good morning and may please the court my name's billy gibbons and i represent seventeen to me own plaintiffs first one of the point out there we're not challenging the district court's case manager an order we're not saying that was enter without authority and we're not saying that we didn't have to follow it we're simply saying that we made a mistake and we're asking the court for a chance to correct it and i've got three main points i'd like to raise and support that position first the record supports a finding that we attempted to comply with the with the case management order p t s sixty three in good faith second under these circumstances and under the court's precedent in thrasher and even a barrel which was raised decided in the rule twenty for us until they were dismissed they hadn't gotten a series of warnings like the pereira plaintiff correct judge exactly and also i think a related point of aurora and i think this is what what i would say shows good faith attempt to comply is that we did every all those fifteen claims seventeen plaintiffs in all seventeen plaintiffs fog sworn statements as required by the p t o sixty three and that was one of the one of the factors in breyer that the nine eight zero by the attorney who was handling the case in the dish or court where he does explain that he believed that he was in good faith compliance he contacted the p s c to try to get some clarification and see it and what we were wrong and we made a mistake and we should have followed the individual petitions but that it be too you can fix that and there's no issue that it's futile or anything like that correct that they could be it can be fixed and really the the sworn statements are have just as much detail if not more than what would be in a petition and the difference too is that we actually did file petitions before with petitions and they were grouped together i mean there was a rhyme or reason of why they were grouped together as they were you know one was eastern district of louisiana plaintiffs one was florida plaintiffs and one was what was three family members and then one additional person you know not a non family member put in but but so there were there was a rhyme or reason and this was just not a situation where there was flouting of the courts for the use and you sought reconsideration yes your honor we because we didn't specifically address it or use that term in our motion for reconsideration but i would like to direct the court to that that the motion itself is that two zero one seven seven in the record and the from the first sentence says cleanest failure to to abide by p t o sixty three was unintentional was not intended to delay this matter in any way we argued that the in this was another quote the harshness of dismissal with prejudice is not warranted when plaintiffs have made an honest effort to comply with the court's ruling in have done so in a timely fashion and the court has never required any kind of magic words i think that in substance is failing to allow you to mend your pleading if you don't get a second chance correct your honor and that's exactly the argument is that we think that the district court abuses discretion by dismissing with prejudice in the absence of not only a finding other people are doing it just fine well i think that this really was just a mis a misreading of the order on our part and i think and and i'm really not going to argue that it was i mean we should have we should have done it right but i think in our thinking we saw the water and it said file individual claims we really we just missed the part about splitting we thought that by filing lawsuits that were not class actions because the three that we thought were not class actions we thought that that that was that that was ok and we thought and we really thought about following the sworn statements we were accomplishing what the court intended which was you know give us the specifics about each of these individual claims and so really there's no prejudice to the defendants here because the you know that whatever would have been a petition is in those sworn statements all of these cases are still stayed so there's really no reason that we couldn't go back and do what we you know what the court one is to do in the first place and in the absence of any kind of intentional you know flouting of the court's order we just think that the dish reports should have given a c opportunity to to to go back and fix the problem i think we have your argument thank you thank you please the court i'm heather lindsay and i represent over eight hundred cleanup workers who provided clean up services in the florida panhandle they provided those services subject to a contract they were required to sign p two s a wholly owned subsidiary of fluor those entities or one of them is understood to have contracted with b p to allow this to occur when the cleanup workers performed according to the contract they were summarily dismissed in september twenty ten this case that i brought that filed two complaints a father mess mass jointer claims in florida before the orders that are at issue in this appeal and they were removed they were transferred to the m d l they were transferred to the india because b p asked for that to occur since of course this was a clean up of b p s oil and they said it would impact them and for purposes of organizing all the claims that have been filed against b p or related to b p s conduct they wanted these claims over in the m t l the claims were state the two complaints that i had fi transferred they received numbers for the eastern district of louisiana and they were subject to a stay p t o order fifteen they were net that stay was never lifted the first notice that i understood that they actually were considered to be part of the class action complaint which i never considered my clients to be a part of for purposes of their breach of contract claim was when this happened in twenty seventeen when their claims were summarily dismissed with prejudice and there was no opportunity for me to correct that i had asked the court to take note that the particular claims that were still at issue in those two mass jointer complaints were simply the breach of contract claims s and floor and the third party beneficiary claim to the extent b p is ultimately held responsible for that breach of contract without ever having access to the contracts among those entities there  no way for me to evaluate the risk to my clients or the potential likelihood of success my clients have been forced to sign contracts to begin work but they were denied repeated requests for the copies of their contracts under florida law as long as i can state with specificity the terms of the contract as to length of employment and amount of pay i can survive summary judgment of them so did you submit any documentation to support your claimed inability to comply i did a declaration that is correct provided in an april motion for relief and reconsideration from p two p t of sixty three that it would cost approximately three hundred thousand more than three hundred thousand dollars to comply with the order and that most of the plaintiffs had no means to reimburse the firm there was no way to explore whether the expense was worth incurring because of the lack of discovery the burden was excessive on these plaintiffs to pay the filing fee and the only way they could pursue and form a pop era status would have been to proceed without a lawyer it would be inconsistent then as i asked the court to recognize below to see to to dismiss them or to require compliance without first allowing them the opportunity to see these contracts when the first file that i filed it in on april twelfth twenty seventeen and it had no supporting evidence it was just a motion it was a motion yes ma'am it did not contain a declaration i had and that was before the dismissal yes ma'am that was before that and then after the dismissal did you provide in any documentation in your reconsideration i have not provided a declaration swearing to the  of ability of my firm in santa rosa county to find these cases where i know i'm your honor and retrospect i have no better answer than to say it would seem sufficient for purposes of judicial notice where two person firm in milton florida with a population of ten thousand or less do you but did you know of the problem you knew of the problem before the dimmy co people knew about the problem because you had gotten an extension right  comply with p t o sixty three they had not gotten an extension you had gotten an extension and so at the time you're getting an extension could you say oh well the extensions really can be futile because it's too expensive for us anyway i had asked the court to be aware of that futility by virtue of my april twenty seven teen motion and but you knew you were on the verge of being dismissed because you got these warnings i only received the one morning your honor and when the case was dismissed when when the claims were dismissed with prejudice i asked the court to through my motions pursuant to rules fifty nine and sixty to reconsider and i further  requested that the court recognize in the interest of justice that the plaintiffs be allowed a chance to proceed without me you know that what would be in the interest of justice which would be a lesser sanction and would not prejudice b p unduly because b p has had the benefit of the state for many years is simply to allow these plaintiffs a chance to fire my firm and proceed and form a pop heiress that option there's never been an opportunity for that option and i would like the opportunity for my clients to be able to do that and i don't think that's too much of a burden on any party and it actually furthers the interest of justice for indigent people this ruling punishes indigent people it does not actually further the interests of justice or protect b p from prejudice did you argue that point to the district court i  argued in my motions for reconsideration under rules fifty nine and sixty that it was appropriate under will forty one for them to for the court to dismiss without prejudice so that so that more action can they take  you say because this is difficult the argument you just made eloquently well thank you ma'am i don't recall whether i used those exact words your honor i'm sorry what i tried to make clear to the court in my motions was that there was not an opportunity for me to understand fully the impact of this order because p t o s and floor were never parties before the m t l they were never the  parties that were part of the motion to for example received riveted of immunity they actually were not compliant with the federal response plan and i had evidence of that of record but i was not authorized to present that evidence because i was told that they're not part l so because of the confusion on my part about the i'm sorry i'm out of time but i have preserved three minutes finish my point because of my lack of understanding about the potential impact of the prejudice the dismissal of prejudice i didn't understand what would actually occur it was my belief that the worst that could happen to my clients was they would no longer be able to pursue b p but that they would be remained it to florida to pursue the entities that were not parties to the m t l but were the parties that had forced my clients to sign a contract and then had breached that contract without offering any damages thank you we have your argument thank you ma'am thank you your honor and may please the court the appellant in this case filed multipoint of complaints in two thousand and thirteen alleging damages from the deepwater horizon incident those multipoint of complaints were pending when judge barbie issued p file individual lawsuits one plaintiff pursuit but appellants did not comply with p t o sixty three even though p t o sixty three contains numerous warnings that failure to comply would result in dismissed with prejudice even though p t o sixty three came on the heels of p t o sixty and its similar enforcement by judge bar v a and even though hundreds of other plaintiffs who had filed multipoint of complaints readily complied with p t o sixty three by filing individual complaints one plaintiff pursuit as such judge bar b acted well within his discretion in dismissing appellants multipoint of complaints with prejudice for failure to comply with his order and his judgment should be affirmed counsel lawyers and what they tried to do or they didn't fall on their sword it seems that they may not be similarly situated in iran i think they are similarly situated for a couple reasons first of all in there actually was only one more warning then there was and there was no declaration like this declaration well a couple responses your honor also i want to point out that in in this case p t o sixty three also came on the heels of p t o sixty so all of these lawyers were aware of sixty what judge probably a head required in that what he had done in complying with that p t o sixty three came two months later and i think that you know the cause order that was part of the p t o sixty process you know that was a sewer spahn take a decision by judge bar b a and it was because the number of b one claims in that was so we norma's it was five times the number of claims that were in the p t o sixty three bottle and so i think it's well within judge barbie's discretion to determine that after he had already done p t o sixty and issued a compliance order and had a smaller docket of the three claims that he didn't have to issue this sort of sue a spontaneous intermediate show three b three plaintiffs who fail to comply with the above requirements will have their claims dismissed with prejudice without further notice and then later this court orders the designated plaintiffs to act in compliance with this order or face  dismissal of their claims with prejudice without further notice and then there's two other points in p t o sixty three that talks about how plaintiffs who do comply will be subject to further proceedings these are at paragraph sixty two page seven paragraph eight paragraph ten so ben and judge barbara is trying to keep the trains running on time and that in this context when he's already issued p t o sixty he's already issued the compliance order for p t s sixty p t o sixty three twice references p t o sixty and it talks about how there were similar requirements in p t o sixty and then issues of this p t o sixty three with two explicit warnings and then two additional statements about what's going to happen if you do comply i do think that it is not an abus discretion at that point for him not to give a sou a spontaneous show cause order and to require plaintiffs who have filed multi plaintiff complaints and there is no dispute here at this point that all the plaintiffs here qualify for honor because i think that there it's very hard to enforce deadlines in m t l where you've got a lot going on if you don't have the ability to meaningly enforce them and i'll use an example here you know reinstating th claims by the plaintiffs here would literally double the size of the b three docket that is now that is now before judge barbie and not only would it double it but in the last year or two he's issued additional orders about those remaining claims requiring additional information getting additional medical information making sure there aren't any fraudulent claims he issued p t o sixty six which applied to what remained of the the post p t o sixty three claims he's issued a compliance order that took about a year mr hicks when you say it would double the the amount of claimants your firm to both groups before is here domingo and lindsay that's correct there are there were about nine hundred  plaintiffs that were remaining after p t o sixty three s compliance order and there are you know about the over eight hundred plaintiffs who are now seeking to be reinstated here and so i think that actually is an extraordinary imposition on judge harvey but it's also an imposition you know if i can push back on this lack of prejudice point not that there needs to be any because i think said very clearly that there don't need to be these aggravating factors in and one of its footnotes but also the idea that there's not  p or to other plaintiffs i think it's just not correct if b p is trying to resolve these claims to bring them to a close and this is part of that process and to put eight hundred or so plaintiffs back in is not only detrimental to b p s efforts to do so it's awfully densher battle to the plaintiffs who complied with p t o sixty three and have been moved along in this process and now if these claims are reinstated everything has to stop everything has to start over all of the calculus and analysis that goes into the to resolving these claims has to be rethought redone reengineer by the district court there's a lot that goes on and this is just one small component of the m t l i mean this is just you know the p three medical personal injury claims you know as this court is certainly well aware there's a whole lot more that's happening in the n t l that judge barbie is overseeing and so i think that all just kind of goes back to why you know it is within his discretion after he has issued p t o sixty and compliance order and then p t o sixty three with multiple warnings to actually stay true to his word and this mess with i didn't hear your response you maybe didn't have a chance to give it to judge all r there was simply trying to explain why they were trying to comply and they you know they i think i think that actually makes pereira actually an even this is an easier case and because in the documentation was shown to be trying to comply not they actually didn't have documentation to said they've been trying to comply they just had the lawyer saying we're trying to comply and that one of the issues in the barricade was they didn't document that they had spent so many hours trying to do it and it would take so many more hours that was with the kinds of if you listen to the oral argument of the pereira case those are the questions that the court asked and that was the problem is they never documented or quantified their efforts to try and that was a big part of the case yes and to just to go further about the actual affidavit here you know two responses number one when there's the ability to seek clarification from the court if you really don't think that in order applies to you and just as a side no i don't find you know i think it's a very hard argument to say that p t o sixty three on its face did not apply here given the multipoint of complaints but if there was any uncertainty about it i think it is incumbent upon counsel to seek clarification from the court and not from the plaintiff steering committee but then going to the actual affidavit if you actually take a look at the affidavit and i would direct your attention to paragraph six which is kind of where the rubber meets the road as to you know who exactly gave what guidance and this is that one nine nine eight zero of the record you know it's awfully vague when you get to the final analysis of exactly who said what about what they could do it all of a sudden switches from the active voice to the passive voice it talks about you know focusing on individual clients you know and so i don't think that there's actually you know i don't think the  says quite what the plaintiffs wanted to be saying and i think that's you know underscores that it's maybe a dangerous road to go down when you know you can sort of excuse the plaintiffs call it negligence i don't know if i would call it negligence given how clear p t o sixty three was on its face and how every other plaintiff seemed to be able to comply with it and file individual complaints you know but i think that also underscores that you have a problem if you start getting into deciding you know who made a mistake and is that enough to excuse them because you know i could certainly see you know if a district court is saying well i don't think it's negligence well and you going to have appeals to this court saying was it negligence or was it not and you know in the meantime the m d o court is trying to move things along as it is here so i think that you know particularly in circumstances like this where you've got the abuse of discretion standard where you've got special deference to an end deal court that is trying to keep the trains running on time and has issued a nearly identical order with warnings has issued a compliance order with that and then has issued a nearly identical p t o sixty three with multiple warnings that clearly apply i mean i again i don't think there's any dispute here that it applies to all the plaintiffs here could you address the lynsey plaintiff's argument the two basic arguments one that they're not similarly situated because their cases are the different kind of contract races and their second argument is that it's cost prohibitive for the actions to take place because they would cost in excess of three and a thousand dollars can you please address those arguments on the first point three bundle includes and there's three different descriptions all of which encompass the claims that the lives the plaintiffs are brought all claims are related to post explosion cleanup all claims of any type relating to post explosion cleanup efforts including asserted against defendants not named in the b one master complaint so that includes the non b p plaintiffs the defendants although b p was also named as a defendant and three contract claims related to the response efforts so that squarely in congress is that linds plaintiff claims in fact if you go and look in this is that one zero nine four of the record the very first cause of action in their complaints is a personal injury claim based on exposure to hazardous substances so you know even putting aside this this contract claim notion which also falls within p t o sixty three their complaint falls within p t o sixty three but then i think your second question was about the prohibitive cost you know there are there are many ways to first of all i don't think that that stop the court in breyer or parades i mean you know the same arguments could have been made there but i think also think they were well i think that it's a similar it's a similar analysis in the sense that you know there were one hundred fourteen to file a lawsuit on your own how to file for i have peace status how to do all of these things and there wasn't even an attempt to do so by any of the lindsey plaintiffs and in fact there was there was never an attempt by the linds plaintiffs really until this court to claim that that p t o sixty three never even apply to them because the motion for relief that they filed on the day of the deadline it assumes that p t o sixty three applies to them and so the principal argument in this court that they're making that what we just didn't know that p t o sixty three apply to us i think is you know foreclosed by the plain language of p t of sixty three but it's also  undercut by their own motion to the court which assumed that it would apply to them did they argue that it was cost prohibitive to the district court opinion i believe in one of their several possibly one of their motions for reconsideration they might have said they might have thrown that in as one of their arguments i can't recall off the top of my head but you know that's that there's a reason why judge bar b a issued this particular order just as he did with p t o sixty which is you know to know who still has claims who wants to pursue them and what exactly those claims are and that's the barack court pointed out there have been instances of fraud in this m t l and you know one way to winnow out claims that are real or not real particularly when you've got an eight hundred person complaint is to require people to file individual complaints and to say exactly what their claims are and that's to pawn the declarations and things and we now have an the de micco plaintiffs filed in that these are not in that fraudulent camp are they i mean there are actual real people with real claims that have been that they've sworn to  are i'm sorry so for the demeter plaintiffs my understanding is yes they did file the sworn statements so you know i would suppose that there's no you know reason for thinking that there are fraudulent claims there but again you know it's  a question of whether judge bar b has the discretion to actually enforce the order that says you know if you filed a multi point of complaint which did to me plaintiff's indisputably did you have to file an individual lawsuit one plaintiff pursued and then you know we're going to have further proceedings on those and those further proceedings have taken place and it took a year for judge barbie a to process all of the remaining claims that were posted p t o sixty three using o sixty six and he's now ready to move on to you know what's after p t o sixty six and to reinstate plaintiffs at this point you know really gums up the works in the m d l which i think is contrary thank you i think we have your argument  your on just just a couple of points there were approximately one hundred eighty three cases on the you know in initial dismissal water so so you know i think that is at least some indication that you know we weren't the only ones who had trouble with this and and you know b p may criticize the affidavit that we followed but at least it shows an effort that we made to try to understand it to try to comply and this did not make it into the record on this case but in but in the m t l record itself at record document two to a six six was a motion for a status conference by another defendant who we know was seat was trying to see some clarification of the order that was denied at record document two two nine two two and that means also not the record but i mean we did make a phone call to the law clerk and and we're i think probably told that the court does not works because the ship has moved on to it you know sixty six could you could you what your response is well i mean the reality is is that these cases have been have been stayed for eight years and they're still stay there is a note there are no trial date set so while the may be a few you know additional filings that we have to make it sure it's we're only seventeen cases and so i don't think that those seventeen cases adding to the hundreds of cases that are out there are you know would gum up the works to the extent that you know it couldn't be you know it could be caught up in corrected and also the and i understand that there is that there is deference and additional discretion in m t l cases but in all of the cases especially with the would that have dealt with this b p case there's always been something more than just you know a miss a failure to comply or a mistake and here we did try i think that the record does show that that there was an attempt because really if we if we if we had not followed the sworn statements i think we would be in a different boat but here it does show an attempt to comply and really the i think the substance of what was done is in the spirit of order and we're really here i believe more on a technicality and and that's why we think it was abuse of discretion and that we should have been given the opportunity at a minimum a dismissal without prejudice so that we could have gone in and correct what i think is really more of a technical issue then than anything else and finally just the one last point is that p t o sixty three i don't think can be characterized as b p does as is the warning to us that was the one order and that was it and we made a mistake on that and that was it and we we would like the opportunity corrected thank thank i'd like to briefly respond to his argument as well as make sure i at least mention the florida constitutional argument that i have as far as the eight hundred claims being reinstated gumming up the works it's very unlikely that it would but we don't know because we don't have the contracts my belief is that b p would have some intimidate provision to protect it if p t o s and flu are breaching the federal response plan and exposing the workers to being poisoned so if there is a breach of contract claim that my clients can prove which we have asserted enough to survive summary judgment in florida to do that then who is going to be ultimately responsible to pay damages we don't know without their contracts but we'd like an opportunity to be able to pursue that against  the remedy to further the interests of justice is to eliminate b p from the case then let b p be dismissed so that these plaintiffs can be returned to the florida northern district court to pursue p t o s and floor because they are the entities that contracted with my clients and fired them summarily after they had performed would they be returned to florida automatically some a p s dismissed the process that we were assured would occur was that the the claims that we had filed in florida northern district court which were transferred which did this save new numbers for the e t l say that as soon as claims were resolved at some point they would be remanded we've seen that with the  other kinds of claims that are proceeding that when the claims arise in the northern district of florida they've been returned my firm represents people who are sick whose claims have been returned to the northern district of florida for purposes of discovery it's ongoing now against b p so i do believe that if the claims arise in the northern district of florida they will be returned there and that's based on what's happening as to personal injury clients who are pursuing claims against b p one of the comments made by opposing counsel that i would like to also disagree with is we did not know that these lawsuits based on breach of contract where you there be one or be three claims be three claims for personal injury claims my clients because personal injury claims have already been addressed through the other that breach of contract claim was not understood to be a be one claim subject to p t o sixty because they were not the vehicles of opportunity plaintiffs they were cleanup workers who had contracts on the beach contracts the existence of which had been denied by the entities that employed them and so i don't so i would like to comment briefly that the florida constitution protects access to justice these claims arose in florida by florida workers and they should have an opportunity to be heard the summary dismissal with prejudice prevents them from being heard and regardless of the impact to b p there should at least be some