IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30008

In re: Deepwater Horizon

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

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; 

United States Court of Appeals

Fifth Circuit

FILED

April 29, 2019

Lyle W. Cayce

Clerk

 Case: 18-30008 Document: 00514934760 Page: 1 Date Filed: 04/29/2019
No. 18-30008

2

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

 Case: 18-30008 Document: 00514934760 Page: 2 Date Filed: 04/29/2019
No. 18-30008

3

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:

 Case: 18-30008 Document: 00514934760 Page: 3 Date Filed: 04/29/2019
No. 18-30008

4

“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 

 Case: 18-30008 Document: 00514934760 Page: 4 Date Filed: 04/29/2019
No. 18-30008

5

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

 Case: 18-30008 Document: 00514934760 Page: 5 Date Filed: 04/29/2019
No. 18-30008

6

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 postjudgment 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 

 Case: 18-30008 Document: 00514934760 Page: 6 Date Filed: 04/29/2019
No. 18-30008

7

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.

 Case: 18-30008 Document: 00514934760 Page: 7 Date Filed: 04/29/2019
No. 18-30008

8

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). 

 Case: 18-30008 Document: 00514934760 Page: 8 Date Filed: 04/29/2019
No. 18-30008

9

That is evident from this record, justifying the district court’s dismissal-withprejudice 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.”

 Case: 18-30008 Document: 00514934760 Page: 9 Date Filed: 04/29/2019
No. 18-30008

10

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-withprejudice 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 

 Case: 18-30008 Document: 00514934760 Page: 10 Date Filed: 04/29/2019
No. 18-30008

11

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 refile 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 

 Case: 18-30008 Document: 00514934760 Page: 11 Date Filed: 04/29/2019
No. 18-30008

12

(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

 Case: 18-30008 Document: 00514934760 Page: 12 Date Filed: 04/29/2019