Trying counts

While finding a “clear record of delay or contumacious conduct,” sufficient to justify dismissal with prejudice in a Deepwater Horizon case, as to one set of appellants in Graham v. BP Exploration, the Fifth Circuit declined to do so as to the other group: “Confused about whether their three existing complaints were ‘individual lawsuits’ under [Pretrial Order] 63, the D’Amico Appellants queried the [Plaintiffs’ Steering Committee] and were advised only to file sworn statements. This was a mistake, as the D’Amico Appellants  concede. But based on this flawed understanding of PTO 63, the D’Amico Appellants then timely filed and served sworn statements before the April 12, 2017 deadline. None of this makes those filings any less mistaken under PTO 63, but it does show an absence of willful conduct. And BP points to nothing in the record to dispel that impression. There is a critical difference between trying but failing, on the one hand, and simply not trying, on the other.” No. 18-30008 (Apr. 29, 2019) (emphasis added).