Tucei v. BP Exploration & Production, Inc. et al
ORDER granting in part and denying in part 33 Motion to Extend Deadline to Modify Court's Scheduling Order; denying 35 Motion Request for Oral Argument. An amended case management order will be forthcoming setting new deadlines. Signed by Magistrate Judge Bradley W. Rath on 1/19/2023 (TS)
Case 1:22-cv-00078-HSO-BWR Document 38 Filed 01/19/23 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
Civil No. 1:22-cv-78-HSO-BWR
BP EXPLORATION &
PRODUCTION, INC. and
BP AMERICA PRODUCTION
ORDER GRANTING IN PART AND DENYING IN PART  MOTION TO
EXTEND DEADLINE TO MODIFY COURT’S SCHEDULING ORDER;
DENYING  MOTION REQUEST FOR ORAL ARGUMENT
Before the Court is the  Motion to Extend Deadline to Modify Court’s
Scheduling Order and  Motion Request for Oral Argument filed by Plaintiff
Lawrence Tucei (“Plaintiff”). Defendants BP Exploration & Production Inc., and BP
America Production Company (collectively “Defendants”) have filed a  
Response in Opposition to both. For the reasons that follow, the Court will grant in
part and deny in part the  Motion to Extend Deadline to Modify Court’s
Scheduling Order and deny the  Motion Request for Oral Argument.
Motion to Modify Court’s Scheduling Order
Relevant Legal Authority
“District courts must have the power to control their dockets by holding
litigants to a schedule.” Shepherd v. City of Shreveport, 920 F.3d 278, 288 (5th Cir.
2019). Federal Rule of Civil Procedure 16(b) provides that once a scheduling order
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has been entered, it “may be modified only for good cause and with the judge’s
consent.” Fed. R. Civ. P. 16(b)(4).
In determining whether the movant has met its burden under Rule 16(b)(4), the
Court considers four factors: (1) the party’s explanation for its failure to meet the
deadline, (2) the importance of the requested relief, (3) potential prejudice in granting
the relief, and (4) the availability of a continuance to cure such prejudice. S&W
Enters., LLC v. SouthTrust Bank of Ala., N.A., 315 F.3d 533, 535 (5th Cir. 2003);
Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990).
The first factor requires an explanation for the failure to meet the existing
deadlines. S&W Enters., 315 F.3d at 535. The mere existence of an explanation is
insufficient. The moving party must present the Court with a “plausible” explanation
for his failure to comply with the existing deadline. E.E.O.C. v. Service Temps Inc.,
679 F.3d 323, 334 (5th Cir. 2012).
Plaintiff contends that Defendants’ conduct and the conduct of its “incentivized
contractors” have rendered him unable to meet the existing case management
deadlines. Mem.  at 14, 20; Reply  at 7. Plaintiff asserts that one of those
“incentivized contractors,” the Center for Toxicology and Environmental Health, only
recently turned over a “massive” number of documents. Mem.  at 6. While
another, Battelle Labs, only recently made the first of its three rounds of production.
Id. at 6-7. Plaintiff further asserts that a months-long subpoena fight with another
“incentivized contractor,” Exponent, Inc., and obstructions to deposing another
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“incentivized contractor,” NALCO (now “Champion X”), have also rendered him
unable to meet the existing case management deadlines. See id. at 17-19. Because
Plaintiff has presented the Court with a “plausible” explanation for the failure to
meet the existing deadlines, this factor favors granting Plaintiff’s request.
The second factor requires consideration of the importance of the requested
relief. S&W Enters., 315 F.3d at 535. Put differently, the Court considers the
significance of the scheduling order modification to the moving party’s case. See, e.g.,
Geiserman, 893 F.2d at 791.
Plaintiff contends that without the requested extensions, he cannot conduct
the necessary discovery to demonstrate the unreliability of Defendants’ data, upon
which Defendants’ experts allegedly will rely. Mem.  at 12. Plaintiff further
contends that without the extensions, he will effectively be forced to try his case
without an expert to testify on medical causation—an essential element of Plaintiff’s
claim. Id. at 10-13; Reply  at 6. Defendants counter that Plaintiff has failed to
demonstrate the importance of the third-party discovery to this specific case. Resp.
 at 5-6. Defendants further counter that Plaintiff has failed to demonstrate how
the discovery will help Plaintiff overcome the medical causation burden. Id. at 6-7.
Considering the foundation of Plaintiff’s arguments – that the existing data
was tainted, and the requested extensions are necessary to allow him to obtain untainted data and have it considered by his experts – the Court cannot say that it is
unimportant. However, the Court appreciates Defendants’ arguments that Plaintiff
has failed to precisely identify the importance of the discovery from the “incentivized
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contractors” to this specific case or to indicate the existence of an expert witness
willing to testify in support of Plaintiff’s allegations. Therefore, the Court finds that
this factor is neutral or slightly favors granting Plaintiff’s request.
The third factor requires weighing the potential prejudice in granting the
requested relief. S&W Enters., 315 F.3d at 535. Specifically, the Court considers
whether a scheduling order modification will prejudice the nonmoving party. See, e.g.,
Southwestern Bell Telephone Co. v. City of El Paso, 346 F.3d 541, 547 (5th Cir. 2003).
Plaintiff contends that granting his requested extensions poses no potential
prejudice to Defendants. Mem.  at 22. According to Plaintiff, because Defendants
are defending numerous other oil spill cases, whether they designate on the original
deadline or an extended deadline, Defendants will still have to retain experts, and
Defendants will face no more costs than they would already be expending. Id. at 23.
Defendants counter that granting Plaintiff’s requested extensions to allow “lateinitiated third-party discovery” would prejudicially delay the resolution of this matter
and result in increased costs. Resp.  at 10.
With respect to this factor, the Court finds that granting the requested
extensions would result in some prejudice. Granting the requested extensions would
prejudicially delay the resolution of this matter, which was initially filed on October
22, 2021, Compl. , and result in increased costs. However, this is the first requested
extension of any deadlines in this matter. For that reason, the Court finds that this
factor favors granting Plaintiff’s requested extensions.
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Under the fourth factor, the Court considers the availability of a continuance
to cure such prejudice. S&W Enters., 315 F.3d at 535. Important considerations
include whether the continuance will result in “additional delay and increase the
expense of” litigating and whether granting a continuance would “deter future
dilatory behavior, or serve to enforce local rules or court imposed scheduling orders.”
Geiserman, 893 F.2d at 792.
Defendants argue that a continuance would not cure the resulting prejudice
because it would unnecessarily delay the trial. Resp.  at 9-10. As the Court
previously determined, some prejudice would result to Defendants if Plaintiff’s
requested extensions were granted. However, Plaintiff’s argument that an extension
would not necessitate any change in Defendants’ need to designate experts for this
and other oil spill-related cases is well taken. To cure any potential prejudice and
ensure the efficient resolution of this matter, the Court will grant this extension of
the existing case management deadlines. 1
As Plaintiff explains, he needs additional time to review the discovery
produced by BP and its “incentivized contractors” and then to proceed with Rule
30(b)(6) depositions of BP and the “incentivized contractors,” before being able to
incorporate this “new evidence” into his expert’s reports. Mem.  at 7. Yet, it seems
that even that will not conclude discovery. As later stated, “Plaintiff anticipates the
need to conduct additional discovery in this case, as well as enforcing third-party
This determination is also supported by the Court’s inherent power to control the docket and ensure
that cases proceed in a timely and orderly manner. See Marinechance Shipping, Ltd. V. Sebastian, 143
F.3d 216, 218 (5th Cir. 1998).
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discovery generally applicable to all BP plaintiffs represented by” Plaintiff’s counsel.
Id. at 13. However, “[a]t some point, discovery must end . . . Otherwise, the case
management process is rendered meaningless.” Hughes v. Boston Sci. Corp., Civ. No.
2:08-cv-79, 2009 WL 3031680, at *2 (S.D. Miss. Sept. 17, 2009). An amended case
management order will be entered setting the new deadlines.
Motion Request for Oral Argument
Local Rule 7(b)(6)(A) provides that “[t]he court will decide motions without a
hearing or oral argument unless otherwise ordered by the court on its own motion or,
in its discretion, upon written request made by counsel . . . .” L. U. Civ. R. 7. Given
the Court’s familiarity with the issues presently raised, having reviewed almost
verbatim arguments in numerous other cases, the Court finds it unnecessary to hold
oral argument. Therefore, the  Motion will be denied.
IT IS, THEREFORE, ORDERED AND ADJUDGED, that the  Motion
to Extend Deadline to Modify Court’s Scheduling Order filed by Plaintiff Lawrence
Tucei is GRANTED IN PART AND DENIED IN PART. An amended case
management order will be entered setting the new deadlines.
IT IS, FURTHER, ORDERED that, the  Motion Request for Oral
Argument filed by Plaintiff Lawrence Tucei is DENIED.
SO ORDERED, this the 19th day of January 2023.
Bradley W. Rath
BRADLEY W. RATH
UNITED STATES MAGISTRATE JUDGE
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