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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IN RE:OIL SPILL BY THE OIL RIG

DEEPWATER HORIZONIN THE GULF

OF MEXICO,ON APRIL 20,2010

THIS PLEADING APPLIES TO:

ALL CASES IN PLEADING BUNDLE

SECTION III.D(1)[D1BUNDLE]

MDLNO.2179

SECTION:J

JUDGE BARBIER

MAGISTRATE JUDGE SHUSHAN

THE TRANSOCEAN DEFENDANTS RULE 12(b)(6)

MOTION TO DISMISS THE D1 MASTER COMPLAINT

TO THE HONORABLE CARL J. BARBIER, United States District Judge:

Defendants Transocean Offshore Deepwater Drilling Inc., Transocean Holdings LLC,

and Transocean Deepwater Inc. (collectively Transocean Defendants) respectfully submit The

Transocean Defendants Rule 12(b)(6) Motion to Dismiss the D1 Master Complaint.

I.

STATEMENT OF THE NATURE AND

STAGE OF THE PROCEEDINGS

By the terms of Pre-Trial Order No. 11 [Case Management Order No. 1], this proceeding

was separated into Pleading Bundles for the purpose of the filing of complaints, answers, and

any Rule 12 motions. As to Injunctive and Regulatory Claims, this Court directed that the

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Pleading Bundles would be pled pursuant to Master Complaints for two categories, including the

D1 Claims Against Private Parties. Dkt. No. 569 at pp. 4-5.

On December 15, 2010, a Master Complaint (Bundle D1) Claims for Injunctive Relief

Against Private Parties [D1 Bundle] was filed.

On January 12, 2011, this Court entered its Stipulated Order clarifying the Master

Complaints, including the D1 Bundle Master Complaint. In the Courts Pre-Trial Order No.

25, it was provided that:

For the procedural and administrative purpose of answering orotherwise responding to the complaints in Pleading Bundles B1,B3 and D1, (and subject to the provisions of Paragraph 8), as to

any Defendant named in one or more Master Complaint(s), the

allegations, claims, theories of recovery and/or prayers for reliefcontained within the pre-existing petition or complaint are deemed

to be amended, restated, and superseded by the allegations, claims,

theories of recovery, and/or prayers for relief in the respectiveMaster Complaint(s) in which the Defendant is named that apply to

the pre-existing petition or complaint.

In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010,

MDL No. 2179, Dkt. No. 247 at 2.

As a result of the Courts Pre Trial Order clarifying the Master Complaints, Transocean

Defendants direct their Rule 12(b)(6) motions to the specific allegations of the D1 Master

Complaint, in lieu of responding to the previously filed Petitions and Complaints.

II.

THE D1 MASTER COMPLAINT

The D1 Master Complaint alleges ten (10) claims under federal and state law, nine of

which are asserted against the Transocean Defendants:

(1) Clean Water Act, 33 U.S.C. 1311;



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(5) Clean Water Act, 33 U.S.C. 1321(b)(7)(D);

(6) Comprehensive Environmental Response Compensation and Liability Act,42 U.S.C. 9603;

(7) Emergency Planning Community Right to Know Act, 42 U.S.C. 11004;(8) Claim not asserted against the Transocean Defendants;

(9) Trespass and Nuisance; and

(10) Removal to Stricter Standards

As set forth in more detail by Transocean Defendants Brief in Support of its Rule

12(b)(6) Motion to Dismiss, Transocean Defendants are entitled to a dismissal of the Plaintiffs

claims asserted in the D1 Master Complaint.

III.

RULE 12(b)(6) STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in

whole or in part, for failure to state a claim upon which relief can be granted. FED.R.CIV.P.

12(b)(6). To survive a motion to dismiss, a plaintiff must plead facts sufficient to state a claim

to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009).But where the well-pleaded facts do not permit the court

to infer more than the mere possibility of misconduct, the complaint has allegedbut it has not

shownthat the pleader is entitled to relief. Id. at 1950 (citing FED.R.CIV.P. 8(a)(2)).

In Iqbal, the Supreme Court further explained that threadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not suffice. Iqbal, 129 S. Ct. at

1949. While legal conclusions can provide the framework of a complaint, they must be

supported by factual allegations. Id. at 1950. Accordingly, theIqbal Court instructed that a


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two-step approach is necessary for assessing the sufficiency of a complaint in the context of a

Rule 12(b)(6) motion: First, courts must identify, and disregard, conclusory allegations, because

they are not entitled to the assumption of truth. Id. Second, upon identifying the well-pleaded

factual allegations, courts assume their veracity and then determine whether they plausibly give

rise to an entitlement to relief. Id.

A motion to dismiss must be granted when the allegations in a complaint, however true,

could not raise a claim of entitlement to relief. Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.

2007) (quoting Twombly, 550 U.S. at 557). The court should not strain to find inferences

favorable to the plaintiffs or accept conclusory allegations, unwarranted deductions, or legal

conclusions to allow such a claim to proceed. R2 Invests. LDC v. Phillips, 401 F.3d 638, 642

(5th Cir. 2005) (quoting Southland Sec. Corp. v. Inspire Ins. Solutions, Inc., 365 F.3d 353, 362

(5th Cir. 2004)). Rather, this basic deficiency should . . . be exposed at the point of minimum

expenditure of time and money by the parties and the court. Cuvillier, 503 F.3d at 401 (quoting

Twombly, 550 U.S. at 557).

IV.

THE CLAIMS AGAINST TRANSOCEAN DEFENDANTS MUST BE DISMISSED

PURSUANT TO RULE 12(b)(6) AS THEY DO NOT RAISE A CLAIM OF

ENTITLEMENT TO RELIEF FOR THE CAUSES OF ACTION ASSERTED

A Motion to Dismiss must be granted when the allegations in a complaint, even if true,

do not raise a claim of entitlement to relief.

A. No Private Cause of Action

The D1 Plaintiffs brought the Second and Fifth Claims under Section 1321 of the Clean

Water Act, 33 U.S.C. 1251 et. seq. (CWA). This statute, however, does not authorize citizen


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suits under Section 1321. Accordingly, the Second and Fifth Claims of the D1 Complaint must

be dismissed with prejudice.

B. Mandatory Sixty-Day Notices Were Not Filed

The D1 Plaintiffs brought the First, Second, Third, Fourth, and Fifth Claims under the

CWA, the Sixth Claim under the Comprehensive Environmental Response Compensation and

Liability Act, 42 U.S.C. 9601 et. seq. (CERCLA), and the Seventh Claim under the

Emergency Planning Community Right to Know Act, 42 U.S.C. 11001 et. seq. (EPCRA).

The CWA provides: No action may be commenced under subsection (a)(1) of this

section prior to sixty days after the plaintiff has given notice of the alleged violation to the

Administrator, to the State in which the alleged violation occurs, and to any alleged violator of

the standard, limitation, or order. 33 U.S.C. 1365(b)(1)(A).

Similarly, CERCLA provides: No action may be commenced under subsection (a)(1) of

this section before 60 days after the plaintiff has given notice of the violation to each of the

following: (A) The President. (B) The State in which the alleged violation occurs. (C) Any

alleged violator of the standard, regulation, condition, requirement, or order concerned. 42

U.S.C. 9659(d)(1).

EPCRA, likewise, provides: No action may be commenced under subsection (a)(1)(A)

of this section prior to 60 days after the plaintiff has given notice of the alleged violation to the

Administrator, the State in which the alleged violation occurs, and the alleged violator. 42

U.S.C. 11046(d)(1).

Not a single D1 Plaintiff has served notice on any of the Transocean Defendants of any

intent to sue under the CWA, CERCLA, or EPCRA. These claims, therefore, must be dismissed.


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C. Additional Ground for Dismissal of Clean Water Act Claims:

United States Diligently Prosecuting

The D1 Plaintiffs may not re-file their claims under the CWA even if they file the

required sixty-day notices because the citizen suit provision of the CWA does not allow the

filing of private claims after the United States initiates suit and is diligently prosecuting those

claims. 33 U.S.C. 1365(b)(1)(B). The United States has initiated suit and is diligently

prosecuting these claims; therefore, the Plaintiffs may not refile the CWA claims.

D. Additional Ground for Dismissal of CERCLA and EPCRA Claims:

Petroleum Exclusion

The D1 Plaintiffs have no claim under CERCLA. Crude oil and its fractions are

specifically excluded from CERCLA regulation. See 42 U.S.C. 9601(14). The D1 Plaintiffs

also have no claim under EPCRA. EPCRA imposes no reporting obligation with respect to

releases of crude oil or its fractions, and the D1 Plaintiffs, accordingly, can have no claim in the

context of this case under the EPCRA reporting provisions of 42 U.S.C. 11004.

E. No Allegation of Irreparable Harm

In their Tenth Claim for relief, the D1 Plaintiffs ostensibly seek an opinion as to which

standards may govern cleanup in a particular state. The claim seeks injunctive relief, which is

not permissible without a showing of irreparable harm. To satisfy the irreparable injury

requirement, the plaintiff must show an imminent injury that cannot be prevented or fully

rectified by a final judgment following trial. Chacon v. Granata, 515 F.2d 922, 925 (5th Cir.

1975). The D1 Plaintiffs do not allege irreparable injury. Rather, the Plaintiffs request the

cleanup of property to particular specifications. The Tenth Claim, therefore, should be

dismissed.


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CONCLUSION

For the reasons stated in the Transocean Defendants Brief, the Plaintiffs claims for

declaratory relief should be dismissed.

Respectfully submitted,

By:

Steven L. Roberts (Texas, No. 17019300)

/s/ Steven L. Roberts

Rachel Giesber Clingman (Texas, No.

00784125)

Kent C. Sullivan (Texas, No. 19487300)Teri L. Donaldson (Florida, No. 784310)

Sutherland Asbill & Brennan LLP

1001 Fannin Street, Suite 3700Houston, Texas 77002

Telephone: (713) 470-6100

Facsimile: (713) 654-1301Email: [email protected],

[email protected],

[email protected],

[email protected]

By:

Kerry J. Miller (Louisiana, No. 24562)

/s/ Kerry J. Miller

Frilot, L.L.C.

1100 Poydras Street, Suite 3700

New Orleans, Louisiana 70163Telephone: (504) 599-8169

Facsimile: (504) 599-8154

Email: [email protected]

-and-

Edwin G. Preis, Jr. (Louisiana, No. 10703)

/s/ Edwin G. Preis, Jr.

Edward F. Kohnke, IV (Louisiana, No. 07824)

Preis & Roy PLC

102 Versailles Boulevard, Suite 400Lafayette, Louisiana 70501Telephone: (337) 237-6062Facsimile: (337) 237-9129

-and-

601 Poydras Street, Suite 1700

New Orleans, Louisiana 70130Telephone: (504) 581-6062

Facsimile: (504) 522-9129

Email: [email protected],[email protected]


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Of Counsel:

Brad D. Brian (California, No. 79001)

Allen M. Katz (California, No. 054933)Munger Tolles & Olson LLP

355 South Grand Avenue, 35th FloorLos Angeles, California 90071

Telephone: (213) 683-9100

Facsimile: (213) 683-5180, (213) 683-4018Email: [email protected], [email protected]

Daniel O. Goforth (Texas, No. 08064000)Goforth Geren Easterling LLP4900 Woodway, Suite 750

Houston, Texas 77056Telephone: (713) 650-0022Facsimile: (713) 650-1669


John M. Elsley (Texas, No. 0591950)

Royston, Rayzor, Vickery & Williams LLP

711 Louisiana Street, Suite 500

Houston, Texas 77002Telephone: (713) 224-8380

Facsimile: (713) 225-9945


COUNSEL FOR TRANSOCEAN DEFENDANTS

CERTIFICATE OF SERVICE

I hereby certify that the above and foregoing pleading has been electronically filed

through the Courts CM/ECF system and/or LexisNexis File & Serve, in accordance with Pretrial

Order No. 12, which will send a notice of electronic filing to all counsel of record on this 28th

day of February, 2011.

/s/ Kerry J. Miller


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suits under Section 1321. Under 33 U.S.C. 1365(a)(1), any citizen may commence a civil

action against any person who is alleged to be in violation of an effluent standard or limitation

under the CWA. For purposes of Section 1365, the term effluent standard or limitation under

this Act means:

(1) effective July 1, 1973, an unlawful act under subsection (a) of section 301 ofthis Act [33 USCS 1311(a)]; (2) an effluent limitation or other limitation under

section 301 or 302 of this Act [33 USCS 1311 or 1312]; (3) standard of

performance under section 306 of this Act [33 USCS 1316]; (4) prohibition,effluent standard or pretreatment standards under section 307 of this Act [33

USCS 1317]; (5) certification under section 401 of this Act [33 USCS 1341];

(6) a permit or condition thereof issued under section 402 of this Act [33 USCS 1342], which is in effect under this Act [33 USCS 1251 et seq.] (including arequirement applicable by reason of section 313 of this Act [33 USCS 1323]);

or (7) a regulation under section 405(d) of this Act [33 USCS 1345(d)].

Section 1321 is notably absent from the list of CWA provisions within the definition of an

effluent standard or limitation.

In Sekco Energy v. M/V Margaret Chouest, 820 F. Supp. 1008, 1014 (E.D. La. 1993), the

court affirmed that Section 1321 of the CWA1

Subsection (f)(4) holds owners and operators liable for costs incurred by the

Federal Government or any state government in restoring natural resources.This language indicates that the FWPCA does not allow private parties to bring

suit. In drafting the FWPCA, Congress intended that private remedies inaddition to those expressly provided should not be implied. Where, as here,Congress has made clear that implied private actions are not contemplated, the

courts are not authorized to ignore this legislative judgment.

is not subject to citizen suits. InSekco, a private

oil company brought an action against vessel owners and a charterer. Id. The court granted the

defendants motion for summary judgment holding that the oil company could not bring a suit

under Section 1321 as a private entity. Id. at 1010, 1015. TheSekco Court held:

1

The Court used the acronym FWPCA for the Federal Water Pollution Control Act, which is now more

commonly known as the Clean Water Act.

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Id. at 1014 (quoting 33 U.S.C. 1321(f)(4) and Middlesex County Sewerage Authority v.

National Sea Clammers Association, 453 U.S. 1, 18 (1981)). Accordingly, the Second and Fifth

Claims of the D1 Complaint must be dismissed with prejudice.

II .

NONE OF THE PLAINTIFFS FILED THE REQUIREDNOTICES UNDER THE CWA, CERCLA, OR EPCRA, AND

THESE CLAIMS ARE NOT ACTIONABLE IN ANY EVENT

The D1 Plaintiffs brought the First, Second, Third, Fourth, and Fifth Claims under the

CWA, the Sixth Claim under the Comprehensive Environmental Response Compensation and

Liability Act, 42 U.S.C. 9601 et. seq. (CERCLA), and the Seventh Claim under the Emergency

Planning Community Right to Know Act, 42 U.S.C. 11001 et. seq. (EPCRA).

The CWA provides: No action may be commenced under subsection (a)(1) of this

section prior to sixty days after the plaintiff has given notice of the alleged violation to the

Administrator, to the State in which the alleged violation occurs, and to any alleged violator of

the standard, limitation, or order. 33 U.S.C. 1365(b)(1)(A). The federal rule implementing

the 60-day notice provision of the CWA, 40 CFR 135.3, further provides in pertinent part:

135.3 Contents of notice.

(a) Violation of standard, limitation or order. Notice regarding an allegedviolation of an effluent standard or limitation or of an order with respect thereto,

shall include sufficient information to permit the recipient to identify the specific

standard, limitation, or order alleged to have been violated, the activity alleged toconstitute a violation, the person or persons responsible for the alleged violation,

the location of the alleged violation, the date or dates of such violation, and thefull name, address, and telephone number of the person giving notice.

Similarly, CERCLA provides: No action may be commenced under subsection (a)(1) of

this section before 60 days after the plaintiff has given notice of the violation to each of the

following: (A) The President. (B) The State in which the alleged violation occurs. (C) Any


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alleged violator of the standard, regulation, condition, requirement, or order concerned. 42

U.S.C. 9659(d)(1). The federal rule implementing the 60-day notice provision of CERCLA, 40

CFR 374.3, further provides in pertinent part:

374.3 Contents of notice.

(a) Violation of standard, regulation, condition, requirements, or order. Notice

regarding an alleged violation of a standard, regulation, condition, requirement, or

order (including any provision of an agreement under section 120 of the Act,

relating to Federal facilities) which has become effective under this Act shallinclude sufficient information to allow the recipient to identify the specific

standard, regulation, condition, requirement, or order (including any provision of

an agreement under section 120 of the Act, relating to Federal facilities) whichhas allegedly been violated; the activity or failure to act alleged to constitute a

violation; the name and address of the site and facility alleged to be in violation, if

known; the person or persons responsible for the alleged violation; the date ordates of the violation; and the full name, address, and telephone number of the

person giving notice.

EPCRA likewise provides: No action may be commenced under subsection (a)(1)(A) of

this section prior to 60 days after the plaintiff has given notice of the alleged violation to the

Administrator, the State in which the alleged violation occurs, and the alleged violator. 42

U.S.C. 11046(d)(1).

The United States Supreme Court has held that such notice provisions are a precondition

to bringing suit. Hallstrom v. Tillamook County, 493 U.S. 20 (1989). InHallstrom, the Supreme

Court analyzed whether the 60-day notice provision in the Resource Conservation and Recovery

Act (RCRA) was mandatory or discretionary. The Court recognized that the RCRA notice

provision and a number of other federal statutes were modeled after Section 304 of the Clean

Air Amendments of 1970, 42 U.S.C. 7604. The Court specifically noted that the 60-day notice

provisions of the CWA, 33 U.S.C. 1365(b), and of CERCLA, 42 U.S.C. 9659(d)(1), were

modeled after Section 304. Hallstrom, 493 U.S. at 23 n.1. In reaching its conclusion that the 60-


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day notice provision in RCRA was mandatory and a precondition to filing suit, the Court stated

that the language of [the] provision could not be clearer. Id. at 26. Specifically, the Court

found:

A citizen may not commence an action under RCRA until 60 days after the citizen

has notified the EPA, the State in which the alleged violation occurred, and the

alleged violator. Actions commenced prior to 60 days after notice areprohibited. Because this language is expressly incorporated by reference into

6972(a), it acts as a specific limitation on a citizens right to bring suit. Under a

literal reading of the statute, compliance with the 60-day notice provision is amandatory, not optional, condition for suit.

Id. Ultimately, the Court concluded that when the 60-day notice requirement is not met, the

district court must dismiss the action as barred by the terms of the statute. Id. at 33. See also

Lockett v. E.P.A., 319 F.3d 678, 682 (5th Cir. 2003) (holding that the 60 day notice provision in

the CWA is mandatory).

In Washington Trout v. McCain Foods, Inc., 45 F.3d 1351, 1354-55 (5th Cir. 1995), the

court made clear that the failure to file the required 60-day notice under the CWA was fatal to

the subject matter jurisdiction of the court:

We are guided by the Courts decision in Hallstrom and find its holding

applicable to the notice requirements under the Clean Water Act. The notice

provided to McCain was insufficient as required by the regulations promulgatedunder the CWA. Therefore, the district court was correct in dismissing the action

for lack of subject matter jurisdiction.

Furthermore, the law is clear that one plaintiff may not rely upon the 60-day notice filed

by another plaintiff for purposes of satisfying the 60-day notice requirement in the CWA. In

New Mexico Citizens For Clean Air and Water v. Espanola Mercantile Co. Inc. , 72 F.3d 830,

831 (10th Cir. 1996), the court stated:


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In this appeal, we conclude that one plaintiffs compliance with the pre-suit notice

requirements of the Clean Water Act, 33 U.S.C. 1365(b), does not satisfy the

duty of another plaintiff to give notice on its own behalf.

Id. at 851 (footnote omitted).

Not a single D1 Plaintiff has served notice on any of the Transocean Defendants of any

intent to sue under the CWA, CERCLA, or EPCRA. The Second and Fifth Claims must be

dismissed because the CWA does not authorize a private cause of action to bring those claims, as

stated above. Although private parties may bring the First, Third, and Fourth Claims under the

CWA, this Court has no jurisdiction over such claims unless the Plaintiffs first satisfy the 60-day

notice provision of the CWA. See, e.g., Lockett v. E.P.A., 319 F.3d 678, 682 (5th Cir. 2003)

(dismissing CWA claims for failure to file the 60-day notice). Accordingly, the First, Third, and

Fourth Claims must also be dismissed. Furthermore, the D1 Plaintiffs may not re-file their

claims under the CWA even if they file the required 60-day notices because the citizen suit

provision of the CWA does not allow the filing of private claims after the United States initiates

suit and is diligently prosecuting those claims. 33 U.S.C. 1365(b)(1)(B).See alsoGwaltney of

Smithfield v. Chesapeake Bay Found., 484 U.S. 49 (1987) (citizen suit provision has central

purpose of allowing citizens to enforce the CWA when the government cannot or will not

command compliance.); North & South Rivers Watershed Assn v. Scituate, 949 F.2d 552 (1st

Cir. 1991) (citing Gwaltney); Coastal Fishermens Assn v. N.Y. City Dept. of Sanitation , 772 F.

Supp 162 (S.D.N.Y. 1991) (citizen suites may proceed where federal and state entities are not

enforcing the CWA). The United States filed suit under the Clean Water Act in pleading Bundle

C on December 15, 2010, and is now diligently prosecuting these claims; thus, the private


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Plaintiffs claims are barred. The First, Third and Fourth Claims therefore, must be dismissed

with prejudice.

The D1 Plaintiffs asserted the Sixth Claim under CERCLA. This Claim must also be

dismissed for failure to file the 60-day notice. See Boarhead Corp. v. Erickson, 923 F.2d 1011,

1019 n.13 (3d Cir. 1991) (dismissing CERCLA claims for failure to file the 60-day notice).

Furthermore, the D1 Plaintiffs have no claim under CERCLA in any event. Crude oil and its

fractions are specifically excluded from CERCLA regulation. See 42 U.S.C. 9601(14). In

Wilshire Westwood Assoc. v. Atlantic Richfield Corp., 881 F.2d 801 (9th Cir. 1989), the court

directly analyzed the statutory language of the petroleum exclusion from the hazardous

substance definition in CERCLA and determined that crude oil and its fractions are excluded

from this definition and from CERCLA regulation, even though some of the compounds in crude

oil are naturally occurring materials that would otherwise be prohibited under CERCLA. For

this reason alone, the Sixth Claim must be dismissed with prejudice.

The D1 Plaintiffs asserted the Seventh Claim under EPCRA. This Claim must be

dismissed for failure to file the 60-day notice. See Atlantic States Legal Foundation, Inc. v.

United Musical Instruments, U.S.A., Inc., 61 F.3d 473 (dismissing EPCRA claims for failure to

file the 60-day notice). Furthermore, the D1 Plaintiffs have no claim under EPCRA in any event.

EPCRA, 42 U.S.C. 11004(a), requires the reporting of two types of releases. The first type of

release reportable under EPCRA is the release of a substance requiring notification under

CERCLA. Id. Crude Oil and its fractions are excluded from CERCLA regulation, as explained

above. The second type of release reportable under EPCRA is the release of an extremely

hazardous substance . . . in an amount in excess of a quantity which the Administrator has


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determined (by regulation) requires notice . . . 42 U.S.C. 11004(a)(2)(B). The Administrator

has not published any reportable quantity of crude oil or its fractions. Therefore, EPCRA

imposes no reporting obligation with respect to releases of crude oil or its fractions, and the D1

Plaintiffs, accordingly, can have no claim in the context of this case under the EPCRA reporting

provisions of 42 U.S.C. 11004. The Seventh Claim therefore, must, be dismissed with

prejudice.

III.

MARITIME/STATE LAW CLAIM

The D1 Plaintiffs assert in their Ninth Claim a claim for injunctive relief for trespass and

nuisance under general maritime and state law. These Claims were also brought by these

Plaintiffs in the B1 Bundle. The Transocean Defendants have moved to dismiss these claims in

the B1 Bundle; therefore, the Transocean Defendants incorporate by reference the arguments

presented in the pleading entitled Brief in Support of the Transocean Defendants Rule 12(b)(6)

Motion to Dismiss the B1 Master Claim in Limitation and the B1 Master Complaint.

IV.STRICTER STATE STANDARDS

In their Tenth Claim for relief, the D1 Plaintiffs ostensibly seek an advisory opinion as to

which standards may govern cleanup in a particular state. This claim cites no common law or

statutory cause of action. The Tenth Claim contains only one request of the court, which is that

Drilling Defendants must be enjoined to clear Plaintiffs properties to protect all rights of future

development for all purposes, to Plaintiffs satisfaction, and at Plaintiffs election. Further, the

Prayer For Relief seeks no declaration pertaining to the Tenth Claim.


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In order for a court to issue an injunction on equitable grounds, the plaintiff must

establish: (1) success on the merits; (2) that a failure to grant the injunction will result in

irreparable injury; (3) that the irreparable injury outweighs any damage that the injunction will

cause the opposing party; and (4) that the injunction will not disserve the public interest. VRC,

LLC v. City of Dallas, 460 F.3d 607, 611 (5th Cir. 2006). To satisfy the irreparable injury

requirement, the plaintiff must show an imminent injury that cannot be prevented or fully

rectified by a final judgment following trial. Chacon v. Granata, 515 F.2d 922, 925 (5th Cir.

1975). The D1 Plaintiffs do not allege irreparable injury; indeed, the opposite. The D1

Plaintiffs seek the cleanup of property to meet their specifications. This Claim therefore, should,

be dismissed. Furthermore, to the extent that the D1 Plaintiffs may be seeking an advisory

opinion on the applicability of one cleanup standard over another, the Tenth Claim should be

dismissed on that ground as well. Federal courts do not render general advisory opinions.U.S.

Natl Bank of Ore. v. Independent Ins. Agents of Am., Inc., 508 U.S. 439 (1993) (citations

omitted).

CONCLUSION

For these reasons, the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, and

Tenth Claims must be dismissed as to the Transocean Defendants. The Transocean Defendants

are not named in the Eighth Claim. Therefore, the Bundle D1 Complaint should be dismissed in

its entirety as to the Transocean Defendants.


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Respectfully submitted,

By:Steven L. Roberts (Texas, No. 17019300)/s/ Steven L. Roberts

Rachel Giesber Clingman (Texas, No.00784125)Kent C. Sullivan (Texas, No. 19487300)

Teri L. Donaldson (Florida, No. 784310)

Sutherland Asbill & Brennan LLP1001 Fannin Street, Suite 3700

Houston, Texas 77002

Telephone: (713) 470-6100Facsimile: (713) 654-1301

Email: [email protected],[email protected],[email protected],[email protected]

By:Kerry J. Miller (Louisiana, No. 24562)/s/ Kerry J. Miller

Frilot, L.L.C.1100 Poydras Street, Suite 3700

New Orleans, Louisiana 70163



-and-

Edwin G. Preis, Jr. (Louisiana, No. 10703)/s/ Edwin G. Preis, Jr.


Preis & Roy PLC

102 Versailles Boulevard, Suite 400Lafayette, Louisiana 70501

Telephone: (337) 237-6062

Facsimile: (337) 237-9129

-and-601 Poydras Street, Suite 1700

New Orleans, Louisiana 70130


Email: [email protected],[email protected]

Of Counsel:


Allen M. Katz (California, No. 054933)

Munger Tolles & Olson LLP

355 South Grand Avenue, 35th FloorLos Angeles, California 90071

Telephone: (213) 683-9100

Facsimile: (213) 683-5180, (213) 683-4018Email: [email protected], [email protected]


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Daniel O. Goforth (Texas, No. 08064000)

Goforth Geren Easterling LLP

4900 Woodway, Suite 750


Facsimile: (713) 650-1669Email: [email protected]


Royston, Rayzor, Vickery & Williams LLP711 Louisiana Street, Suite 500










/s/ Kerry J. Miller


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11462065.4

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IN RE:OIL SPILL BY THE OIL RIG

DEEPWATER HORIZONIN THE GULF

OF MEXICO,ON APRIL 20,2010

THIS PLEADING APPLIES TO:

ALL CASES IN PLEADING BUNDLE

SECTION III.D(1)[D1BUNDLE]

MDLNO.2179

SECTION:J

JUDGE BARBIER

MAGISTRATE JUDGE SHUSHAN

NOTICE OF SUBMISSION

PLEASE TAKE NOTICE that undersigned counsel for Transocean Offshore Deepwater

Drilling Inc., Transocean Holdings LLC and Transocean Deepwater Inc. will bring the foregoing

Rule 12(b)(6) Motion to Dismiss the D1 Master Complaint for submission before the Honorable

Carl J. Barbier, Section J, of the United States District Court, Eastern District of Louisiana,

located at 500 Poydras Street, New Orleans, Louisiana on the 29th

day of April, 2011 beginning

at 9:30 a.m. or as soon thereafter as counsel can be heard.


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By:

Steven L. Roberts (Texas, No. 17019300)

/s/ Steven L. Roberts

Rachel Giesber Clingman (Texas, No.

00784125)Kent C. Sullivan (Texas, No. 19487300)

Teri L. Donaldson (Florida, No. 784310)Sutherland Asbill & Brennan LLP

1001 Fannin Street, Suite 3700


Facsimile: (713) 654-1301

Email: [email protected],[email protected],

[email protected],

[email protected]

By:

Kerry J. Miller (Louisiana, No. 24562)

/s/ Kerry J. Miller

Frilot, L.L.C.

1100 Poydras Street, Suite 3700New Orleans, Louisiana 70163



-and-

Edwin G. Preis, Jr. (Louisiana, No. 10703)/s/ Edwin G. Preis, Jr.


Preis & Roy PLC102 Versailles Boulevard, Suite 400Lafayette, Louisiana 70501

Telephone: (337) 237-6062

Facsimile: (337) 237-9129-and-

601 Poydras Street, Suite 1700New Orleans, Louisiana 70130

Telephone: (504) 581-6062

Facsimile: (504) 522-9129

Email: [email protected], [email protected]

Of Counsel:

Daniel O. Goforth (Texas, No. 08064000)

Goforth Geren Easterling LLP

4900 Woodway, Suite 750Houston, Texas 77056

Telephone: (713) 650-0022

Facsimile: (713) 650-1669Email: [email protected]


Royston, Rayzor, Vickery & Williams LLP711 Louisiana Street, Suite 500





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Allen M. Katz (California, No. 054933)

Munger Tolles & Olson LLP355 South Grand Avenue, 35th Floor

Los Angeles, California 90071Telephone: (213) 683-9100

Facsimile: (213) 683-5180, (213) 683-4018

Email: [email protected], [email protected]



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/s/ Kerry J. Miller


document 1407 filed 02.28.11

Documents