USCA11 Case: 22-11074 Document: 33-1 Date Filed: 12/19/2022 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11074
Non-Argument Calendar
____________________
DANIEL HOWARD,
Plaintiff-Appellant,
versus
BP EXPLORATION & PRODUCTION INC,
BP AMERICA PRODUCTION COMPANY,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:21-cv-00737-MCR-GRJ
____________________
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2 Opinion of the Court 22-11074
Before WILSON, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
This case involves case-management deadlines and plain-
tiff’s counsel’s attempt to extend them. Plaintiff-Howard appeals
from the entry of summary judgment on his complaint for injuries
stemming from the cleanup efforts of Defendant-BP’s Deepwater
Horizon oil spill disaster. The district court entered summary judg-
ment on his claim because Mr. Howard failed to provide expert ev-
idence supporting his claim. The reason Mr. Howard failed to pro-
vide that evidence was because his attorneys missed the filing dead-
line and failed to diligently ask the court for relief from the dead-
lines. His appeal primarily concerns the district court’s rulings on
these two procedural issues, which all but assured the result in the
summary judgment issue. After careful consideration, we
AFFIRM.
I. Background
We assume the parties are familiar with the factual back-
ground leading to this litigation, and focus our attention on the spe-
cific procedural facts at issue in this appeal.
A. Background on Deepwater Horizon Litigation
The Deepwater Horizon Medical Benefits Class Action Set-
tlement Agreement (MSA) provided class members such as Mr.
Howard the opportunity to sue BP for medical conditions that
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22-11074 Opinion of the Court 3
manifested after the close of that class action. See In re Oil Spill by
the Oil Rig “Deepwater Horizon” in the Gulf of Mexico,
295 F.R.D.
112, 119 (E.D. La. 2013). These suits are called “BELO” or “Back-
End Litigation Option” suits. The MSA required that all BELO
suits be initially filed in the Eastern District of Louisiana, but pro-
vided for their transfer to more appropriate venues at a later time.
In Florida, Judge Rodgers created a master docket for the
BELO cases transferred to the Northern District of Florida. See In
re Deepwater Horizon BELO Cases, No. 3:19-cv-963. On February
22, 2021 Judge Rodgers entered the first BELO case management
order (CMO) in the master docket. This CMO established the
course of litigation for the Northern District of Florida’s BELO
cases and set discovery deadlines, including for expert witnesses,
applicable to any individual case where the master CMO was dock-
eted.
In April the district court began the process of establishing
bellwether cases for the Deepwater Horizon litigation pending in
the district. The district court issued a Revised Case Management
Order (RCMO) to the master docket on April 30, 2021, which
grouped some of the pending cases into three groups and modified
deadlines relating to these groups. The three groups were based
on what type of injury the plaintiff alleged they had suffered. The
RCMO only applied to plaintiffs represented by two law firms who
had moved to revise the original CMO. The “Downs” plaintiffs
who were all represented by the Downs Law Group, and the “Fal-
con” plaintiffs who were represented by the Falcon Law Firm.
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4 Opinion of the Court 22-11074
Falcon Law Firm represents Mr. Howard in this matter. The dis-
trict court determined to which cases the RCMO applied based on
lists of cases provided by counsel for the plaintiffs.
In late August counsel for the Falcon plaintiffs moved to
amend the RCMO to establish bellwether cases and to stay all other
cases. After briefing and hearings the district court first issued an
Amended Revised Case Management Order (ARCMO) on Septem-
ber 23, 2021 and then a Corrected Amended Revised Case Manage-
ment Order (CARCMO) on September 30, 2021. The CARCMO
had the effect of staying all cases alleging sinus or ocular injuries,
except for the eight bellwether cases. Cases where the plaintiffs
alleged they contracted cancer were not stayed and remained sub-
ject to the RCMO. Again, the court relied on counsel for the two
groups of plaintiffs to provide lists of cases to be stayed, and Falcon
Law Firm filed their list of cases on October 7, 2021.
B. Background on Mr. Howard’s Litigation
Mr. Howard filed his complaint in the Eastern District of
Louisiana, pursuant to the MSA, on December 11, 2020. Mr. How-
ard alleges he contracted cancer as a result of working on the Deep-
water Horizon cleanup efforts. The case was then transferred to
the Northern District of Florida on May 6, 2021. On that day the
original CMO was entered into Mr. Howard’s docket from the
master BELO docket. Under the original CMO, Mr. Howard’s ex-
pert witness discovery obligations were due on December 2, 2021.
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22-11074 Opinion of the Court 5
Because Mr. Howard’s case was not transferred to the
Northern District of Florida until May 6, 2021, his case was obvi-
ously not included in the original list of cases to be grouped that
was filed with the April 30th RCMO. Accordingly, the RCMO was
not entered into his docket automatically as the CMO was. His
counsel, Falcon Law Firm, did not move at the time the case was
transferred to have Mr. Howard’s case added to the RCMO list.
On September 28, 2021, Falcon Law Firm and BP’s Lawyers
filed a joint motion to correct the ARCMO; this motion led to the
CARCMO. In this motion they explicitly noted that Mr. Howard’s
case was not subject to the ARCMO and was not subject to the
RCMO before that. Consistent with that acknowledgement, Fal-
con Law Firm did not include Mr. Howard’s case in its October 7,
2021, filing listing cases to be stayed pursuant to the CARCMO.
Neither the ARCMO, nor the CARACMO were filed on Mr. How-
ard’s docket.
On December 2, 2021, Mr. Howard had still not fulfilled his
expert witness discovery disclosures as required by the CMO. On
that day his counsel, Falcon Law Firm, moved the court to include
his name in the groupings established by the RCMO and then to
stay his case pursuant to CARCMO. BP opposed this motion, and
the magistrate judge denied it on January 18, 2022, citing Falcon
Law Firm’s lack of diligence in moving to add Mr. Howard’s case
to the list in the eight months between the transfer of Mr. How-
ard’s case to Florida and the December 2nd discovery deadline.
The magistrate judge explicitly considered this motion as a motion
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6 Opinion of the Court 22-11074
to amend the scheduling order under Rule 16, and applied the
“good cause” standard set forth in that rule.
Then on February 1st, 2022, Mr. Howard’s counsel moved
the court to amend the scheduling order in Mr. Howard’s case spe-
cifically and to allow for an additional 120 days to meet the expert
witness discovery deadlines. The magistrate judge denied this mo-
tion as well, citing Federal Rule of Civil Procedure 16’s “good
cause” standard for amending scheduling orders and noting that
Falcon Law Firm had totally failed to show any diligence that
would justify good cause to amend the order. The magistrate
judge noted that “even at this late date Howard requests an addi-
tional 120 days” to comply with his expert witness requirements.
The district court rejected Mr. Howard’s objections to the magis-
trate judge’s decision.
After these two motions were rejected, BP moved for and
the district court granted, summary judgment on the grounds that
Mr. Howard failed to provide expert evidence showing causation.
This appeal followed.
II. Standard of Review
We review a district court’s decision to enforce its Rule 16
scheduling order and deny amendments for abuse of discretion.
Romero v. Drummond Co.,
552 F.3d 1303, 1313–14 (11th Cir.
2008).
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22-11074 Opinion of the Court 7
We review grants of summary judgment de novo, drawing
all inferences in favor of the non-moving party. Gundy v. City of
Jacksonville,
50 F.4th 60, 70 (11th Cir. 2022).
III. Discussion
The district court’s decision to adhere to its scheduling order
and decline to amend it was not an abuse of discretion. The district
court “must issue a scheduling order,” and this order may be mod-
ified “only for good cause and with the judge’s consent.” Fed. R.
Civ. P. 16(b)(1), (4). We have held that modification is inappropri-
ate unless a party can show they failed to meet the schedule despite
their “diligence.” See Sosa v. Airprint Sys., Inc.,
133 F.3d 1417, 1418
(11th Cir. 1998) (per curiam).
Here, the record shows that Mr. Howard’s attorneys took
no steps to have his case stayed in the 210 days between when the
case was transferred and the December 2nd discovery deadline.
Nor did his counsel move at any time before the December 2nd
deadline to directly alter the discovery deadline in Mr. Howard’s
case.
The best explanation that his counsel provides for this lack
of action is that they believed his case was subject to the RCMO
and its amendments. They argued both to the courts below and to
this court that this was a “mistake[].” But we agree with the mag-
istrate judge that these claims are not credible. Mr. Howard’s
counsel twice acknowledged to the district court in the leadup to
the CARCMO that Mr. Howard’s case would not be subject to the
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8 Opinion of the Court 22-11074
stay. In fact, even were it subject to CARCMO, the magistrate
judge’s report found that Mr. Howard’s case would not even be
subject to the stay because Mr. Howard had the type of injuries
that were not going to be stayed by the CARCMO.
It was Mr. Howard’s burden to show that his counsel had
acted diligently despite their failure to meet the deadlines in the
scheduling order. The record supports the magistrate judge’s con-
clusions that neither attempt to amend the scheduling order in this
case was supported by a showing of diligence. In the first order
denying the motion to include Mr. Howard’s case in the CARCMO
stay list, the magistrate judge noted that there had been no attempt
to modify the scheduling order in the eight months since the case’s
transfer to Florida. In the second order, it noted that Mr. Howard
was requesting an additional 120 days from the motion to comply
with the expert witness disclosures, when they were originally due
four months prior in December. Both of these findings are sup-
ported by the record. Even on appeal Mr. Howard does not explain
what steps he has taken to obtain an expert witness.
Mr. Howard argues that the magistrate judge’s order was
clearly erroneous because it stated, “Had Howard filed the motion
to modify the scheduling deadlines in December after the Court
issued its order denying his request to stay this case, Howard would
be in a different position.” Mr. Howard rightly notes that the order
denying the motion to stay was issued in January, not December,
and that he filed the follow-up motion to amend the scheduling
order two weeks after that. However, the magistrate judge
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22-11074 Opinion of the Court 9
grounded the order denying the 120-day extension in both Mr.
Howard’s counsel’s complete failure to show diligence in securing
an expert and its incorrect recollection of the timeline. Independ-
ent of the mistaken timeline, the magistrate judge’s conclusion that
there was no good cause to amend the scheduling order was sup-
ported by the record showing Mr. Howard’s counsel’s lack of dili-
gent effort to secure an expert witness. Thus, the district court’s
decision to overrule any objection to the magistrate judge’s order,
and to enforce its scheduling order in this case was not an abuse of
discretion.
Mr. Howard’s argument that this court should reverse the
grant of summary judgment was contingent on this court finding
error in the district court’s enforcement of the scheduling order.
Because we affirm the district court’s refusal to extend the time to
comply with the expert witness requirements of the MSA, there are
no grounds to reverse the grant of summary judgment. Accord-
ingly, we AFFIRM.
AFFIRMED.
