Case MDL No.

2179 Document 1549-1 Filed 08/07/13 Page 1 of 20

BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION

MDL No. 2179

IN RE: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010

This Filing Relates To The Following Case Only: Ditch v. Feinberg et al., FLM/2:13-cv-00531

PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO VACATE CONDITIONAL TRANSFER ORDER (CTO-88)

Brian J. Donovan Florida Bar No. 143900 The Donovan Law Group, PLLC 3102 Seaway Court, Suite 304 Tampa, FL 33629 Tel: (352)328-7469 BrianJDonovan@verizon.net COUNSEL FOR PLAINTIFF Andrew J. Ditch

Dated: August 7, 2013

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Pursuant to Rule 7.1(f) of the Rules of Procedure for the Judicial Panel on Multidistrict Litigation (“JPML”), Andrew J. Ditch (“Plaintiff”) files this Memorandum of Law in Support of his Motion to Vacate Conditional Transfer Order (CTO-88), as follows.

I. PRELIMINARY STATEMENT Plaintiff filed this action against Kenneth R. Feinberg, Feinberg Rozen, LLP, D.B.A. Gulf Coast Claims Facility, and William G. Green, Jr. ("Defendants") in Florida state court asserting claims arising exclusively under Florida state law in order to obtain recovery for the damages he incurred. The federal courts do not have removal jurisdiction over this case under either 28 U.S.C. §§ 1331 (federal question) or 1332 (diversity). The Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida is the only court with jurisdiction to adjudicate Plaintiff's claims. Nevertheless, Defendants seek to continue to delay Plaintiff's pursuit of his claims by having this action transferred into the multidistrict litigation ("MDL 2179"). In order to further their delaying strategy, Defendants improperly removed Plaintiff's action to federal district court despite having no basis for doing so. Because Defendants' removal was improper, Plaintiff has requested the United States District Court for the Middle District of Florida ("Middle District of Florida Court") to remand this action. The most efficient course of action now, both for the parties and for the courts, is to permit the Middle District of Florida Court to determine the threshold jurisdictional issue: whether removal was proper. A transfer at this stage would not promote the “just and efficient” conduct of this action and would prejudice Plaintiff by causing further needless delay and unnecessary expense. -2-

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Plaintiff respectfully requests that the Panel vacate its conditional transfer of this matter to the Eastern District of Louisiana in order for the Middle District of Florida Court to address the pending motion to remand. Doing so will foster the just, speedy, and inexpensive determination of this action. See Fed. R. Civ. P. 1.

II. PROCEDURAL HISTORY On June 12, 2013, Plaintiff, a victim of Defendants' "Expedited EAP Denial" strategy which resulted in the financial ruin of Plaintiff, filed this action against Defendants in the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida asserting claims for gross negligence, negligence, negligence per se, fraud, fraudulent inducement, promissory estoppel, and unjust enrichment under Florida state law. On July 16, 2013 Defendants, independent contractors with 13 offices located in the State of Florida, intentionally did not serve Plaintiff a copy of the Notice of Removal and improperly removed this action on the erroneous grounds that the Middle District of Florida Court has federal question jurisdiction under 28 U.S.C. § 1331 and diversity jurisdiction under 28 U.S.C. § 1332. On July 18, 2013, Defendants filed a Notice of Tag-Along Case with the MDL Panel. On July19, 2013, Defendants filed a motion to stay proceedings pending a transfer decision by the JPML. On July 23, 2013, Plaintiff filed his motion to remand, a copy of which is attached hereto as Exhibit A.

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On July 23, 2013, Plaintiff also filed his response in opposition to Defendants’ motion to stay, a copy of which is attached hereto as Exhibit B. On July 24, 2013, the Panel issued its Conditional Transfer Order (CTO-88). Plaintiff timely filed his Notice of Opposition on July 24, 2013.

III. SUMMARY OF ARGUMENT As demonstrated below, the JPML should grant Plaintiff's motion to vacate for at least two reasons. First, the claims in Plaintiff's Complaint do not share any factual issues with the claims in actions which were previously and appropriately transferred to MDL 2179. Accordingly, a transfer of this case to the Eastern District of Louisiana for inclusion in MDL 2179 will not serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Second, vacatur is warranted because this first-of-its-kind type of case does not pose any danger of inconsistent rulings or duplicative proceedings. Furthermore, Plaintiff respectfully points out that the JPML should neither continue to promote nor facilitate the gamesmanship of the legal system by defendants, e.g., the baseless removal from state to federal court for the sole purpose of subsequently being able to immediately file a Notice of Tag-Along Case with the JPML. The JPML’s sanctioning of this type of procedural gamesmanship, although politically expedient and judicially efficient, is unjust and makes a mockery of the U.S. judicial system.

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IV. THE STANDARD TO BE APPLIED A conditional transfer order is an administrative act of the Panel Clerk “which can and will be vacated upon the showing of good cause by any party.” In re: Grain Shipment Litig., 319 F. Supp. 533, 534 (J.P.M.L. 1970) (citing In re: IBM Antitrust Litig., 316 F. Supp. 976 (J.P.M.L. 1970)). Good cause exists where consolidation fails to promote the “just and efficient” conduct of the action. See 28 U.S.C. § 1407(a); see also H.R. Rep. No. 1130, 90th Cong. 2nd Session, 1968 USCCAN 1898, 1900 (explaining that “pretrial consolidation must promote the just and efficient conduct of such actions and be for the convenience of the parties and witnesses”). Congress intended for consolidation to be ordered “only where significant economy and efficiency in judicial administration may be obtained.” See H.R. Rep. No. 1130, 1968 U.S.C.C.A.N. at 1900 (emphasis added).

V. ARGUMENT AND AUTHORITIES A. This Action Does Not Involve Common Questions of Fact with Actions Previously and Appropriately Transferred to MDL 2179. Plaintiff’s action is closely related to two other cases, Pinellas Marine Salvage, Inc., et al. v. Kenneth R. Feinberg, et al. (FLM/8:11-cv-00582) and Selmer M. Salvesen v. Kenneth R. Feinberg, et al., (FLM/2:11-cv-00375), which were inappropriately consolidated with MDL 2179. In each case, the complaint alleges, in part, that Defendants misled Plaintiffs by employing a “Delay, Deny, Defend” strategy against them. This strategy, commonly used by unscrupulous insurance companies, is as follows: “Delay payment, starve claimant, and then offer the

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economically and emotionally-stressed claimant a miniscule percent of all damages to which the claimant is entitled. If the financially ruined claimant rejects the settlement offer, he or she may sue.” In sum, Plaintiffs allege that BP is responsible for the oil spill incident; Feinberg, et al. (independent contractors), via employment of their "Delay, Deny, Defend" strategy, are responsible for not compensating and thereby financially ruining Plaintiff. This Panel has previously made clear that, where related claims are being litigated in the centralized proceedings in MDL 2179, a case is appropriate for transfer even if it raises different factual issues from the personal injury and economic loss actions in MDL 2179. (4/18/11 Transfer Order, MDL 2179, Doc. No. 555 (transferring contract actions related to Vessels of Opportunity program to MDL 2179 where “related claims already [were] being litigated in the centralized proceedings”). Plaintiff respectfully points out that the Pinellas and Salvesen cases are not “being litigated” in MDL 2179. These two cases are inappropriately and indefinitely stayed (in essence, “warehoused”) in MDL 2179. The Ditch case should not be transferred to join them.

B. Transfer Will Not Serve the Convenience of the Parties and Witnesses and Promote the “Just and Efficient” Conduct of This Litigation. Transfer will not serve the convenience of Plaintiff Ditch who is located in the Twentieth Judicial Circuit Court of Florida. Transfer will not serve the convenience of the witnesses who are located in the Twentieth Judicial Circuit Court of Florida. Transfer will not serve the convenience of Defendant Green, who is a resident of Clearwater, Florida, and GCCF which had 13 offices located in the State of Florida at all times material hereto. The result of a transfer would be that Plaintiff’s claims would spend many months or

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years winding through an overcrowded federal court that lacked jurisdiction from the outset. Not only would Plaintiff be required to re-submit his Motion to Remand to the Transferee Court, but, pursuant to MDL No. 2179 Pre-Trial Order No. 15, dated November 5, 2010, "all pending and future motions, including Motions to Remand, are continued without date unless a motion is specifically excepted from the continuance by the Court. The Court will then organize and prioritize the continued motions and in due course, set the motions for hearing." A transfer of this action would greatly prejudice Plaintiff by depriving him of the earliest and most efficient resolution of the right to pursue his claims in Florida state court (if his pending Motion to Remand is granted) or in the United States District Court for the Middle District of Florida Court (if his pending Motion to Remand is denied). Plaintiff continues to suffer damages from three separate sources: (a) once from the oil spill, the environmental and economic damages of which have devastated his way of life; (b) again by being left in financial ruin as a direct result of Defendants' tortious acts; and (c) a third time for daring to demand justice, which will consume his time, energy and hopes for years to come if he is held hostage by protracted litigation. Defendants cannot cite to a single allegation in Plaintiff's Complaint supporting their position that this case should be transferred to MDL 2179. "Common questions of fact" do not exist between the instant case and cases previously and appropriately transferred to MDL 2179. This case does not arise out of the same explosion, fire, and oil spill; and does not allege similar factual injuries and damages arising from the oil spill as Defendants erroneously and disingenuously allege. This case arises out of Defendants' “Expedited EAP Denial” strategy. This strategy is as follows: “Fail to verify, investigate, and

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appraise the amount of loss claimed by the claimant in the EAP claim and deny the EAP claim without ever requesting supporting documentation from the claimant.” Furthermore, Plaintiff's allegations that Defendants violate OPA are evidence of Defendants' violation of their duty of due care, but create neither a removable federal question nor a "common question of fact" with cases previously and appropriately transferred to MDL 2179. Reason for the Panel to grant Plaintiff’s Motion to Vacate Conditional Transfer Order (CTO-88) applies with particular force here, where Defendants' "Expedited EAP Denial" administration of the compensation fund is directly challenged. In its Transfer Order, the Panel also states, "Centralization may also facilitate closer coordination with Kenneth Feinberg’s administration of the BP compensation fund." This raises the question whether the MDL 2179 Court can simultaneously "facilitate closer coordination with" and adjudicate Plaintiff’s lawsuit against Feinberg, et al. especially when Defendants insist that "OPA imposes no duty on responsible parties other than to establish and advertise a process for receiving claims, not that they actually settle claims." In this action, the factual issues are that Defendants, in part by making numerous false statements of material fact to Plaintiff (See Complaint, ¶¶ 132, 137, 143), breached their legal duty to Plaintiff, failed to exercise reasonable care, and acted with reckless, willful, and wanton disregard for the business and livelihood of Plaintiff in their negligent operation of Defendant GCCF's claim intake, claim review, claim evaluation and claim settlement and payment services. Defendants knew or should have known that their conduct, commonly referred to as an “Expedited EAP Denial” strategy, would foreseeably result in the financial ruin of Plaintiff and cause irreversible damage to the economic interests of Plaintiff. See Motion to Remand, p. 2.

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As a direct and proximate result of Defendants' conduct, Plaintiff has suffered legal injury and damages, in an amount to be proven at trial, including, but not limited to, loss of profit, loss of business reputation, loss of livelihood, loss of income, and other economic loss. Accordingly, Plaintiff filed this action against Defendants in Florida state court asserting claims arising exclusively under Florida state law in order to obtain recovery for the damages he incurred. Judicial economy is undoubtedly well-served by MDL consolidation when scores of similar cases are pending in the courts. Nevertheless, the excessive delay and “marginalization of juror fact finding” (i.e., dearth of jury trials) sometimes associated with traditional MDL practice are developments that cannot be defended. Delaventura v. Columbia Acorn Trust, 417 F. Supp. 2d at 153 (D. Mass. 2006). By forcing Plaintiff in the instant case to await resolution of irrelevant discovery and factual disputes relating to completely different parties, theories of recovery and remedies, consolidation with MDL 2179 unreasonably delays Plaintiff's pursuit of his claims. In sum, transfer of Ditch to MDL 2179 would not serve the convenience of the parties and witnesses or promote the just and efficient conduct of the litigation. Ditch is highly idiosyncratic in nature. Here, Defendants’ “Expedited EAP Denial” strategy and associated tortious acts, not acts by BP, resulted in the financial ruin of Plaintiff. Accordingly, pretrial motion practice and discovery, if any, will be largely case-specific. To the extent that any such discovery will overlap with that taking place in the MDL, various alternatives to Section 1407 transfer are available to minimize duplication. See In re Eli 1 Lilly & Co. (Cephalexin Monohydrate) Patent Litig., 446 F. Supp. 242, 244 (J.P.M.L. 1978) (noting that parties could

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cross-notice depositions, stipulate that discovery relevant to more than one action be usable in all those actions, seek orders from the involved courts directing coordination of pretrial efforts, or seek a stay). 1. The Opinion of the Honorable Carlton W. Reeves Plaintiff respectfully points out that the recent opinion of the Honorable Carlton W. Reeves, United States District Court for the Southern District of Mississippi, is instructive in the instant matter. See State of Mississippi v. Gulf Coast Claims Facility, et al., Case No. 3:11-cv00509-CWR-LRA (S.D. Miss. 2011). A copy of Judge Reeves’s opinion is attached hereto as Exhibit C. In his Order of Remand, Judge Reeves points out, “GCCF’s argument that Hood has unwittingly stated a claim under OCSLA is not compelling. According to OCSLA, federal courts enjoy subject-matter jurisdiction “of cases and controversies arising out of, or in connection with (A) any operation conducted on the outer Continental Shelf which involves exploration, development, or production of the minerals, of the subsoil and seabed of the outer Continental Shelf . . . .” The Fifth Circuit has written that it “appl[ies] a broad ‘but-for’ test to determine whether a cause of action arises under OCSLA.” And in GCCF’s view, because it would not exist but for the Deepwater Horizon’s explosion, this case (and, presumably, any other case to which it could ever be a party) necessarily implicates OCSLA. GCCF is correct that the Fifth Circuit views “[t]he jurisdictional grant[ ] contained in 43 U.S.C. § 1349(b)(1) [a]s very broad.” “But to view OCSLA’s scope so far-reaching as does GCCF would render GCCF’s every potentially actionable decision a federal case, be it related to the claims process at hand or a GCCF employee’s car wreck en route to the office.”

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Neither OCSLA’s plain language nor the Fifth Circuit’s decisions interpreting it contain any indication that matters so far removed as these - occurring not on the outer Continental Shelf but doing business in Dublin, Ohio, and aimed not at the “exploration, development, or product of . . . minerals” but rather at “developing and publishing standards for recoverable claims” related to the Deepwater Horizon spill - fall within the purview of Section 1349(b)(1), which addresses “any operation conducted on the outer Continental Shelf . . . .” Plainly, although GCCF’s activities amount [to] an operation, that operation is not conducted “on the outer Continental Shelf.” Therefore, OCSLA does not apply and is not a proper basis for federal jurisdiction.”

C. Vacatur Is Warranted Because This First-of-Its Kind Type of Case Does Not Pose Any Danger of Inconsistent Rulings or Duplicative Proceedings. Plaintiff’s Motion to Vacate Conditional Transfer Order (CTO-88) should be granted because the most just and efficient course is to allow the Middle District of Florida Court to decide Plaintiff's pending Motion to Remand. The Panel frequently abstains from ordering transfers when important motions await decision by the originating court. See, e.g., In re L.E. Lay & Co. Antitrust Litig., 391 F. Supp. 1054, 1056 (J.P.M.L. 1975) (finding that “on principles of comity, we are reluctant to transfer any action that has an important motion under submission by the court”); In re Prof’l Hockey Antitrust Litig., 352 F. Supp. 1405, 1407 (J.P.M.L. 1973) (declining, without prejudice to reconsideration by the panel, to transfer action where motion for preliminary injunction was sub judice because the Panel has “consistently adhered to wellfounded principles of comity in deciding motions for transfer under Section 1407”); In re Resource Exploration, Inc., Securities Litig., 483 F. Supp. 817, 822 (J.P.M.L. 1980) (declining to

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transfer an action “on principles of comity” due to the pendency of a motion for summary judgment that had been submitted to the transferor judge). In particular, the Panel has stayed prior transfer decisions pending a decision by the originating court on significant matters such as motions to remand, motions to stay, and motions to dismiss. See In re Air Crash Disaster at J.F.K. Int’l Airport, MDL-227 (J.P.M.L. filed July 20, 1977) (unpublished order deferring Panel decision on question of transfer of tag-along action until decision by transferor court on sub judice motion to remand that action to state court), cited by Stanley A. Weigel, The Judicial Panel on Multidistrict Litigation, Transferor Courts and Transferee Courts, 78 F.R.D. 575, 577, n. 15 (1978); see also, In re Prof’l Hockey Antitrust Litig., 352 F. Supp. at 1406 (transfer order stayed pending decision of transferor court on motion to dismiss); In re Kaehni Patent, 311 F. Supp. 1342, 1344 (J.P.M.L 1970) (transfer order stayed pending decision of court on motion to dismiss); In re Deering Milliken Patent, 328 F. Supp. 504, 505-06 (J.P.M.L. 1970) (transfer under §1407 denied to allow decision by transferor judges on motions for transfer that might render question of transfer under §1407 moot if decided favorably). Here, a transfer of this action would not promote “significant economy and efficiency in judicial administration,” H.R. Rep. No. 1130, 1968 U.S.C.C.A.N. at 1900 (emphasis added) but would delay the resolution of the motion to remand. A transfer at this juncture would result in additional, unnecessary expense and delay because Judge Barbier, presiding over the pretrial consolidation in the Eastern District of Louisiana, has ordered that motions to remand must be resubmitted upon transfer into his court. See Pretrial Order #5, U.S. Dist. Ct., E.D. La., 2:10md-02179-CJB-SS, filed Aug. 16, 2010 (D.I. #17). In addition, Judge Barbier has issued a

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pretrial order indefinitely continuing all motions to remand, including future motions. See Pretrial Order #15, U.S. Dist. Ct., E.D. La., 2:10-md-02179-CJB-SS, filed Nov. 5, 2010 (D.I. #676). Plaintiff has already suffered delay in pursuing his claims against Defendants because of the inappropriate removal and would be further prejudiced if transferred. Accordingly, the Panel should vacate Conditional Transfer Order (CTO-88) with respect to this action in order to promote the just, speedy, and inexpensive determination of this action. Plaintiff's motion to vacate is distinguishable from, and more meritorious than, certain inapposite motions filed by other plaintiffs in MDL 2179 that the Panel recently considered and rejected. Compare Motions to Vacate filed in M.P. Cheng, LLC, v. BP Co. N. Am., Inc., S.D. Tex. C.A. 4:10-4717 (D.I. 269); Kritzer v. Transocean, Ltd., S.D. Tex. C.A. 4:10-1854 (D.I. 273); and Pappas Restaurant, Inc. v. Transocean, Ltd., S.D. Tex. C.A. 3:10-303 (D.I. 275). Whereas in those cases the transferor court had already stayed litigation See M.P. Cheng, LLC, v. BP Co. N. Am., Inc., S.D. Tex. C.A. 4:10-4717 (D.I. 269) (denying motion to vacate where plaintiff’s motion to remand had been filed after the court stayed proceedings pending transfer decision); Kritzer v. Transocean, Ltd., S.D. Tex. C.A. 4:10-1854 (D.I. 273) (same) or even ruled on plaintiff’s remand motion, See Pappas Restaurant, Inc. v. Transocean, Ltd., S.D. Tex. C.A. 3:10-303 (D.I. 275) (denying motion to vacate where transferor court had already denied plaintiff’s motion for remand and stayed further litigation pending transfer decision). Here, Plaintiff's Motion to Remand has not been denied by the Middle District of Florida Court. Furthermore, there is no danger that the Middle District of Florida Court’s decision regarding remand in this action would differ in any way from a decision made by the Transferee Court. The law underlying Plaintiff's Motion to Remand is well-settled and consists of a

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straightforward question of law: whether federal courts have removal jurisdiction over this case under either 28 U.S.C. §§ 1331 (federal question) or 1332 (diversity). They do not. Although some remand motions have been filed in the Eastern District of Louisiana, each of those motions presented issues distinctly different from those in Plaintiff's Motion to Remand. Finally, because the jurisdictional determination is the principal issue pending before the Middle District of Florida Court, there is no risk that duplicative proceedings will result from a vacatur of Conditional Transfer Order (CTO-88) with respect to this action. The most efficient and economical course of action, both for the parties and the courts, is to vacate the conditional transfer order and permit the Middle District of Florida to decide the motion to remand.

D. The JPML Should Neither Continue to Promote Nor Facilitate the Gamesmanship of the Legal System by Defendants. Theoretically, the JPML does not have power over state courts. In reality, multinational corporations with deep pockets and politically well-connected MDL Defendants are easily able to circumvent this “slight inconvenience” through procedural gamesmanship. 1. Defendants Removed this Case for an Improper Purpose. It is a misuse of the MDL Panel procedures to file a baseless Notice of Removal and then immediately seek to exploit the MDL Panel procedures to transfer a case to a foreign jurisdiction for no identifiable purpose other than to indefinitely delay the litigation. Yet this is precisely what Defendants have done here. As noted supra, Defendants removed this action on the erroneous grounds that this Court has federal question jurisdiction under 28 U.S.C. § 1331 and diversity jurisdiction under 28 U.S.C. § 1332. See Plaintiff’s Motion to Remand.

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As noted supra, Defendants removed this action, and immediately filed a "tag-along" notice with the MDL Panel solely for the purpose of delay in the hope that the MDL Panel would transfer this action to MDL 2179 before any court has the opportunity to either rule on the jurisdiction of this action or reach the merits of Plaintiff's claims in this action. Plaintiff respectfully refers the Panel to the “Chronology of Events” (Exhibit B, pp. 3, 4). "If in fact the removal of this action was done for the purpose of delay, the Court strongly disapproves of such gamesmanship of the legal system and waste of judicial resources. Rule 11 states, '[b]y presenting to the court a pleading, written motion, or other paper . . . an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.' Fed. R. Civ. P. 11(b). Counsel should be mindful of this and cautious in pursuing such tactics in the future." Dale Sundby, et al., v. The Bank of New York Mellon, et al., Case No. 11CV627 DMS (RBB), U.S. District Court for the Southern District of California (May 3, 2011). This Panel, as the Court held in Sundby, should strongly disapprove of Defendants' gamesmanship of the legal system and waste of judicial resources in the instant case. 2. District Courts Have the Time, But May Not Have the Desire, to Rule Upon a Motion to Remand. As this Panel has repeatedly reaffirmed, “[b]etween the date a remand motion is filed and the date the Panel finalizes transfer of the action to the MDL, a court wishing to rule upon that motion (or any other motion) generally has adequate time in which to do so.” (Transfer Order, In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL No. 2179 (J.P.M.L. filed February 7, 2011 (Doc. No. 494). -15-

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Unfortunately as a result of the need to efficiently manage the overwhelming number of cases in federal courts, and in deference to the JPML and the MDL transferee judge, many district court judges have chosen to allow removed cases to simply be transferred to an MDL before ruling upon a motion to remand. An example is the Salvesen case which was transferred to MDL 2179 before the district court determined jurisdiction. Plaintiff respectfully points out to this Panel that it would turn justice on its head to permit the Ditch case to suffer the same unjust fate as the Salvesen case. 3. The Inappropriate Transfer of a Case to MDL 2179 Should Not Result in the Automatic Transfer of Subsequent Actions with Common Issues of Fact. One issue currently before this Panel is whether Plaintiff’s action involves “one or more common questions of fact” with other cases consolidated with MDL 2179 and thus is appropriate for transfer and coordination with those proceedings. Plaintiff respectfully points out to the Panel that the more important question is whether the consolidation promotes the just and [not merely] efficient conduct of such actions and is for the convenience of the parties and witnesses. The Ditch case is not appropriate for transfer and coordination with other cases consolidated with MDL 2179 for at least the following four reasons: (a) All pending and future motions are continued without date in MDL 2179. Pursuant to the MDL 2179 Court's Pretrial Order No. 15 (Rec. Doc. 676), “Pending further orders of this Court, all pending and future motions, including Motions to Remand, are continued without date unless a motion is specifically excepted from the continuance by the Court.” Furthermore, pursuant to the MDL 2179 Court's Pretrial Order No. 25 (Rec. Doc. 983), “All individual petitions or complaints that fall within Pleading Bundles B1, B3, D1, or D2, whether pre-existing or filed hereafter, are stayed until further order of the Court.” -16-

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As noted supra, once the Pinellas and Salvesen cases were transferred to the MDL 2179 Court, the cases were automatically stayed. Each case will languish indefinitely in MDL 2179. (b) The MDL 2179 Court has declined to permit discovery on Feinberg or the GCCF. On August 29, 2011, Plaintiff’s Counsel emailed a letter to James Parkerson Roy, Plaintiffs’ Liaison Counsel in MDL 2179, wherein he informed Mr. Roy that the Pinellas case had been transferred to MDL 2179. The letter, in pertinent part, stated “I would like to commence discovery as soon as possible. Since this action does not involve common questions of fact with actions previously transferred to MDL No. 2179, please advise as to how we may most expeditiously initiate and coordinate discovery ..... I look forward to working with you on this case.” On September 5, 2011, Plaintiff’s Counsel received an email from Stephen J. Herman, Plaintiffs’ Liaison Counsel in MDL 2179, wherein Mr. Herman stated, “please be advised that the Court has, thus far, declined to permit formal discovery on Feinberg or the GCCF.” In regard to MDL 2179, the MDL Panel states, “Centralization may also facilitate closer coordination with Kenneth Feinberg’s administration of the BP compensation fund.” However, formal discovery on Feinberg and the GCCF, and the associated pressure of a trial, are required in order exert pressure on the parties to negotiate a settlement which reflects the true value of the claims and not one which focuses on minimizing the liability of the defendants. Certainly, as has occurred in MDL 2179, without formal discovery on Feinberg and the GCCF certain claims by private individuals and businesses, including Plaintiff Ditch, for economic loss resulting from the operation of the GCCF may not be properly resolved.

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(c) Kenneth R. Feinberg, Feinberg Rozen, LLP, D.B.A. Gulf Coast Claims Facility, and William G. Green, Jr. are not named Defendants in any master complaint or class action complaint in MDL 2179.

(d) The Transferee Court concedes that Feinberg, Feinberg Rozen, D.B.A. GCCF, and Green are not Defendants in MDL 2179. Under the Economic and Property Damages Settlement Agreement, “all Economic Class Members who do not timely and properly Opt Out shall be permanently and forever barred from commencing, instituting, maintaining or prosecuting any action based on any Released Claim against any Released Parties in any court of law or equity, arbitration tribunal or administrative or other forum.” Under this Agreement, “Other Released Parties” means “Released Parties” other than BP. The list of Other Released Parties is over four pages in length. See Exhibit D. Kenneth R. Feinberg, Feinberg Rozen, LLP, Gulf Coast Claims Facility (“GCCF”), and William G. Green, Jr. are not on this list because the MDL 2179 Court never contemplated that these Defendants would be included in MDL 2179.

E. The MDL 2179 Court Has Overreached Its Authority. The instant action should not be transferred to MDL 2179 because that Honorable Court has overreached its authority. See In Re: Oil Spill By The Oil Rig “Deepwater Horizon” In The Gulf Of Mexico On April 20, 2010, Case No. 2:10-md-02179-CJB-SS, Doc. 6186-1 (E.D. La.). 1. The Lexecon Rule The Supreme Court has held that a district court conducting pretrial proceedings pursuant to 28 U.S.C. §1407(a) has no authority to invoke 28 U.S.C. §1404(a) to assign a transferred case to itself for trial. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998).

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Justice Souter, in delivering the opinion of the Court in Lexecon, explained “28 U. S. C. §1407(a) authorizes the Judicial Panel on Multidistrict Litigation to transfer civil actions with common issues of fact ‘to any district for coordinated or consolidated pretrial proceedings,’ but imposes a duty on the Panel to remand any such action to the original district ‘at or before the conclusion of such pretrial proceedings.’ ‘Each action so transferred shall be remanded by the Panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated.’ 28 U.S.C. §1407(a). The issue here is whether a district court conducting such ‘pretrial proceedings’ may invoke 28 U.S.C. §1404(a) to assign a transferred case to itself for trial. We hold it has no such authority.” Justice Souter pointed out that “the Panel’s instruction comes in terms of the mandatory ‘shall,’ which normally creates an obligation impervious to judicial discretion. Anderson v. Yungkau, 329 U. S. 482, 485 (1947). In the absence of any indication that there might be circumstances in which a transferred case would be neither ‘terminated’ nor subject to the remand obligation, then, the statutory instruction stands flatly at odds with reading the phrase ‘coordinated or consolidated pretrial proceedings’ so broadly as to reach its literal limits, allowing a transferee court’s self-assignment to trump the provision imposing the Panel’s remand duty. If we do our job of reading the statute whole, we have to give effect to this plain command, see Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 476 (1992), even if doing that will reverse the longstanding practice under the statute and the rule, see Metropolitan Stevedore Co. v. Rambo (1995) (“Age is no antidote to clear inconsistency with a statute.” (quoting Brown v. Gardner, 513 U. S 115, 122 (1994))).”

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Case MDL No. 2179 Document 1549-1 Filed 08/07/13 Page 20 of 20

While the need to promote efficiency in litigation is real, Plaintiff respectfully points out to this Panel that “age is no antidote” to the inappropriate transfer of cases to MDL 2179.

VI. REQUEST FOR RELIEF For the foregoing reasons, Plaintiff respectfully requests that the Panel grant his Motion and enter an order (1) vacating the conditional transfer order (CTO-88) with respect to this cause of action, and (2) granting Plaintiff such additional relief to which he may be entitled and which the Panel deems just and proper.

DATED: August 7, 2013

Respectfully submitted, /s/ Brian J. Donovan____________ Brian J. Donovan Florida Bar No. 143900 3102 Seaway Court, Suite 304 Tampa, FL 33629 Tel: (352)328-7469 BrianJDonovan@verizon.net

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