Mob Bosses in Black Robes II
How MDL Judges Maximize Judicial Efficiency
By Brian J. Donovan
Originally published: June 30, 2021
In the previous article, we explained that the U.S. federal judicial system runs a protection racket for corporations. This article describes how an MDL judge maximizes judicial efficiency while running his protection racket. Since the BP oil well blowout MDL (“MDL 2179”) is considered to be the gold standard for MDL, it will be used as a case study.
The Honorable John G. Heyburn II, former Chair of the JPML, addressed the MDL statute’s strict requirement that cases transferred to an MDL court be remanded to the original district “at or before the conclusion of such pretrial proceedings.” Judge Heyburn explained that this duty to remand is merely a “conundrum” which may be avoided by “resourceful” MDL judges.
Since 2010, the following are a few of the tactics which have been employed by the resourceful MDL 2179 Court to maximize judicial efficiency.
I. MDL Judges Ignore the Core Democratic Premises of Representation, Transparency, and Accountability
On November 13, 2017, I filed a motion on behalf of my clients wherein I requested the MDL 2179 Court to place on the public record the total amount and source of compensation, from all sources, paid to all members of the PSC and the total amount and source of compensation paid to the legal experts, Special Masters, and Claims Administrator Patrick Juneau. This was neither a Motion to Compel nor an Objection. This was merely a motion by the plaintiff, on behalf of himself and his clients, to request the MDL 2179 Court to conduct itself in a fully transparent manner.
In the motion, I pointed out to the court that the total compensation paid to Herman and Roy, and the 17 PSC attorneys and their law firms, is guesstimated to be $3.035 billion. It is beyond cavil that a reasonable, objective observer would not conclude that this amount is out of all proportion to the value of the professional services rendered.
On March 6, 2018, the MDL 2179 Court issued an Order wherein the Honorable Carl J. Barbier succinctly states, “Before the Court is a ‘Motion to Request this Court to Place on the Public Record the Total Amount and Source of Compensation, From All Sources, Paid to All Members of the PSC, et al.’ IT IS ORDERED that the Motion is DENIED.” Apparently, the MDL 2179 Court does not believe that the plaintiffs in MDL 2179 have a right to know how much compensation the attorneys allegedly representing their interests are receiving.
A. Motions for Clarification Are Routinely Denied to Keep MDL Plaintiffs in the Dark
Motion for Clarification of the Issue of Choice-of-Law
On February 26, 2020, Plaintiffs filed a Motion for Clarification moving the Court to enter an order clarifying whether the Honorable MDL 2179 Court applies the choice-of-law rules of the state in which the transferor court sits.
On March 2, 2020, the Honorable MDL 2179 Court issued an Order denying the Motion for Clarification. In sum, Plaintiffs were left in the dark in regard to the choice-of-law rules applied by the Honorable MDL 2179 Court.
Denying this motion for clarification, allowed the MDL 2179 Court to subsequently, and improperly, apply Louisiana law rather than the choice-of- law rules of the state in which the transferor court sits. In this case, the transferor court sits in Florida.
The U.S. Supreme Court held in Van Dusen and Ferens that the policies underlying the holdings of Erie and Klaxon mandated that the law, including the choice-of-law rules, of the transferor court, rather than those of the transferee court, must be applied to a case that has been transferred to an MDL Court. Ferens v. John Deere Co., 494 U.S. 516, 532 (1990); Van Dusen v. Barrack, 376 U.S. 612, 639 (1964).
In its March 27, 2020 Order, the MDL 2179 Court’s uniquely creative reasoning allowed the Court to circumvent the U.S. Supreme Court’s holdings in Van Dusen and Ferens and hold that “Louisiana law, rather than Florida law, governs this dispute.” This decision allows the MDL 2179 Court to conveniently and unfathomably find, “As a result, Donovan’s [twelve] claims are untimely under La. R.S. 9:5605(a).” This decision also allows the MDL 2179 Court to maximize judicial efficiency and ensure that the defendants will never be held accountable for their tortious acts.
Motion for Clarification of the Issue of Remand
On March 17, 2020, Plaintiffs filed a Motion for Clarification moving the Court to enter an order clarifying whether the Honorable MDL 2179 Court shall ensure each action transferred to it under 28 U.S.C. § 1407 is remanded by the JPML at or before the conclusion of pretrial proceedings to the district from which it was transferred.
On April 20, 2020, while their first Motion for Clarification remained pending, Plaintiffs filed a Second Motion for Clarification of the Issue of Remand again moving the Court to enter an order clarifying whether the Honorable MDL 2179 Court shall ensure each action transferred to it under 28 U.S.C. § 1407 is remanded by the JPML at or before the conclusion of pretrial proceedings to the district from which it was transferred.
On July 6, 2020, after the instant complaints had been dismissed with prejudice, the Honorable MDL 2179 Court issues an Order terminating the two Motions for Clarification.
The court explained, “Before the Court are two ‘Motions for Clarification’ filed by plaintiffs represented by attorney Brian J. Donovan (“Donovan”)….The instant motions seek “an order clarifying whether the Honorable MDL 2179 Court shall ensure each action transferred to it under 28 U.S.C. § 1407 is remanded by the JPML at or before the conclusion of pretrial proceedings to the district from which it was transferred….In this MDL, the Court has issued a suggestion of remand to the JPML when it found the circumstances appropriate under the applicable law and considering the relevant facts. The Court will continue to do so.”
In sum, the Honorable MDL 2179 Court never clarifies whether it shall ensure each action transferred to it under 28 U.S.C. § 1407 is remanded by the JPML at or before the conclusion of pretrial proceedings to the district from which it was transferred. Rather, the MDL 2179 Court merely states it will issue a suggestion of remand to the JPML only when it finds the “circumstances appropriate under the applicable law and considering the relevant facts.”
B. Written Objections Filed by Non-PSC Attorneys, Even in Response to a Request from the MDL Court, Are Commonly Deemed to be “Completely Frivolous”
On December 10, 2020, the MDL 2179 Court issued an Order to Show Cause that provided notice of a proposed order that would initiate the closure and wind down of the Court Supervised Settlement Program. Any party that opposed entry of the proposed order was required to file a written objection by January 8, 2021. I was the only person who filed a timely objection. On January 22, 2021, the MDL 2179 Court concluded that my objection is “completely frivolous.”
I raised the following issues in my objection to the closure and wind down of the Court Supervised Settlement Program.
(a) MDL 2179 is Unconstitutional: MDL 2179, which employs a victims’ compensation fund on the frontend and a settlement class action on the backend, involves no case or controversy and infringes individual claimants’ procedural due process rights.
(b) The aggregate settlement rule governs global MDL settlements.
(c) The primary purpose of the appointment of Lead Counsel in MDL 2179 is judicial efficiency. (See Stephen J. Herman, Duties Owed by Appointed Counsel to MDL Litigants Whom They Do Not Formally Represent, 64 Loy. L. Rev. 1, 8 - 12 (2018)).
(d) MDL is really a dispositive, not pretrial, action.
(e) Lead Counsel breached their fiduciary and ethical duties to the victims of the BP oil well blowout.
(f) The MDL 2179 Court and Lead Counsel did not hold BP accountable.
(g) Lead Counsel retained highly compensated “Thought Leaders” to deceptively promote the proposed settlement.
(h) Unbeknownst to the victims of the BP oil well blowout, Herman, Roy, and BP made the business decision to have BP pay a total amount of $20 billion to compensate all the BP oil well blowout victims in the settlement class action.
(i) The Feinberg-administered victims’ compensation fund denied payment to approximately 61.46% of the claimants who filed claims.
(j) Approximately 220,000 Feinberg-administered victims’ compensation fund claimants who executed a “Release and Covenant Not to Sue” in exchange for a one-time miniscule final payment ($5,000 for individuals and $25,000 for businesses) were subsequently excluded by Judge Barbier, Herman, and Roy from the settlement class action.
(k) The compensation paid to Kenneth R. Feinberg by BP from June 15, 2010 to April 15, 2012 was approximately $24,700,000.
(l) Lead Counsel and BP fraudulently induced the MDL 2179 plaintiffs not to opt-out of the settlement.
(m) Patrick Juneau denied payment to approximately 60.03% of the claims submitted to the Deepwater Horizon Claims Center (“DHCC”). The compensation paid to Patrick Juneau is unknown but ongoing.
(n) Lead Counsel and BP negotiated a Medical Benefits Class Action Settlement Agreement which Judge Barbier approved on January 11, 2013. In order to limit BP’s liability, the MDL 2179 Court and Lead Counsel knowingly ignored the fact that public policy dictates that a toxic tort is a strict liability tort. Seventy-eight percent (78%) of Specified Physical Condition (“SPC”) claims submitted to Garretson received either a “Request for Additional Information” or a “Notice of Defect.” In the end, only 20% of claimants received any compensation. These claimants were forced to accept the lowest payment of $1,300 because they could no longer wait for the money to cover their medical expenses.
(o) As part of the overall strategy to limit BP’s liability, Judge Barbier knowingly failed to hold BP fully accountable in regard to the Clean Water Act (“CWA”) civil penalty. Judge Barbier saved BP approximately $4.30 billion by finding that only 4.0 million barrels of oil, rather than 5.0 million barrels of oil proposed by the United States, exited the reservoir.
(p) On October 5, 2015, the DOJ released the following statement: “….This global settlement resolves the governments’ civil claims under the Clean Water Act and natural resources damage claims under the Oil Pollution Act, as well as economic damage claims of the five Gulf states and local governments. Taken together this global resolution of civil claims is worth $20.8 billion.” The DOJ failed to point out that BP is able to deduct $15.3 billion of this $20.8 billion on its U.S. tax return. In short, this “global settlement” requires U.S. taxpayers to pay $15.3 billion and BP is only required to pay $5.5 billion. BP also wrote off the cost of its $32 billion cleanup effort after the spill, costing U.S. taxpayers roughly $10 billion.
(q) The total compensation paid to Herman, Roy, and the seventeen members of the MDL 2179 PSC was $3.035 billion.
(r) The MDL 2179 Court improperly applies Louisiana law rather than the choice-of-law rules of the state in which the transferor court sits.
(s) In its July 2, 2020 Order, the MDL 2179 Court held “OPA does not impose on the Responsible Party a duty to settle Plaintiffs’ claims….” Although the durability of Judge Barbier’s uniquely creative reasoning in regard OPA is questionable, the precedent established by MDL 2179 is clear: the offshore oil and gas industry will never be held strictly liable for damages resulting from an oil well blowout in the Gulf of Mexico.
Given these unresolved issues, I respectfully requested the Court not to enter the proposed order that would initiate the closure and wind down of the CSSP. I explained that the reason for the Honorable MDL 2179 Court not to enter the proposed order applies with particular force here, (a) where victims of the BP oil well blowout have not been “fully compensated;” (b) where the parties’ use of our federal justice system as a sanctuary for the purpose of carrying out their own massive, nefarious scheme in the name of “judicially-efficient” multidistrict litigation is ongoing; and (c) where the potential harm to the public’s perception of the judicial process is especially acute because of the large number of plaintiffs in MDL 2179.
The Honorable Carl J. Barbier believes the issues that I raised in my objection to the closure and wind down of the Court Supervised Settlement Program are “completely frivolous.” If Judge Barbier is correct, then a reasonable person could justifiably conclude that our entire federal judicial system is “completely frivolous.”
II. MDL Judges Refuse to Recuse Themselves
The two principal statutes governing the disqualification or recusal of federal judges are 28 U.S.C. § 455 (“Disqualification of justice, judge or magistrate judge”) and 28 U.S.C. § 144 (“Bias or prejudice of judge”). 28 U.S.C. § 144 deals exclusively with actual bias or prejudice, whereas 28 U.S.C. § 455(a) deals with the appearance of partiality. 28 U.S.C. § 144 is triggered by a party’s affidavit, whereas 28 U.S.C. § 455 may be invoked in a motion by a party or sua sponte by the judge.
A. 28 U.S.C. § 455(a)
Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. § 455(a). As the U.S. Supreme Court has explained, that provision requires that the judicial conduct at issue:
“be evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance. Quite simply and quite universally, recusal was required whenever ‘impartiality might reasonably be questioned.’” Liteky v. United States, 510 U.S. 540, 548 (1994)(Scalia, J.). Thus, it is the appearance of partiality - and not actual bias - that is the test for recusal under Section 455(a): “In applying § 455(a), the judge’s actual state of mind, purity of heart, incorruptibility, or lack of partiality are not the issue.” United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993).
Even if the decision to recuse in a particular case were a close one, the statute’s purpose of promoting public confidence in the judiciary requires that judges must resolve any doubts in favor of recusal. See, e.g., Republic of Panama v. American Tobacco Co., 217 F.3d 343, 347 (5th Cir. 2000)(“[I]f the question of whether § 455(a) requires disqualification is a close one the balance tips in favor of recusal.”); In re United States, 158 F.3d 26, 30 (1st Cir. 1998), Nichols v. Alley, 71 F.3d 347, 352 (10th Cir. 1995); United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993)(“Where the question is close, the judge must recuse himself.”); United States v. Kelly, 888 F.2d 732, 744 (11th Cir. 1989) (Section 455(a) “requires judges to resolve any doubts they may have in favor of disqualification.”).
Congress established the “appearance of impartiality” standard “to promote public confidence in the integrity of the judicial process.” Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860 (1988). The legislative history of § 455(a) is clear: “This general standard is designed to promote public confidence in the impartiality of the judicial process by saying, in effect, if there is a reasonable factual basis for doubting the judge’s impartiality, he should disqualify himself and let another judge preside over the case.” H. Rep. No. 93-1453, p. 5 (1974), U.S. Code Cong. & Admin. News 1974, p. 6355.
In the words of the Seventh Circuit, “Once a judge whose impartiality toward a particular case may reasonably be questioned presides over that case, the damage to the integrity of the system is done.” Durhan v. Neopolitan, 875 F.2d 91, 97 (1989).
B. There is a Heightened Need to Preserve the Appearance of Impartiality in Bench Trials
The question has sometimes arisen as to whether the standard for disqualification differs in a bench trial where the judge’s role is even more pivotal than in a jury trial. In Alexander v. Primerica Holdings, Inc., 10 F.3d 155 (3d Cir. 1993), the court of appeals said: “We cannot overlook the fact that this is a non-jury case, and that [the judge] will be deciding each and every substantive issue at trial….When the judge is the actual trier of fact, the need to preserve the appearance of impartiality is especially pronounced.”
On July 29, 2019, I filed, on behalf of my clients, a Motion to Recuse the Honorable Carl J. Barbier. On August 7, 2019, I filed, on behalf of myself, my clients, and all others similarly situated, a second Motion to Recuse the Honorable Carl J. Barbier from MDL 2179. Both Motions to Recuse were filed pursuant to the federal recusal statute, specifically 28 U.S.C. § 455(a) and 28 U.S.C. § 455(b)(4), in order to redress an appearance of impropriety and to restore public confidence in the integrity of MDL 2179.
On November 8, 2019, the Court issued an order denying the two motions to recuse and instructing the Clerk of Court to commence a disciplinary proceeding against me. This disciplinary complaint is unique in that Judge Barbier filed it as part of the order denying the two motions to recuse and then publicly posted the order/disciplinary complaint on the EDLA’s website.
On November 14, 2019, I filed my response to disciplinary complaint No. 19-13531.
On August 6, 2020, the E.D. La.’s Lawyer’s Disciplinary Committee attorney held a Zoom interview with me in regard to disciplinary complaint No. 19-13531. At the conclusion of the interview, I was informed that a recommendation would be made to dismiss the disciplinary complaint filed against me by the Honorable Carl J. Barbier.
C. Judge Barbier Refused to Recuse Himself, Pursuant to 28 U.S.C. § 455(a), When Donovan v. Barbier, et al. Was Assigned to Him
On November 5, 2020, on behalf of my business, myself, and those parties who were injured as a result of the tortious conduct of the RICO MDL 2179 Defendants and who are not able to assert their rights because they have been denied access to the courts, Brian J. Donovan (“Plaintiff”) brings a Civil RICO Complaint against The Honorable Carl J. Barbier, Stephen J. Herman, James P. Roy, Kenneth R. Feinberg, and Patrick A. Juneau (“Defendants” or “RICO MDL 2179 Defendants”) to prevent future harm and to redress past wrongs. I filed this action against Defendants in the U.S. District Court for the Middle District of Florida.
On November 23, 2020, the JPML files Conditional Transfer Order (CTO-140). On February 4, 2021, the JPML issues a Transfer Order transferring Donovan v. Barbier, et al. to the Eastern District of Louisiana and, with the consent of that court, assigning the case to the Honorable Carl J. Barbier for coordinated or consolidated pretrial proceedings.
I believe that the Honorable Carl J. Barbier’s impartiality “might reasonably be questioned,” and the public’s confidence in the integrity of the judicial process is damaged, when Judge Barbier is presiding over a civil RICO case in which he is a defendant. Moreover, as noted above, there is a heightened need to preserve the appearance of impartiality in a bench trial such as Donovan v. Barbier, et al.
D. Why MDL Judges Refuse to Recuse Themselves
Judge Alex Kozinski characterizes self-transfer in MDL as “a remarkable power grab by federal judges,” because the practice exceeds the authority Congress granted to MDL judges.
Judge Patrick E. Higginbotham further explains, “The disconnect between the power of the transferee judge and the power that the judge exercises rests on a statute that authorizes only the transfer of cases to that judge for purposes of pretrial proceeding with return to their filing homes, as the U.S. Supreme Court made clear in Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach. The rest of the operation finds its footing in some form of consent and assertions of implied and inherent authority sometimes on little more than empty air.”
Nonetheless, an MDL judge wants to be viewed as the hero who has resolved the disputes rather than the ineffectual colleague whose inability to achieve a settlement left his fellow trial judges with the task of trying each case individually. As a result, MDL cases most often result in settlement or other disposition before the MDL judge rather than proceed to final judgment. This increased pressure on MDL judges to promote an early settlement or dismiss cases, rather than remand, exists independently of the true value of the claims.
An MDL judge’s ego will not allow him to appear as an “ineffectual colleague” who leaves his fellow trial judges with the task of trying each case individually. Unfortunately, this ego results in MDL judges replacing justice with judicial efficiency. The vast majority of MDL judges believe it is better to settle or dismiss cases in MDL, and be respected by their peers, rather than remand the cases and be viewed as a failure by their fellow trial judges.
The JPML views quickly settling a complex case as a hallmark of success that favorably disposes it to reward that judge with a new assignment. Conversely, failing to resolve cases quickly can subject MDL judges to scrutiny from the JPML. As Judge Eduardo Robreno, who handled the asbestos MDL, observed, “As a matter of judicial culture, remanding cases is viewed as an acknowledgement that the MDL judge has failed to resolve the case, by adjudication or settlement, during the MDL process.” So, MDL judges have their own professional and reputational incentives to broker deals and thwart remand.
III. Sewer Service Is the Most Egregious Tactic Sanctioned by an MDL Judge.
The MDL 2179 Court states that “sewer service” is “Donovan’s terminology.” This is incorrect.
The U.S. Supreme Court defines “sewer service” as the practice of intentionally serving process in a manner designed to prevent a named party in a lawsuit from learning of the suit in order to prevent the party from having a chance to respond; then filing a fraudulent affidavit attesting to service. When the party fails to appear in court because he did not have notice of the lawsuit, a default judgment is obtained against him that would remain undiscovered until time to oppose that judgment ran out. Rotkiske v. Klemm, 140 S. Ct. 355 (2019).
In Rotkiske, the court held Rotkiske’s FDCPA complaint falls comfortably within the fraud-based discovery rule’s scope. Rotkiske alleged that Klemm engaged in “sewer service” - intentionally serving process in a manner designed to prevent Rotkiske from learning of the collection suit. Klemm did so, according to Rotkiske, in order to ensure that Klemm’s untimely suit would result in a default judgment that would remain undiscovered until time to oppose that judgment, and to commence an FDCPA suit, ran out. Though Rotkiske did not allege that “sewer service” is itself a practice independently proscribed by the FDCPA, such service is nonetheless a fraudulent abuse that should trigger the fraud-based discovery rule.
“Sewer Service,” which subverts the purpose of service and threatens the administration of justice, is considered a fraud on the court. An attorney who knowingly participates in such a scheme can be disbarred.
“Sewer Service” in MDL 2179
On October 25, 2010, the MDL 2179 Court issued “Pretrial Order No. 12” which states “IT IS HEREBY ORDERED that whenever service is required by the Federal Rules of Civil Procedure, in lieu of the methods set forth in Rule 5(b),….the parties will utilize the services of LexisNexis File & Serve (“File & Serve”) and its litigation system for providing electronic service, storage and delivery of court-filed and discovery related documents through a secure website.
Since 2011, I have received a daily email five or six times per week, at approximately 3:30 AM, from File & Serve which contains all Pleadings, Motions, and Court Orders filed in MDL 2179 on the previous date. Initially, the list was extensive. Recently, due to MDL 2179 winding down, the emails only contain one or two filings.
On Saturday, March 20, 2021 at 3:27 AM (31 days after Donovan v. Barbier, et al. was terminated), I received via email the “03/19/2021 Daily E-Service Summary for LA US District Court Eastern District E-Service-Oil Spill” from File and ServeXpress. There is no mention of the Motion for Sanctions and to Enjoin Further Frivolous Filings allegedly filed by Herman and Roy. Curious about a filing which referred to a case in 2003, I opened the apparently unrelated motion filed by Irwin Fritchie Urquhart and Moore LLC. Only as a result of this fortuitous curiosity did I learn about the motion filed by Herman and Roy.
On March 23, 2021 at 3:35 AM (34 days after Donovan v. Barbier, et al. was terminated), I received via email the “03/22/2021 Daily E-Service Summary for LA US District Court Eastern District E-Service-Oil Spill” from File and ServeXpress. There is a Motion for Injunctive Relief and Consideration of Sanctions but there is no reference to me or the Donovan v. Barbier, et al. case. Now on alert as a result of the previous “sewer service” by Herman and Roy, I opened the apparently unrelated motion filed by Stanley Reuter Ross Thornton & Alford LLC. Only after opening, did I learn about the motion filed by Juneau.
In sum, (a) there was no reference in either motion to me, the names of any of my clients or client cases, the Donovan v. Barbier, et al. case, Herman, Roy or Juneau; (b) the law firms of Irwin Fritchie Urquhart and Moore LLC and Stanley Reuter Ross Thornton & Alford LLC were completely unfamiliar to me; and (c) indeed, each motion was filed by attorneys who were not even formally enrolled as counsel of record in this MDL until twenty-seven (27) days after the motions were filed. Each filing was exceptionally well-disguised.
Local Rule 7.5 of the U.S. District Court for the Eastern District of Louisiana
Pursuant to Local Rule 7.5, “Each party opposing a motion must file and serve a memorandum in opposition to the motion with citations of authorities no later than eight days before the noticed submission date.”
On April 21, 2021, I received for the first time, via Lexis Nexis File & Serve, the Honorable MDL 2179 Court’s Order, filed on March 31, 2021, which provides, in pertinent part, “IT IS ORDERED that Brian J. Donovan shall file a written response to both motions (limited to 25 pages, double-spaced) by no later than Wednesday, April 21, 2021.”
Fortunately, I filed a memorandum in opposition on April 11, 2021.
The MDL 2179 Court explains “Donovan does point out that he was not served with the Court’s scheduling order until April 21, 2021, three weeks after the Clerk of Court entered it in the MDL master docket. Under PTO 12, File & ServeXpress is supposed to retrieve the Court’s orders from the Clerk of Court and electronically serve them on all parties registered with File & ServeXpress. Obviously, File & ServeXpress should do this as promptly as possible. The Court has reviewed File & ServeXpress’s recent service history, and it appears that File & ServeXpress has failed to promptly serve some of the Court’s orders - in some instances days or even weeks passed between the time an order was entered in the docket and File & ServeXpress served it. This affected multiple orders, not just the scheduling order concerning Defendants’ motions for sanctions.”
The Honorable MDL 2179 Court further explains that “File & ServeXpress is solely to blame for these delays.” Since 2010, how many MDL 2179 victims, through no fault of their own, have had their cases dismissed for failing to comply with Local Rule 7.5?
A Federal District Court May Grant An Unopposed Motion
The Court’s Order and Reasons in Milton Ordonez v. BP Exploration & Production, Inc., et al. (Case 2:18-cv-09166, Rec. Doc. 32, Filed 10/01/20) is instructive.
In this litigation, Plaintiff Milton Ordonez (“Plaintiff”) seeks to recover damages from Defendants BP Exploration and Production, Inc. and BP America Production Company (collectively, “Defendants”) for injuries he allegedly sustained while working in the response effort for the Deepwater Horizon oil spill. Before the Court is Defendants’ “Motion for Summary Judgment Due to Lack of Causation.” In the instant motion, Defendants argue that Plaintiff’s claims must be dismissed because he has insufficient admissible evidence to connect his alleged conditions with exposure to oil or dispersants.
In Ordonez, the Court explained, “The instant motion was filed on August 14, 2020, and it was set for submission on September 9, 2020….Pursuant to Local Rule 7.5, any opposition to a motion is due eight days before the noticed submission date. Plaintiff has not filed an opposition to the instant motion and therefore the motion is unopposed. A federal district court may grant an unopposed motion if the motion has merit. See Braly v. Trail, 254 F.3d 1082 (5th Cir. 2001). Considering the motion, the memorandum in support, the record, and the applicable law, the Court grants the motion.”
The Court held, “Plaintiff has not opposed the motion or otherwise attempted to demonstrate causation. Therefore, because Plaintiff has failed to put forth any evidence to support an essential element of his BELO claims, there are no genuine issues of material fact in dispute and Defendants are entitled to judgment as a matter of law….Accordingly, IT IS HEREBY ORDERED that Defendants BP Exploration and Production, Inc. and BP America Production Company’s “Motion for Summary Judgment Due to Lack of Causation” is GRANTED.”
Why Herman and Roy, and Juneau Resorted to “Sewer Service”
The motions for sanctions and injunctive relief filed by Herman and Roy, and Juneau are utterly without basis or merit and beneath the pleading standards that are acceptable in the federal courts. For example, Herman and Roy, and Juneau know or should know that 28 U.S.C. § 1927 does not apply to initial pleadings. Also, Herman and Roy did not incur, nor could they have incurred, attorneys’ fees and costs in Donovan v. Barbier, et al., 8:20-cv-418, Donovan v. Barbier, et al., 8:20-cv-02598, and Donovan v. Herman (Filing # 84809671 E-Filed 02/12/2019).
Nonetheless, their motions could be granted if Herman and Roy, and Juneau successfully employ “sewer service.” If Donovan does not know that their motions have been filed because he did not have notice of the filings, Donovan will not file a response in opposition. The Court would hold, “Plaintiff has not opposed the motions…and therefore, the motions for sanctions and injunctive relief are hereby granted.”
Since 2010, How Many Hundreds or Thousands of Plaintiffs in MDL 2179 Have Fallen Victim to “Sewer Service?”
The fact that their unopposed motions could be granted if Herman and Roy, and Juneau successfully employed “sewer service” leads to a much broader issue. Since 2010, in addition to Donovan, how many hundreds or thousands of plaintiffs in MDL 2179 have fallen victim to “sewer service?”
Not only is this Honorable Court’s reputation at stake; if Judge Barbier does not hold Herman and Roy, and Juneau accountable for blatantly engaging in “sewer service,” the public may not view his decisions as legitimate.
The scheme employed by Herman, Roy, and Juneau is simple. Don’t let Donovan know about the motions until the Court has issued its Order granting the motions and time to oppose those judgments has run out. This is the definition of “Sewer Service.”
On April 27, 2021, the Honorable MDL 2179 Court issues an Order. It is ordered that: “The Court accepts as filed Herman and Roy’s motion for sanctions even though it was filed by attorneys who were not yet formally enrolled as counsel of record in this MDL….Donovan’s accusations that Defendants engaged in ‘sewer service’ is meritless.”
Too Many Awkward Questions
On April 28, 2021, I file a “Second Motion for Clarification” moving the Court to enter an order clarifying whether Herman and Roy, and Juneau engage in “sewer service” when the motions for sanctions served on Donovan by Herman and Roy, and Juneau using File & ServeXpress, and included in a “Daily E-Service Summary for LA US District Court Eastern District E-Service-Oil Spill” list from File and ServeXpress, are so well-disguised that Donovan would not have any reason to know that the motions for sanctions were filed against him.
On April 28, 2021, the Honorable MDL 2179 Court issued an Order stating “Donovan’s arguments regarding so-called “sewer service” (Donovan’s terminology) were and remain meritless…It is ordered that Donovan’s “Second Motion for Clarification” is denied….It is further ordered that, until the Court rules on the pending motions for sanctions against Donovan, Donovan is prohibited from filing any further documents or motions in MDL 2179 (or any case consolidated with MDL 2179) unless ordered or requested by the Court.” I was asking too many awkward questions. It is important to understand that as long as too many awkward questions are not asked, the gears of collusive judicial efficiency will continue to mesh noiselessly.
The damages resulting from the MDL 2179 court’s conduct extend far beyond the four corners of the Donovan v. Barbier, et al. RICO Complaint. The RICO MDL 2179 Defendants’ fraudulent scheme proved to be so successful that, since 2010, it has served as a template for subsequent MDLs. For example, on December 5, 2017, the JPML created MDL 2804 and transferred to the Northern District of Ohio, allegedly for coordinated or consolidated pretrial proceedings, the lawsuits relating to the national opioid epidemic. The MDL 2804 leadership structure is composed of attorneys who previously served on, or provided significant support to, the MDL 2179 PSC. In sum, the mass tort victims in MDL 2804 are different but the deal making players and MDL game are the same as MDL 2179.
MDLs accounted for 51.9 percent of all pending federal civil cases at the end of 2018. This percentage increases every year. In addition to the mass tort victims, U.S. taxpayers are also MDL victims when transferee judges, PSC members, and fund administrators conspire to exploit our judicial system to benefit themselves. MDL 2179 is a case in point. MDL 2804 should not be merely another “case in point.” In short, MDL 2804 must not be allowed to become “the MDL 2804 Enterprise.” The manner in which MDL has been allowed to devolve makes virtually every MDL a potential “MDL Enterprise.”
A narrow focus on judicial efficiency cannot allow the circumvention of the core democratic premises of representation, transparency, and accountability.
The Fifth Circuit explains, “Our democratic society favors court transparency to encourage public confidence in our judicial system and avoid the perception that our courts are ‘star chambers.’” Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1129 (5th Cir. 1991) (The term “star chambers” is the theoretical description of court orders and rulings that cannot be questioned and lack accountability).
It’s time for MDL judges to focus on justice for the plaintiffs rather than merely judicial efficiency. “MDL Judges” should not be perceived as “Mob Bosses.”
For further reading:
COLLUSION: Judicial Discretion vs. Judicial Deception - The Impending Meltdown of the United States Federal Judicial System by Brian J. Donovan
Publication date: 04/20/2018