IN RE: OIL SPILL BY the OIL RIG “DEEPWATER HORIZON” IN the GULF OF MEXICO, ON APRIL 20, 2010
On April 20, 2010, a blowout, explosions, and fire occurred aboard the semi-submersible drilling rig DEEPWATER HORIZON as it was preparing to temporarily abandon a well, known as Macondo, it had recently drilled some 50 miles off the Louisiana coast. These events resulted in 11 deaths, multiple injuries, the loss of the DEEPWATER HORIZON, and a massive oil spill in the Gulf of Mexico. BP, which owned a majority interest in both the Macondo Well and the lease of the relevant block of the outer continental shelf, is a “responsible party” for the oil spill under OPA. (See Order of Feb. 22, 2012 at 5-15, Rec. Doc. 5809). These events gave rise to thousands of lawsuits, with well over one hundred thousand plaintiffs, against BP and other parties. On August 10, 2010, the Judicial Panel on Multidistrict Litigation created this multidistrict litigation, MDL 2179, and assigned it to this Court, all pursuant to 28 U.S.C. § 1407. (Rec. Doc. 1). Nearly all federal cases arising from the DEEPWATER HORIZON/Macondo Well casualty have been consolidated with MDL 2179.
To facilitate the administration of this sprawling litigation, the Court organized the various types of claims into “pleading bundles.” (PTO 11, Rec. Doc. 569). Relevant here is the “B1” bundle, which contained non-governmental claims for economic loss and/or property damage. During the first several years of the MDL the B1 bundle contained more claims than any other pleading bundle. However, after a massive class settlement in 2012, thousands of individual settlements of opt-out and excluded claims between 2016 and 2020, several targeted pretrial orders, and numerous rulings on dispositive motions over the past decade, only around 130 cases remain in the B1 bundle today. The Mexican Plaintiffs account for 115 of the remaining B1 cases.
Seventeen of the Mexican Plaintiffs purport to be commercial fishermen who fished in Mexican waters around the time of the oil spill. Most of the other Mexican Plaintiffs are fishing “cooperatives.” As it has been explained to the Court, a cooperative is a juridical entity under Mexican law that can sue and be sued like any other business entity. The members of a fishing cooperative are individual fishermen. Plaintiffs’ counsel explained at oral argument that the cooperative typically owns the fishing license issued by the Mexican government and the boats used by the cooperative’s members. A few of the Mexican Plaintiffs are some other type of cooperative, such as a tourism cooperative. (See, e.g., No. 16-6294).
The Mexican Plaintiffs allege the oil spill caused a decline in the amount of fish they caught in Mexican waters. They sued to recover their economic losses from BP and other defendants under OPA and general maritime law. In Pretrial Order No. 67 (Rec. Doc. 25370), the Court instructed defendants to file any dispositive motions with respect to the Mexican Plaintiffs’ cases, which prompted the instant motion. As mentioned, BP’s main arguments are (1) the Mexican Plaintiffs cannot satisfy OPA’s “foreign claimants” provision, meaning they cannot recover under OPA, and (2) the Mexican Plaintiffs cannot recover under general maritime law because OPA displaced those claims. BP also argues that 41 of the Mexican Plaintiffs should be dismissed for the additional reason that their lawsuits violate this Court’s Pretrial Order No. 60 (Rec. Doc. 16050), which barred mass joinder complaints. Each of these issues is discussed below.
The Oil Pollution Act of 1990 (“OPA”) 33 U.S.C. §§ 2701, et seq., was passed in response to an oil spill by the EXXON VALDEZ in Prince William Sound, Alaska, in 1989, as well as three other spills that occurred a few months later in Rhode Island, the Delaware River, and the Houston Ship Channel. See S. Rep. No. 101-94, at 2-3 (1989), as reprinted in 1990 U.S.C.C.A.N. 722, 723-24. The Act is broad, and it made many changes to existing laws. See generally P.L. 101-380, 104 Stat. 484 (1990). One of OPA’s innovations is that it makes statutorily-defined “responsible parties” strictly liable for removal costs and a wide range of damages that result from an oil spill. See 33 U.S.C. § 2702(a); In re Settoon Towing, L.L.C., 859 F.3d 340, 344 (5th Cir. 2017). OPA enumerates six categories of damages that may be recovered. See 33 U.S.C. § 2702(b)(2). The Mexican Plaintiffs’ claims fall within subsection (E), which allows recovery of “[d]amages equal to the loss of profits or impairment of earning capacity due to the injury, destruction, or loss of real property, personal property, or natural resources, which shall be recoverable by any claimant.” 33 U.S.C. § 2702(b)(2)(E).
However, foreign claimants like the Mexican Plaintiffs must satisfy certain additional requirements before they may recover under OPA. Section 2707 states in relevant part:
In addition to satisfying the other requirements of this Act, to recover removal costs or damages resulting from an incident a foreign claimant shall demonstrate that—(A) the claimant has not been otherwise compensated for the removal costs or damages; and (B) recovery is authorized by a treaty or executive agreement between the United States and the claimant’s country, or the Secretary of State, in consultation with the Attorney General and other appropriate officials, has certified that the claimant’s country provides a comparable remedy for United States claimants. 33 U.S.C. § 2707(a)(1).