United States Court of Appeals

for the Fifth Circuit

No. 20-30689

In re: Deepwater Horizon

Albert B. Moore, III; A’Donna Richardson; Rashawn 

White; Yen Do; Ellasha Galloway, for the minor child B.S.; 

Frances Roberts; George Pickett; Scott Porter, 

Plaintiffs—Appellants,

versus

BP Exploration & Production, Incorporated; BP 

America Production Company; BP, P.L.C.; Transocean 

Holdings, L.L.C.; Transocean Deepwater, 

Incorporated; Transocean Offshore Deepwater 

Drilling, Incorporated; Halliburton Energy Services, 

Incorporated, 

Defendants—Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:10-MD-2179

Before Clement, Haynes, and Wilson, Circuit Judges.

Per Curiam:

United States Court of Appeals

Fifth Circuit

FILED

August 3, 2021

Lyle W. Cayce

Clerk
No. 20-30689

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This case is another in the line of cases related to the Deepwater 

Horizon oil spill. Eight individuals (collectively, “Plaintiffs”) appeal the 

district court’s order dismissing their claims with prejudice. We AFFIRM.

I. Background

To effectively resolve claims arising under MDL 2179—the 

multidistrict litigation handling all lawsuits against BP and other related 

defendants (collectively, “BP”) stemming from the Deepwater Horizon oil 

spill—the district court established pleading bundles for different categories 

of cases. Plaintiffs are all part of the B3 pleading bundle, which includes

personal-injury claims, and allege that they sustained medical conditions 

arising from exposure to the oil spill. As B3 plaintiffs, Plaintiffs were required 

to comply with several pretrial orders (“PTOs”). They complied with all

PTOs up until PTO 68, which was issued on October 21, 2019. The question 

of compliance with that order prompted this appeal.

Of relevance, PTO 68 required Plaintiffs to provide past and present 

information about their medical conditions, which would be treated as 

interrogatory answers: the dates those conditions were diagnosed and first 

treated, names of their diagnosing healthcare providers, and whether 

treatment was currently being obtained. After requesting and receiving one 

extension, Plaintiffs responded to PTO 68 with conflicting information; they 

answered “N/A” or “Did not seek treatment” as to the past, but they then 

indicated they were still receiving treatment in the present. Plaintiffs revised 

their answers after conferring with BP, but the inconsistencies remained. 

Thus, BP noted Plaintiffs’ noncompliance with PTO 68 in its status report to 

the district court. 

The district court agreed that Plaintiffs’ responses were noncompliant

and issued a show cause order requiring Plaintiffs to explain by May 18, 2020 

“why their claims should not be dismissed for failing to comply with PTO 
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68.” Plaintiffs conceded that their initial responses were internally 

inconsistent; but they argued that they could sufficiently cure those 

inconsistencies with another revision by saying they “d[id] not recall” as to 

the past. Plaintiffs accordingly filed another revision. In sum, Plaintiffs 

thrice attempted to comply with PTO 68, answering “N/A,” “Did not seek 

treatment,” or “does not recall” about the past but also answering that they 

were currently seeking treatment.1

Concluding that Plaintiffs’ responses were “puzzling” and “hard to 

make sense of” at the show cause hearing, the district court held that 

Plaintiffs failed to comply with PTO 68 and dismissed their claims with 

prejudice. Plaintiffs timely appealed. 

II. Standard of Review

We review docket-management matters for an abuse of discretion. In 

re Deepwater Horizon (Barrera), 907 F.3d 232, 234 (5th Cir. 2018) (per 

curiam). A district court abuses its discretion when “its ruling is based on an 

erroneous view of the law or a clearly erroneous assessment of the evidence.” 

Id. (quotation omitted).

III. Discussion

Plaintiffs argue that the district court abused its discretion in 

dismissing their claims with prejudice. The parties agree that dismissal with 

prejudice is permissible here only when two conditions are satisfied: (1) there 

is “a clear record of delay or contumacious conduct by the plaintiff” and 

(2) “lesser sanctions would not serve the best interests of justice.” Id. at 235 

1 Certain Plaintiffs answered that they did not recall the requested dates and 

diagnosing doctor in their initial response and/or their first revision. Despite the district 

court finding those answers noncompliant, those Plaintiffs did not revise their answers; 

instead, all other Plaintiffs followed suit, copying their “d[id] not recall” answers.
No. 20-30689

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(quotations omitted). Because our “independent review of the record

confirms that both prongs are satisfied,” we hold that the district court did

not abuse its discretion. See In re Taxotere (Docetaxel) Prods. Liab. Litig., 966 

F.3d 351, 359 (5th Cir. 2020) (noting that district courts need not make 

“specific factual findings” on each prong to dismiss with prejudice). 

A. Clear Record of Delay 

There is a clear record of delay by Plaintiffs in complying with PTO 

68. Plaintiffs had nearly seven months—from the date of PTO 68’s issuance 

on October 21, 2019 to the date when Plaintiffs were required to respond to 

the show cause order on May 18, 2020—to obtain the necessary medical 

records and recall the required dates and diagnosing doctor to submit

compliant responses. That time period included an extension and two 

additional opportunities to comply that Plaintiffs failed to take advantage of. 

Although PTO 68 required Plaintiffs to provide information 

concerning their alleged claims of personal injuries that occurred about ten 

years ago, their inability to remember (or, at least, keep track of) such 

foundational information is suspect. They knew or should have known that 

they were going to pursue a claim against BP immediately upon the Deepwater 

Horizon oil spill. Consequently, Plaintiffs should have been keeping track of 

their claims. Thus, the information concerning when they first sought 

treatment for their alleged injuries and who their diagnosing doctor was

should have been “reasonably available” to them. Areizaga v. ADW Corp., 

314 F.R.D. 428, 437 (N.D. Tex. 2016). At the very least, Plaintiffs should 

have been “diligent” and made a “good-faith” effort to obtain the necessary 

medical information in the nearly seven months the district court provided.

They also should have explained, with a description of their efforts, why they 

could not obtain such records in the time provided. McLeod, Alexander, Powel 

& Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485–86 (5th Cir. 1990). Therefore, 
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Plaintiffs’ “N/A,” “Did not seek treatment,” and “does not recall” answers 

fail to meet PTO 68’s directive that Plaintiffs provide responses equivalent 

to interrogatory answers. Further, the internal inconsistencies in Plaintiffs’

answers and revisions yet again constitute part of the delay; Plaintiffs’ 

briefing does not provide any cogent explanation.2 

Accordingly, Plaintiffs’ continuous and self-imposed failure to 

comply with PTO 68 amounts to clear delay. See Barrera, 907 F.3d at 234–

37 (affirming the district court’s dismissal of the plaintiffs’ claims with 

prejudice for failure to comply with PTO 60’s deadline because the plaintiffs 

had been given one extension and a show cause order to come into 

compliance and failed to explain, with corroboration, why they could not 

comply within the given amount of time);3 cf. In re Deepwater Horizon

(Graham), 922 F.3d 660, 667–68 (5th Cir. 2019) (reversing the district 

court’s dismissal of certain plaintiffs’ claims with prejudice for failure to 

comply with a PTO because the plaintiffs had followed erroneous advice 

from the Plaintiffs’ Steering Committee).

2 Plaintiffs state that in some cases, they provided “N/A” because the deadline 

was too short; per Plaintiffs, they “had not sought medical treatment until shortly before 

the issuance of PTO 68, which was recently enough that [their] counsel did not have time 

to obtain the medical records from the providers.” Plaintiffs, however, did not provide this 

explanation to the district court, so it does not affect our analysis. See Barrera, 907 F.3d at 

234 (noting that an abuse of discretion requires a clearly erroneous assessment of the 

evidence before the district court). Even if we considered it, their argument continues to 

have inconsistencies.

3 Although Plaintiffs met PTO 68’s deadline—unlike the Barrera plaintiffs, who 

failed to submit any documentation by the deadline (or submitted it late)—that difference 

is not dispositive. Receiving noncompliant filings is in many ways just as bad as receiving 

no filings at all. See Moore v. CITGO Refin. & Chems. Co., L.P., 735 F.3d 309, 314, 317 (5th 

Cir. 2013) (affirming a district court’s dismissal with prejudice of plaintiffs’ claims because 

they responded, but failed to comply with, the district court’s two discovery orders).
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B. Lesser Sanctions 

No lesser sanction than dismissal with prejudice would serve the 

interests of justice. Indeed, the district court already tried a lesser sanction—

its show cause order. See Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir. 

1982). Because that lesser sanction did not produce compliance, it is unclear 

what other lesser sanctions could have been appropriate, since “[a]ny 

sanction other than dismissal would not achieve the desired effect of [a] 

PTO[], and would further delay the district court’s efforts to adjudicate the 

MDL expeditiously.” Barrera, 907 F.3d at 236. 

IV. Conclusion 

Plaintiffs’ conduct satisfies both prongs for the standard for 

dismissing with prejudice. The district court did not abuse its discretion in 

dismissing Plaintiffs’ claims with prejudice.4 Accordingly, we AFFIRM.

4 In so holding, we reiterate that, in the MDL context, we do not require—and need 

not consider—any aggravating factor for a dismissal with prejudice. See Barrera, 907 F.3d 

at 235–37, 235 n.1 (noting that “aggravating factors are not required for a dismissal with 

prejudice” and affirming the district court’s dismissal with prejudice for failure to comply 

with PTO 60 without addressing those factors); In re Deepwater Horizon (Cepeda), 765 F. 

App’x 980, 982–83 (5th Cir. 2019) (per curiam) (affirming the district court’s dismissal 

with prejudice for failure to comply with a PTO without addressing the aggravating 

factors); see generally In re Taxotere, 966 F.3d at 358–59 (noting that, due to the complexity 

of managing an MDL, district courts require “greater flexibility to dismiss a plaintiff,” and 

that the two-pronged test, sans aggravating factors, “helps animate the goals of strict 

enforcement and efficient management”).