Baker v. Chevron USA, Inc.

Full title: Carolyn Baker, et al., Plaintiffs, v. Chevron USA, Inc., et al., Defendants

Court: United States District Court, S.D. Ohio, Western Division

Date published: Jan 30, 2007

Case No. 1:05-CV-227 (S.D. Ohio Jan. 30, 2007)

Opinion

Case No. 1:05-CV-227.

January 30, 2007

ORDER

SANDRA BECKWITH, District Judge

This matter is before the Court on Plaintiffs' motion to clarify Report and Recommendation of May 15, 2006 (Doc. No. 53), Defendants' motion to identify Plaintiffs subject to the Court's order of August 4, 2006 (Doc. No. 88), and Defendants' motion to dismiss certain named Plaintiffs in the third amended complaint (Doc. No. 90).

A. Background and Analysis

Plaintiffs in this case are approximately 360 residents of the towns of Cleves and Hooven, Ohio. In April 2005, Plaintiffs sued Defendant Chevron USA, Inc., and various of its subsidiaries (collectively "Chevron"), asserting individual claims for personal injury and property damage allegedly resulting from Chevron's operation of a nearby gasoline refinery. On June 30, 2005, Chevron filed a motion for the Court to enter a "Lone Pine"¹ case management order in which, inter alia, Plaintiffs would be required to preliminarily disclose evidence of causation prior to formal discovery. See Doc. No. 10. The basic purpose of a Lone Pine order is to identify and cull potentially meritless claims and streamline litigation in complex cases involving numerous claimants, such as this one.

1 Lore v. Lone Pine Corp., No. L-33606-85, 1986 WL 637507 (N.J.Super.Ct. Nov. 18, 1986)

On August 3, 2005, Magistrate Judge Hogan entered a case management order (Doc. No. 24), which adopted Chevron's proposal to issue a Lone Pine order. Judge Hogan's case management order required Plaintiffs to provide the following information within ninety days:

1. For Plaintiffs claiming personal injury, an affidavit from a qualified expert or experts setting forth for each Plaintiff the specific illness allegedly sustained, the date the illness was diagnosed, the name and address of the medical provider who made the diagnosis, the toxic chemical which allegedly caused the illness, the alleged manner of exposure, and the date, duration, and dose of the exposure.

2. For Plaintiffs claiming property damage, an affidavit from a qualified expert or experts setting forth for each Plaintiff, the property address, including tax block and lot number, a description of the alleged contaminent and the date the contaminent was discovered on the property, the alleged diminution in property value and the timeframe during which the diminution allegedly occurred.

Id. at 1-2. On October 27, 2005, on motion of the Plaintiffs, Magistrate Judge Hogan extended the date for providing the information required by the Lone Pine order to January 20, 2006.

On January 19, 2006, Plaintiffs filed a notice of compliance with Magistrate Judge Hogan's case management order. See Doc. No. 35. Plaintiffs' notice stated that they had filed a "brochure" for each and every Plaintiff as well as affidavits from two experts.

On January 26, 2006, Judge Hogan issued a calendar order (Doc. No. 39) which established February 20, 2006 as the deadline to amend the complaint. On February 13, 2006, Plaintiffs filed a second amended complaint which added some forty new plaintiffs to the case.

On February 24, 2006, Chevron filed a notice (Doc. No. 45) with the Court which argued that Plaintiffs had failed to comply with Judge Hogan's case management order. In its pleading, Chevron pointed out that Plaintiffs had failed to provide affidavits from physicians concerning their illnesses and that the property-owner plaintiffs had failed to provide affidavits concerning their properties. Instead of supplying the information required by the case management order, Plaintiffs, as Judge Hogan later found, provided affidavits from two toxicologists addressing causation and copies of deeds to various properties. Doc. No. 52, at 3. It should be further noted that some Plaintiffs failed to provide any documentation at all in response to the case management order. As a result of the Plaintiffs' failure to comply with the case management order, Chevron moved for sanctions, up to and including dismissal of the complaint with prejudice.

On May 15, 2006, Judge Hogan issued a Report and Recommendation (Doc. No. 52) which addressed whether Plaintiffs complied with the case management order. Judge Hogan found that Plaintiffs were not in compliance with respect to providing medical information for their personal injury claims but that for property damage claimants, providing copies of the deed was an adequate substitute for tax block and lot information. Judge Hogan concluded his Report and Recommendation by recommending that the claims of Plaintiffs who failed to submit any information concerning their injuries or property damage as of January 20, 2006 should be dismissed with prejudice. Judge Hogan then ordered Plaintiffs to file a third amended complaint listing all Plaintiffs, stating the nature of their medical conditions and listing the names of their doctors, and describing their real property. Judge Hogan further ordered that Plaintiffs identifying a medical condition must produce the name and current address of the physician who could establish the existence of such a condition. Judge Hogan ordered Plaintiffs to comply with this order by June 12, 2006.

On May 30, 2006, Chevron filed objections to Judge Hogan's Report and Recommendation. Doc. No. 57. In its pleading, Chevron essentially argued that Judge Hogan was too lenient in response to Plaintiffs' non-compliance with the case management order. Plaintiffs, however, did not object to Judge Hogan's Report and Recommendation. On August 4, 2006, the Court entered an order (Doc. No. 82) overruling Chevron's objections and adopting Judge Hogan's Report and Recommendation.

The Court's order of August 4, 2006 adopting Judge Hogan's Report and Recommendation and the Report and Recommendation gave rise to the pleadings now under consideration. On May 23, 2006, Plaintiffs filed a motion (Doc. No. 23) seeking clarification as to whether the Report and Recommendation applied to Plaintiffs who joined the case when the second amended complaint was filed. Plaintiffs' position was that this new group of Plaintiffs was not subject to the original case management order, since the order pre-dated their participation in the lawsuit. Therefore, Plaintiffs sought on behalf of the new claimants leave to file the information required by the case management order by June 12, 2006.

On September 22, 2006, Chevron filed a motion to identify the Plaintiffs' subject to the Court's order of August 4, 2006. See Doc. No. 88. The object of this motion is to identify by name those Plaintiffs who failed to submit any information required by the case management order, and thus, are subject to having their claims dismissed with prejudice as recommended in the Report and Recommendation.

Also on September 22, 2006, Chevron filed a motion to dismiss the claims of some of the Plaintiffs in the Third Amended Complaint. According to Chevron, there are approximately 58 personal injury Plaintiffs and 5 property damage Plaintiffs identified in the Third Amended complaint who did not comply with the first stage of the case management order and who should have their claims dismissed with prejudice.

In response, Plaintiffs filed a pleading which identifies five subsets of Plaintiffs according to their various degrees of compliance with Judge Hogan's case management order.

First, Plaintiffs have listed 43 claimants who were parties in the original complaint but are not included as parties in the Third Amended complaint. According to Plaintiffs, these persons apparently do not desire to file the information required by the case management order or do not have medical diagnoses which they can attribute to Chevron. Plaintiffs acknowledge that the claims of these persons should be dismissed, but request that the claims be dismissed without prejudice.

Second, Plaintiffs have identified 8 property damage claimants whom they contend filed property deeds in compliance with the case management order as revised by Judge Hogan. Plaintiffs argue that the claims of these individuals should not be dismissed. However, these individuals' compliance with the case management order is not contested by Chevron. Doc. No. 93, at 1.

Third, Plaintiffs have identified 5 individuals who submitted the information required by the case management order to Plaintiffs' trial counsel in a timely fashion. Counsel, however, through an unidentified computer error, failed to file the informational brochures with the Court and Chevron.

Fourth, Plaintiffs have identified 17 individuals, mostly minors, who were original Plaintiffs and who did not file informational brochures by January 20, 2006, as required by the case management order, but who did provide the required information as of the filing of the third amended complaint. Plaintiffs essentially seek leave to file the information for these individuals out of time.

Fifth, Plaintiffs have identified 24 individuals who were new Plaintiffs in the second amended complaint and who filed their informational brochures as of the filing of the third amended complaint. Plaintiffs argue that the claims of these persons should not be dismissed.

In addition, the Court has identified a sixth subset of Plaintiffs. This subset of Plaintiffs consists of individuals whom Chevron contends did not comply with the case management order, and who are included on its list of claimants and claims it seeks to dismiss with prejudice, and as to whom Plaintiffs failed to respond on behalf of in their memorandum in opposition to the motion to dismiss. In short, Plaintiffs apparently do not contest dismissal of the claims of these individuals.

In reply, Chevron's basic position is that all of these Plaintiffs should have their claims dismissed with prejudice because none of them have provided a good reason or just cause for not complying with the case management order.

Plaintiffs essentially admit that the first and fourth subsets of individuals were original Plaintiffs who failed to comply with the requirement to provide informational brochures by January 20, 2006. The difference between the two subsets of Plaintiffs is that the latter group did file their informational brochures several months later. An additional wrinkle to consideration of the issue is that some of the individuals in these two groups are minors.

As to the adults in these two subsets, however, the Court finds that their claims should be dismissed with prejudice. The problem for Plaintiffs is that they did not object to Judge Hogan's Report and Recommendation that individuals not in compliance with the January 20, 2006 filing deadline should have their claims dismissed with prejudice. By failing to object to the Report and Recommendation, Plaintiffs waived their right to appeal Judge Hogan's decision. Mattox v. City of Forest Park, 183 F.3d 515, 519 (6th Cir. 1999). Plaintiffs' contention that their claims should be dismissed without prejudice (or allowed, in the case of the Plaintiffs filing brochures out of time) constitutes an untimely objection to the Report and Recommendation's conclusion that the claims of parties who failed to provide any information as of January 20, 2006 should be dismissed with prejudice.

Plaintiffs' default can be excused in the interests of justice.Thomas v. Arn, 474 U.S. 140, 155 (1985). The Court, however, does not believe that the interest of justice require excusing the default of the adult Plaintiffs. Plaintiffs admit that the first subset of Plaintiffs either refuse to comply with the order or do not have a current illness that can be traced to the gasoline refinery. The fourth subset of Plaintiffs offer no justification for their noncompliance with the case management order. They only argue that Chevron will not be prejudiced by the untimely production of the informational brochures. Absence of prejudice to Chevron, however, does not excuse what seems to be willful non-compliance with the case management order. Accordingly, the Court will also dismiss with the prejudice the claims of the adult Plaintiffs in the fourth subset of individuals.

The claims of the minors, however, present a different situation. Under Ohio law, parents cannot waive the existing claims of their minor children without consent of the probate court. Ohio Rev. Code § 2111.18; Brewer v. Akron Gen. Med. Center, No. 19068, 1999 WL 33382, at *2 (Ohio Ct.App. Jan. 27, 1999). The Court cannot allow the adult Plaintiffs' failure to comply with the case management order and subsequent failure to object to the Report and Recommendation tp operate as a waiver of the minor children's claims, which would be the practical effect of a dismissal with prejudice. The interests of justice require the Court to excuse Plaintiffs' default with respect to the claims of the Plaintiffs who are minors.

According, the claims of the following adults are DISMISSED WITH PREJUDICE:

Carolyn Baker Larry Ball Bradley E. Balsley Ryan R. Balsley John Balsley Omer Clark Danny Combs Pamela Eggleston Hazel Fennell Billy R. Garner Mary Sue Garza William Greenham David Gulley Jeffrey Gulley Justin Hall Billy Johnson Floyd King Norita Leisring Stacey Leisring Benny Wayne Muncy Cindy Muncy Jonathon Odom Danny Reatherford Janet Rogers Fred Roy Mary Roy Donna Sams Jennifer Schrader Anthony Sullivan Troy Wallick Danny Whitt Gary Whitt Gary Whitt, Jr. Kesha Witko Scott Worthington Jennifer Zeinner Katherine Davis The claims of the following minors are DISMISSED WITHOUT PREJUDICE: Jake Balsley Tanner Bergman Sasha Dover Kristopher Gauci Mercedes Greer Marcus Wade Greer Angel Lane Rachel Lewis Carli Meyer Karmin Moses Tyler Napier Derek Reatherford Brooke Reatherford Dakota Rolfes Sierra Rolfes Brian Schrader Ayranna Schrader Joshua Tibbs Jeremy Tyler Ethan Witko Chase Witko Angela Zeinner Alyssa Balsley Joey Conn Jacob Crihfield Roxanne Crihfield Thomas Greer Jessica Cates/Lehman Billy Joe Simpson Talmadge Studer Kristal Studer Malachi Studer Victor Schmidt Maci Alf Erica Korstanje Jennifer Cates Katlyn Cates Kayla Cates Chevron does not contest the compliance with the case management order of the second subset of Plaintiffs.

The third subset of individuals submitted the required information to Plaintiffs' counsel but Plaintiffs' counsel failed to submit the information to Chevron through an unidentified computer error. Generally, courts will not hold clients responsible for errors committed by counsel as a sanction. Harmon v. CSX Trans., Inc., 110 F.3d 364, 367 (6th Cir. 1997) ("[T]his court, like many others, has been extremely reluctant to uphold the dismissal of a case merely to discipline an errant attorney because such a sanction deprives the client of his day in court and it has stated that dismissal is usually inappropriate where the neglect is solely the fault of the attorney[.]") (internal citations, quotation marks, and ellipses omitted). Here, counsel represent that these particular individuals are not at fault for the untimely filing of the required information. The Court accepts that representation. Accordingly, the Court will not dismiss the claims of Walter Barker, Inez Benter, Charles Garner, Sr., James Wallick, and Deborah Biggers.

The fifth subset of Plaintiffs are individuals who were added as new parties in the second amended complaint but did not submit informational brochures until the filing of the third amended complaint. Plaintiffs contend that the claims of these individuals should not be dismissed because they were not subject to the order requiring them to file informational brochures by January 20, 2006. Chevron, however, contends that these individuals should have filed their informational brochures when the second amended complaint was filed and, because they did not, their claims should be dismissed. Chevron notes that two new Plaintiffs actually did submit brochures when the second amended complaint was filed and thus contends that it was possible for the individuals in this subset to do the same.

The Court agrees with Plaintiffs that the fifth subset of individuals was not in violation of the January 20, 2006 deadline because they did not enter the case until February 2006. The question really is whether these Plaintiffs should be sanctioned for failing to provide their informational brochures simultaneously with the filing of the second amended complaint. The Court thinks not. The Court notes that Judge Hogan's Report and Recommendation addresses only those individuals who failed to file their brochures as of the January 20, 2006 deadline. There was no recommendation from Judge Hogan to dismiss the claims of new entrants to the case. The Court further observes that under the terms of the original case management order, Plaintiffs had 90 days to file their informational brochures. See Doc. No. 24. With an extension granted by Judge Hogan, this period actually became about 150 days. Therefore, it is not unreasonable to afford the new Plaintiffs a similar time period in which to assemble and submit the required information. Thus, the Court finds that their submission of information as of the date of the filing of the third amended complaint, June 12, 2006, is satisfactory. Accordingly, the Court will not dismiss the claims of the following individuals:

Anthony Bergmann Carlenna Chaney Brandi Cole Benjamin Cole, Jr. Branden Cole Cassandra Combs Sandra Dotson Gregory Fields Paige Harper Zachary Harper Trina Hurt Carl Kreger Geraldine Kreger Betty Ann Lucas Gerald Wayne Mills Vincent Pappin Alabam Smith Deilya Smith Dezarae Smith Kennith Smith Myrna Smith Teresa Smith Jo Ellen Story Sandra Gordon Alvarez Adriana Alvarez Socorro Alvarez Valentin Alvarez, Jr.

Finally, as stated earlier, the sixth subset of individuals consists of Plaintiffs identified as being subject to dismissal without opposition from Plaintiffs. The Court, in reviewing and cross-checking the lists between the first amended complaint and the second amended complaint further subdivides this subset into individuals who were original claimants in the first amended complaint, new parties in the second amended complaint, minors who were named in the first amended complaint, and minors who were named in the second amended complaint. In order to treat these individuals consistently with the others, the Court will dismiss with prejudice the claims of the adult individuals named in the first amended complaint who were not in compliance with the case management order and dismiss without prejudice the claims of the minors named in the first amended complaint who were not in compliance. The Court will not dismiss the claims of adults and minors who were added as new parties in the second amended complaint.

Accordingly, the claims of the following adults are DISMISSED WITH PREJUDICE:

Julie Ann Balsley Shaun Balsley Patricia Bauer Paul Bauer Matthew Breeding Frances G. Clark Mary Theresa Conn Michael Conn Michael Conn, Jr. Shirley Courtney Jeffrey Crihfield James Davis Robert Eldridge Kathy Emmert Clifford Fennell Barbara Fox Denny Gambrell Geraldine Garner William Glick Celia Hall William G. Hall, Sr. William G. Hall, Jr. Tracy Laird Wilmer Lane James Leisring Susan Lyons Donna Mess Michael Muncy Hosea Myers Amanda Pizzi James Retherford, Jr. Vicki Retherford Amanda Rolfes Clarence Roy Bonnie Stewart Kristina Stewart Richard Tenkotte Peggy Thompson Thomas Tibbs Terrence Tyler Judy Upchurch Rodney Wheeler, Sr. Ida M. Whitaker Patricia Whitaker Samuel White Greg Whitt Sam Whitt Linda Wise Diana Zeinner Brenda Balsley Carrie Balsley David Balsley William Balsley, Jr. James Barker Walter Barker John Breeding Matthew Breeding Melissa J. Breeding Mandy Clark Patricia Combs Amy Crihfield Helen Davis Amy Detmer Dorothy Dietz John Dover Jenny Eves Melissa Franz LaDonna Gardner Janice Geyer Caroline Greener Mary Etta Brown Mary Greenham Carol Hageman Robert Hageman Angela Heath Carolyn Hurt Alysha Johnson Marilyn King Robin Laird Christian Leisring Marvin Leisring David Lewis Kimberly Lewis Pat McKernan Dallas Meyer Dorothea Myer Norman Meyer Robert Mondary Crissy Moses Benny Wayne Muncy Cindy Muncy Anna Poor Caroline Willie Roessler Sharon Rolfes Jean Runck Michelle Schrader Helen Slusher Gregory Smith Bonnie Stewart Kristina Stewart Loretta Tebelman Katie Upchurch Jeffrey Utterback Benny Wade Troy Wallick Betty Walters Rodney Wheeler, Jr. Kimberly Wood Kelly Greer Joseph A. Simpson, Jr. Dani Whitener Edward A. Whitt The claims of the following minors are DISMISSED WITHOUT PREJUDICE: Destiny Glick William Glick Robert Allen Greer Matthew Stewart Kristopher Wheeler Joseph Lewis The claims of the following individuals will not be dismissed: Bradley Balsley Brian Scott Balsley Jeff Story Douglas E. Hurt

II. Monetary Sanctions

It is apparent to the Court that disorganization within Plaintiffs' counsel's ranks has created considerable confusion for Defendants and the Court as to which individuals are properly in the case. Parties have been listed in the caption of the complaint but not in the body of the complaint, whereas other parties are included in the body of the complaint but not in the caption. With the filing of the third amended complaint, other parties were dropped completely, apparently in an effort to avoid Judge Hogan's recommendation that individuals not in compliance with the January 20, 2006 deadline should have their claims dismissed with prejudice. Further still, as to a few of the Plaintiffs, counsel failed to submit informational brochures that were in their possession, thus subjecting these persons to the potential sanction of dismissal of their claims. All of this, as noted, has created confusion and resulted in the considerable expenditure of time by this Court, Magistrate Judge Hogan, and Chevron poring over the pleadings to determine who is and who is not a party to the case, who is and who is not in compliance with orders entered by the Court, and to place the case in a coherent procedural posture.

Section 1927 of Title 28 United States Code provides:

Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.

28 U.S.C. § 1927. The Court invites Chevron to file a motion for sanctions pursuant to § 1927, supported by law and argument, requesting an award of reasonable fees and costs incurred as a result of securing Plaintiffs' compliance with the case management order as well as bringing the case into the proper procedural posture. Chevron shall file such motion, if desired, within thirty (30) days after the close of this case on its merits. Subsequent briefing on the motion shall proceed according to local rule.

Conclusion

As a result of the the Court's rulings herein, the disposition of the pending motions is as follows: Plaintiffs' motion for clarification is well-taken and is GRANTED; Defendants' motion to identify Plaintiffs subject to the Court's order of August 4, 2006 (Doc. No. 88), and Defendants' motion to dismiss certain named Plaintiffs in the third amended complaint (Doc. No. 90) are GRANTED IN PART AND DENIED IN PART.

IT IS SO ORDERED