IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30122

In re: Deepwater Horizon

____________________

JOAQUIN BARRERA, doing business as Restaurant Familiar Ah Caray, 

 Plaintiff - Appellant

v.

BP, P.L.C.; BP AMERICA, INCORPORATED; BP PRODUCTS NORTH 

AMERICA, INCORPORATED; BP AMERICA PRODUCTION COMPANY; 

BP EXPLORATION & PRODUCTION, INCORPORATED, 

 Defendants - Appellees

_____________________________

S.C.P.P. UNIDOS DE MATAMOROS, S.C. DE R.L.,

 Plaintiff - Appellant

v.

BP, P.L.C.; BP AMERICA, INCORPORATED; BP PRODUCTS NORTH 

AMERICA, INCORPORATED; BP AMERICA PRODUCTION COMPANY; 

BP EXPLORATION & PRODUCTION, INCORPORATED,

 Defendants - Appellees

_______________________________

S.C.P.P. 20 DE APRIL DEL POBLADO IGNACIO ZARAGOZA, S.C. DE R.L. 

DE C.V.,

 Plaintiff - Appellant

United States Court of Appeals

Fifth Circuit

FILED

October 18, 2018

Lyle W. Cayce

Clerk

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No. 17-30122

2

v.

BP, P.L.C.; BP AMERICA, INCORPORATED; BP PRODUCTS NORTH 

AMERICA, INCORPORATED; BP AMERICA PRODUCTION COMPANY; 

BP EXPLORATION & PRODUCTION, INCORPORATED,

 Defendants - Appellees

Appeal from the United States District Court 

for the Eastern District of Louisiana 

Before KING, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:

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

Horizon oil spill. The 104 appellants here (collectively referred to as 

“Plaintiffs”) appeal the district court’s order dismissing their claims with 

prejudice. We AFFIRM.

I. Background

Plaintiffs are individuals and associations located in Mexico that rely on 

the fishing industry as a primary source of income. They are a part of the 

remaining group of plaintiffs from multidistrict litigation (“MDL”) 2179, which 

was created following the Deepwater Horizon accident in 2010 to ensure that 

the people and entities affected by the accident with legitimate claims could

recover from appellees, various corporate entities of British Petroleum,

collectively referred to as “BP.” 

Following settlements of certain claims in the MDL, the district court 

issued pretrial order 60 (“PTO 60”), which required that all remaining 

individuals or entities whose claims had not been settled file individual 

lawsuits with the district court. Plaintiffs, along with other foreign plaintiffs, 

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filed a complaint which was transferred to the MDL court in May 2013. 

Significantly, PTO 60 required individual lawsuits to have a wet-ink signature 

from each plaintiff, to be received by the court by May 2, 2016. PTO 60 warned 

that non-compliance would result in “dismissal of their claims with prejudice 

without further notice.” 

Plaintiffs’ attorneys filed a motion for extension of time and requested 

an additional ninety days to comply with PTO 60. They stated that they 

needed the additional time because they represented 1510 plaintiffs and it 

would be logistically difficult to comply. The district court granted a fourteenday extension, but emphasized that “[n]o further extensions of time will be 

granted.” 

Plaintiffs’ attorneys then filed a second motion for extension of time and 

explained that they were having technical filing issues, and that they had 

“clients that [were] out of town, out of the country, or working offshore and 

unable to respond to counsel in the 48-day window and [could] not provide the 

sworn declaration.” The district court did not rule on the motion, and Plaintiffs 

did not properly file their declarations by the deadline. The district court then 

issued a show cause order, mandating that plaintiffs that failed to comply with 

PTO 60 “show cause in writing on or before June 28, 2016, why this Court 

should not dismiss their B1 claim(s) with prejudice for failing to comply with 

the requirements of PTO 60.” 

Plaintiffs’ attorneys argued that: (1) certain plaintiffs should be granted 

additional time to submit the signed declaration, (2) other plaintiffs had, since 

the deadline, filed an individual declaration and had an individual lawsuit 

filed, and (3) the plaintiffs in the mass joinder complaint needed additional 

time to comply because of a “lack of electronic means, working offshore, 

inaccessibility, and change of contact information.” BP countered that any 

plaintiffs that had not complied with PTO 60 by that time should be dismissed. 

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On December 16, 2016, the district court dismissed Plaintiffs’ claims

with prejudice. Plaintiffs filed a motion for reconsideration on January 13, 

2017, and the district court denied that motion. Plaintiffs appeal the dismissal 

of their claims with prejudice and the denial of their Rule 59(e) and 60(b) 

motions.

II. Standard of Review

We review matters concerning docket management for an abuse of 

discretion. See Garcia v. Woman’s Hosp. of Tex., 143 F.3d 227, 229 (5th Cir. 

1998) (per curiam). “A trial court abuses its discretion when its ruling is based 

on an erroneous view of the law or a clearly erroneous assessment of the 

evidence.” Elementis Chromium v. Coastal States Petroleum, 450 F.3d 607,

610 (5th Cir. 2006) (internal quotation marks omitted) (quoting Bocanegra v. 

Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003)).

III. Discussion

The parties agree that dismissal with prejudice is only permissible where 

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

“where lesser sanctions would not serve the best interests of justice.”1 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)). However, as two of our sister 

circuits have held, there is a special deference required in the context of an 

 

1 Although our prior analysis surrounding whether a dismissal with prejudice is 

proper has predominantly been in the context of effectuating service and involuntary 

dismissal for failure to prosecute under Federal Rule of Civil Procedure 41(b), we have also

indicated that the same standard applies in the case of dismissals with prejudice related to 

docket management. See, e.g., Price v. McGathery, 792 F.2d 472, 474–75 (5th Cir. 1986) (per 

curiam). There have been, however, variations in the standard’s precise language. Compare 

Sealed Appellant v. Sealed Appellee, 452 F.3d 415, 417 (5th Cir. 2006) with Tello v. C.I.R., 

410 F.3d 743, 744 (5th Cir. 2005). We need not decide the exact parameters because, even 

assuming arguendo that we should apply the standard most favorable to the appellants here, 

they still do not prevail. Finally, aggravating factors are not required for a dismissal with 

prejudice. Sealed Appellant, 452 F.3d at 418. 

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MDL.2 The ability for “judges to enforce orders pertaining to the progress of 

their cases” is most important in “[MDL] cases, where the very purpose of the 

centralization before the transferee judge is the efficient progress of the cases 

in preparation for trial.” In re Asbestos Prod. Liab. Litig. (No. VI), 718 F.3d 

236, 248 (3d Cir. 2013).

A. Clear Record of Delay or Contumacious Conduct

Plaintiffs argue that the district court abused its discretion in making 

dismissal with prejudice the remedy for failing to comply with PTO 60. 

However, Plaintiffs repeatedly failed to provide the district court with any 

affidavits or other documentation to corroborate and explain their reasons for 

needing an extension of time. At first, Plaintiffs’ attorneys stated that, 

“[l]ogistically, it is impossible to file each lawsuit individually after obtaining 

a signed declaration signed by each litigant by the deadline.” But hundreds of

other plaintiffs complied with PTO 60, demonstrating it was not logistically 

impossible. 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. 

When Plaintiffs were ordered to show cause for why their claims should 

not be dismissed, they responded that “a number of the clients could not be 

reached within the time allotted by the Court,” as they “were travelling, 

worked offshore for extended periods of time, do not have access to phones, 

computers, faxes, and/or are abroad.” But Plaintiffs still did not submit any 

documentation or other evidence to the district court corroborating their 

 

2 See, e.g., In re Asbestos Prod. Liab. Litig. (No. VI), 718 F.3d 236, 243 (3d Cir. 2013) 

(“We review a district court’s interpretation of its own orders with deference, particularly in 

the MDL context.”); In re Fannie Mae Sec. Litig., 552 F.3d 814, 822 (D.C. Cir. 2009) (“District 

judges must have authority to manage their dockets, especially during massive litigation 

such as this [MDL], and we owe deference to their decisions whether and how to enforce the 

deadlines they impose.”).

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explanation for the delay, nor did they show that their attorneys had 

attempted to contact the non-compliant plaintiffs. Plaintiffs were also given 

an opportunity to reply to BP’s objections to their response to the show cause 

order, but provided the same explanation and once again, did not provide any 

corroborating documentation. In fact, aside from a few untimely individuals,

Plaintiffs never filed sworn declarations that complied with PTO 60. 3 Nor have 

Plaintiffs provided records of calls or letters to show that their attorneys 

unsuccessfully attempted to contact them. Their attorneys have not procured 

affidavits from Plaintiffs, or representatives of Plaintiffs, indicating why a 

plaintiff could not be reached. Given the number of opportunities the district 

court gave Plaintiffs to either comply with PTO 60, explain why they could not 

do so, or show documentation of their attorneys’ efforts, we hold Plaintiffs’

failure to comply with PTO 60 constitutes a clear record of delay.4

B. Lesser Sanctions and the Best Interests of Justice

We next consider whether lesser sanctions would serve the best interests 

of justice. “Lesser sanctions include ‘[a]ssessments of fines, costs, or damages 

against the plaintiff . . . conditional dismissal, dismissal without prejudice, and 

explicit warnings.’” Thrasher v. City of Amarillo, 709 F.3d 509, 514 (5th Cir. 

2013) (alterations in original) (quoting Rogers, 669 F.2d at 321–22). When it 

issued PTO 60, the district court expressly warned that non-compliance would 

lead to dismissal with prejudice. When the district court granted Plaintiffs’ 

 

3 The plaintiffs who filed untimely declarations still failed to provide any reasonable 

explanation for the delay, despite numerous opportunities to do so. Nor did they provide 

evidence showing their attorneys had attempted to contact them. 

4 We recently upheld the same district court’s decision to dismiss other plaintiffs’

claims with prejudice based on their failure to comply with PTO 60—even after being given 

numerous opportunities to do so. In re Deepwater Horizon, 713 F. App’x 360, 362 (5th Cir. 

2018) (per curiam), cert. denied, Perez v. B.P., P.L.C., No.18-59, 2018 WL 3377965 (U.S. Oct. 

1, 2018).

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extension request, it expressly stated no further extension would be granted. 

Even when Plaintiffs did not comply, the district court gave Plaintiffs multiple 

opportunities to explain why their claims should not be dismissed. 

It is also unclear what lesser sanctions could have been appropriate 

following the district court’s warnings and second chances. In issuing PTO 60, 

the district court sought to streamline proceedings by having all the remaining 

claims in the MDL filed in the same manner, each as an individual lawsuit. 

Any sanction other than dismissal would not achieve the desired effect of PTO 

60, and would further delay the district court’s efforts to adjudicate the MDL 

expeditiously. See In re Asbestos, 718 F.3d at 248. 

In addition, unfortunately, there have been fraudulent claims filed on 

behalf of fictitious plaintiffs related to the Deepwater Horizon accident. See, 

e.g., United States v. Warren, 728 F. App’x 249, 251–52 (5th Cir. 2018) (per 

curiam), cert. denied, No. 17-9350, 2018 WL 3009122 (U.S. Oct. 1, 2018). 

Dismissal with prejudice is a proper remedy to prevent lawsuits from nonexistent plaintiffs, which further hamper the resolution of meritorious claims 

by real plaintiffs. The district court’s explicit warnings and second chances 

illustrate that lesser sanctions would not serve the best interests of justice. 

For the reasons stated above, Plaintiffs’ conduct satisfies both prongs of 

the standard for dismissing with prejudice. Thus, the district court did not 

abuse its discretion in dismissing Plaintiffs’ claims with prejudice. 

AFFIRMED. 

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