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Gbarabe v. Chevron Corp.

United States District Court, N.D. California

March 13, 2017



          SUSAN ILLSTON United States District Judge

         On December 9, 2016, the Court held a hearing on Plaintiff's motion for class certification, Plaintiff's motion for an order admitting into evidence the Verde/Physalia report dated October 26, 2016, Plaintiff's motion to substitute a new fisheries expert, defendant's motion in limine to strike and exclude the report and testimony of Professor Jasper Abowei, and defendant's motion in limine to exclude the socio-economic report and testimony by the authors of the Onyoma Research Group.

         For the reasons set forth below, after careful consideration of the voluminous record in this case, the Court concludes that plaintiff has not met his burden to demonstrate that this case should be certified as a class action pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3). Plaintiff has failed to show through any evidence that causation can be proven on a classwide basis, and much of the evidence submitted has been shown to be unreliable. Furthermore, the Court concludes that plaintiff has not demonstrated typicality, adequacy or superiority, and the proposed class definition suffers from numerous deficiencies.


         On January 16, 2012, an explosion occurred on the KS Endeavor drilling rig, which was drilling for natural gas in the North Apoi Field, five nautical miles off of the coast of Nigeria. Plaintiff Natto Iyela Gbarabe is a fisherman who resides in the Niger Delta region of southern Nigeria. Plaintiff alleges that prior to and on January 16, 2012, “a series of pump failures on the rig led to a massive build-up of pressure which was reported to defendant Chevron Corporation, either directly or through [Chevron Nigeria Limited (“CNL”)].” Fourth Amended Compl. ¶ 4 (Dkt. No. 99). Plaintiff alleges that “[t]he instruction from Chevron Corp. was to continue drilling the borehole which proximately caused a ‘blow-out' manifesting itself in an explosion which killed 2 rig workers and created a fire which burned, spreading toxins and hydro-carbons, heating the ocean water and polluting the same. The fire continued to rage for some 46 days until extinguished on or about March 2, 2012.” Id. Plaintiff alleges that the KS Endeavor was operated by KS Drilling under the management of CNL, which in turn acted at defendant Chevron's direction. CNL is not named as a defendant in this action.

         I. The complaints

         On January 13, 2014, six plaintiffs (Natto Iyela Gbarabe, Fresh Talent, Elder Endure Humphrey Fisei, Matthew Kingdom Mieseigha, Foster Ogola[1], Chris Wilfred Itonyo) filed this lawsuit claiming to represent 65, 000 people throughout eight Local Government Areas of Bayelsa State, Nigeria. Dkt. No. 1 at ¶¶ 9, 24.[2] The original complaint alleged,

Each of the Plaintiffs brings this action on behalf of themselves and their communities for which each has been designated a ‘leader.' Some 65, 000 persons have been identified as having been directly affected by, interested in and have claims arising out of the incident of January 16th 2012 and a list of those currently identified with claims are to be found at the offices of the Nigerian representative, A.P. Egbegi of Bayelsa State, Nigeria who holds a power of attorney to act on behalf of the communities and which list will be made available. The said power of attorney has been granted in turn to the attorneys herein representing the Plaintiffs.

Id. ¶ 9.[3]

         The complaint alleged that the plaintiffs and the people they represented suffered “losses to their livelihood, ” “environmental disaster impacting upon food and water supplies, ” and “health problems, ” and the complaint sought “compensation arising out of the Defendants' gross negligence, willful misconduct, negligence per se, acts of nuisance and negligent infliction of emotional distress and breaches of Nigerian law - in particular the Nigerian Oil Pipelines Act 1990, the Petroleum (Drilling and Production) Regulations 1969 and the Land Use Acts of 1978.” Id. ¶ 3. The complaint alleged that “[e]xpert reports have concluded that there have been significant environmental impacts and all areas have been subjected to various degrees of damage.” Id. ¶ 25.

         This case was initially assigned to Judge Samuel Conti. Judge Conti dismissed the original complaint in part because the six plaintiffs purported to represent other members of the Nigerian communities allegedly affected by the explosion and fire, but they did not bring the case as a class action. Dkt. No. 30 at 10-11. Plaintiffs had argued that it is common practice in Nigeria for large groups of plaintiffs to sign onto a lawsuit by executing powers of attorney. Dkt. No. 25 at 17-18. As the Court explained, however, “the Federal Rules of Civil Procedure require that an action be prosecuted in the name of the real party in interest.” Dkt. No. 30 at 11.

         Judge Conti also dismissed the complaint because plaintiffs had not adequately alleged injury to the six plaintiffs. Judge Conti noted that plaintiffs had merely listed general categories of damages they allegedly suffered, but that nowhere did they explain how the explosion or fire on the KS Endeavor harmed plaintiffs. The Court explained:

There is no discussion whatsoever of how a fire on an offshore rig damaged the businesses, livelihoods, property, or health of Dr. Ogola or any of the other plaintiffs in this case. Plaintiffs make claims about damage to fish, livestock, contamination of water and soil, and “general health breakdown.” But there are no allegations that the damaged livestock belonged to Plaintiffs, that the Plaintiffs' livelihoods depended on fisheries, that the contaminated water or soil harmed them or their property, or that the “general health breakdown” affected them.

Id. at 10 (citation omitted).

         After being granted leave to amend, plaintiffs filed their first amended complaint as a class action on behalf of 65, 000 “clients.” Dkt. No. 34 ¶ 12. Plaintiffs again alleged that expert reports showed damages in “all areas” (id. ¶ 30), and plaintiffs relied on the allegations regarding expert reports showing “the severe impact upon these communities of the trauma of the explosion” in opposing defendant's motion to dismiss. Dkt. No. 40 at 3:12-13. Judge Conti granted defendant's second motion to dismiss, finding that the amended complaint only alleged injury to unidentified class members and failed to allege that the named plaintiffs had suffered injury in fact. Dkt. No. 44 at 9-12.

         On September 3, 2014, plaintiffs filed the second amended complaint. Dkt. No. 45. The second amended complaint added allegations of property damage and adverse health consequences for the six plaintiffs. Id. ¶¶ 12(i)-(vi). It alleged, for example, that

Plaintiff Natto Iyela Gbarabe is a fisherman in Koluama 1, in the Southern Ijaw Local Government area of Bayelsa State. He, like other members of this particular community, which depends upon fishing for its primary method of earning a living, suffered personal loss by way of an almost total loss of yield in the waters customarily fished by plaintiff after the KS Endeavor rig explosion and 46 day fire. The diminution in yield in the area plaintiff customarily fishes continues. Plaintiff further suffered health [sic] from the effects of the polluted air and water caused by the gas rig explosion of the KS Endeavour, which included diarrhea and vomiting. Plaintiff is aware of other community members who suffered the same health issues, as well as additional debilitating conditions caused by the released pollutants, such as skin rashes and boils.

Id. ¶ 12(vi). As with the previous complaints, the SAC realleged that expert reports showed significant environmental impacts and damage to “all areas.” Id. ¶ 33. Plaintiffs also attached to the second amended complaint a document titled “Schedule A, ” listing the names of 65, 000 putative class members across Bayelsa State and the economic damages each allegedly incurred.[4]Dkt. No. 45-1 to 45-4.

         Chevron moved to dismiss the second amended complaint on several grounds, including that plaintiffs had failed to allege causation and that the allegations of harm up to 60 miles inland were facially implausible. Dkt. No. 49 at 4-6. In opposition, plaintiffs argued that their allegations were sufficient and they reiterated that their claims were supported by “expert reports [that] have identified the severe impact upon the communities[.]” Dkt. No. 51 at 4. Judge Conti granted in part and denied in part Chevron's motion. Judge Conti found that plaintiffs' amended allegations were not implausible on their face, and he noted that plaintiffs were not required to prove causation at the pleadings stage. Dkt. No. 56 at 4-5. Judge Conti dismissed plaintiffs' public nuisance claim with prejudice and granted Chevron's motion to strike the second amended complaint to the extent that it asserted claims on behalf of communities rather than the communities' individual members. Id. at 9.

         On January 23, 2015, the parties agreed to limit the first phase of discovery to issues relevant to class certification. Dkt. Nos. 63, 69. The parties agreed to a class certification schedule under which plaintiffs would file their class certification motion by August 6, 2015, with a hearing scheduled for December 4, 2015. Dkt. No. 69.

         On March 18, 2015, the parties stipulated and the Court entered an order modifying the class certification schedule. Dkt. No. 76. The stipulation stated that the extension of time was necessary because “plaintiffs' counsel has advised that their retained experts are investigating which named plaintiffs and alleged class members have what plaintiffs' counsel consider objectively sustainable claims and, based on that investigation, anticipate reducing the number of named plaintiffs and class members and/or the scope of the proposed class.” Id. at 1:23-26. The stipulation and order provided:

June 1, 2015 will be the deadline for plaintiffs' counsel to file the appropriate pleadings for the purpose of limiting the currently identified lead plaintiffs and/or prospective class members to those deemed by plaintiffs' counsel to have sustainable claims. If plaintiffs intend to narrow the definition of the class from the description in the CMC Statement filed January 23, 2015, they shall do so in an appropriate pleading by June 1, 2015.

Id. ¶ 1.

         On May 12, 2015, Chevron moved to dismiss with prejudice the claims of Foster Ogola, Elder Endure Humphrey Fisei, Fresh Talent, Matthew Kingdom Mieseigha, and Chris Wilfred Itonyo for failing to respond to Chevron's first and second requests for production and first set of interrogatories. Dkt. No. 77. That discovery sought the basis for plaintiffs' allegations of statewide injury and injury to the named plaintiffs and the 65, 000 putative class members. Dkt. No. 78 ¶¶ 1-3. In response to Chevron's motion, plaintiffs filed an opposition that did not actually oppose the dismissal of the five plaintiffs, and acknowledged that the five plaintiffs did not have articulable claims of damage. Dkt. No. 80 at 5. The opposition also stated:

What has changed, through the development of scientific evidence, is the defined area within which the complaint alleges environmentally damaging pollution from an exploratory gas rig explosion and fire impacted individuals and their communities within the Nigerian State of Bayelsa, causing damage to the land, coastal waters, rivers, inlets and waterways and impacted the health and livelihoods of individuals within the area contaminated.
This objective scientific evidence rendered it apparent to plaintiffs' counsel that some - though not all - of the communities represented by five of the six lead plaintiffs could not articulate a provable claim for environmental damage from the signature incident - a good faith determination that, when communicated, was not met favorably by the five lead plaintiffs representing, in part, those communities deemed to be outside said definable zone of contamination.

Dkt. No. 80 at 2:13-23; see also id. at 3:17-20 (“It is counsels' careful investigation that has developed evidence that the full effect of the explosion, and thus the impact zone, must be more narrowly and specifically defined to conform to proof. The practical effect is that some, but by no means all, of the communities already known to the defendant and the Court through the pleadings will be stricken.”). Plaintiffs' counsel referred to this process as a “realignment” of the class. Id. at 3:27. Plaintiffs' counsel also stated, “The proposed redefinition of this action is almost complete and plaintiffs' counsel will be seeking defendant's agreement to a stipulated amendment of the complaint to articulate the reduced number of communities asserting claims under the original pleading, together with the names of the new, duly authorized lead plaintiffs to adequately represent the interests of each of these communities. If a stipulated amendment cannot be agreed upon, plaintiffs will seek amendment by motion filed on or before June 1, 2015.” Id. at 4:19-25.

         On June 1, 2015, plaintiffs filed their third amended complaint without defendant's consent or leave of court. Dkt. No. 82 (“TAC”). The TAC removed the five plaintiffs who were the subject of Chevron's sanctions motion and added eleven new named plaintiffs. The TAC reduced the putative class from 65, 000 to 15, 000 people by dropping five of the eight Local Government Areas covered in the previous complaints, leaving Brass, Ekeremor, and Southern Ijaw Local Government Areas (the specific communities within those LGAs were listed in the caption). Id. ¶¶ 8, 32. The TAC contained the same allegation as the previous complaints that expert reports showed damage in all areas. Id. ¶ 33.

         In an order filed July 28, 2015, the Court granted Chevron's motion to strike the TAC. Dkt. No. 94. The Court held that plaintiffs were required to seek leave of court before filing the TAC because the TAC added eleven new plaintiffs. Id. at 4. The Court rejected plaintiffs' argument that the new plaintiffs were not actually new because they were among the 65, 000 community members that the original named plaintiffs claimed to represent through power of attorney. Id. The Court noted that it had “rejected this argument at least twice, and it admonishes Plaintiffs for raising it yet again. As explained in the Court's order on Defendant's first motion to dismiss, ‘the Federal Rules of Civil Procedure require that an action be prosecuted in the name of the real party in interest.'” Id.

         In a separate order filed July 28, 2015, the Court granted defendant's motion for the sanction of dismissal of five of the named plaintiffs for failure to comply with discovery obligations. Dkt. No. 93. The Court found that the five plaintiffs were served with discovery which required responses by April 3, 2015. The Court further found that those five plaintiffs had not responded by that date or any time thereafter, and that the plaintiffs were not cooperating with their counsel.

         On September 29, 2015, named plaintiff Natto Iyela Gbarabe filed the fourth amended complaint pursuant to a stipulation and with leave of court. Dkt. No. 99. The fourth amended complaint (“FAC”) is the operative complaint. The FAC realleges that plaintiff suffered “personal loss by way of an almost total loss of yield in the waters customarily fished by plaintiff after the KS Endeavor rig explosion and 46-day fire, as well as damage to fishing equipment, ” and that “Plaintiff further suffered health issues from the effects of the polluted air and water caused by the gas rig explosion of the KS Endeavour, which included diarrhea and vomiting.” Id. ¶ 10(i). Similarly, the FAC realleges that “[e]xpert reports have concluded that there have been significant environmental impacts and all areas have been subjected to various degrees of damage.” Id. ¶ 30. The FAC seeks compensation and punitive damages arising out of Chevron's alleged gross negligence, willful misconduct, negligence per se, acts of nuisance, and breaches of Nigerian law. Id. ¶ 3.

         The FAC alleged a class consisting of,

All residents of the coastal, estuarine and adjacent river or creek-situated areas of the Ekeremor, Southern Ijaw, Brass and Nembe Local Government Areas, State of Bayelsa, Federal Republic of Nigeria who, as of January 16, 2012 and thereafter, used the land, rivers, waterways, ponds, inlets, estuaries and adjacent oceanic waters for the purpose of fishing and/or farming to provide food and livelihood and who sustained articulable damage and/or diminution to said activities as a result of the explosion of defendant's exploratory gas rig as detailed herein.

Id. ¶ 12. The FAC added:

[t]he communities wherein known Class Members are located and which are represented by the plaintiff are identified as Koluama 1 and 2; Ezetu 1 and 2; Ekeni; Sangana; Kongo Akassa; Minibie; Buama; Otuo; Itohoni-ama; Igbabeleu; Egwama; Llama; Fishtown aka Beleugbene (Brass); Ikebiri 1; Ikebiri 2; Foropa; Bilabiri; Amatu; Bessengbene; Letugbene; Odioama; Ewoama; Okpoma and Twon.

Id. The FAC further reduced the putative class from 15, 000 to 12, 600 people by eliminating three of the communities that were covered by the previous complaints (Koluama 11, Ezetu 11, and Ikebiri 11).

         II. Schedule for class certification

         By stipulation and order, Plaintiff's Rule 23 motion was originally due on August 6, 2015, with a hearing scheduled for December 4, 2015. Dkt. No. 69. The parties agreed that Plaintiff's class certification motion “will include causation evidence as to the named Plaintiffs comparable to Lone Pine.” Dkt. No. 63 at 3:21-25.[5]

         On March 18, 2015, in light of Plaintiff's counsel's need for additional time to “investigat[e] which named plaintiffs and alleged class members have what plaintiffs' counsel consider objectively sustainable claims” and the anticipated reduction of the scope of the proposed class, the class certification filing date was extended to November 9, 2015. Dkt. No. 76. The March 18, 2015 stipulation and order also provided,

By June 1, 2015, plaintiffs shall also serve Rule 26-compliant reports and other required materials for any expert that they intend to use to support their class certification motion, subject to timely supplementation. All such supplemental reports and materials will be provided to counsel for defendant as and when received and before filing of plaintiffs' class certification motion.

Id. ¶ 2.

         The parties agreed to extend the June 1, 2015 deadline to June 15, and on that date, plaintiff served on defendant a report titled “KS Endeavor Rig Blowout Environmental Desk Study, ” prepared by Verde Environmental Group, Ltd. Dkt. No. 97 ¶ 2, Ex. 1.[6] The executive summary for that report states, inter alia, that the report “presents an initial desk study review of available reports pertaining to a Drilling Rig explosion that occurred on 16th January 2012, ” and that “Verde concludes that further independent studies are required and recommends the completion of air and water monitoring in the immediate area of the incident along with air dispersion modeling. Furthermore to confirm whether damage has occurred to the marine environment, it is recommended that an appropriate, internationally-accepted marine survey and analysis techniques are implemented.” Id. Ex. 1 at 1.

         On September 17, 2015, plaintiff requested a ten-month extension of the class certification filing deadline. Plaintiff's counsel stated that they needed the extension because they had “retained an environmental consulting firm named Verde in May 2015 to conduct a review of gathered evidence regarding the environmental impact of the rig explosion on the surrounding marine and coastal area, ” and

[F]ield investigation work supportive of Plaintiff's class certification submission is required and this work, to be carried out by the retained firm, Verde Environmental Consultants Ltd, cannot be undertaken until the end of the current Nigerian rainy season. As set forth in the supporting declaration of Kevin Cleary of Verde, this field work cannot begin until mid-October at the earliest and, based upon Verde's experience and knowledge of working conditions in Nigeria, cannot reasonably be expected to be completed until around July 2016.

Dkt. No. 95 at 2:3-8; Dkt. No. 95-1 ¶ 2 (Cleary Decl.).

         Chevron opposed the request for an extension, arguing that plaintiff did not provide any explanation for why he failed to commission any expert field work in the 16 months between when this case was filed in January 2014 and the beginning of the rainy season in May 2015. Defendant noted that although plaintiff stated that he had retained Verde in May 2015, plaintiff had listed Verde as his expert in his Initial Disclosure Statement on February 20, 2015. See Dkt. No. 97 (Ex. 4 at 4). Defendant also submitted deposition testimony from Kevin Cleary of Verde, in which Mr. Cleary testified that Plaintiff's counsel did not formally retain Verde or ask it to perform any work until one week before the June 1, 2015 deadline for expert reports for class certification. Dkt. No. 103-1 (Cleary Dep. at 17:20-25, 38:2-12).[7]

         Judge Conti rejected the ten-month extension, but gave plaintiff a three-month extension until February 6, 2016. Dkt. No. 108. In granting the extension Judge Conti stated that “[n]o further extensions of the above dates will be granted.” Id.; see also Dkt. No. 107 at 16:21-25 (transcript of Oct. 1, 2015 hearing, during which Judge Conti stated: “That's the last extension. That's the last. I mean, there's not going to be any other. And if it's detrimental to the plaintiff, then it's detrimental to the plaintiff. But everything has to come to an ending. You've had plenty of time.”).

         This case was re-assigned to this Court on November 3, 2015. Dkt. No. 111. In a case management conference statement filed December 7, 2015, plaintiff requested an additional three- month extension of the class certification filing deadline “based upon delays caused by scientific imperatives and the upcoming holiday season.” Dkt. No. 115 at 10:9-10, 15. Plaintiff claimed Verde could not take seabed samples on the December 2015 trip because the laboratories would be “closed for approximately two weeks between Christmas and New Year” and unable to do the testing. Id. at 11. Plaintiff stated,

Since the briefing schedule issued by Court Order on October 5, 2015 (ECF No. 108), counsel for Plaintiff have been organizing the on-site inspection and sampling work required for class certification support with their designed environmental experts, Verde Environmental Consultants. Verde will be in Nigeria and engaged in the first phase of this work - the mapping of the seabed to identify sample sites and the taking of water samples - at the time of this case management conference [December 11, 2015].
It had been hoped that Verde would be able to complete the in-field investigation in one trip to the accident area but, based upon unforeseen delays in the securing of an appropriate boat to mount the necessary equipment for the collection of seabed samples, that phase of the operation has run into a problem caused by the upcoming holiday period as follows:
It is essential for evidentiary purposes that all samples taken from in and around the site of the rig explosion are collected, stored and preserved in a manner that guarantees their integrity from collection through bringing them to shore, packaging and dispatching them from Nigeria to the United Kingdom to the laboratories who are contracted to conduct the testing of the samples for evidence of environmental impact directly related to the KS Endeavor blowout. The advent of the Christmas and New Year holidays in the U.K. means that these laboratories will be closed for approximately two weeks between Christmas and New Year. Counsel for Plaintiff have been informed that the integrity of samples collected prior to that time would be compromised by any delay in testing and that the holiday closures creates such a delay. Being that it is essential that the samples are preserved and tested in a scientifically appropriate manner to verify the results and findings, Verde has been advised to wait until after the holiday period before collecting and sending the samples.

Dkt. No. 115 at 10:22-11:9. Plaintiff's counsel further stated,

The only rational decision under the circumstances is for Verde to return to Nigeria in early 2016 to collect the necessary samples for dispatch to the U.K. testing facilities for analysis upon arrival. This, unfortunately, means completion of the investigation, testing and results will be pushed back for at least a month and a half to two months.

Id. at 14:27-15:2.[8] The Court granted plaintiff a two-month extension of the filing deadline, until April 8, 2016. Dkt. No. 116.

         On April 8, 2016, plaintiff filed his motion seeking class certification pursuant to Rule 23(a) and (b)(3). Plaintiff supported his motion with reports from four sets of experts: (1) a set of reports by the Verde/Physalia group, which include reports by Jones Environmental Laboratory Ltd. (collectively the “Physalia 1” report), Dkt. No. 124-1 to 124-11; (2) a report titled “Summary of Post Impact Studies and Findings of the Effect of January 2012 Chevron Gas Rig Explosion Off the Atlantic Ocean” by Professor Jasper Abowei, a Nigerian fisheries professor, Dkt. No. 125-3; (3) a report by the Onyoma Research team led by Professor Alagoa titled “Socio-Economic Report on the Effects of the KS Endeavor Rig Explosion on the Coastal Communities of Bayelsa, ” Dkt. No. 125-1, 125-2; and (4) a report titled “Damage Model for Class Action Management in the Matter of Gbarabe v. Chevron, ” by Christopher Money. Dkt. No. 126-1. Plaintiff also submitted other evidence in support of the class certification motion, such as declarations from putative class members, photographs of the site of the explosion and surrounding areas, and declarations from Nigerian lawyers regarding the Nigerian court system.

         Plaintiff failed to timely produce to defendant the materials on which Plaintiff's experts relied as required by Federal Rule of Civil Procedure 26(a)(2)(B)(ii), thus necessitating further modifications of the schedule. See Dkt. Nos. 129, 169.

         On September 16, 2016, defendant filed its opposition to Plaintiff's motion for class certification, along with several expert reports in support of the opposition. Dkt. Nos. 180, 183-89. Defendant also filed two motions in limine to exclude the report and testimony of Jasper Abowei and to exclude the report by the Onyoma Research team. Dkt. Nos. 181-82.

         On September 30, 2016, the Court held a case management conference. At that conference, the parties informed the Court that on September 14, 2016, plaintiff proposed a new class definition, and that Chevron had declined to stipulate to it. See Dkt. No. 190 at 1. Plaintiff requested permission from the Court to amend the class definition, and the Court directed plaintiff to provide the proposed amended class definition to defendant by October 7, 2016, and allowed defendant to file a response to the proposal by October 21, 2016. See Dkt. Nos. 192, 199-200.

         On November 10, 2016, the Court held a further case management conference. At the conference, plaintiff requested a further extension of time to file the reply papers from November 18 to November 25, 2016. The Court granted that extension. At that conference, the parties informed the Court that plaintiff wished to replace his fisheries expert Jasper Abowei with a different fisheries expert, Professor Eyiwunmi Falaye, and that Chevron objected to Plaintiff's request. The parties also informed the Court of a dispute regarding Plaintiff's request to submit a new report dated October 26, 2016 from the Verde/Physalia experts (“Physalia 2”). The Court directed plaintiff to file motions for leave to substitute a new fisheries expert and for leave to submit the new Physalia 2 report. Dkt. No. 205. Plaintiff filed the two motions for leave on November 16, 2016. Dkt. Nos. 206-11, 217-18.

         On November 26, 2016, plaintiff filed his reply brief in support of the class certification motion, along with exhibits totaling over 1, 500 pages. Dkt. Nos. 213-16. Buried in the thousands of pages of exhibits are seven new expert reports: (1) a November 25, 2016 report by Physalia titled “Gbarabe v. Chevron; Scenarios for Fisheries Impacts, Dkt. No. 214-4 at 1-17; (2) a November 24, 2016 report by Lwandle Marine Environmental Services titled “KS Endeavour Gas Blowout Incident: Potential Effects on Artisanal Fisheries, ” Dkt. No. 214-4 at 18-31; (3) a report by Roy van Ballegooyen, WSP Coastal and Port Engineering, titled “Transport and Fate of Fine Sediments and Muds Released into the Marine Environment During the KS Endeavor Blowout Incident”), Dkt. No. 214-4 at 32-47; (4) a November 2016 report by Plaintiff's proposed new fisheries expert, Professor Falaye, titled “Report on Effects of Funiwa Deep 1A Gas Blowout in Bayelsa State, Nigeria on Fish Diversity.” Dkt. No. 214-4 at 48-95; (5) a November 25, 2016 report by Physalia titled “Review of, and Comments on, the Adams (Neal Adams Services) Document: An Evaluation and Assessment of the 2012 KS Endeavor Natural Gas Blow-out Incident” Dkt. No. 214-3; (6) a November 17, 2016 report by Physalia titled “Review of, and Comments on, the Deardorff, Deines and Palmquist (Exponent) Document” Dkt. No. 214-5; and (7) a declaration and supporting exhibit titled “Conceptual Document” by John Welches of Red Mallard, Inc., Dkt. No. 215-3 at 4-36, and a C.V. and declaration by Todd Hilsee (in a different case) regarding providing notice, Dkt. No. 215-4 to 215-5. Defendant has objected to this evidence on numerous grounds.

         III.Realignment” of the class

         As discussed supra, at some point plaintiffs' counsel became aware that the claims of five named plaintiffs, and of most of the original class of 65, 000, were untenable. What plaintiff and his counsel knew, and when they knew it, has been the subject of much discovery and some motion practice. At an August 24, 2016 hearing, Ms. Perry stated, “[i]t was in about [March/February 2015] that we first learned through Mr. Alagoa Morris that the likelihood of the full complement of the 60-odd-thousand people in all those 300-odd communities was more likely than not to be claims that could not be sustained. That was in about February 2015.” Dkt. No. 173 at 24:3-7.

         In response to defendant's discovery requests, Plaintiff's counsel have admitted that they had no contacts with the six plaintiffs or the Nigerian lawyer Mr. Egbegi before filing this lawsuit. Dkt. No. 154-1 (Ex. 3 at 4-7); Dkt. No. 154-2 (Ex. 8 at 1; Ex. 9); Dkt. No. 173 at 11-14 (transcript of Aug. 24, 2016 hearing; counsel stating that they first had contact with six plaintiffs around May 2014). Plaintiff's counsel have stated that Mr. Ekhorutomwen, the Nigerian lawyer who practiced with a U.K. firm, purportedly assured them that Mr. Egbegi had done “full due diligence” in Nigeria. Dkt. No. 154-1 (Ex. 3 at 4, 5). According to counsel, “[i]t is not customary nor acceptable practice for a barrister to do due diligence on a fellow professional within the English system[.]” Id. at 4.

         Unsatisfied with Plaintiff's responses to discovery seeking the factual basis for the allegations of causation and injury to the named plaintiffs and the class in the various iterations of the complaint, [9] on July 22, 2016, defendant filed a motion to compel further discovery. Dkt. No. 153. In response, Ms. Perry submitted an August 7, 2016 declaration stating:

8. . . . When five of six original lead plaintiffs became non-cooperative and concern grew in regard to evidence which, in our opinion, required further authentication, we launched an investigation into the best method of establishing fully credible evidence emanating from the Niger Delta region, a remote area of a foreign nation fraught with well-recorded dangers and conflicts. Our independent investigation led us to Mr. Alagoa Morris, an environmental activist whose credibility and integrity was determined to be acknowledged generally in the Niger Delta region. He was asked to assist on the ground in Bayelsa State to determine whether the original lists of claimants were credible, given the withdrawal of cooperation by all but one of the original lead plaintiffs and the Nigerian referring attorney, Mr. Egbegi. Mr. Morris was of the opinion that we could not rely upon the authenticity of the original list of communities because of their location inland from the ocean, even though the State is made up of a maze of rivers and creeks.[10] An investigation was instigated utilizing the services and local knowledge of Mr. Morris which culminated in the decision to reduce the zone of claimed contamination and reduce the number of claimants to those in communities located on or near the Bayelsan coast. Defendant was immediately informed of this undertaking and kept informed at every stage of these developments, which included our difficulties in obtaining the cooperation of or information from 5 of the 6 Lead Plaintiffs and Nigerian counsel. This lack of cooperation meant that decisions as to the viability of the claims as original[ly] constituted had to be made based upon available information. Whether or not the sudden withdrawal of cooperation by five or six original lead plaintiffs and Nigerian counsel was because of any knowledge on their part that the original claimant list contained false claims could not be established, nor were we able to secure the original sign-up documents. Therefore, a judgment as to the necessity for a realignment of the case had to be based upon the available facts and evidence known to us.
9. A further development in 2014 was that [Nicholas Ekhorutomwen] removed himself from Harding Mitchell and commenced his own firm of solicitors. It has been made clear to defendant that Mr. Fraser and I had lost confidence in [Nicholas Ekhorutomwen]'s competence and that we began to doubt we could rely upon him or Peter Egbegi for the information we sought. Our concern was that we only continued to represent individuals who, in our legal opinion, appeared to have genuine and viable claims within an establishable zone of contamination. With the assistance of Mr. Morris, who had independently investigated the impact of the subject rig explosion immediately after it happened for his own organization, it was determined to reduce the claims to those emanating from the coastal communities currently part of this action. Defendant was fully informed of this determination and of our commitment that, at no time, would we be party to any claim that was determined to be less than credible. The recent re-signups were conducted to assist us in identifying and eliminating such claims. Careful procedures were put in place. It appears, however, that some re-signups may lack the honesty and/or diligence, which, once fully investigated, will sound in their removal from the case as appropriate. Defendant is aware that we have repeatedly assured them that any clam found to be false will be excised.
10. It is submitted that this continued commitment to ensuring all claims are genuine evidences an ethical standard we adhere to that makes defendant's allegations of fraud all the more repugnant. This is Nigeria, an African nation with well-documented problems of corruption from the upper reaches of government down in which individuals and corporations have both, at times, been implicated. If there are some “bad apples” within the claimants herein, we intend to take the necessary action to dismiss them from further participation. It is not appropriate to characterize the entire case as based upon a fraud as it is clear evidence capable of inflicting damage on the livelihood of thousands of claimants has been developed and the extent of damage, ultimately, presents a factual question.

Dkt. No. 162 ¶¶ 8-9; see also Dkt. No. 186-3, Ex. 2 at 22:10-16 (transcript of Aug. 24, 2016 hearing wherein Ms. Perry stated that “[t]he first time we knew that the amounts [on Schedule A] had been doctored was when Mr. Gbarabe and the other 11 then, we hoped, named plaintiffs were asked to deal with the interrogatories. That's when we first found out. That was in June 2015. . . . It was in June we first knew that the figures were wrong.”); Dkt. No. 186-1 (Gbarabe Dep. Vol. 1 at 111-16, testifying that all of the lost income figures on Schedule A were “exaggerated” and “doctored”).[11] Plaintiff's counsel have also stated that they never reviewed or had access to the documents on which Schedule A was based, and that they “haven't been able to get any information from the people that compiled these lists.” Dkt. No. 173 at 30:25-31:18.

         In 2016, plaintiff undertook a “re-signup” process to collect new claim forms from all putative class members in an effort to ensure that only genuine claims were included in the class. At the August 24, 2016 hearing, counsel described the “re-signup” process as follows:

[T]he re-sign-up process only involves persons that are on the original list that can be verified to actually have a genuine - we're trying to verify who has a genuine claim; making sure that these people exist, and they live in the community where these lists say they live, and that they have credible claims of damage because of their occupation, and the fact that they lived in Koluama, for example, at the time of the incident.
The re-sign-up process that went forward in the early part of this year will need to be addressed again in certain aspects to continue to hone down the client list, and make sure that we only have what we believe to be genuine claimants involved in this case; but Schedule A, in and of itself, contains the list of all the precertification claimants that will be in this case going towards class certification. We're just -but we've already dropped a great many of them. And there's going to be more done based upon the information we've got back during the re-sign-ups. That was done to try and authenticate the - what portions of the lists were, in fact, accurate.

Id. at 23:4-18.

         Thus, as late as August 24, 2016 - well after Plaintiff's motion for class certification was filed - Plaintiff's counsel stated that they were still “trying to verify who has a genuine claim” and acknowledging that the “re-signup” process was flawed and that Plaintiff's counsel would need to “continue to hone down the client list.” Id. Indeed, as discussed in greater detail infra, discovery conducted by Chevron during the summer of 2016 shows that the “re-signup” process has been riddled with unreliability, as inter alia, new claim forms were submitted in the names of deceased persons; there are multiple inconsistent forms with matching names, but different income figures and signatures; and class members testified that the forms contain false and inaccurate information and that forms were submitted on behalf of individuals without their knowledge or consent using inaccurate information and fraudulent signatures or thumbprints.


         Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure. Plaintiff bears the burden of showing that he has met each of the four requirements of Rule 23(a) and at least one subsection of Rule 23(b). Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1067 (9th Cir. 2014), citing Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001).

         The Court's “class certification analysis must be rigorous and may entail some overlap with the merits of the Plaintiff's underlying claim.” Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 133 S.Ct. 1184, 1194 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011) (internal quotation marks omitted)). These analytical principles govern both Rule 23(a) and 23(b). However, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Amgen, 133 S.Ct. at 1194-95. “Merits questions may be ...

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