Court has held that
conforming with exhaustion requirements similar to those in
the instant matter requires "compliance with . . .
deadlines and other critical procedural rules."
Woodford v. Ngo, 548 U.S. 81, 90 (2006) (citing the
Prison Litigation Reform Act, 42 U.S.C. § 1997e et
seq.)); accord Gonzales v. Smith, 2008 WL
417735, at *2 (E.D. La. Feb. 13, 2008)
("[p]laintiff's [claim] . . . was therefore untimely
because it was submitted one day too late"). As a
further example, in the context of habeas corpus litigation,
the United States Court of Appeals for the Fifth Circuit has
held that missing the deadline to file by even one day bars a
habeas petitioner's claim as untimely. See,
e.g., Lookingbill v. Cockrell, 293 F.3d
256, 264 (5th Cir. 2002) (missing the deadline by even one
day nevertheless renders a federal petition untimely); In
re Lewis, 484 F.3d 793, 796 (5th Cir. 2007)
(authorization to file a successive habeas application denied
because it was filed one day too late).
very same MDL, Judge Barbier has consistently enforced
deadlines and dismissed plaintiff's claims that were
untimely filed. See e.g., No. 10-md-2179, Record
Doc. Nos. 14113, at 1 (denying a motion requesting the court
to extend the Medical Settlement Agreement deadlines for
filing Proof of Claim Forms)("[t]he Settlement's
terms established the deadline for filing . . . [t]he [c]ourt
may not extend this deadline absent consent of both BP and
Class Counsel"); 25356, at pp. 13-15 (dismissing
plaintiffs' claims because they were untimely filed or
not submitted at all) ("PTO 66 gave plaintiffs until
July 98, 2018 (90 days) to file their Particularized
Statement of Claim. . . . The following plaintiff's B3
claims will be dismissed because their [claims] were
significantly late or not submitted at all."); 24686 at
p. 2 (dismissing plaintiff's claims because they did not
timely respond to the court's order) ("The deadline
for responding to the Show Cause Order has now passed. . . .
As to those Remaining B1 Plaintiffs who were required to
respond . . .but did not, the Court dismisses their B1 claims
with prejudice for failing to comply. . . .).
requirement to satisfy this condition precedent is not a mere
case management tool, but is required by the court-approved
Medical Settlement Agreement and is not subject to
alteration. Guerra failed to meet the condition precedent to
filing a BELO complaint by timely filing his lawsuit. No.
purpose would be served by dismissing this case
without prejudice, when its untimely filing under
the Medical Settlement Agreement clearly means that the claim
is barred and must be dismissed with prejudice. I
therefore modify the CMO insofar as it applies to this
particular BELO case to permit filing of this motion to
dismiss with prejudice, pursuant to CMO ¶