IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30921

In Re: Deepwater Horizon

___________________

JELP BARBER,

 Plaintiff - Appellant

v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA 

PRODUCTION COMPANY; BP CORPORATION NORTH AMERICA, 

INCORPORATED; BP, P.L.C.; HALLIBURTON ENERGY SERVICES, 

INCORPORATED; SPERRY DRILLING SERVICES; TRANSOCEAN 

OFFSHORE DEEPWATER DRILLING, INCORPORATED; TRANSOCEAN 

HOLDINGS, L.L.C., 

 Defendants – Appellees

___________________

JOHNNY’S CLAMS, INCORPORATED

Plaintiff – Appellant

v.

BP EXPLORATION & PRODUCTION, INCORPORATED; BP AMERICA 

PRODUCTION COMPANY; BP CORPORATION NORTH AMERICA, 

INCORPORATED; BP, P.L.C.; HALLIBURTON ENERGY SERVICES, 

INCORPORATED; SPERRY DRILLING SERVICES; TRANSOCEAN 

OFFSHORE DEEPWATER DRILLING, INCORPORATED; TRANSOCEAN 

HOLDINGS, L.L.C., 

 Defendants – Appellees

United States Court of Appeals

Fifth Circuit

FILED

February 18, 2019

Lyle W. Cayce

Clerk

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Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:10-MD-2179

Before JOLLY, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Jelp Barber and Johnny’s Clams appeal the judgment of the district 

court dismissing their economic loss suits arising from the Deepwater Horizon 

oil spill. The district court dismissed the plaintiffs’ claims after finding they 

had signed valid releases relinquishing their right to sue in exchange for final 

payments. We AFFIRM.

I.

The facts and procedural landscape of the litigation following the 

Deepwater Horizon oil spill are familiar to this court. Shortly after the spill, 

BP established the Gulf Coast Claims Facility (GCCF) to receive and pay 

claims arising from the spill. Initially, the GCCF paid “Emergency Advance 

Payments” (EAPs) to claimants for documented losses sustained up to six 

months after the spill. Claimants were not required to sign a release to receive 

EAPs. Later, EAPs were replaced by three types of claims: Interim Payment, 

Full Review Final Payment, and Quick Payment Final. Interim Payments 

compensated for past losses, could generally be claimed every three months, 

and did not require claimants to sign a release. Full Review Final Payment 

and Quick Payment Final were intended to compensate for all losses, past and 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

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future. Therefore, to obtain either type of final payment under the GCCF, the 

claimant had to sign a prospective release and covenant not to sue, waiving all 

rights against BP and other parties for claims arising from the oil spill. The 

GCCF ended in 2012 after BP agreed to a class-wide settlement, which 

excluded all individuals and entities who signed a release after making a claim 

with the GCCF.

Jelp Barber and Johnny’s Clams both received payments under the 

GCCF. Jelp Barber received a $40,000 Emergency Advance Payment, a $5,000 

Interim Payment, and a $25,000 Full Review Final Payment. Johnny’s Clams, 

Inc., received a $21,700 Interim Payment and a $25,000 Quick Payment Final. 

To receive their final payments, both plaintiffs signed releases.

Barber and Johnny’s Clams, along with more than 1,000 other plaintiffs,

filed complaints against BP, Transocean, and Halliburton (collectively, BP) 

claiming compensable losses as a result of the spill. The district court issued 

a PTO ordering BP to file dispositive motions regarding the plaintiffs seeking 

recovery for economic and business losses who had signed releases. BP 

complied, identifying Barber and Johnny’s Clams as two such parties. BP 

submitted a motion to dismiss, a memorandum in support of the motion, and 

exhibits showing that the releases had been signed. The district court granted 

BP’s motion, and plaintiffs timely appealed.

II.

Plaintiffs argue that the district court converted BP’s motion to dismiss 

into a motion for summary judgment by considering matters outside the 

pleadings, and the court’s failure to provide the plaintiffs with notice or a 

reasonable opportunity to present evidence after the conversion was reversible 

error. A motion to dismiss is converted to a motion for summary judgment 

when “matters outside of the pleadings are presented to and not excluded by 

the court.” FED. R. CIV. P. 12(d). When such a conversion takes place, the 

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district court must provide the plaintiffs “a reasonable opportunity to present 

all the material that is pertinent to the motion.” FED. R. CIV. P. 12(d). 

However, formal notice from the court is not required when the court “accept[s] 

for consideration on the motion matters outside the pleadings,” as the 

introduction of such materials provides sufficient notice to the plaintiff that 

the court could treat the motion to dismiss as one for summary judgment. See, 

e.g., Isquith v. Middle S. Util., 847 F.2d 186, 195 (5th Cir. 1988). 

Here, the district court’s PTO explicitly invited BP to file dispositive 

motions based on signed releases, which BP filed, along with the releases 

attached as exhibits. The releases were matters outside the pleadings. See

FED. R. CIV. P. 8(c)(1) (listing “release” as an affirmative defense); 5C WRIGHT 

& MILLER,FEDERAL PRACTICE AND PROCEDURE § 1366 (3d ed. 2018) (explaining 

that the existence of an affirmative defense, unless apparent on the face of the 

complaint, is a matter outside of the pleadings). The court’s request to submit 

the releases and BP’s compliance with that request, therefore, put the 

plaintiffs on notice that the court was considering matters outside the 

pleadings and could treat the motion as one for summary judgment. This gave 

the plaintiffs five months to present arguments and evidence to contest the 

validity of the releases. Because the plaintiffs had a reasonable opportunity to 

present material opposing the motion, the district court did not err.

III. 

Plaintiffs also argue the district court should have applied the “ward of 

admiralty” doctrine to their releases—which applies to “seamen” and places 

the burden on the defendant “to show that [a seaman’s release] was executed 

freely, without deception or coercion, and that it was made by the seaman with 

full understanding of his rights.” Garrett v. Moore-McCormack Co., 317 U.S. 

239, 248 (1942). Alternatively, the plaintiffs argue that the district court erred 

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in finding the releases enforceable because they were signed under economic 

duress.

The district court explained that the “ward of admiralty” doctrine 

ordinarily applies “to a release of a seaman’s claims against his employer 

and/or the vessel owner for personal injury or some benefit (e.g., wages) under 

the seaman’s employment contract.” Even assuming the plaintiffs qualified as

seamen, the court reasoned, caselaw did not support applying “the Garrett

standard to a release of a seaman’s pure economic-loss tort claim resulting 

from an oil spill and asserted against a nonemployer, non-vessel owner, thirdparty.” As for the economic duress argument, the district court found that 

plaintiffs’ claims failed as a matter of law because they could not prove one of 

the elements of economic duress—that they had no reasonable alternative 

course of action other than signing the releases. See Leader Glob. Sols., LLC 

v. Tradeco Infraestructura, S.A. DE C.V., 155 F. Supp. 3d 1310, 1318 (S.D. Fla. 

2016) (listing the elements of economic duress). “As provided under OPA and 

as noted in the release itself, there were at least two reasonable alternatives 

to accepting the Quick Payment Final: file a lawsuit in court or submit a claim 

to the Oil Spill Liability Trust Fund,” which is administered by the Coast 

Guard’s National Pollution Funds Center. We agree with the district court and 

AFFIRM for essentially the reasons stated by that court.

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