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Benton v. BP Exploration & Production, Inc.

United States District Court, E.D. Louisiana

July 15, 2019

JEREMY BENTON
v.
BP EXPLORATION & PRODUCTION, INC. ET AL. JOSE MONTALVO
v.
BP EXPLORATION & PRODUCTION, INC. ET AL. Related to. 12-968 BELO in MDL 10-2179

         SECTION “J” (2)

          REPORT AND RECOMMENDATION

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

         Jeremy 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.

         Defendants, 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.

         Plaintiffs 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.

         The 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 19-9987.

         Having 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.

         ANALYSIS

         The 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).

         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 "notice" by the Claims Administrator of BP's election not to mediate. Id. at §§ VIII(A), (C)(1), (C)(2), (G)(1)(b).

         The CMO 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.

         The 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 . . . ."

         In 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.

         In its 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 ยง V(E) (". . . The submission containing such ...


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