Professional Documents
Culture Documents
Plaintiffs,
vs.
Defendants.
_____________________________________/
Plaintiffs Dewey Destin and Edgewater Beach Owners Association, Inc., on their own
behalf and on behalf of all others similarly situated (“Plaintiffs”), file this Omnibus Response in
Opposition to: (1) Defendant Halliburton Energy Services, Inc.’s Motion to Stay Proceedings
and Memorandum In Support Thereof, field herein on May 14, 2010 [DE 10]; and (2) the BP
Case 3:10-cv-00141-MCR-MD Document 17 Filed 05/21/10 Page 2 of 11
Defendants’ Motion for Stay of Proceedings Pending Transfer by the Judicial Panel on
INTRODUCTION
A stay is not appropriate in this action because Plaintiffs seek to immediately address,
through injunctive relief, their shared concerns resulting from the massive oil slick created by
Defendants from continuing to engage in tactics through its claims process that have already
adversely affected disaster victims’ legal rights (including forcing them to give up their legal
claims, or their right to legal representation in order to obtain interim relief) and ensuring that BP
does not prevent the disaster victims from engaging in any form of self-help permitted by state or
federal law; and (2) appointing a Special Master to oversee BP’s claims process designed to
provide emergency interim relief to the affected residents of Okaloosa and Walton counties who
have been affected by the oil spill. See Plaintiffs’ Motion for Preliminary Injunction at DE 15.
Without an efficient and fair means of obtaining interim relief during the pendency of this
lawsuit, many of the Plaintiffs, and other potential Class Members, along with their businesses,
Although a State of Emergency has been declared for the counties in which the Plaintiffs
reside, Defendants are essentially asking this Court to deprive the Plaintiffs of their only means
of protecting themselves against the effects of a known threat which is now only miles offshore.
As noted in their Amended Complaint, this action is different from the other actions that have
been filed thus far as the nature of those actions is generally only geared toward monetary
damages whereas this action requests immediate injunctive relief. The Plaintiffs in this action
1
Concurrently with this Response, Plaintiffs are filing an Emergency Motion for Preliminary Injunction, a Motion
for Hearing and Expedited Briefing Schedule, and a First Amended Class Action Complaint.
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are not content to simply sit back and wait to collect damages after the Judicial Panel on
Multidistrict Litigation (the “MDL Panel”) sorts out the claims in this matter. Here, Plaintiffs
request the Court’s immediate assistance in protecting their businesses and property that have
DISCUSSION
the Deepwater Horizon. The explosion, fire, and oil spill, however, could have been avoided.
Thus far, the investigation has revealed that Defendants disregarded numerous warning signs
which should have put them on notice that there was a problem with the oil well. In order to
save time and money, Defendants apparently made the decision to prematurely remove drilling
mud from the oil well which allowed natural gases to enter the chamber and contribute to the
explosion.
The oil slick has already caused catastrophic damage to the fragile ecosystem of the Gulf
of Mexico, has already hurt Plaintiffs’ property and businesses, and now threatens the local
economy for years to come. Defendants’ negligence could not have come at a worse time for
Gulf Coast residents and businesses as they were seemingly entering a period of limited
economic recovery following the financial crisis of recent years and they had reasons to be
optimistic about the approaching tourist season. Now, any hope for an immediate recovery is
lost. Plaintiffs, nevertheless, do not want to sit back and watch their priceless local
environmental heritage and hard-earned private properties and businesses destroyed the by the
effects of Defendants’ negligence in the Gulf and be required to participate in an unfair claims
process.
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In Defendants’ Motions, they are asking this Court to simply stay these proceedings and
wait for the MDL Panel to sort things out. Defendants even have the audacity to argue that (1)
they will be prejudiced unless a stay is granted; and (2) that a stay will not prejudice the Plaintiffs
but benefit them. (DE 10 at 7, 8.) After causing one of the greatest environmental catastrophes
in a generation, and making billions of dollars of profits in the oil industry, Defendants are now
apparently complaining about the burden of “overlapping discovery requests.” (Id. at 7.) Such
hubris only reflects the overarching corporate culture of the Defendants and their conscious
Defendants assert that “[a] stay will not prejudice Plaintiffs; in fact, it will benefit them
by sparing them the costs of pre-trial motion practice and discovery that may later be repeated in
the transferee court.” (Id. at 8; see also DE 11 at 3 (stating that “plaintiffs will have not suffered
prejudice as a result of the temporary stay requested here”).) Defendants also claim that the
benefits of a stay clearly outweigh any “minor inconvenience” to Plaintiffs. (Id.) With all due
respect, Plaintiffs do not consider the potential destruction of their livelihoods as a minor
inconvenience. Although Plaintiffs certainly acknowledge the efficiencies of the MDL process
in consolidating these actions before a transferee court, the injunctive relief requested in this
A. A Motion Before the MDL Panel Has No Immediate Effect on this Action.
As stated in Rule 1.5 of the Rules of the Judicial Panel on Multidistrict Litigation:
2
Plaintiffs will be filing a response to BP’s motion before the MDL Panel arguing that all related actions should be
consolidated here in the Northern District of Florida.
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28 U.S.C. § 1407 shall be effective when the transfer or remand order is filed in
the office of the clerk of the district court of the transferee district.
Id. Accordingly, a motion before the MDL Panel has no immediate effect on the case as a
transfer under Section 1407 only becomes effective when the order granting the transfer is filed
in the office of the clerk of the transferee court. See id. Thus, during the pendency of a motion
to stay, the court in which the action was filed retains jurisdiction over the case. See Manual for
Complex Litigation, Fourth, § 20.131 (stating that the district court should not automatically
postpone rulings on pending motions or generally suspend further proceedings and that matters
“raising issues unique to the particular case, may be particularly appropriate for resolution
before the Panel acts on the motion to transfer”) (emphasis added). “‘In other words, a district
judge should not automatically stay discovery, postpone rulings on pending motions, or generally
suspend further rulings upon a parties’ motion to the MDL Panel for transfer and
2 (M.D. Fla. Jan. 11, 2010) (quoting Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D.
Cal.1997)).
B. This Case Involves Unique Issues Which Should Be Ruled Upon Prior to Any
Proposed Transfer by the MDL Panel.
In considering a motion to stay pending transfer by the MDL Panel, a district court
should consider the following factors: (1) the potential prejudice to the non-moving party; (2) the
hardship and inequity to the moving party if the action is not stayed; and (3) the judicial
resources that would be saved by avoiding duplicative litigation if the cases are in fact
consolidated. Jozwiak, 2010 WL 147143, at *2 (denying defendants’ motion to stay the case
pending transfer by the MDL Panel where a stay prejudiced the non-moving party) (citing
Rivers, 980 F. Supp. at 1360). In fact, the moving party must “‘demonstrate a ‘clear case of
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hardship or inequity’ if there is even a ‘fair possibility’ that the stay would work damage on
another party.’” Jozwiak, 2010 WL 147143, at *2 (citing Gold v. Johns-Manville Sales Corp.,
723 F.2d 1068, 1076 (3d Cir. 1984) (finding that the clear damage to the plaintiffs was the
hardship of being forced to wait for an indefinite and lengthy time before their causes were
heard).
Courts will deny motions to stay pending transfer by the MDL Panel where the issues in
the case are unique to that case and therefore a stay will not conserve judicial resources. See
Gilmore v. DJO Inc., No. 2:08-cv-1252-HRH, 2010 WL 1050535, at *2 (D. Ariz. Feb. 1, 2010)
(denying defendants’ motion for total stay pending transfer by the MDL Panel, noting that “[i]t
may be months before the JPMDL decides the pending motion to transfer”, and finding that there
was a considerable amount of discovery unique to the case); Luce v. A.W. Chesteron Co., Inc.,
No. C-10-0174 MMC, 2010 WL 785323, at *2 (N.D. Cal. Mar. 2, 2010) (denying defendant’s
motion to stay pending transfer by the MDL Panel where the issues presented were not issues
likely to be commonly presented in actions pending before the MDL transferee court); Bertram
v. Federal Express Corp., Civil Action No. 05-28-C, 2006 WL 3388473, at *2 (W.D. Ky. Nov.
20, 2006) (denying defendant’s motion to stay pending transfer by the MDL Panel where the
case was sufficiently distinct from those currently pending in other jurisdictions and that the risk
After considering the relevant factors, this Court should deny Defendants’ Motions at
least with respect to the injunctive relief that is unique to this case. First, with respect to the
“potential prejudice to the non-moving party,” Plaintiffs would suffer substantial prejudice, if not
irreparable harm, if the Court does not address the issues raised in Plaintiffs’ Motion for
Preliminary Injunction. In that Motion, the Plaintiffs request that the Court (1) prohibit
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Defendants from engaging in any tactics through its claims process that would adversely affect
disaster victims’ legal rights (including forcing them to give up their legal claims, or their right
to legal representation in order to obtain interim relief) and ensuring that BP does not prevent the
disaster victims from engaging in any form of self-help permitted by state or federal law; and (2)
appoint a special master to oversee BP’s claims process designed to provide emergency interim
relief to the affected residents of Okaloosa and Walton counties who have been affected by the
oil spill. Without an efficient and fair means of obtaining interim relief during the pendency of
this lawsuit, many of the Plaintiffs, and other potential Class members, along with their
businesses, could face economic failure, bankruptcy, or foreclosure. Plaintiffs assert that there is
almost no greater prejudice conceivable than preventing them from using these measures to
Next, with respect to the “hardship and inequity to the moving party if the action is not
stayed,” Plaintiffs assert that there is no hardship to Defendants in allowing this case to go
forward with respect to the Plaintiffs’ claims for injunctive relief. At some point, Defendants
will have to defend these specific claims for injunctive relief, and hopefully, before the Plaintiffs
face economic failure, bankruptcy, or foreclosure. Considering it was the Defendants who
caused one of the greatest environmental catastrophes of our time, it is only fair that Plaintiffs be
Finally, with respect to “the judicial resources that would be saved by avoiding
duplicative litigation if the cases are in fact consolidated,” there are no judicial resources that
would be saved by staying this matter with respect to the injunctive relief requested. Because the
injunctive relief in this case is unique to the other cases that have been filed which simply seek
monetary damages, there are no judicial resources that would be saved by staying this matter. In
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fact, resolving this case’s injunctive issues now would alleviate their added burden on the
transferee court’s docket and the common issues that it must decide. See Gilmore, 2010 WL
1050535, at *2 (denying defendants’ motion for total stay pending transfer by the MDL Panel
and noting that there was a considerable amount of discovery unique to the case); Luce, 2010
WL 785323, at *2 (denying defendant’s motion stay pending transfer by the MDL Panel where
the issues presented were not issues likely to be commonly presented in actions pending before
the MDL transferee court); Bertran, 2006 WL 3388473, at *2 (denying defendant’s motion to
stay pending transfer by the MDL Panel where the case was sufficiently distinct from those
currently pending in other jurisdictions and that the risk of unnecessary duplication was minimal
at best).
CONCLUSION
In this action, a stay is not appropriate because Plaintiffs request injunctive relief to (1)
prohibit Defendants from engaging in any tactics through its claims process that would adversely
affect disaster victims’ legal rights (including forcing them to give up their legal claims, or their
right to legal representation in order to obtain interim relief) and ensuring that BP does not
prevent the disaster victims from engaging in any form of self-help permitted by state or federal
law; and (2) appoint a special master to oversee BP’s claims process designed to provide
emergency interim relief to the affected residents of Okaloosa and Walton counties who have
been affected by the oil spill. Without an efficient and fair means of obtaining interim relief
during the pendency of this lawsuit, many of the Plaintiffs, and other potential Class members,
along with their businesses, could face economic failure, bankruptcy, or foreclosure. Defendants
apparently want the Plaintiffs to sit on their hands and wait for the MDL Panel to take up the
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transfer and consolidation motion in three months even though there is no guarantee that the
Defendants’ requests should be denied, however, because (1) there is great prejudice, if
not irreparable harm, to Plaintiffs in preventing them from taking action to protect their
businesses and property; (2) there is no hardship or inequity to the Defendants in requiring them
to defend unique issues relating to their gross negligence; and (3) there is no conservation of
judicial resources in granting a total stay because this action involves injunctive issues which are
Now is not the time for this case to be lost in the shuffle of competing statewide or out-
of-state class actions solely focused on collecting money damages in the distant future. As noted
above, the Defendants must “‘demonstrate a ‘clear case of hardship or inequity’ if there is even a
‘fair possibility’ that the stay would work damage on another party.’” See Jozwiak, 2010 WL
147143, at *2 (citing Gold, 723 F.2d at 1076 (finding that the clear damage to the plaintiffs was
the hardship of being forced to wait for an indefinite and lengthy time before their causes were
heard). Because this case involves more than a “fair possibility” that a stay would severely
prejudice the Plaintiffs, Defendants’ requests to stay this case should be denied.
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Harley S. Tropin
Florida Bar No. 241253
Adam M. Moskowitz
Florida Bar No. 984280
James R. Bryan
Florida Bar No. 696862
Brett E. von Borke
Florida Bar No. 44802
KOZYAK TROPIN & THROCKMORTON, P.A.
2525 Ponce De Leon Blvd., 9th Floor
Miami, Florida 33134
Telephone: (305) 372-1800
Facsimile: (305) 372-3508
Lawrence Keefe
Florida Bar No. 0602809
Michelle Anchors
Florida Bar No. 0932272
A. Benjamin Gordon
Florida Bar No. 0528617
KEEFE ANCHORS GORDON & MOYLE, P.A.
909 Mar Walt Drive, Suite 1022
Fort Walton Beach, FL 32547
Telephone: (850) 863-1974
Facsimile: (850) 863-1591
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the foregoing has been filed on May 21st, 2010 via CM/ECF,
which will send a copy of this filing via electronic mail to all attorneys of record.
313246v.1
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