keep these cases unified with all defendants together in a single courtroom in cleveland and that waiver negates any basis for the dismissal of these cases on personal jurisdiction grounds many years later necessit  retention language you know we we we don't forego our rights in the in the various pleadings by thompson hein you're referring to the answers that were  your honor and the i have i can answer that in two ways i think first it's very clear from the course of proceedings that judge lam bruce had told the defendants quite explicitly that he was going to transfer the cases on january seventh unless by january fifth they waived their person jurisdiction claim and if they answered that would be understood to be a waiver now you're right thompson hine playing either being very clever or very cute included a personal jurisdiction affirmative defense in those answers but it's clear that the judge on your side need to do in the face of judge lambro putting them in that pickle well i don't i don't see it as a pickle your honor they were they had a choice their choice was to stay in cleveland by waiving personal jurisdiction or to agree to be transferred to an address to and that had personal jurisdiction or and or to appeal that particular offering of a choice well they they attempted to appeal under twelve ninety two b but that's the normal rule your honor is you know in deed the court's request for supplemental briefing in this case addressed precisely this issue is that the proper opportunity to appeal that transfer ruling under fourteen a six or sixteen thirty one would have come at the end of the case after it had been transferred to another court and after that transfer  enforced never actually did what he would he didn't do it your honor and i'll do this but he never did the analysis but he didn't he didn't do it your honor because the defendants and to his mind had waived their personal jurisdiction defense by filing their answers and i think for the moment that inclusion meant that they were not waiving at that point their subsequent course of conduct clearly demonstrates waiver adverb clearly that i think they are clear counsel i think it is your honor and in particular the third circuit founded to be absolutely clear in the ruling class the related case that they decided last august they did that with respect to a group of they  didn't include your parties the well no to the two to the two defendants in that case are parties here in madison an american presidential american president lines were defendants the two defendants in that appeal there were a group of sixteen and there was a group of forty four all right yes they did i can try to walk through the procedural possibly here but point is that there's some dispute i guess the third circuits cleared up about whether the parties there were in the group of various categories of action because there are so many cases do you find an appropriate way to distinguish the defendant but it's not defendants represented by robinson thomas by a variety so what we're trying to understand is why the third circuit case might not be distinguish described but the reason that i don't think that makes a difference as a legal matter is you have to understand how these cases were litigated in front of judge lam bros there were not most several thousand separate cases where people filed separate pleadings in each case people filed as and then deal proceeding they filed master pleadings in which and then attached lists of which cases those pleadings applied to so when each of these defendants filed their answer in  in opposing transfer of the forty four cases we object to transfer our week we waived our personal jurisdiction in order to stay here in cleveland for trial they were referring to the waiver that occurred when they when they met yeah so effectively effectively the action and you know while the statement was made in the context of opposing the transfer of forty four particular cases they were referring back to yeah it's i thought i would you know any time you're doing the case that is thirty years old and has a record as long and complex as this one clearly is probably a poor choice of words your honor and i i withdraw it but the but i think that it is clear from the course of pursed waved to counter the we don't wave language in there in their answers the only reason you say the first wave was because some comments by judge lambro said i'm going to read once the court had made clear that his intention was to transfer not dismiss that they expected that most of their clients would prefer to stay here in cleveland where we have this onion elaborate procedure set up to handle these massive cases and would not want to go elsewhere because once you go elsewhere than the cases get all split up courts such as ours don't wade that is as heavily as the pleading the once in a pleading right i agree your honor and that's why i'm that's why i'm saying i think it's important that whether or not you conclude that the answers themselves constitute a waiver that the subsequent course of conduct when the defendants repeatedly told the judge lam bros and told in the cases that were transferred to michigan the eastern district of michigan that they had waived precisely because they objected to having the cases split up into multiple jurisdiction to consider to entertain plaintiff's motion to transfer in toto would not address diction to make the decision to transfer cases to to detroit if he  with this process but the smith special master indicated that thompson hind had told him that the vast majority of their clients had waived personal jurisdiction in order to remain in and i understand that there are valid questions about the propriety of that of that affidavit and the special master also is in the transcript of i think the november ninety one hearing explicitly clarifying the judge's remarks and saying so if t it was certainly pursuant to the understanding that these defendants had consented to jurisdiction in in cleveland i don't i don't i'm i'm not familiar with the but the precise background but i mean the understanding was we had this fight defendants tried to get out of all these cases by being dismissed on jurisdictional grounds the court said i'm going to transfer you elsewhere the defense said well if you're going to transfer  court properly found that the shipowner defendants did not waive their personal jurisdiction defenses in the findings of fact that are residing throughout his multiple opinions are reasonable and they are supported by the evidence there's the discussion focused primarily in the prior argument on waiver and rightly so are error in it is that am i right about that the factual findings we review board clear error director on her part and essentially ignored the requirements of the law we discussed the issue about waived waiver by filing answers general ambrose put us in a very difficult situation by essentially turning the federal rules of civil procedure on it on its head curious where you personally before judge lambro i was at times but i was of much cho we say much greener associate than i am today your honor so i was not there all of the time but if you did practice counsellor i'm reading in the briefs a great bit about i'm put in this terrible position but i'm struggling with that because when a judge decides against you it can be a terrible position but if because you lost your munchen or somebody else won their motion so so i don't think that it is a gray on an appropriate ground simply to say well i was i was in a tough position and i wanted to do it a different way than the judge wanted me to do it so i'm looking at what did the judge say and and how do you how were the borders and heard well the orders that i'm looking  at forty and forty one and the transcript that underlies them pretty simply says i don't have personal jurisdiction and you can you've got a choice you can either be transferred or you can wave in stay here if that's the choice and the record indicates that they and you chose to file an answer i'm not sure i understand why you can say i get to choose not to worry when you gave me a choice of going somewhere else or staying here or just stretch the the issue is by what authority does a federal judge turn the civil rules twelve on its head which allows us and civil rule eight where we are entitle to file an answer and preserve defenses he's trying to take away the at the the defense is before we do things to me as he said to you you say i don't have personal jurisdiction councilor greenwood i don't have personal jurisdiction over that manes this case cannot have it's good for everybody if your honor if the civil rules gave us the authority to file an answer if we didn't we were potentially subject to default what judge cook  wants to hear the answer to and i want to hear the answer to is if the judge do not have jurisdiction over your kettles how can the case continue in that judge's court it should not but the the fact is judge lab roast continued because we tried to find out we've not filed a motion to certify that order for interlock atory appeal we were ignored we were in a situation where procedurally we're being jurisdiction to hear your case you are right so does anything continue in that judge's court head if you have jurisdiction he said he does he did not that's basically the problem he did not but he ignored the fact that  list attached to that don't mention which who's being transferred where because ultimately there were to be thirteen jurisdictions to which transfers occurred and when you look at the orders you can't figure out which defendants are being transferred to w severance orders were never entered goodness we discussed in the brief severance had to be done if these cases were to be individually split up and parcelled off among thirteen different districts none of that ever happened and therefore even though he purports to transfer no cases were ever transferred there was never a particular docket that was ever sent to any of those thirteen jurisdictions and the was the it was the limbo central that we're stuck in and we said there's no that if if the order was you can either answer and agree to stay here or be transferred and instead they answer but don't agree rather object right in the answer the judge lambro of said well that isn't that isn't that wasn't one of the choices gave you so therefore i'm going to transfer you he certainly could have and there's just your own apology he just never did he just never acted on it he just continued with the cases as if that is is being discussed but we still filed the the matter of fact is the answers were filed preserving the personal jurisdiction defense because we were being placed in a in a procedural box by purporting to say by filing an answer you're giving up a defense and we couldn't do that you didn't file an answer to my knowledge i don't think so your honor and there were groups of answers that had to be filed each of the answers by master answer preserved the personal jurisdiction defense we tried to get the the quandary for taking care of what about the forty would judge lane rose have to tell you that by piling  answer what would a civil rule would support saying that your answer cannot include preservation of the defense i think the answer to that one of your honor is he's north there is no authority to do that but we were so w simply did what the federal rules permitted us to do and it was proper and it was appropriate and it was not being cute because we were being placed in a very difficult situation by the oral statements of judge lamb roast at  the hearing were contrary to the the rights and privileges that are courted to counsel and under the civil rules brett your honor but we were quite willing to have this court deal with the transfer because there was there was an entire discussion in the briefing dealing on down the gold a large decision from the u s supreme court about whether it's excuse me your honor but whether it's appropriate to dismiss or transfer when there is no personal jurisdiction that was fully briefed but judge lam bros never even addressed any of that sort of material he just decided he's going to transfer and then never transfers there were so there were questions by the the judge by the court earlier about the forty four cases that were transferred later for trial and that was a purportedly under section fourteen  of twenty eight u s c there wasn't thompson hine on behalf of its clients a post of the transfer but you can read those documents there is nothing in those documents that say the transfer improper because there was waivers of personal jurisdiction that does not show up in those documents what we said we spent five pages arguing that the court did not have the power under twenty eight u s c fourteen zero four to transfer to a district where all of the defendants in the cases could not have been sued to sued and served we cited the huffman versus blast the decision from the u s supreme court in one nine hundred sixty which talks in terms about power to transfer and that if a if a transfer occurs to a place where the defendants could not have been served the transfer eat court does not require proper jurisdiction over the cases so we resisted those but again those forty four cases are not these cases twelve cases that are before the court so even the discussion there even that does not apply to these cases but it still is very consistent with the position that i have asserted your court that the defendants consistently opposed on lawful action or action by the court or proposed action by the plaintiffs that ignored the appropriate petitioners are not unsympathetic to the court's desire to resolve the massive numbers of asbestos cases as efficiently as possible but any such action must be taken within the confines of a stablished law and we dealt with multiple situations where judge limber us was doing things that were inconsistent with law and when we protested the inconsistency of law that does not equal a waiver of the personal jurisdiction defense which should have been dealt with by one of two ways either dismissal or transfer neither of which occurred and so we were dealt with a situation where we simply had to continue resisting action that was inconsistent with the requirements of the law there was a believe it was a question by judge cook to opposing counsel about whether or not the third circuit opinion viewed file advancers as equaling waiver i believe your honor if you will read that case it does not do so what it does is it picks two statements out of context one  that there was no education of a waiver he believe his one of his statements in his opinion is that this court is not persuaded that these exhibits meaning all of the things that the plaintiffs it said is purported waiver court is not persuaded that these exhibits show by the preponderance of the evidence a universal waiver by all defendants in all cases in all perpetuity but that was essential what the plaintiffs and the opponents here were trying to say that there been universal waivers there is one example of a universal waiver but it was by a different firm and i ray robinson firm and the document is in the the pelleas appendix of page one eighty five it was that titled a motion for permission to consent to jurisdiction and to withdraw motions to dismiss or transfer twenty eight defendants were included within that document in hundreds of cases that is an example of waiver there is no equivalent waiver by any thompson hind defendant or any action by thompson h the opponents are essentially left to try to divine or tease out some type of evidence of a waiver where there is no waiver because the consistent action of the  oppose unlawful action by the heat of the court in the northern district of ohio and to insist that they were not subject to jurisdiction they believed that dismissal was the appropriate remedy they tried to bring it to this court and my time is out your honor thank you thank you honour's first there's no question it would have been a lot cleaner if instead of saying you may wave by filing an answer we can see who can clean or if it actually insisted the defendants one inference from you may way by piling on answers you made way by filing an answer that waves i don't don't think so your way i think i would have taken perhaps you can waive this file an answer well rackets meant it when i said i apologize for interrupting i meant that when i said that i thought thompson was trying to be a little cute here thirty years ago not here today when they said if the judge thought he was being cute the judge could have said ok that that didn't meet my requirements transfer conduct indicates that he understood them to have waived he could not otherwise he would have transferred them so the fact that it's that it was papered an order that said he was or he was going to or they are in two separate occasions in the january one thousand nine hundred one hearing we have thompson hines saying our clients waived jurist the protection of objections to proceed here in cleveland to go to detroit is not something we agree to and we've already discussed why i believe that references all other cases and not just these forty four and in the brief they fought limits its language to the forty four the way he was clearly were included in those forty four cases and their and their course of conduct in those cases was identical to their course of conduct here so when they represent that the course of conduct they engaged in constitute a waiver they are at least implicitly acknowledging cases about which documents apply to which which defendants were in each obviously wouldn't want to say that these are the only sixteen cases i think there's another group of cases behind this where the