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UNITED STATE DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

CASE NO.: 4:10-cv-00486-SPM-WCS

SCOTT CARSWELL, JULIE CARSWELL,

KENT McCOY, JANINE McCOY, and

ROBERT HOWARD, individually and as

representatives of similarly situated persons,

Plaintiffs,

vs.

LISA ECHEVERRI, as Executive Director of

the Florida Department of Revenue, acting in

her official capacity, and BP, plc; BP

PRODUCTS NORTH AMERICA INC.; BP

AMERICA INC.; BP EXPLORATION AND

PRODUCTION INC.; BP AMERICA

PRODUCTION COMPANY; TRANSOCEAN

LTD.; TRANSOCEAN OFFSHORE

DEEPWATER DRILLING, INC.;

TRANSOCEAN DEEPWATER, INC.;

TRANSOCEAN HOLDINGS, LLC; TRITON

ASSET LEASING GMBH; HALLIBURTON

ENERGY SERVICES, INC.; CAMERON

INTERNATIONAL CORPORATION f/k/a

COOPER CAMERON CORPORATION.;

ANADARKO PETROLEUM

CORPORATION.; ANADARKO E & P

COMPANY, L.P.; MOEX OFFSHORE 2007,

L.L.C.; M-I, LLC; DRIL-QUIP, INC.; MITSUI

OIL EXPLORATION; and HYUNDAI HEAVY

INDUSTRIES CO. LTD., INC.,

Defendants.

____________________________________________/

UNOPPOSED MOTION FOR STAY OF PROCEEDINGS

Defendants BP Products North America Inc., BP America Inc., BP Exploration &

Production Inc., and BP America Production Company (collectively, “BP Defendants”),

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appearing specially through counsel and expressly reserving all defenses, including without

limitation all defenses under Rule 12(b), Federal Rules of Civil Procedure, respectfully request

this Court to stay the proceedings and suspend all responsive pleading and answer deadlines in

the above-captioned action pending the resolution by the Judicial Panel on Multidistrict

Litigation (“Panel” or “JPML”) of the pending oppositions to transfer to MDL 2179 that were

filed by Plaintiffs and by Defendant Florida Department of Revenue (collectively, “Oppositions

to Transfer”). Specifically, the BP Defendants request this Court to stay the proceedings and

suspend all responsive pleading and answer deadlines in the above-captioned action until the

earlier of (1) transfer of this matter to MDL 2179 upon the Panel’s denial of the Oppositions to

Transfer; or (2) until 21 days after entry of an order granting the Oppositions to Transfer. In

support, the BP Defendants state:

BACKGROUND

1. This case is one of over four hundred (400) filed in various state and federal

courts in the United States arising out of an explosion and fire onboard Transocean’s Deepwater

Horizon drilling rig on April 20, 2010 and the ensuing oil spill from the BP well located on

Mississippi Canyon Block 252 (“Deepwater Horizon Incident”).

2. Since April 20, 2010, numerous plaintiffs have filed individual or class actions

alleging personal injuries, injury to their business or commercial interests and/or injury to their

real or personal property arising from the Deepwater Horizon Incident. Approximately two

hundred (200) of these suits are styled as class actions. The actions are dispersed across most of

the jurisdictions in the southeastern United States.

3. On May 7, 2010, BP Exploration & Production Inc. (“BPXP”) filed a motion

pursuant to 28 U.S.C. § 1407 to consolidate the many cases related to the Deepwater Horizon

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Incident before one Multidistrict Litigation Court. On August 10, 2010, the Panel issued its

Transfer Order transferring forty-six cases to the United States District Court for the Eastern

District of Louisiana, Hon. Carl J. Barbier, for coordinated or consolidated pretrial proceedings

with thirty-one related actions already pending in that district. Because this action was not the

subject of an initial motion to transfer, it was not included in the Panel’s Transfer Order. On

August 24, 2010, August 31, 2010, September 2, 2010, September 8, 2010, and October 28,

2010, the Panel issued its first, second, third, fourth, and fifth Conditional Transfer Orders,

respectively, in MDL 2179, transferring a combined one hundred ninety-one cases to the Eastern

District of Louisiana for inclusion in MDL 2179.

4. On November 10, 2010, the Panel issued its sixth Conditional Transfer Order

(“CTO-6”) in MDL 2179, transferring this case and three others to the Eastern District of

Louisiana for inclusion in MDL 2179.

5. On November 15, 2010, Plaintiffs and the Defendant Florida Department of

Revenue filed their Oppositions to Transfer, and their supporting briefs are due November 29

and 30, 2010, respectively. Responses are due December 20 and 21, respectively.

ARGUMENT

6. This case should be stayed pending the Panel’s resolution of the Oppositions to

Transfer. The Panel has already conditionally decided that this action should be transferred to

MDL 2179, and in the event the Panel denies the Oppositions to Transfer, the requested stay will

prevent needless waste of time and resources of the parties and the Court. Moreover, it will

protect the Defendants from being required to litigate identical issues in multiple jurisdictions,

with the danger of inconsistent rulings. The Panel has already set the briefing schedules for the

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filed Oppositions to Transfer, and the Plaintiffs, who do not oppose the BP Defendants’ request

for a stay, will not suffer any prejudice as a result of the temporary stay requested here.

7. The power to stay proceedings “is incidental to the power inherent in every court

to control the disposition of the cases on its docket with the economy of time and effort for itself,

for counsel, and for litigants.” Landis v. North Am. Co., 299 U.S. 248, 254 (1936); see also

Clinton v. Jones, 620 U.S. 683, 706 (1997) (“The District Court has broad discretion to stay

proceedings as incident to its power to control its own docket.”). Under the circumstances

present here, “stays are frequently granted to avoid duplicative efforts and preserve valuable

judicial resources.” Tench v. Jackson Nat’l Life Ins. Co., No. 99 C 5182, 1999 WL 1044923, at

*1 (N.D. Ill. Nov. 12, 1999). Indeed, the stay sought here serves the very “purpose of such

[MDL] transfers . . . to further judicial economy and to eliminate the potential for conflicting

pretrial rulings.” Good v. Prudential Ins. Co. of Am., 5 F. Supp. 2d 804, 809 (N.D. Cal. 1998).

8. Numerous federal courts, including courts within this Circuit, have recognized

that efficiency and uniformity demand the stay of an action pending the Panel’s resolution of a

motion to transfer and consolidate in an MDL proceeding. See, e.g., Maiben v. CSX Transp.,

Inc., No. 09-0125-WS-B, 2009 WL 1211186, at * 1 (S.D. Ala. May 1, 2009) (“[S]taying this

action pending transfer by the MDL Panel would promote the interests of efficiency and judicial

economy, would mitigate the possibility of inconsistent results between sister courts, and would

not prejudice the parties in any respect.”); Boudin v. Residential Essentials, LLC, No. 07-0018-

WS-C, 2007 WL 2609510, at *2 (S.D. Ala. Sept. 6, 2007) (declining to rule on motion to dismiss

until after JPML decided transfer motion); Thomas v. Ameriquest Mortg. Co., No. 07-0652-WSC, 2007 WL 3287842, at *1 (S.D. Ala. Nov. 5, 2007) (granting motion to stay and noting that

“the interests of promoting judicial efficiency, avoiding inconsistent results between sister

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courts, and avoiding prejudice to the parties” weighed in favor of allowing the MDL to decide

pending motions); Louisiana Stadium & Exposition Dist. v. Financial Guaranty Ins. Co., No. 09-

235, 2009 WL 926982, at * 1 (E.D. La. Apr. 2, 2009) (granting stay pending JPML’s disposition

of motion to transfer and consolidate); Kennedy v. Novartis Pharmaceuticals, Corp., No. CIV.A.

02-2331, 2002 WL 31051601, at *1 (E.D. La. Sept. 12, 2002) (“[T]he interests of judicial

economy will best by served by a temporary stay in these proceedings pending a ruling by the

Judicial Panel on Multidistrict Litigation.”); Falgoust v. Microsoft Corp., No. CIV.A. 00-0779,

2000 WL 462919, at * 2 (E.D. La. Apr. 19, 2000) (short stay to allow JPML to consider transfer

motion would best promote “the interests of judicial economy”); Aikins v. Microsoft Corp., No.

Civ.A. 00-0242, 2000 WL 310391, at *1 (E.D. La. Mar. 24, 2000) (“Consistency and economy

are both served by resolution of [common] issues by a single court after transfer by the JPML.”);

Ayers v. ConAgra Foods, Inc., No. H-08-3723, 2009 WL 982472, at * 1 (S.D. Tex. Apr. 9, 2009)

(“Judicial economy is served by a stay pending transfer if the issues involved in the [instant]

motion are likely to arise in the cases that have been or will be transferred to the MDL transferee

court.”); Morales v. Merck & Co., Inc., No. H-07-0599, 2007 WL 655714, at *1 (S.D. Tex. Feb.

28, 2007); Gonzalez v. Am. Home Products Corp., 223 F. Supp. 2d 803, 806 (S.D. Tex. 2002)

(granting stay to await ruling of JPML to avoid “duplicating the work of the MDL court”); Gavitt

v. Merck & Co., Inc., No. 2:08-cv-755-FtM-UA-DNF, 2008 WL 4642782, at *1-2 (M.D. Fla.

Oct. 20, 2008) (granting stay pending disposition of JPML motion to transfer).

9. Courts traditionally weigh three factors to determine whether a stay should be

ordered: (1) hardship to the moving party if a stay is not granted; (2) the judicial resources saved

by avoiding duplicative litigation; and (3) potential prejudice to the non-moving party.

Louisiana Stadium & Exposition Dist., 2009 WL 926982, at *1; Falgoust, 2000 WL 462919, at

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*2; Rivers v. Walt Disney Co., 980 F. Supp. 1360, 1360 (C.D. Cal. 1997). Each of these factors

weighs heavily in favor of a stay in this case.

10. First, the BP Defendants face a significant risk of inconsistent pretrial rulings and

duplicative waste of party resources if a stay is not granted. This case, like many others that the

Panel has already transferred, has been brought against the same Defendants based on the same

facts and raises common questions for discovery and trial. The BP Defendants “would suffer a

considerable hardship and inequity if forced to simultaneously litigate multiple suits in multiple

courts.” Falgoust, 2000 WL 462919, at *2. The stay requested would alleviate the risk of the BP

Defendants being subjected to multiple pleading and discovery requirements, and potentially

conflicting or inconsistent rulings on pretrial matters.

11. Second, a stay will conserve judicial resources and prevent inconsistent

adjudications. The complexity of many of the factual and legal issues that are likely to arise

across some or all of the Related Cases will “require the mastery of several procedural and

substantive issues” that is best acquired by a single court to avoid the unnecessary expenditure of

judicial resources. Thomas, 2007 WL 3287842, at *1; see also Louisiana Stadium & Exposition

Dist., 2009 WL 926982, at *1 (waste of judicial resources weighed heavily in favor of a stay

where “the Court would have to spend time familiarizing itself with the intricacies of a case

involving complex financial transactions that will ultimately be heard by another judge.”). As

previously discussed, a stay will also prevent inconsistent pre-trial rulings that establish

conflicting standards of conduct or discovery procedures.

12. Third, the short requested stay — no longer than necessary for the Panel to issue

its ruling on the Oppositions to Transfer — will not prejudice the Plaintiffs here. See Falgoust,

2000 WL 462919, at * 2 (granting stay where “[p]laintiffs have failed to show any significant

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prejudice they would suffer, beyond the slight delay pending the JPML decision.”). Nothing in

the complaint suggests that a stay likely lasting approximately two months would impose

significant prejudice, nor is there any indication that evidence or witnesses would be lost during

such a short stay. Further, even if Plaintiffs would be prejudiced by a brief stay, that minimal

prejudice is offset by the obvious benefits of coordinated proceedings. See, e.g., Rivers, 980 F.

Supp. at 1362 n.5 (“[E]ven if a temporary stay could be characterized as a delay that would be

prejudicial . . . there are still considerations of judicial economy that outweigh any prejudice.”).

13. Moreover, any incremental prejudice Plaintiffs may claim as a result of the short

stay requested is necessarily minimal, as this action is already stayed as to claims against the

Transocean Defendants under an Order entered by the U.S. District Court for the Southern

District of Texas in Transocean’s Limitation of Liability action. A short stay of Plaintiffs’

claims against the remaining Defendants pending the Panel’s decision on this case will not

significantly impact the Plaintiffs.

14. Recognizing that a stay will best serve the interests of judicial economy and

prevent undue prejudice to the Defendants without harming the Plaintiffs, a substantial majority

of the courts from which the BP Defendants have requested a stay pending action by the Panel to

date have entered orders staying their respective cases, including all such cases pending in the

three federal district courts in Florida.

15. Undersigned counsel has conferred with Plaintiffs’ counsel, who has indicated

that Plaintiffs do not oppose the short stay requested in this motion.

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WHEREFORE, for all of the foregoing reasons, the BP Defendants respectfully move for

an order temporarily staying proceedings and suspending all responsive pleading and answer

deadlines in this action until the earlier of (1) transfer of this matter to MDL 2179 upon the

Panel’s denial of the Oppositions to Transfer; or (2) until 21 days after entry of an order granting

the Oppositions to Transfer.

CONFERENCE PURSUANT TO N.D. FLA. LOC. R. 7.1(B)

Before filing this motion, counsel for the BP Defendants conferred with counsel for

Plaintiffs in a good faith effort to resolve the issues raised herein, and counsel for Plaintiffs has

advised that Plaintiffs do not oppose the relief requested in this motion.

OF COUNSEL:

Richard C. Godfrey, P.C.

John T. Hickey Jr., P.C.

J. Andrew Langan, P.C. (admitted N.D. Fla.)

Wendy L. Bloom (admitted N.D. Fla.)

Kirkland & Ellis LLP

300 North LaSalle Street

Chicago, IL 60654

312-862-2000 (Tel)

312-862-2200 (Fax)

Attorneys for the BP Defendants

AKERMAN SENTERFITT

106 East College Avenue, Suite 1200

Tallahassee, FL 32301

Phone: (850) 224-9634

Fax: (850) 222-0103

By: s/ Thomas A. Range

J. Riley Davis

Florida Bar Number: 118121

Thomas A. Range

Florida Bar Number: 568651

Attorneys for the BP Defendants

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing has been filed on November 16, 2010 via

CM/ECF, which will send a copy of this filing via electronic mail to all attorneys of record.

s/ Thomas A. Range

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