Bryant Jr. v. BP Exploration & Production, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

PERCY A. BRYANT, JR. * CIVIL ACTION

VERSUS * NO. 24-2156

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 Defendant Epiq Class Action & Claims

Solutions, Inc., seeking dismissal of Plaintiff’s Complaint pursuant to Rule 12(b)(6). ECF No. 14.

Plaintiff Percy Bryant, Jr. filed an Opposition Memorandum, and Epiq filed a Reply Memorandum.

ECF Nos. 15, 16. 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, the undersigned RECOMMENDS that Epiq’s Rule 12(b)(6) Motion to Dismiss be

GRANTED, and that Plaintiff be granted leave to amend within 14 days of this Report and

Recommendation, for the reasons that follow.

I. BACKGROUND

Plaintiff Percy A. Bryant Jr. 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 while employed doing Deepwater

Horizon cleanup operations from May 2010 through April 2012. ECF Nos. 1; 4, ¶¶ 1, 3. Plaintiff

alleges that he has attempted to satisfy all pre-suit conditions by submitting a Notice of Intent to

Sue dated July 5, 2024, but Epiq did not process the NOIS, did not advise Plaintiff whether it was

valid or defective, and did not send the NOIS to BP so that it could mediate or elect not to mediate

the claim, thus making Plaintiff’s compliance with the MSA impossible. ECF No. 4, ¶ 22.

II. EPIQ’S MOTION TO DISMISS

In the Amended Complaint, Plaintiff asserts that “[p]ursuant to the MSA, the Court

designated Garretson Resolution Group (“GRG”), now known as EPIQ Class Action & Claims

Solutions, Inc. (“EPIQ”), as the Claims Administrator.” ECF No. 4, ¶ 11. Defendant moves to

dismiss the Complaint on the basis that it is not the Claims Administrator, and Plaintiff’s assertion

that it is the Claims Administrator is incorrect. ECF No. 14-1 at 1-2. Epiq argues that Plaintiff

correctly recognizes that the Court appointed The Garretson Firm Resolution Group, Inc. as Claims

Administrator but incorrectly asserts that Garretson is now known as Epiq Class Action & Claims

Solution, Inc. Id. at 3. Attaching records from the websites of the Delaware, Louisiana and Rhode

Island Secretaries of State, Epiq argues that it and Garretson are two separate entities and any claim

against the Claims Administrator must be filed against The Garretson Resolution Group, Inc. Id.

at 3-5.

In Opposition, Plaintiff argues that the factual allegations in his Complaint must be

accepted as true, and the Court may not go outside of the Complaint. ECF No. 15 at 2-3. Plaintiff

argues that Epiq has been acting as Claims Administrator and his factual assertion that Garretson

is now known as Epiq is true, citing Epiq’s announcement of its acquisition of Garretson and

planned integration of same as well as internet search results. Id. at 3-4. Further, Plaintiff argues,

Epiq and Garretson should be treated as a single business enterprise because they operate as one

company, and Epiq has responded to a subpoena and referred to itself as the Claims Administrator

in other matters. Id. at 4. Plaintiff argues that he should be allowed discovery on the single

business enterprise theory before granting dismissal. Id. at 5-6. Alternatively, Plaintiff argues that

leave is proper under Rules 15 or 17 to substitute The Garretson Resolution Group, Inc. as the

defendant. Id at 7-9.

In Reply, Epiq repeats its arguments that that The Garretson Resolution Group, Inc., not

Epiq, is the Claims Administrator. ECF No. 16. Epiq does not address Plaintiff’s alternative

argument that he be granted leave to substitute The Garretson Resolution Group, Inc. for Epiq

under either Rule 15 or Rule 17.

III. LAW AND ANALYSIS

A. Background on the MSA and BELO Claims

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 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). In the Order and Judgment Granting Final Approval of Medical Benefits Class

Action Settlement and Confirming Certification of the Medical Benefits Settlement Class, Judge

Barbier confirmed the appointment of Garretson Resolution Group as the Claims Administrator.

10-md-2179, ECF No. 8218, ¶ 7 at 4.

B. 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.” 1 In short, Rule 12 requires the court to assess whether, in

plaintiff's best-case scenario, the complaint states a plausible case for relief.2

1 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).

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

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”).3 “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.”4 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.”5

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.”6

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.7 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.8

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

plaintiff's favor,10 the court should not accept as true “conclusory allegations, unwarranted factual

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

(5th Cir. 2008).

4 Iqbal, 556 U.S. at 678.

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

6 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).

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

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

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

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

inferences, or legal conclusions.”11 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.12 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.13

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.14

In addition, the court may consider any documents attached to the motion to dismiss that are central

to the claim and referenced by the complaint.15 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.16

11 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) (citations omitted); see also Twombly, 550 U.S. at 555 (citation

omitted).

12 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))).

13 Id. (citation omitted).

14 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).

15 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).

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

Although the court must accept all well-pleaded facts as true and consider the complaint in

the light most favorable to the plaintiff, the court should not accept as true “conclusory allegations,

unwarranted factual inferences, or legal conclusions.”17 Significantly, when an allegation is

contradicted by the contents of an allowed document, the document (not the allegation) controls.18

The court has “complete discretion” to either accept or exclude the evidence for purposes of the

motion to dismiss.19

C. Rule 15 Standard for Amendment

The Court has not yet issued a Scheduling Order establishing a deadline for amending

pleadings. Accordingly, any request for leave to amend is governed by FED. R. CIV. P. 15(a) rather

than the more stringent good cause requirements of FED. R. CIV. P. 16(b).20 Under Rule 15(a)(2),

the “court should freely give leave [to amend] when justice so requires.”21 Although leave to

17 Ferrer, 484 F.3d at 780 (citation omitted); Gentilello, 627 F.3d at 544 (citations omitted); see also Twombly, 550

U.S. at 555 (“[The] obligation to provide the grounds of [] entitlement to relief requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.”) (citations and internal

quotation marks omitted). When considering a Rule 12(b)(6) motion, the court must limit itself to the contents of the

pleadings, including any attachments thereto. Collins, 224 F.3d at 498 (citing FED. R. CIV. P. 12(b)(6)). Thus, it may

consider not only the allegations 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. See, e.g., Tellabs,

Inc., 551 U.S. at 322 (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”); Wolcott, 635 F.3d at 763 (same).

18 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).

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

20 See S & W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir. 2003) (“[Federal Rule of

Civil Procedure] 16(b) governs amendment of pleadings after a scheduling order deadline has expired. Only upon the

movant’s demonstration of good cause to modify the scheduling order [and with the judge’s consent] will the more

liberal standard of Rule 15(a) apply to the district court’s decision to grant or deny leave.”).

21 Denial of leave to amend is reviewed for abuse of discretion. Carroll v. Fort James Corp., 470 F.3d 1171, 1174

(5th Cir. 2006). The term “discretion” in this context “may be misleading, because [Rule] 15(a) evinces a bias in

favor of granting leave to amend.” Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir. 2004)

(quoting Stripling v. Jordan Prod. Co., 234 F.3d 863, 872 (5th Cir. 2000)). A district court properly exercises its

discretion under Rule 15(a)(2) when it denies leave to amend for a substantial reason, such as undue delay, repeated

amend is not automatic,22 given Rule 15(a)(2)’s bias in favor of granting leave to amend, a court

“must possess a ‘substantial reason’ to deny a request.”23

The five relevant factors considered in determining whether leave to amend is proper or

there is substantial reason to deny the request are: (1) undue delay, (2) bad faith or dilatory motive,

(3) repeated failure to cure deficiencies by previous amendments, (4) undue prejudice to the

opposing party, and (5) futility of the amendment.24 Denial of leave to amend is reviewed for

abuse of discretion,25 but absent a “substantial reason,” the court’s discretion “is not broad enough

to permit denial” of a request for leave to amend.26

D. Rule 17

Under Rule 17(a)(3), the court may not dismiss an action for failure to prosecute in the

name of the real party in interest until, after an objection, a reasonable time has been allowed for

the real party in interest to ratify, join, or be substituted into the action. FED. R. CIV. P. 17(a)(3).

The Fifth Circuit has held that Rule 17(a) is applicable “only when the plaintiff” has committed

an “understandable mistake, because the determination of the correct party to bring the action is

difficult.”27 Although Rule 17 typically applies in the context of substituting plaintiffs, it also

applies to defendants.28

failures to cure deficiencies, undue prejudice, or futility. U.S. ex rel. Spicer v. Westbrook, 751 F.3d 354, 367 (5th Cir.

2014) (citation omitted).

22 Avatar Expl., Inc. v. Chevron, U.S.A., Inc., 933 F.2d 314, 320 (5th Cir. 1991).

23 Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004) (citation omitted); accord Mayeaux, 376 F.3d at 425 (quoting

Martin’s Herend Imps., Inc. v. Diamond & Gem Trading U.S. of Am. Co., 195 F.3d 765, 770 (5th Cir. 1999); Stripling,

234 F.3d at 872).

24 Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir. 1981) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); see

also Spicer, 751 F.3d at 367 (citation omitted); Strickland v. Bank of N.Y. Mellon, 838 F. App’x 815, 821 (5th Cir.

2020) (quoting Marucci Sports, L.L.C. v. Nat'l Collegiate Athletic Ass'n, 751 F.3d 368, 378 (5th Cir. 2014)) (“Denying

a motion to amend is not an abuse of discretion if allowing an amendment would be futile.”).

25 Carroll, 470 F.3d at 1174 (citation omitted).

26 Mayeaux, 376 F.3d at 425 (quoting Martin’s Herend Imps., 195 F.3d at 770; Stripling, 234 F.3d at 872).

27 Wieburg v. GTE Sw. Inc., 272 F.3d 302, 308-09 (5th Cir. 2001).

28 See Green v. Whiteco Hosp. Corp., No. 89-2199, 1989 WL 94313, at *1 (E.D. La. Aug. 10, 1989) (citing Rule 17

to amend complaint to substitute correct defendant entity for related entity that ceased to exist).

IV. ANALYSIS

Initially, the court may consider whether a party is the proper defendant on a Rule 12(b)(6)

motion when the answer to that question is reflected in the properly considered documents.29 The

Court may take judicial notice of the terms of the MSA appointing Garretson Resolution Group as

the Claims Administrator, and consideration of the MSA does not convert the Rule 12(b)(6) motion

into a Rule 56 summary judgment motion.30 Further, where the allegations in the complaint are

contradicted by facts established by documents properly considered, the court may properly

disregard the allegations.31 And while Plaintiff argues that Epiq and Garretson are a “single

business enterprise,” Plaintiff’s Amended Complaint sets forth absolutely no factual basis to

support an inference that the entities are a single business enterprise or alter ego of one another.32

For these reasons, dismissal of Plaintiff’s claims against Epiq is proper.

Plaintiff should, however, be granted leave to amend to substitute Garretson Resolution

Group as the proper defendant. Rule 15 requires that the Court grant leave to amend absent

“substantial reason” to deny amendment. Here, Plaintiff filed suit just over two months ago, and

thus has not unduly delayed amendment nor has he demonstrated bad faith or dilatory motive or

repeatedly failed to cure deficiencies. Notably, Epiq has not demonstrated (or even addressed)

undue prejudice or futility. Accordingly, I cannot find a substantial reason to deny amendment to

29 See, e.g., McCaskill v. USAA Cas. Ins. Co., No. 23-3233, 2023 WL 8650005, at *3 (E.D. La. Dec. 14, 2023) (Africk,

J.) (granting Rule 12(b)(6) motion dismissing claims against USAA Casualty Insurance Company when attached

policy reflected United Services Automobile Association issued the policy).

30 Taking judicial notice of public records directly relevant to the issue in dispute is proper on a Rule 12(b)(6) review

and does not transform the motion into one for summary judgment. Funk v. Stryker Corp., 631 F.3d 777, 780, 783

(5th Cir. 2011); see FED. R. EVID. 201(b).

31 U.S. ex rel. Riley, 355 F.3d at 377.

32 Alter ego, veil piercing or single business entity analysis must be conducted under the law of the entity’s state of

incorporation, and surviving a Rule 12(b)(6) motion alleging same requires factual allegations of total domination or

control. See, e.g., In re Enron Corp. Sec. Derivative & ERISA Litig., 238 F. Supp. 3d 799, 839, 898-900 (S.D. Tex.

2017).

allow the substitution of The Garretson Resolution Group as the proper party defendant to

Plaintiffs claims against the Claims Administrator.

V. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS RECOMMENDED that the Motion to Dismiss Plaintiff's Complaint (ECF No. 14)

filed by Defendant Epiq Class Action & Claims Solutions, Inc. be GRANTED.

IT IS FURTHER RECOMMENDED that Plaintiff be granted leave to file a second

amended complaint within fourteen days of this Report and Recommendation.

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 Oth day of December, 2024.

UNITED STATES MAGISTRATE JUDGE

33 Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th 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).

10