United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
C. WILKINSON, JR UNITED STATES MAGISTRATE JUDGE
Laney Farmer was employed as a clean-up worker along the
Florida Gulf coast, where she also lived, after the
BP/Deepwater Horizon explosion and oil spill on April 20,
2010. Record Doc. No. 1. On February 20, 2019, plaintiff
filed her complaint 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. Plaintiff timely
filed her BELO lawsuit within the requisite six-month period
from the date of receiving notice of defendants' Election
Not to Mediate on August 24, 2018. Record Doc. No. 1-1. As a
member of the BELO settlement class, plaintiff seeks
compensatory damages and related costs for later-manifested
physical conditions that she allegedly suffered as a result
of exposure to substances released after the oil spill.
Record Doc. No. 1 at ¶¶ 23-33.
March 15, 2019, plaintiff filed and the court accepted her
first amended complaint, Record Doc. No. 4, which corrected a
typographical error in her original complaint that
inadvertently alleged plaintiff's diagnosis as
"neuropathy" rather than the intended diagnosis of
"reactive airway disease." Record Doc. No 7 at p.
1. BP's notice of its Election Not to Mediate clearly
indicates that in assessing plaintiff's claim, the
Deepwater Horizon Medical Benefits Claims Administrator
("Claims Administrator") considered reactive airway
disease - not neuropathy - which suggests that
plaintiff's typographical error was confined to her
original complaint and did not pre-date the filing of this
lawsuit. Record Doc. No. 1-1. On March 29, 2019, defendants,
BP Exploration & Production Inc. and BP America
Production Company (collectively “BP”), filed
their answer to plaintiff's first amended complaint.
Record Doc. No. 6.
filed a motion to dismiss plaintiff's complaint, Record
Doc. No. 5, asserting that plaintiff failed under Rule 15 to
seek leave of court or defendants' consent to file her
first amended complaint and that the court had not accepted
plaintiff's first amended complaint at the time the
instant motion was filed. Id. at p. 1. Based on the
premise that plaintiff's first amended complaint was
filed in a procedurally improper manner and/or not filed at
all, defendants argue that dismissal of plaintiff's
original complaint without prejudice is justified in light of
(1) plaintiff's failure to identify neuropathy as a
claimed condition in her notice of intent to sue; (2) the
Claims Administrator's inability to review
plaintiff's neuropathy claim; and (3) BP's lack of
opportunity to decide whether to mediate the neuropathy claim
prior to the filing of this lawsuit. Record Doc. No. 5-1 at
p. 8. Plaintiff filed a timely opposition memorandum. Record
Doc. No. 7.
considered the motion, the complaint, the record and the
applicable law, I recommend that BP's motion to dismiss
be DENIED for the following reasons.
Fed.R.Civ.P. 15(a)(1), "a party may amend its pleading
once as a matter of course at any time before a responsive
pleading is served." United Steel Workers AFL-CIO v.
Murphy Oil USA, Inc., 541 F.Supp.2d 824, 825 (E.D. La.
2007). A plaintiff need not seek consent from opposing
parties or leave of court to amend her complaint under Rule
15(a)(1). Id. Plaintiff filed her first amended
complaint on March 15, 2019, two weeks before defendants
filed their answer. Record Doc. No. 4. The court properly
allowed the first amended complaint to be filed without leave
of court and/or defendants' consent because BP had filed
no responsive pleadings at the time of amendment. Therefore,
plaintiff's first amended complaint has properly been
filed under Rule 15(a)(1).
Medical Settlement Agreement states in pertinent part:
A MEDICAL BENEFITS SETTLEMENT CLASS MEMBER seeking
compensation from BP for a LATER-MANIFESTED PHYSICAL
CONDITION must submit a NOTICE OF INTENT TO SUE, . . ., to
the CLAIMS ADMINISTRATOR. The NOTICE OF INTENT TO SUE and
materials submitted therewith must be submitted to the CLAIMS
ADMINISTRATOR within 4 years after either the first diagnosis
of that LATER-MANIFESTED PHYSICAL CONDITION or the EFFECTIVE
DATE, whichever is later.
Doc. No. 6427-1 at § VIII(A) in MDL No. 10-md-2179. A
class member “may assert a claim against a BACK-END
LITIGATION OPTION DEFENDANT in a BACK-END LITIGATION OPTION
LAWSUIT only for the LATER-MANIFESTED PHYSICAL
CONDITION for which he or she timely submitted a NOTICE OF
INTENT TO SUE.” Id. at § VIII(G)(2)(a)
plaintiff's first amended complaint, properly filed,
alleges the condition of reactive airway disease, I do not
accept defendants' arguments in favor of dismissal
because (1) plaintiff's alleged condition of reactive
airway disease was properly identified in her notice of
intent to sue; (2) the Claims Administrator reviewed
plaintiff's claim of reactive airway disease; and (3) BP
had an opportunity to decide whether to mediate the reactive
airway disease claim before plaintiff filed her BELO
the forgoing reasons, it is RECOMMENDED that