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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

SCOTT CARSWELL, JULIE CARSWELL, KENT McCOY,

JANINE McCOY, and ROBERT HOWARD, individually and

as representatives of similarly situated persons,

Plaintiffs,

v.

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.

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CASE No. 4:10-CV-00486

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BP DEFENDANTS’ RESPONSE TO DEFENDANT FLORIDA DEPARTMENT OF

REVENUE’S MOTION TO DISMISS AND IN THE ALTERNATIVE REMAND

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

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

respectfully submit this brief in response to the Motion to Dismiss and in the Alternative

Remand filed by the Executive Director of the Florida Department of Revenue (Doc. 26).

As explained in further detail in the BP Defendants’ Response to Plaintiffs’ Motion to

Remand (Doc. 45), the BP Defendants have no reason to dispute the Eleventh Amendment

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arguments made in the Executive Director’s motion, and do not object to remand of Plaintiffs’

separate claim for declaratory relief against the Executive Director to state court. The BP

Defendants oppose only Plaintiffs’ motion to remand to state court the claims against the

remaining defendants, including the BP Defendants. Under controlling Supreme Court

precedent,

A State’s proper assertion of an Eleventh Amendment bar after

removal means that the federal court cannot hear the barred claim.

But that circumstance does not destroy removal jurisdiction over

the remaining claims in the case before us. A federal court can

proceed to hear those other claims, and the District Court did not

err in doing so.

Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381, 392-93 (1998) (unanimous).

Accordingly, if this Court chooses to address the merits of the Executive Director’s motion

before a determination by the Judicial Panel on Multidistrict Litigation with respect to this case,

the BP Defendants respectfully submit that this Court may remand Plaintiffs’ claims against the

Executive Director while at the same time maintaining jurisdiction over the claims against the

remaining defendants, including the BP Defendants.

In further support of this response brief, the BP Defendants incorporate by reference the

arguments made in their Response to Plaintiffs’ Motion to Remand (Doc. 45).

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

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing has been filed on December 17, 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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