      Case: 18-30008          Document: 00514934760        Page: 1   Date Filed: 04/29/2019




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


                                            No. 18-30008
                                                                                 FILED
                                                                             April 29, 2019
                                                                            Lyle W. Cayce
In re: Deepwater Horizon                                                         Clerk

----------------------------------------------------

SARAH GRAHAM; MAX MURRAY; RICHARD WOOD; JOHN BURRUS,

                 Plaintiffs - Appellants

v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C.; TRANSOCEAN, LIMITED;
TRANSOCEAN OFFSHORE, INCORPORATED; TRANSOCEAN
DEEPWATER, INCORPORATED; TRANSOCEAN HOLDINGS,
INCORPORATED; ANADARKO PETROLEUM CORPORATION
COMPANY; ANADARKO E&P ONSHORE, L.L.C., formerly known as
Anadarko E&P Company, L.P.; MOEX OFFSHORE 2007, L.L.C.; MOEX
USA CORPORATION; MITSUI OIL EXPLORATION COMPANY, LIMITED;
MITSUI & COMPANY, LIMITED; HALLIBURTON ENERGY SERVICES,
INCORPORATED; CAMERON INTERNATIONAL CORPORATION, agent
of Cooper Cameron Corporation; TRITON ASSET LEASING,

                 Defendants - Appellees

---------------------------------------------------

KIMBERLY DEAGANO, Individually and on behalf of minor, Dereck J.
Deagano; TED DEAGANO, JR.; KEITH KEAGHEY,

                 Plaintiffs - Appellants
v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C.; TRANSOCEAN, LIMITED;
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                                            No. 18-30008
TRANSOCEAN OFFSHORE, INCORPORATED; TRANSOCEAN
DEEPWATER, INCORPORATED; TRANSOCEAN HOLDINGS,
INCORPORATED; ANADARKO PETROLEUM CORPORATION
COMPANY; ANADARKO E&P ONSHORE, L.L.C., formerly known as
Anadarko E&P Company, L.P.; MOEX OFFSHORE 2007, L.L.C.; MOEX
USA CORPORATION; MITSUI OIL EXPLORATION COMPANY, LIMITED;
MITSUI & COMPANY, LIMITED; HALLIBURTON ENERGY SERVICES,
INCORPORATED; CAMERON INTERNATIONAL CORPORATION, agent
of Cooper Cameron Corporation; TRITON ASSET LEASING,

                  Defendants – Appellees
---------------------------------------------------

JAMES BRYANT; HENRY JENKINS; STEVEN BURKE; WILLIE
RICHARDSON; NATHAN S. SOUTHERN; MARION G. BAREFOOT;
BARON BUSKELL; JOHNNIE CLOPTON; TOMMY TRIPP,

                 Plaintiffs - Appellants

v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C.; TRANSOCEAN, LIMITED;
TRANSOCEAN OFFSHORE, INCORPORATED; TRANSOCEAN
DEEPWATER, INCORPORATED; TRANSOCEAN HOLDINGS,
INCORPORATED; TRITON ASSET LEASING; ANADARKO PETROLEUM
CORPORATION COMPANY; ANADARKO E&P ONSHORE, L.L.C.,
formerly known as Anadarko E&P Company, L.P.; MOEX OFFSHORE 2007,
L.L.C.; MOEX USA CORPORATION; MITSUI OIL EXPLORATION
COMPANY, LIMITED; MITSUI & COMPANY, LIMITED; HALLIBURTON
ENERGY SERVICES, INCORPORATED; CAMERON INTERNATIONAL
CORPORATION, agent of Cooper Cameron Corporation,

                  Defendants – Appellees
---------------------------------------------------

THOMAS S. ABOOD; LATASHA ACOO; JOHN H. ADAMS; MICHELLE
AKKAN; MUSTAFFA AKKAN, ET AL,

                 Plaintiffs - Appellants


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                                         No. 18-30008
v.

PLANT PERFORMANCE SERVICES, L.L.C., doing business as P2S;
FLUOR ENTERPRISES, INCORPORATED; BP EXPLORATION &
PRODUCTION, INCORPORATED; BP AMERICA PRODUCTION
COMPANY; BP, P.L.C.; O'BRIEN'S RESPONSE MANAGEMENT, L.L.C.,
formerly known as O'Brien's Response Management, Incorporated,

                  Defendants - Appellees
----------------------------------------------

MICHAEL ABNEY; CARA ALDRICH; GARRY AMMAR; DAVID BANKS;
SONAMEKIA BANKS; ET AL,

               Plaintiffs - Appellants

v.

PLANT PERFORMANCE SERVICES, L.L.C., doing business as P2S;
FLUOR ENTERPRISES, INCORPORATED; BP EXPLORATION &
PRODUCTION, INCORPORATED; BP AMERICA PRODUCTION
COMPANY; BP, P.L.C.; O'BRIEN'S RESPONSE MANAGEMENT, L.L.C.,
formerly known as O'Brien's Response Management, Incorporated,

               Defendants - Appellees



                    Appeals from the United States District Court
                        for the Eastern District of Louisiana


Before ELROD, WILLETT, and DUNCAN, Circuit Judges.
STUART KYLE DUNCAN, Circuit Judge:




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                                 No. 18-30008
   “This case presents another in the line of cases related to the Deepwater
Horizon oil spill.” In re Deepwater Horizon (Barrera), 907 F.3d 232, 233 (5th
Cir. 2018). The more than eight hundred appellants, who assert various
contract and tort claims arising out of the oil clean-up, are divided into two
groups: the “Lindsay Appellants” and the “D’Amico Appellants.” Both groups
separately appeal their with-prejudice dismissals for failure to follow the
district court’s order requiring they file individual complaints. The district
court unquestionably had authority to issue the order as a sensible means of
managing multi-district litigation we have described as “epic.” In re Deepwater
Horizon (Seacor Holdings), 819 F.3d 190, 197 (5th Cir. 2016). And the district
court unquestionably has authority to dismiss parties’ claims with prejudice
for disobeying its docket management orders. At the same time, however, to
justify wielding dismissal-with-prejudice as a sanction, our precedents demand
“a clear record of delay or contumacious conduct.” Barrera, 907 F.3d at 235
(internal quotations omitted). We fail to find that clear record as to one of the
two groups before us, the D’Amico Appellants.
   We therefore affirm the district court’s judgment as to the Lindsay
Appellants. As to the D’Amico Appellants, however, we reverse and remand.
                                       I.
                                       A.
      As part of its herculean efforts overseeing MDL 2179, the district court
created eight “pleading bundles” for various categories of cases and claims. See,
e.g., Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 419
(5th Cir. 2013) (explaining court’s use of “‘pleading bundles’ into . . . which
claims of similar nature would be placed for the purpose of filing a master
complaint, answers, and any Rule 12 motions”). The two sets of claims we
address in this appeal fall into the “B3” bundle, which “include[s] all claims
related to post-explosion Clean-Up, Medical Monitoring, and Post-April 20
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                                  No. 18-30008
Personal Injury Claims.” As with other categories, claims in the B3 bundle
were initially managed through a “master complaint,” which plaintiffs could
join simply by filing a “short form joinder.” See, e.g., In re Deepwater Horizon,
745 F.3d 157, 162 (5th Cir. 2014) (discussing use of master complaint for
“pleading bundle ‘C’” concerning government claims). Alternatively, plaintiffs
who filed individual B3-type lawsuits were deemed part of the B3 bundle, even
if they had not filed short-form joinders.
      On February 22, 2017, the district court issued pretrial order 63 (“PTO
63”), dismissing the B3 master complaint and conveying additional
instructions to B3 plaintiffs. First, any B3 plaintiff who had filed an individual
complaint—defined      as   “a   single-plaintiff     complaint     without    class
allegations”—was instructed to complete a sworn statement, which was to be
filed and served in the individual lawsuit by April 12, 2017. Failure to do so
would result in a complaint being “dismissed with prejudice without further
notice.” Second, any B3 plaintiff who had only filed a short-form joinder, or was
“part of a complaint with more than one plaintiff or a class action,” was
instructed to file and serve an individual lawsuit, also by April 12, 2017.
Failure to do so would similarly result in claims being “dismissed with
prejudice without further notice.” Finally, the order explained that this second
category does not include “complaints that contain related parties, such as a
husband and wife or co-owners of a business”—those would instead be
considered “individual complaints” under the first category.
                                       B.
      The Lindsay Appellants comprise hundreds of workers hired by Plant
Performance Services, LLP and its parent corporation (collectively, “P2S”) to
perform clean-up work in the aftermath of the oil spill. After being allegedly
“fired . . . through no fault of their own,” the Lindsay Appellants filed two
multi-plaintiff lawsuits against P2S in Florida, with over eight hundred
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                                  No. 18-30008
plaintiffs in total. They also asserted “a third party beneficiary theory” against
various BP entities, who had contracted with P2S to provide clean-up services.
These two cases were transferred to MDL 2179 in April and May 2013 based
on the claims asserted against BP.
      On the April 12, 2017 deadline set by PTO 63, the Lindsay Appellants
filed motions for relief from PTO 63. The district court denied relief, but
“granted [the Lindsay Appellants] an extension up to and including May 3,
2017 to comply with PTO 63.” The Lindsay Appellants, however, submitted no
additional filings by the extended deadline. Per the district court’s instruction,
BP provided the court a list of plaintiffs BP understood to have complied with
PTO 63. The Lindsay Appellants did not appear on that list, and the court
dismissed their claims with prejudice on July 18, 2017. They filed post-
judgment motions under Federal Rules of Civil Procedure 59(e) and 60,
claiming that P2S—the main target of their lawsuit—was not “a party to the
MDL” and that based on communications with the Plaintiffs’ Steering
Committee (“PSC”), they believed their claims were not part of the B3 bundle.
The district court denied those motions, and the Lindsay Appellants sought
our review.
                                       C.
      The D’Amico Appellants are a group of seventeen people who allege
personal injuries from exposure to the spilled oil and the chemicals used along
the Gulf Coast to disperse that oil. They originally brought two suits in the
Eastern District of Louisiana and one in the Northern District of Florida. The
Florida case was transferred to MDL 2179 in May 2013. After issuance of PTO
63, the D’Amico Appellants sought advice from the PSC on how it applied to
their claims. After conferring with the PSC, they believed that their three
lawsuits qualified as “individual lawsuits” under the order and that they were
thus required only to file sworn statements. They filed the required statements
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                                   No. 18-30008
before the April 12, 2017 deadline. Subsequently, the D’Amico Appellants
appeared on BP’s court-ordered list of plaintiffs with deficient submissions. On
July 18, 2017, the district court dismissed the D’Amico Appellants’ claims with
prejudice for failing to file individual lawsuits. In subsequent Rule 59(e)
motions, the D’Amico Appellants claimed their failure to comply with PTO 63
was unintentional because they believed their previous filings qualified as
individual lawsuits. The district court denied those motions, and the D’Amico
Appellants sought our review.
                                         II.
      “We review matters concerning docket management for an abuse of
discretion,” affording a district court “special deference . . . in the context of an
MDL.” Barrera, 907 F.3d at 234–35 (citing In re Asbestos Prod. Liab. Litig. (No.
VI), 718 F.3d 236, 243 (3d Cir. 2013); In re Fannie Mae Sec. Litig., 552 F.3d
814, 822 (D.C. Cir. 2009)). Yet, because “[a] dismissal with prejudice ‘is an
extreme sanction that deprives the litigant of the opportunity to pursue his
claim,’ . . . this [c]ourt has limited the district court’s discretion in dismissing
cases with prejudice.” Berry v. CIGNA/RSI–CIGNA, 975 F.2d 1188, 1191 (5th
Cir. 1992) (quoting Callip v. Harris Cty. Child Welfare Dep’t, 757 F.2d 1513,
1519 (5th Cir. 1985)) (cleaned up); see also Price v. McGlathery, 792 F.2d 472,
474 (5th Cir. 1986). We will therefore affirm dismissals-with-prejudice for
violations of docket management orders “only on a showing of ‘a clear record of
delay or contumacious conduct by the plaintiff . . . , and where lesser sanctions
would not serve the best interests of justice.’” Sealed Appellant v. Sealed
Appellee, 452 F.3d 415, 417 (5th Cir. 2006) (quoting Rogers v. Kroger Co., 669
F.2d 317, 320 (5th Cir. 1982)) (cleaned up); see also Barrera, 907 F.3d at 235.




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                                 No. 18-30008
                                      III.
                                       A.
      We first address the Lindsay Appellants’ arguments. They contest the
dismissal of their claims on three grounds: (1) that the record fails to clearly
show “delay or contumacious conduct”; (2) that they did not have adequate
notice that dismissal with prejudice was a possible sanction; and (3) that
dismissal with prejudice effectively denies them access to the courts
guaranteed by the Florida Constitution. We address each argument in turn.
      First, contrary to the Lindsay Appellants’ claim, we find that the record
clearly shows contumacious conduct under our precedents, justifying
dismissal-with-prejudice. We are guided by our recent decision in Barrera, 907
F.3d 232, affirming dismissal-with-prejudice of over 1,500 claims for failure to
comply with a similar Deepwater Horizon pretrial order. As in Barrera, the
pretrial order here warned plaintiffs that non-compliance would result in
“dismissal of their claims with prejudice without further notice.” Id. at 234
(addressing PTO 60). As in Barrera, the Lindsay Appellants received extra
time to comply with the order’s deadline. See id. (noting district court granted
“a fourteen-day extension”). Finally, despite the extension, as in Barrera the
Lindsay Appellants failed to file anything by the new deadline. See id.
(observing that plaintiffs “did not properly file their declarations by the
[extended] deadline”). Indeed, the Barrera plaintiffs at least asked for a second
extension and tried to explain why they could not comply with the filing
requirements (albeit without supporting evidence). See id. The Lindsay
Appellants, by contrast, did nothing. “Contumacious” means “[a] willful
disobedience of a court order.” BLACK’S LAW DICTIONARY at 358 (10th ed. 2014).




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                                       No. 18-30008
That is evident from this record, justifying the district court’s dismissal-with-
prejudice sanction. 1
       Second, we reject the Lindsay Appellants’ argument that they lacked
notice that dismissal-with-prejudice was on the table. PTO 63 explicitly
warned that non-compliant plaintiffs would “face dismissal of their claims with
prejudice without further notice.” And the Lindsay Appellants were given an
extension specifically to comply with the order. In similar circumstances, we
have found it “unclear what lesser sanctions could have been appropriate
following the district court’s warnings and second chances.” Barrera, 907 F.3d
at 236. We reach the same conclusion here. “Any sanction other than dismissal
would not achieve the desired effect of PTO [63], and would further delay the
district court’s efforts to adjudicate the MDL expeditiously.” Id. (citing In re
Asbestos, 718 F.3d at 248).
       Finally, we are unpersuaded by the Lindsay Appellants’ invocation of the
Florida Constitution’s access-to-courts guarantee. See FLA. CONST. Art. I, § 21
(guaranteeing “[t]he courts shall be open to every person for redress of any
injury, and justice shall be administered without sale, denial or delay”). This
argument was not raised before the district court and is therefore “waived and
cannot be raised for the first time on appeal.” In re Deepwater Horizon, 857
F.3d 246, 251 (5th Cir. 2017) (quoting LeMaire v. La. Dep’t of Transp. & Dev.,
480 F.3d 383, 387 (5th Cir. 2007)). Moreover, even indulging the dubious


       1  Any differences between this case and Barrera are superficial. For example, the
Barrera plaintiffs had three chances—rather than the Lindsay Appellants’ two—to comply
with the order. Id. at 234. But the prior dismissals under PTO 60 in Barrera should have
alerted the Lindsay Appellants that these management orders must be taken seriously. See
id. (noting district court dismissed claims under PTO 60 on December 16, 2016); see also, e.g.,
In re Deepwater Horizon (Perez), 713 F. App’x 360, 363 (5th Cir.), reh’g denied (Apr. 12, 2018),
cert. denied sub nom. Perez v. BP, P.L.C., 139 S. Ct. 231 (2018) (upholding similar dismissals
in December 2016). Also, unlike the Barrera plaintiffs, the Lindsay Appellants claimed to be
confused about whether the order applied to their claims. But any confusion was dissipated
by the court’s extension, which expressly told them they were “to comply with PTO 63.”
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                                 No. 18-30008
proposition that the Florida Constitution applies here, the Lindsay Appellants
direct us to no authority suggesting that a dismissal-with-prejudice sanction
categorically denies access to courts under the Florida Constitution. Cf., e.g.,
Kinney v. R.H. Halt Assoc., Inc., 927 So. 2d 920, 921 (Fla. Dist. Ct. App. 2006)
(dismissal-with-prejudice for non-compliance with court orders appropriate if
court makes “explicit findings of willful or flagrant disregard”).
                                       B.
      We turn to the D’Amico Appellants’ arguments. Like the Lindsay
Appellants, they contend the record shows no contumacious conduct in their
failure to comply with PTO 63. To the contrary, they claim to have made a
good-faith effort to comply, emphasizing they sought guidance from the PSC
and then, based on that advice, timely filed sworn statements instead of
individual lawsuits. Consequently, the D’Amico Appellants urge that a lesser
sanction would better serve the interests of justice and that dismissal-with-
prejudice was inappropriate. We agree.
      We do not find the “clear record of delay or contumacious conduct” by the
D’Amico Appellants required to justify a dismissal-with-prejudice sanction.
Barrera, 907 F.3d at 235. Confused about whether their three existing
complaints were “individual lawsuits” under PTO 63, the D’Amico Appellants
queried the PSC and were advised only to file sworn statements. This was a
mistake, as the D’Amico Appellants concede. But based on this flawed
understanding of PTO 63, the D’Amico Appellants then timely filed and served
sworn statements before the April 12, 2017 deadline. None of this makes those
filings any less mistaken under PTO 63, but it does show an absence of willful
conduct. And BP points to nothing in the record to dispel that impression.
There is a critical difference between trying but failing, on the one hand, and
simply not trying, on the other. Because the record shows the former, we
conclude that the D’Amico Appellants did not engage in delay or contumacious
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                                 No. 18-30008
conduct sufficient to support dismissal-with-prejudice. Barrera, 907 F.3d at
235; cf., e.g., Moore v. CITGO Ref. & Chems. Co., L.P., 735 F.3d 309, 316 (5th
Cir. 2013) (dismissal proper where discovery order violation showed “blatant
disregard for the judicial process . . . [that] constitutes willful and
contumacious conduct”).
      None of the factors we relied on in Barrera to find contumaciousness is
present here. The D’Amico Appellants did not receive an extension to comply
with PTO 63 and then blow it off: To the contrary, they timely filed sworn
statements before the original deadline. Cf. Barrera, 907 F.3d at 235 (“Despite
receiving a fourteen-day extension with an explicit warning that no further
extensions of time would be granted, Plaintiffs did not comply with PTO 60.”).
Furthermore, even after their claims were dismissed, they sought leave to re-
file individual lawsuits. Cf. id. at 236 (observing that, “aside from a few
untimely individuals, Plaintiffs never filed sworn declarations that complied
with PTO 60”). Finally, the D’Amico Appellants corroborated their claim that
they misunderstood PTO 63 with documentation. Cf. id. at 235 (noting that,
despite show cause order, “Plaintiffs still did not submit any documentation or
other evidence . . . corroborating their explanation for the delay”). In short,
unlike the Lindsay Appellants, the record does not clearly show the D’Amico
Appellants’ contumacious conduct.
      We find BP’s arguments to the contrary unpersuasive. For instance, BP
relies on Perez, 713 F. App’x 360, which upheld dismissal of numerous claims
for failure to follow a similar order. Perez, of course, is unpublished and
therefore non-binding. See 5th Cir. R. 47.5.4. That aside, the decision is
distinguishable. Unlike the D’Amico Appellants, the Perez plaintiffs were
“given numerous opportunities”—including an extension of time—to “file
single-plaintiff complaints,” and yet failed to do so. 713 F. App’x at 362. Also
distinguishable is Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438
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                                  No. 18-30008
(5th Cir. 2016). There, the plaintiff repeatedly defied a court’s order to verify
his suspicious in forma pauperis motion despite multiple warnings threatening
dismissal-with-prejudice. Id. at 439–41. The district court finally dismissed his
case pursuant to express statutory authority. Id. at 441; see 28 U.S.C.
§ 1915(e)(2)(A) (providing court “shall dismiss” case if it “determines that . . .
the allegation of poverty [in an IFP motion] is untrue”). This case does not
involve the obnoxious defiance of a court order in Nottingham.
      Finally, we reject BP’s waiver argument. Specifically, BP argues the
D’Amico Appellants failed to object to PTO 63 when issued and, further, failed
to raise their current arguments post-judgment. We disagree. When PTO 63
was issued, the D’Amico Appellants had no reason to object—they tried to
comply with the order—and they objected in post-judgment motions after their
lawsuits were dismissed. As for those post-judgment motions, it is true they
did not deploy the magic words “contumacious conduct.” But that is
immaterial. The D’Amico Appellants argued they “did not [act] with any intent
to disobey [the district c]ourt’s order, [to] circumvent the rules, or to unduly
delay this matter” and urged their failure to file individual lawsuits was an
“inadvertent mistake.” This was enough to preserve the argument that
dismissal-with-prejudice was unwarranted. See, e.g., Keelan v. Majesco
Software, Inc., 407 F.3d 332, 340 (5th Cir. 2005) (to avoid waiver, “[a]n
argument must be raised to such a degree that the district court has an
opportunity to rule on it”).
                                       IV.
      We AFFIRM the district court’s judgment dismissing the Lindsay
Appellants’ claims, but we REVERSE the district court’s judgment dismissing
the D’Amico Appellants’ lawsuits and REMAND for further proceedings
consistent with this opinion.
      AFFIRMED IN PART; REVERSED AND REMANDED IN PART
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