     Case: 17-30921   Document: 00514838662     Page: 1   Date Filed: 02/18/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                            United States Court of Appeals
                                                                     Fifth Circuit

                                 No. 17-30921                      FILED
                                                            February 18, 2019
                                                              Lyle W. Cayce
In Re: Deepwater Horizon                                           Clerk
___________________

JELP BARBER,

             Plaintiff - Appellant

v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP CORPORATION NORTH AMERICA,
INCORPORATED; BP, P.L.C.; HALLIBURTON ENERGY SERVICES,
INCORPORATED; SPERRY DRILLING SERVICES; TRANSOCEAN
OFFSHORE DEEPWATER DRILLING, INCORPORATED; TRANSOCEAN
HOLDINGS, L.L.C.,

             Defendants – Appellees

___________________

JOHNNY’S CLAMS, INCORPORATED

             Plaintiff – Appellant

v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP CORPORATION NORTH AMERICA,
INCORPORATED; BP, P.L.C.; HALLIBURTON ENERGY SERVICES,
INCORPORATED; SPERRY DRILLING SERVICES; TRANSOCEAN
OFFSHORE DEEPWATER DRILLING, INCORPORATED; TRANSOCEAN
HOLDINGS, L.L.C.,

             Defendants – Appellees
     Case: 17-30921      Document: 00514838662         Page: 2    Date Filed: 02/18/2019



                                      No. 17-30921




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-MD-2179


Before JOLLY, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Jelp Barber and Johnny’s Clams appeal the judgment of the district
court dismissing their economic loss suits arising from the Deepwater Horizon
oil spill. The district court dismissed the plaintiffs’ claims after finding they
had signed valid releases relinquishing their right to sue in exchange for final
payments. We AFFIRM.
                                             I.
       The facts and procedural landscape of the litigation following the
Deepwater Horizon oil spill are familiar to this court. Shortly after the spill,
BP established the Gulf Coast Claims Facility (GCCF) to receive and pay
claims arising from the spill. Initially, the GCCF paid “Emergency Advance
Payments” (EAPs) to claimants for documented losses sustained up to six
months after the spill. Claimants were not required to sign a release to receive
EAPs. Later, EAPs were replaced by three types of claims: Interim Payment,
Full Review Final Payment, and Quick Payment Final. Interim Payments
compensated for past losses, could generally be claimed every three months,
and did not require claimants to sign a release. Full Review Final Payment
and Quick Payment Final were intended to compensate for all losses, past and



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.

                                             2
    Case: 17-30921    Document: 00514838662     Page: 3   Date Filed: 02/18/2019



                                 No. 17-30921
future. Therefore, to obtain either type of final payment under the GCCF, the
claimant had to sign a prospective release and covenant not to sue, waiving all
rights against BP and other parties for claims arising from the oil spill. The
GCCF ended in 2012 after BP agreed to a class-wide settlement, which
excluded all individuals and entities who signed a release after making a claim
with the GCCF.
      Jelp Barber and Johnny’s Clams both received payments under the
GCCF. Jelp Barber received a $40,000 Emergency Advance Payment, a $5,000
Interim Payment, and a $25,000 Full Review Final Payment. Johnny’s Clams,
Inc., received a $21,700 Interim Payment and a $25,000 Quick Payment Final.
To receive their final payments, both plaintiffs signed releases.
      Barber and Johnny’s Clams, along with more than 1,000 other plaintiffs,
filed complaints against BP, Transocean, and Halliburton (collectively, BP)
claiming compensable losses as a result of the spill. The district court issued
a PTO ordering BP to file dispositive motions regarding the plaintiffs seeking
recovery for economic and business losses who had signed releases.           BP
complied, identifying Barber and Johnny’s Clams as two such parties. BP
submitted a motion to dismiss, a memorandum in support of the motion, and
exhibits showing that the releases had been signed. The district court granted
BP’s motion, and plaintiffs timely appealed.
                                       II.
      Plaintiffs argue that the district court converted BP’s motion to dismiss
into a motion for summary judgment by considering matters outside the
pleadings, and the court’s failure to provide the plaintiffs with notice or a
reasonable opportunity to present evidence after the conversion was reversible
error. A motion to dismiss is converted to a motion for summary judgment
when “matters outside of the pleadings are presented to and not excluded by
the court.” FED. R. CIV. P. 12(d). When such a conversion takes place, the
                                       3
    Case: 17-30921     Document: 00514838662     Page: 4    Date Filed: 02/18/2019



                                  No. 17-30921
district court must provide the plaintiffs “a reasonable opportunity to present
all the material that is pertinent to the motion.”         FED. R. CIV. P. 12(d).
However, formal notice from the court is not required when the court “accept[s]
for consideration on the motion matters outside the pleadings,” as the
introduction of such materials provides sufficient notice to the plaintiff that
the court could treat the motion to dismiss as one for summary judgment. See,
e.g., Isquith v. Middle S. Util., 847 F.2d 186, 195 (5th Cir. 1988).
      Here, the district court’s PTO explicitly invited BP to file dispositive
motions based on signed releases, which BP filed, along with the releases
attached as exhibits. The releases were matters outside the pleadings. See
FED. R. CIV. P. 8(c)(1) (listing “release” as an affirmative defense); 5C WRIGHT
& MILLER, FEDERAL PRACTICE AND PROCEDURE § 1366 (3d ed. 2018) (explaining
that the existence of an affirmative defense, unless apparent on the face of the
complaint, is a matter outside of the pleadings). The court’s request to submit
the releases and BP’s compliance with that request, therefore, put the
plaintiffs on notice that the court was considering matters outside the
pleadings and could treat the motion as one for summary judgment. This gave
the plaintiffs five months to present arguments and evidence to contest the
validity of the releases. Because the plaintiffs had a reasonable opportunity to
present material opposing the motion, the district court did not err.
                                       III.
      Plaintiffs also argue the district court should have applied the “ward of
admiralty” doctrine to their releases—which applies to “seamen” and places
the burden on the defendant “to show that [a seaman’s release] was executed
freely, without deception or coercion, and that it was made by the seaman with
full understanding of his rights.” Garrett v. Moore-McCormack Co., 317 U.S.
239, 248 (1942). Alternatively, the plaintiffs argue that the district court erred


                                        4
    Case: 17-30921    Document: 00514838662     Page: 5    Date Filed: 02/18/2019



                                 No. 17-30921
in finding the releases enforceable because they were signed under economic
duress.
      The district court explained that the “ward of admiralty” doctrine
ordinarily applies “to a release of a seaman’s claims against his employer
and/or the vessel owner for personal injury or some benefit (e.g., wages) under
the seaman’s employment contract.” Even assuming the plaintiffs qualified as
seamen, the court reasoned, caselaw did not support applying “the Garrett
standard to a release of a seaman’s pure economic-loss tort claim resulting
from an oil spill and asserted against a nonemployer, non-vessel owner, third-
party.” As for the economic duress argument, the district court found that
plaintiffs’ claims failed as a matter of law because they could not prove one of
the elements of economic duress—that they had no reasonable alternative
course of action other than signing the releases. See Leader Glob. Sols., LLC
v. Tradeco Infraestructura, S.A. DE C.V., 155 F. Supp. 3d 1310, 1318 (S.D. Fla.
2016) (listing the elements of economic duress). “As provided under OPA and
as noted in the release itself, there were at least two reasonable alternatives
to accepting the Quick Payment Final: file a lawsuit in court or submit a claim
to the Oil Spill Liability Trust Fund,” which is administered by the Coast
Guard’s National Pollution Funds Center. We agree with the district court and
AFFIRM for essentially the reasons stated by that court.




                                       5
