Dufrene v. BP Exploration & Production, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TODD M. DUFRENE * CIVIL ACTION

VERSUS * NO. 24-2154

BP EXPLORATION & PRODUCTION * SECTION “J” (2)

INC., ET AL.

Related to: 12-968 BELO in MDL 2179

REPORT AND RECOMMENDATION

Pending before me is a Motion to Dismiss filed by Defendants BP Exploration &

Production Inc. and BP America Production Company (together, “BP”) seeking dismissal of

Plaintiff’s Complaint pursuant to Section IV(1) of the BELO Case Initial Proceedings Case

Management Order (MDL 2179, ECF No. 14099). ECF No. 11. Plaintiff Todd Dufrene filed an

Opposition Memorandum, and BP filed a Reply Memorandum. ECF Nos. 14, 15. No party

requested oral argument in accordance with Local Rule 78.1, and the Court agrees that oral

argument is unnecessary.

Having considered the record, the parties’ submissions and arguments, and the applicable

law, I RECOMMEND that BP’s Motion to Dismiss be GRANTED and that Plaintiff’s claims be

DISMISSED WITH PREJUDICE for the reasons that follow.

I. BACKGROUND

Plaintiff Todd Dufrene filed this Back-End Litigation Option suit (“BELO”) for Later

Manifested Physical Conditions (“LMPC”) on August 30, 2024, alleging injuries as a result of

exposure to oil, dispersants and other harmful chemicals during Deepwater Horizon cleanup

operations while working as a vessel operations worker from June through September, 2010. ECF

No. 4, ¶¶ 1, 3. In the Complaint, Plaintiff asserts he has attempted to satisfy all pre-suit conditions

by submitting a Notice of Intent to Sue dated July 30, 2024, but it was neither processed nor sent

to BP, making compliance impossible. Id. ¶ 22.

Defendants move to dismiss the Complaint as untimely because it was not timely filed

within the deadline required by the Deepwater Horizon Medical Benefits Class Action Settlement

Agreement (“MSA”). ECF No. 11; see also ECF No. 11-2 at 1-2. Defendants assert that, on July

22, 2022, Plaintiff first submitted a defective Notice of Intent to Sue (“NOIS”), and Plaintiff did

not cure the defects until November 10, 2023.1 The Claims Administrator issued a Notice of

Receipt of Valid Notice of Intent to Sue,2 after which BP elected not to mediate the case. By letter

dated December 15, 2023, the Claims Administrator notified Plaintiff of BP’s election not to

mediate.3 Thus, BP argues, the deadline for filing his BELO complaint expired on June 15, 2024

1 ECF Nos. 11-2 at 3 (citing ECF No. 11-3 ¶¶ 4–9); 4 ¶ 98; see also ECF Nos. 11-4 – 11-9.

2 ECF No. 11-9. The Notice states:

In accordance with Section VIII.C of the Medical Settlement Agreement, the Claims Administrator

has transmitted your Notice of Intent to Sue to the BP defendant(s) (the "BP Defendant(s)") named

in your notice. Within 30 days of receipt, each BP Defendant must notify the Claims Administrator

whether it chooses to mediate your claim. Failure by a BP Defendant to notify the Claims

Administrator whether it chooses to mediate your claim shall be deemed to be a decision by that BP

Defendant not to mediate. Within 10 days of receipt of a BP Defendant's notification of its decision

to mediate, the Claims Administrator will notify you of that decision.

In accordance with the terms of the Medical Settlement Agreement, you may not file a Back-End

Litigation Option Lawsuit until the BP Defendant(s) decide whether they will mediate your claim

and, if one or more of them decide to mediate, until the mediation process concludes. For additional

information concerning the Back-End Litigation Option, including the mediation process, please

review Section VIII of the Medical Settlement Agreement and the "FAQ" section of the Claims

Administrator's website at www.deepwaterhorizonmedicalsettlement.com.

3 ECF No. 11-10. This letter provides, in pertinent part:

The BP defendant(s) identified on your Notice of Intent to Sue have elected not to mediate your

claim for the following, which were listed in your Notice of Intent to Sue:

LMPC1680066_1 : Plasma Cell Myeloma (~80% lambda+ plasma cells)

LMPC1680066_2 : Diffuse Large B-Cell Lymphoma, Germinal Center Type

LMPC1680066_3 : Squamous Cell Carcinoma, Keratoacanthoma Type

Therefore, you may file a Back-End Litigation Option Lawsuit for that claim, subject to the

limitations set forth in Section VIII.G of the Medical Settlement Agreement and in your Notice of

Intent to Sue.

(i.e., six months after the December 15, 2023, notice).4 BP further argues that Plaintiff cannot

revive the time period within which to file suit by submitting a second, identical NOIS on July 30,

2024, alleging the same LMPCs as raised in his July 22, 2022, NOIS.5 BP also asks that the claims

against the Claims Administrator be dismissed.6

In Opposition to the Motion to Dismiss, Plaintiff argues that he filed a proper and complete

NOIS on July 30, 2024, and BELO Complaint within four years of diagnosis (i.e., September 2,

20207) in accordance with the MSA, and the only reason he has not received a timely Election Not

to Mediate is because the Claims Administrator will not process the NOIS. ECF No. 14 at 1-2.

He argues that it is the Claims Administrator’s failure to process the NOIS that precluded BP’s

election and rendered impossible his compliance with the MSA. Id. at 3. Plaintiff further argues

that BP lacks standing to seek dismissal of the claims against the Claims Administrator and BP’s

motion to dismiss is based on disputed facts and therefore premature because, until the Court

determines whether the declaratory judgment claim is valid, it cannot determine whether Plaintiff

timely filed suit against BP. Id. at 4-5. He further argues that the Court cannot consider Ms.

Hosty’s affidavit as that is evidence outside of the Complaint. Id. at 6. Plaintiff also argues that

dismissal constitutes a sanction and the MSA is too complex and confusing, lacks consideration

and results in an unconstitutional violation of plaintiff’s right to access the courts. Id. at 7-14. He

also argues that the MSA does not preclude suits against the Claims Administrator. Id. at 14-15.

In Reply, BP argues that the Complaint concedes that Plaintiff submitted a NOIS on July

22, 2022, and this fact coupled with the Notice of BP’s Election Not to Mediate issued on

December 15, 2023, demonstrates that the undisputed facts justify dismissal. ECF No. 15 at 1-2.

4 ECF No. 11-2 at 3.

5 Id. at 4, 8-9.

6 Id. at 9-11.

7 ECF No. 4 ¶ 82.

Further, the MSA makes clear that the failure to timely file a BELO action within six months of

BP’s election not to mediate effects a release and discharge of the claim. Id. at 2 (citing MSA

§ VIII.G.1.b). Thus, BP argues, Plaintiff cannot resurrect his released and discharged claim and

re-start the six-month filing period by submitting a second, duplicative NOIS. Id. at 2-3. BP

further argues that consideration of Plaintiff’s correspondence with the Claims Administrator is

proper and does not convert this matter into a Rule 56 motion because these documents are

referenced in the Complaint and central to the claim and that Plaintiff’s request to modify the

court-approved MSA must fail as that contractual agreement is not a mere case management tool.

Id. at 3-7. BP also argues that the MSA precludes Plaintiff’s claim against the Claims

Administrator, it may properly raise that issue, the standing argument is inapplicable as that

doctrine applies to address whether a party may seek redress in federal court, and, contrary to

Plaintiff’s argument, his constitutional right to access the court was not blocked but rather lost by

his own failure to file a timely proceeding. Id. at 7-9.

II. LAW AND ANALYSIS

A. Standard for Motion to Dismiss

1. Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed for

“failure to state a claim upon which relief can be granted.” The Supreme Court clarified the Rule

12(b)(6) standard of review in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v.

Twombly, 550 U.S. 544 (2007). This procedural mechanism tests the sufficiency of the Complaint;

it is not meant to resolve disputed facts or tests the merits of the case: “[T]he issue is not whether

a plaintiff will ultimately prevail but whether he is entitled to offer evidence to support his claims.

The other side will have its say later.” 8 In short, Rule 12 requires the court to assess whether, in

plaintiff's best-case scenario, the complaint states a plausible case for relief.9

To defeat a motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief

that is plausible on its face” (i.e., the factual allegations must “be enough to raise a right to relief

above the speculative level”).10 “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.”11 If the “facts” alleged are “merely consistent” with those minimally

required to establish liability, the complaint “stops short of the line between possibility and

plausibility.”12

Determining whether a complaint states a plausible claim for relief [is] . . . a

context-specific task that requires the reviewing court to draw on its judicial

experience and common sense. But where the well-pleaded facts do not permit

the court to infer more than the mere possibility of misconduct, the complaint

has alleged—but it has not “shown”— “that the pleader is entitled to relief.”13

The complaint need not contain detailed factual allegations, but it must offer more than labels,

legal conclusions, or formulaic recitations of the elements of a cause of action.14 The complaint

must include enough factual matter to raise a reasonable expectation that discovery will reveal

evidence as to each element of the asserted claims.15

8 Sewell v. Monroe City Sch. Bd., 974 F.3d 577, 582 (5th Cir. 2020) (internal quotations omitted) (quoting Doe v.

Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996)). As the Supreme Court explained: “[A] well-pleaded

complaint may proceed even if it strikes a savvy judge that actual proof of [the alleged] facts is improbable, and ‘that

a recovery is very remote and unlikely.’” Twombly, 550 U.S. at 556 (citation omitted).

9 Sewell, 974 F.3d at 582 (quoting Iqbal, 556 U.S. at 678).

10 Twombly, 550 U.S. at 557, 570 (citation omitted); Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 742

(5th Cir. 2008).

11 Iqbal, 556 U.S. at 678.

12 Id. (quoting Twombly, 550 U.S. at 557).

13 Id. at 679 (internal citation omitted) (quoting FED. R. CIV. P. 8(a)(2)); see also Gonzales v. Kay, 577 F.3d 600, 603

(5th Cir. 2009) (citation omitted) (stating that where the facts do not allow the court to infer more than a mere

possibility of misconduct, the complaint does not show that the pleader is entitled to relief).

14 Iqbal, 556 U.S. at 678 (citations omitted).

15 Lormand v. US Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009) (citing Twombly, 550 U.S. at 555, 559-60, 570).

The court liberally construes the complaint in the light most favorable to the plaintiff,

accepts the plaintiff’s allegations as true, and draws all reasonable inferences in favor of the

plaintiff.16 Although fact questions and ambiguities in the controlling law must be resolved in

plaintiff's favor,17 the court should not accept as true “conclusory allegations, unwarranted factual

inferences, or legal conclusions.”18 And while the Rule 12(b)(6) inquiry typically focuses on

whether the plaintiff plausibly alleges the element of a claim, dismissal may also be based on a

successful affirmative defense, provided that the affirmative defense appears on the face of the

complaint.19 The pleading must reveal beyond doubt that the plaintiff can prove no set of facts

that would overcome the defense or otherwise entitle him to relief.20

2. Rule 12(b)(6) Authorizes Consideration of Certain Documents

In ruling on a Rule 12(b)(6) motion, the court may consider not only the allegations in

the Complaint but also any documents attached to the complaint, referenced documents that are

central to the claim, and documents that are part of the public record or subject to judicial

notice.21 In addition, the court may consider any documents attached to the motion to dismiss that

16 See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).

17 Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (5th Cir. 2019).

18 Degenhardt v. Bintliff, 117 F.4th 747, 752 (5th Cir. 2024) (brackets in original) (quoting Hodge v. Engleman, 90

F.4th 840, 843 (5th Cir. 2024)); Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007) (citation omitted);

Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (citation omitted); see also Twombly, 550 U.S. at 555 (citation

omitted).

19 Am. Precision Ammunition, L.L.C. v. City of Min. Wells, 90 F.4th 820, 824 (5th Cir. 2024) (quoting Bell v. Eagle

Mountain Saginaw Indep. Sch. Dist., 27 F.4th 313, 320 (5th Cir. 2022) (quoting Basic Cap. Mgmt., Inc. v. Dynex Cap.,

Inc., 976 F.3d 585, 588 (5th Cir. 2020))).

20 Id. (citation omitted).

21 See, e.g., Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007) (directing courts to “consider the

complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to

dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may

take judicial notice.”); George v. SI Grp., Inc., 36 F.4th 611, 619 (5th Cir. 2022) (citation omitted) (recognizing that

the court does not convert a Rule 12 motion into a Rule 56 motion by considering evidence attached to the motion,

referred to in the complaint, and central to the plaintiff's claim); Brand Coupon Network, L.L.C. v. Catalina Mktg.

Corp., 748 F.3d 631, 635 (5th Cir. 2014) (same); Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (same);

Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (same).

are central to the claim and referenced by the complaint.22 If matters outside the pleadings are

presented to and not excluded by the court, the Rule 12(b)(6) motion must be treated as a Rule

56 summary judgment motion.23 Significantly, when an allegation is contradicted by the

contents of an attached exhibit, the exhibit (not the allegation) controls.24

The Fifth Circuit has not articulated a test for determining when a document is central to a

plaintiff's claims, but case law suggests that documents are central when they are necessary to

establish an element of one of the plaintiff's claims.25 If the document is merely evidence of an

element of a plaintiff's claim, the court may not consider the document as part of the pleading.26

Thus, a document is central to a claim if its attachment “assists the plaintiff in establishing the

basis of the suit.”27 The court has “complete discretion” to either accept or exclude the evidence

for purposes of the motion to dismiss.28

B. BELO Claim Against BP

1. Background on the MSA and BELO

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

22 Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing Collins, 224 F.3d

at 498–99); In re Enron Corp. Sec., Derivative & "ERISA" Litig., 238 F. Supp. 3d 799, 815 (S.D. Tex. 2017), aff'd

sub nom. Lampkin v. UBS Fin. Servs., Inc., 925 F.3d 727 (5th Cir. 2019).

23 FED. R. CIV. P. 12(d).

24 U.S. ex rel. Riley v. St. Luke's Episcopal Hosp., 355 F.3d 370, 377 (5th Cir. 2004) (citing Simmons v. Peavy–

Welsh Lumber Co., 113 F.2d 812, 813 (5th Cir. 1940), cert. denied, 311 U.S. 685 (1940)) (“If [] an allegation is

contradicted by the contents of an exhibit attached to the pleading, then . . . the exhibit and not the allegation

controls.”); Thermo Credit, LLC v. Cordia Corp., No. 12-1454, 2013 WL 425930, at *6 (E.D. La. Feb. 4, 2013)

(Brown, J.) (citing Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir. 1974)) (considering

documents referenced or attached to complaint and noting that a document that contradicts the pleading takes

prominence).

25 Orellana v. Terrebonne Par. Consol. Gov't, No. 18-11673, 2019 WL 6036711, at *2 (E.D. La. Nov. 14, 2019)

(Milazzo, J.) (citing Kaye v. Lone Star Fund V (U.S.), L.P., 453 B.R. 645, 661–62 (N.D. Tex. 2011)).

26 Id. (citing Kaye, 453 B.R. at 662; Scanlan v. Tex. A&M Univ., 343 F.3d 533, 537 (5th Cir. 2003)).

27 Port Cargo Servs., LLC v. Westchester Surplus Lines Ins. Co., 671 F. Supp. 3d 722, 726 (E.D. La. 2023)

(Lemelle, J.) (quoting Collins, 224 F.3d at 499).

28 Isquith ex rel. Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 196 n.3 (5th Cir. 1988) (citations omitted).

in the Deepwater Horizon Medical Benefits Class Action Settlement Agreement (the “MSA”).

See 10-md-2179, ECF No. 6427-1, § 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 thirty days to decide whether to mediate the claim. The MSA expressly provides:

Any BACK-END LITIGATION OPTION LAWSUIT against a BACK-END

LITIGATION OPTION DEFENDANT must be filed within 6 months of either: (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, or (b) written confirmation by

the CLAIMS ADMINISTRATOR to the MEDICAL BENEFITS SETTLEMENT

CLASS MEMBER and to all BP defendants named in the NOTICE OF INTENT

TO SUE that the mediation did not resolve the MEDICAL BENEFITS

SETTLEMENT CLASS MEMBER’S claim as to all BP defendants named in the

NOTICE OF INTENT TO SUE.

Id. § VIII(G)(1)(b) (emphasis added). The MSA further provides:

In further consideration of the benefits described and the agreements and covenants

contained in this MEDICAL SETTLEMENT AGREEMENT, upon the

EFFECTIVE DATE and by operation of the FINAL ORDER AND JUDGMENT,

any and all claims of a MEDICAL BENEFITS SETTLEMENT CLASS MEMBER

relating to, arising from, or as a result of a LATER-MANIFESTED PHYSICAL

CONDITION are released and forever discharged as to the RELEASED PARTIES

with respect to that particular MEDICAL BENEFITS SETTLEMENT CLASS

MEMBER’S particular LATER-MANIFESTED PHYSICAL CONDITION if, but

only if, one or both of the following conditions occur as to that MEDICAL

BENEFITS SETTLEMENT CLASS MEMBER:

. . .

2) That MEDICAL BENEFITS SETTLEMENT CLASS MEMBER who is

eligible to file a BACK-END LITIGATION OPTION LAWSUIT fails timely and

properly to file such lawsuit for that particular LATER-MANIFESTED

PHYSICAL CONDITION, as provided in Section VIII.G.1.b.

Id. § XVI(B).

2. The Six-Months Deadline Bars Plaintiff’s Claim

In affirming this Court’s dismissal of a prior BELO action based on this six-month

deadline, the Fifth Circuit recognized the enforceability of that provision, finding that plaintiffs’

failure to file suit within six months of the notice of BP’s election not to mediate rendered the

complaints untimely.29 The court-approved MSA is not merely a case management order. 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. Id. § XXX(C).

Paragraph 98 of Plaintiff’s Amended Complaint expressly admits that he submitted his first

NOIS in July 2022.30 Plaintiff’s Opposition, however, ignores that first NOIS entirely, focusing

instead only on the Claims Administrator’s failure to process his duplicative NOIS.

3. Analysis

Plaintiff objects to the Court’s consideration of BP’s Exhibit 1 (Affidavit of Katharine

Hosty) (ECF No. 11-3).31 While Ms. Hosty’s affidavit is not properly considered and must be

excluded, the underlying documents attached to Ms. Hosty’s affidavit (e.g., ECF No. 11-4

(Plaintiff’s July 15, 2022 NOIS); ECF No. 11-9 (Claims Administrator’s November 10, 2023

Notice of Receipt of Valid NOIS); ECF No. 11-10 (Claims Administrator’s December 15, 2023

Notice of BP’s Election Not to Mediate)) are properly considered as Plaintiff’s Complaint

repeatedly references the NOIS process including his first July 2022 NOIS.32

Plaintiff did not file this suit until August 30, 2024. That is more than six months after the

Claims Administrator’s December 15, 2023, Notice of BP’s Election Not to Mediate. Further, a

comparison of the conditions asserted in Plaintiff’s July 2022 NOIS and the conditions for which

he files suit here based on the July 2024 NOIS are the same.33 Accordingly, Plaintiff’s claims

against BP are untimely and must be dismissed.

29 See In re Deepwater Horizon, No. 20-30673, 2021 WL 4888395, at *2 (5th Cir. Oct. 19, 2021).

30 ECF No. 4 ¶ 98.

31 ECF No. 14 at 6-7.

32 See ECF No. 4 ¶¶ 22, 94-98.

33 Compare ECF No. 11-4, with ECF No. 4 ¶¶ 82, 94, 98.

Even if consideration of these NOIS documents were improper under Rule 12, conversion

of this matter into a Rule 56 motion is appropriate given the face of these documents. Further, this

report and recommendation would constitute sufficient notice of conversion to Plaintiff.

C. Claims Against Claims Administrator

Initially, Plaintiff’s argument that BP lacks standing to seek dismissal of the claims against

Epiq Class Action & Claims Solutions, Inc., fails because, as the Fifth Circuit has recognized, the

court can assess the adequacy of a pleading under Rule 12(b)(6) sua sponte.34 And it may dismiss

the complaint for failure to state a claim “as long as the procedure employed is fair.”35 A

magistrate judge’s Report and Recommendation satisfies any notice requirement incident to sua

sponte dismissal.36

Setting aside the issue of whether the MSA prohibits or allows suits against the Claims

Administrator such as Plaintiff’s causes of action for declaratory judgment and specific

performance,37 Plaintiff does not allege that the Claims Administrator improperly handled or

committed any dereliction of its duties with regard to his July 2022 NOIS. Rather, his only

complaint is that the Claims Administrator failed to process his second, duplicative July 2024

NOIS, which sought to raise for a second time the same LMPCs that were placed at issue in the

July 2022 NOIS, and thus released and discharged as a result of Plaintiff’s failure to file a BELO

34 Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 642 (5th Cir. 2007) (quoting Guthrie v. Tifco Indus., 941 F.2d

374, 379 (5th Cir.1991)); see also Robinson v. ElDorado Resorts Inc., No. 20-1624, 2021 WL 6275221, at *2 (W.D.

La. Mar. 23, 2021) (citing Alexander v. Trump, 753 F. App’x 201, 208 (5th Cir. 2018)) (rejecting argument that

defendants lacked standing to challenge the adequacy of a pleading directed at another party because the court can

assess the adequacy of a pleading under Rule 12(b)(6) sua sponte).

35 Lozano, 489 F.3d at 642 (quoting Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (quoting 5A CHARLES

ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357, at 301 (2d ed. 1990)));

Bazrowx, 136 F.3d at 1054 (citing Jacquez v. Procunier, 801 F.2d 789, 792–93 (5th Cir. 1986)) (suggesting

dismissal with prejudice is procedurally fair if “plaintiff has alleged his best case”).

36 See Alexander, 753 F. App’x at 208 (citing Magouirk v. Phillips, 144 F.3d 348, 359 (5th Cir. 1998) (finding that

magistrate judge's recommendation put habeas petitioner on notice of procedural default issue, and objection period

allowed petitioner opportunity to respond, such that district court could raise issue sua sponte)); see also Brown v.

City of Cent., No. 23-30146, 2024 WL 546340, at *2 n.10 (5th Cir. Feb. 12, 2024) (noting same).

37 ECF No. 4 ¶¶ 86-106; see also ECF No. 15 at 7-8.

action within six months of the December 15, 2023, Notice of BP’s Election Not to Mediate.

Given that Plaintiff’s claims against the Claims Administrator relate only to failure to

process his time-barred claims, Plaintiff’s Complaint fails to state a claim upon which relief can

be granted. Even if the Claims Administrator processed the second claim, it would be time-barred

and could not support a BELO action.

D. Dismissal With/Without Prejudice

BP seeks a dismissal with prejudice because Plaintiff's failure to file timely cannot be cured

by amending the complaint or granting additional time to comply with the conditions precedent.

The Case Management Order (“CMO”) governs basic procedural matters at the outset of

BELO cases. ECF No. 3. It expressly permits the parties to move to dismiss an individual BELO

complaint without prejudice for failure to complete the conditions precedent to filing a lawsuit.

Id. ¶ IV(1)(A). But section IV(1) also permits motions to modify the CMO. Id. ¶ IV(1)(D). And,

as retired Magistrate Judge Wilkinson explained, “At the time [the CMO] 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.”38

No purpose would be served by dismissing this case without prejudice when its untimely

filing under the MSA means that the asserted claims are time-barred and must be dismissed with

prejudice.39 Invoking CMO ¶ IV(1)(D), I hereby modify the CMO insofar as it applies to this

BELO case to permit filing of the motion to dismiss with prejudice.

38 Benton v. BP Expl. & Prod. Inc., No. 19-9985, at 5-6 (E.D. La. July 15, 2019), ECF No. 17, R&R adopted, ECF

No. 20; Montalvo v. BP Expl. & Prod. Inc., No. 19-9987, at 5-6 (E.D. La. July 15, 2019), ECF No. 16, R&R adopted,

ECF No. 19.

39 Montalvo, No. 19-9987, at 19-20, ECF No. 16.

III. CONCLUSION

The face of Plaintiff’s Complaint reflects that he first submitted a NOIS for the same

LMPCs on July 22, 2022 and, after he missed the six-month filing deadline, sought to file a second,

duplicative NOIS to re-start the clock. As a result of Plaintiff’s failure to file suit within six months

of BP’s election not to mediate on December 15, 2023, however, Plaintiff’s claim based on those

LMPCs were released, discharged and prescribed. Plaintiff cannot revive those time-barred claims

by submitting a second, duplicative NOIS for the same conditions that have been released. Thus,

Plaintiff cannot state a claim upon which relief may be granted against BP for the LMPCs raised

in this case.

For the same reasons, Plaintiff’s declaratory judgment and specific performance action

against the Claims Administrator fails. Even if the Claims Administrator was forced to process

Plaintiff’s duplicative claim and he filed suit after BP’s notice not to mediate, Plaintiff could not

file a BELO suit because his claims for those LMPCs have already been released and are now

time-barred. Accordingly, Plaintiff cannot state a claim against the Claims Administrator for

failure to process the second, duplicative NOIS.

Accordingly, for the foregoing reasons,

IT IS RECOMMENDED that the Motion to Dismiss Plaintiff’s Complaint (ECF No. 11)

filed by Defendants BP Exploration & Production Inc. and BP America Production Company be

GRANTED.

A party’s failure to file written objections to the proposed findings, conclusions, and

recommendation in a magistrate judge’s report and recommendation within fourteen (14) days

after being served with a copy shall bar that party, except upon grounds of plain error, from

attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by

the district court, provided that the party has been served with notice that such consequences will

result from a failure to object.*°

New Orleans, Louisiana, this 4th day of November, 2024.

°

| Bow batty Lure,

UNITED STATES MAGISTRATE JUDGE

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (Sth Cir. 1996) (en banc). Douglass referred to the

previously applicable ten-day period for filing of objections, which was extended to fourteen days by amendment

effective December 1, 2009, 28 U.S.C. § 636(b)(1).

13