United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
C. WILKINSON, JR., UNITED STATES MAGISTRATE JUDGE
Benton and Jose Montalvo, plaintiffs in these two cases, were
employed as clean-up workers along the Louisiana Gulf coast
after the BP/Deepwater Horizon explosion and oil spill on
April 20, 2010. Complaint, Record Doc. No. 1 in C.A. Nos.
19-9985 and 19-9987. 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 ¶¶ 10-17 in
C.A. Nos. 19-9985 and 19-9987.
BP Exploration & Production Inc. and BP America
Production Company (collectively “BP”), filed
nearly-identical motions to dismiss each plaintiff's
complaint. Record Doc. No. 4 in C.A. Nos. 19-9985 and
19-9987. 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.
filed untimely opposition memoranda without seeking leave of
court to do so. Record Doc. No. 5 in C.A. Nos. 19-9985 and
19-9987. Nevertheless, I considered their memoranda and
deferred ruling on the motions, allowing defendants time to
file responses to plaintiffs' opposition memoranda.
Record Doc. No. 6 in C.A. Nos. 19-9985 and 19-9987.
Defendants did so on June 26, 2019. Record Doc. No. 7 in C.A.
Nos. 19-9985 and 19-9987. Plaintiffs were each permitted to
file sur-replies, Record Doc. Nos. 8, 9, 10 in C.A. No.
19-9985 and Record Doc. Nos. 8, 10, 11 in C.A. No. 19-9987.
Defendants were then permitted to file sur-sur-replies.
Record Doc. Nos. 11, 12, 13 in C.A. No. 19-9985 and Record
Doc. Nos. 9, 12, 13 in C.A. No. 19-9987. Plaintiffs were then
permitted to substitute exhibits to their sur-replies. Record
Doc. No. 14, 16 in C.A. No. 19-9985 and Record Doc. Nos. 14,
15 in C.A. No. 19-9987.
Claims Administrator's Notices of Election Not to Mediate
in both cases are dated October 26, 2018. Record Doc. No. 4-4
in C.A. Nos. 19-9985 and 19-9987. Plaintiffs did not file
their separate, individual BELO lawsuits until May 1, 2019,
five (5) days after the six-month filing deadline of April
26, 2019 had passed. However, plaintiffs make several
arguments against dismissal of their complaints. They argue
that they filed their lawsuits within six months from the day
they received the letter from the Claims
Administrator of BP's Election Not to Mediate-November 6,
2018-which would make their filing deadline six months from
that date, or May 6, 2019. Record Doc. No. 5 at p. 3 in C.A.
Nos. 19-9985 and 19-9987. In the alternative, plaintiffs
assert that even if the six-month deadline is determined by
the date on BP's Election Not to Mediate-October 26,
2018-the deadline should be May 2, 2019, because Fed.R.Civ.P.
6(a) applies when counting time and the first day that was
not a Saturday, Sunday or legal holiday was April 29, 2019.
Though they filed after this date, plaintiffs argue
that Fed.R.Civ.P. 6 also provides that when a party must act
within a specified time after being served, three days are
added after the period would otherwise expire. Id.
at pp. 3-4. Thus, plaintiffs argue, since they were required
to act within a specified time by filing suit, the deadline
was May 2, 2019, and so they filed their lawsuits timely on
May 1, 2019. Id. at p. 4. In the further
alternative, plaintiffs argue that their late filing should
be excused because of a calendering error in calculating the
deadline. Id. at pp. 5-7. Plaintiffs also argue that
the court should extend the deadline for good cause for
excusable neglect because the language in the Medical
Settlement Agreement is "confusing;" they allege
that "in drafting their pleadings, even BP reiterated
the same understanding of the [Medical Settlement Agreement]
filing deadline that [p]laintiff had six months after
receiving notice." Id. at pp. 7-8
(emphasis plaintiffs'). Plaintiffs argue that since BP is
allowed six months from the date they receive a valid [Notice
of Intent to Sue] to respond with their decision of whether
or not to mediate, plaintiffs should be awarded the same
standard. Record Doc. No. 5 at p. 8 in C.A. Nos. 19-9985 and
considered the written submissions of the parties, the record
and the applicable law, I recommend that BP's motions to
dismiss be GRANTED for the following reasons.
court-approved Medical Settlement Agreement is not a
case management . 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 two instant cases, BP
chooses not to mediate, the claimant must file his BELO
lawsuit within six months of "notice" by the Claims
Administrator of BP's election not to mediate.
Id. at §§ VIII(A), (C)(1), (C)(2),
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 . . . ."
their opposition memoranda, plaintiffs admit that the Claims
Administrator dated the Notice of Election Not to Mediate
October 26, 2018. Record Doc. No. 5 at p. 3 in C.A. Nos.
19-9985 and 19-9987. They also admit that they did not file
their separate lawsuits until May 1, 2019. Id. at p.
1. However, they assert that they did not receive the Notice
until November 6, 2018, and because they believed they had
six months from the date of receipt to file suit, their
filing was timely under their interpretation of the Medical
Settlement Agreement. Record Doc. Nos 5 at p. 3; 5-1 at p. 2
in C.A. Nos. 19-9985 and 19-9987. In the alternative, if
their filing was late, it should be excused because of either
a calendering error or because the Medical Settlement
Agreement language is "confusing." Record Doc. No.
5 at pp. 5-9 in C.A. Nos. 19-9985 and 19-9987.
reply memoranda, BP argues that the six-month deadline runs
from the date posted on the Notice, and, in the alternative,
from the date the Notice was posted to the online portal.
Record Doc. No. 7 at pp. 3-9. In support of their position,
BP relies on the language of the relevant section in the
court-approved Medical Settlement Agreement and contrasts it
with other sections which mention receipt to show that the
Medical Settlement Agreement "distinguishes between
deadlines that commence upon 'receipt' of a
notice or other types of documents, and those that commence
upon the date of the document itself." Id. at
pp. 6-7. BP cites Record Doc. No. 6427-1 at § V(E)
(". . . The NOTICE OF DEFECT shall be sent no later than
30 days from the date of receipt of
the PROOF OF CLAIM FORM by the CLAIMS ADMINISTRATOR or 30
days from the EFFECTIVE DATE, whichever is later. . .
.") (emphasis added); Record Doc. No. 6427-1 at §
V(M) (". . . The MEDICAL BENEFITS SETTLEMENT CLASS
MEMBER shall make such request in writing to the CLAIMS
ADMINISTRATOR within 14 days of
receipt of a NOTICE OF DENIAL . . .
.") (emphasis added); Record Doc. No. 6427-1 at §
VIII(C)(1) ("Within 10 days of the
receipt by the CLAIMS ADMINISTRATOR
of a compliant NOTICE OF INTENT TO SUE, or the EFFECTIVE
DATE, whichever is later, the CLAIMS ADMINISTRATOR shall
transmit such NOTICE OF INTENT TO SUE to all BP defendants
named in that NOTICE OF INTENT TO SUE. Within 30 days of
receipt of such NOTICE OF INTENT TO
SUE, each BP defendant shall notify the CLAIMS ADMINISTRATOR
whether it chooses to mediate the claim.") (emphasis
added); and Record Doc. No. 6427-1 at § VIII(C)(2)
("Within 10 days of receipt of
a BP defendant's notification of its decision to mediate,
the CLAIMS ADMINISTRATOR will notify the MEDICAL BENEFITS
SETTLEMENT CLASS MEMBER that a BP defendant named in the
NOTICE OF INTENT TO SUE has exercised the mediation option. .
. .") (emphasis added) and contrasts those provisions
with the language of Record Doc. No. 6427-1 at § V(E)
(". . . The submission containing such ...