Case 3:10-cv-00141-MCR-MD Document 17 Filed 05/21/10 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

CASE NO. 3:10-cv-00141-MCR-MD

DEWEY DESTIN, an individual; and

EDGEWATER BEACH OWNERS
ASSOCIATION, INC., a Florida
condominium owners association, on their
own behalf and on behalf of all others
similarly situated,

Plaintiffs,

vs.

BP, PLC; BP PRODUCTS NORTH AMERICA,

INC.; BP AMERICA, INC.; BP EXPLORATION
AND PRODUCTION, INC.; BP CORPORATION
NORTH AMERICA, INC.; BP COMPANY NORTH
AMERICA, INC.; TRANSOCEAN, LTD.;
TRANSOCEAN OFFSHORE DEEPWATER
DRILLING, INC.; TRANSOCEAN DEEPWATER, INC.;
TRANSOCEAN HOLDINGS, INC.;
HALLIBURTON ENERGY SERVICES, INC.;
CAMERON INTERNATIONAL CORPORATION
f/k/a COOPER CAMERON CORPORATION,
ADARKO PETROLEUM CORPORATION;
MOEX OFFSHORE 2007, LLC; and M-I, LLC,

Defendants.
_____________________________________/

PLAINTIFFS’ OMNIBUS RESPONSE IN OPPOSITION

TO DEFENDANTS’ MOTIONS TO STAY PENDING TRANSFER
BY THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION

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
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Defendants’ Motion for Stay of Proceedings Pending Transfer by the Judicial Panel on

Multidistrict Litigation, filed herein on May 17, 2010 [DE 11].

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.1 Specifically, Plaintiffs are seeking a preliminary injunction: (1) prohibiting

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,

will continue to face economic failure, bankruptcy, or foreclosure.

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

already been damaged as a result of BP’s unfair claims process.

DISCUSSION

On April 20, 2010, Defendants’ negligence resulted in the greatest environmental

catastrophe in a generation. At approximately 10:00 p.m., central time, an explosion occurred on

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

disregard for others.

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

action warrants addressing these concerns now.2

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:

The pendency of a motion, order to show cause, conditional transfer order or

conditional remand order before the Panel concerning transfer or remand of an
action pursuant to 28 U.S.C. § 1407 does not affect or suspend orders and pretrial
proceedings in the district court in which the action is pending and does not in any
way limit the pretrial jurisdiction of that court. A transfer or remand pursuant to

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

consolidation.’” Jozwiak v. Stryker Corp., No. 6:09-cv-1985-Orl-19GJK, 2010 WL 147143, at *

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

of unnecessary duplication was minimal at best).

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

protect their businesses and property.

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

allowed to use these measures to protect their businesses and property.

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

process may not drag out even longer.

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

unique to this case.

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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Dated this 21st day of May 2010.

/s/ ___Brett E. von Borke_________

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

William F. Merlin, Jr.

Florida Bar No. 364721
MERLIN LAW GROUP, P.A.
777 South Harbour Island Boulevard, Suite 950
Tampa, Florida 33602
Telephone: (813) 229-1000
Facsimile: (813) 229-3692

Attorneys for Plaintiffs

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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.

/s/ __Brett E. von Borke_______________

Brett E. von Borke

313246v.1

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