for the chorley family and the defendants and the jurisdictional issues in this case have been driving me nuts for weeks yes and i think i think the best i think the court does have jurisdiction to address the merits of this appeal i think the best case on point on was remanded back to federal court in south carolina and then appealed up to the th circuit and basically the th circuit said you don't want to have syria out of appeals you wait to the entire case is resolved one way or another i think judge pryor was not asking about the reviewable issue which has been driving me nuts i think he was asking about the more fundamental issue of there are parties that were dismissed without prejudice and what effect that has on whether this is a final judgment or not if you can address that issue please i think that there is a final judgment as to the parties that have not been dismissed without prejudice and that is just just just just what i'll be this is any differently as if you're in the middle of a trial and you settle with one or two defendants and you keep on going against the rest you can certainly resolve the case by verdict and judgment as to the remaining defendants and even though parties have been dismissed without prejudice i do think as to the ones that are left it is a final judgment kind of precedents that are going all over the place on this and we start with what comp versus mr chip the old th circuit in one thousand and seventy six that we have ryan ryan is an unusual case that where there were some jurisdictional allegations still remaining and a complaint then we get mesa which i think misreads ryan and totally ignore chip does not mention it at all which is the earlier precedent then we have all these cases like state treasurer versus barry and should fail versus babbitt and i've been trying to make sense of them and  here that that is a final judgment and that would be consistent with our earliest president lacan it would mean that this is a final judgment i think i agree with and hope your honor is correct but i don't know that it saves mason but i don't know what to do about makes turning to the merits argument if i might your honor when we're looking at this case i was reminded of the it's an old saying attributed to abraham lincoln which is if you call a dog's tail a leg how many legs does a dog have and the answer of course is four because calling a tail of legs doesn't make it so this is a case in fact arising in large part six poster to the defendant suspects this products on board navy ships from the very st paragraph of the very st complaint that mr k he filed for the coralie family in state court alabama in two thousand and nine the complaint states that charles corley was continuously exposed to a specialist containing products that were produced manufactured specified for use installed distributed sold and placed in the stream of commerce by the defendants in this case during his employment as a boiler room technician ship my ship wide maintenance worker age back repairman etc including but not limited to the following locations in the very st one united states navy dates nine hundred and forty six to  indication in maritime jurisdiction intil the motion for reconsideration state i mean so the case was litigated as a non maritime case all along and what the portions of the complaint you just read to me would not necessarily to me the district judge oh we have a maritime case isn't it even more than that didn't you disclaim any federal jurisdiction at all we disclaim federal jurisdiction for the purposes of not being in federal court but there's concurrent jurisdiction you can have a maritime case that is governed by federal law as in state court and the reason the real reason this case was a disclaimer of federal jurisdiction at the outset not that the one that for marriage might not apply at some point was judge or bruno if there's ever going to be a hall of fame for federal district court judges he deserves a medal i've been doing specifications for twenty five years and mr casey somewhat longer the federal in b l once upon a time was called the black hole in philadelphia and if your case ended up in the black hol philadelphia you would never get it resolved i've had cases where the case was filed in one thousand nine hundred and eight and finally after judge brain no got through it had a trial date in two thousand and eleven and so there was the disclaimer jurisdiction for keeping the face out of federal court does not mean that there can't be a maritime claim at some point in a calm and in state court absolutely but if you're a judge and you said it absolutely does not have this and you unique circumstances of this case it wasn't until judge your brain issued his opinion in the conner versus al fall of all decision that people in eight indio eight hundred and seventy five fought there might be a basis for  billions of dollars of state wanted jury trial argued dozens of motions i think nine percent of time he gets it right and i don't just say that because i have been fairly successful in front of him he gets it right sometimes even when i disagree with him but in the context of this what happened was the motion for summary judgment for filed and the time line is important a motion for summary judgment were filed in two thousand and ten the magistrate renders an opinion based on alabama state law in april of two thousand and eleven your motion for rehiring are you required to argue that there was an intervening change in the law let's put aside for the moment whether just record opinion can ever be a controlling change in the law for a district court but out of sight for a nd term you need at least argument ice i to you that we did raise the car case did you say was it felt with an exception for rehearing based on the intervening change in the law we did not use those specific words and to and i think i can just see judge agree no same will damp excuse or the fact unrolled nine it says may invoke jurisdiction or in fifteen where the bird even if you try a case to judgment that the evidence could be conform to the pleadings i think in the context of all of that you have to look at whether he was completely do your analysis on a completely different substantive law i have not found such a case your honor but if you had you would have cited absolutely i would have cited i would measure that was st case in brief but however i've also never found a case where something judge has all the cases it isn't the case law clear as day that that no district court opinion binds any other district court including that district court i yes i agree with your honor in terms of it is not a did but then when i explain what i mean their decisions are never precedential isn't that right as a technical matter that is correct but in the context of a docket of fifty thousand cases where he's plowing through hundreds of them a day i i would respectfully suggest that in analyzing this you take into account the realities of the situation down thank you mr har initially a one central issue in this case that i think there are a lot of things that have been raised but the merits are fairly narrow did the trial court abuse its discretion or commit plain error  denying that the consecutive post judgment motions to apply maritime law can you i apologize and i don't i want you to address the merits but can you please address the two big jurisdictional elephants that are in the room because whatever is decided here the important part of it is going to be on those statutes on whether what is a final order and is this a reviewable decision or not let me address territorial jurisdiction st i think it's more simple  merits decisions that then merge into a final judgment aren't reviewable as every every court of appeals that i can that i've found said they are after a transfer when the final judgment is but all the circuits from what i can tell are in agreement that something like this a partial summary judgment that then merges into the final judgment once final judgment is entered becomes reviewable why not well wasn't review right the notice was filed and then withdrawn it but that's not the definition of reviewable is it reviewable is capable of being reviewed right yet if capable of being reviewed right haven't we said that that discretionary rants are capable of being reviewed right we had and why would rule fifty four dollars which is a judgment discretionary call on partial summary judgments not be something that's capable of being reviewed under rule fifty four  was done it would be reviewable there and i think to answer your honor's prog question there is precedent for the circuit that we're claims with this and that's the mcgregor case was given mcgeorge where claims were dismissed and ultimately final judgment was entered that court decided that it could not hear those park claims it is address the very issue i'm raising and that is it's not that there was no opportunity for review there was opportunity for review under fifty dollars b there was opportunity to seek a trans a retransfer of the case so that they could be reviewed again so i think in that regard the judge wisdoms opinion says it does not rest on the review ability issue isn't that right i think that's when it says that the transformer order if they don't have jurisdiction to review it right cray say we're  and that is that is that this does not squarely fit ryan and odd with i struggled with the court on reviewing the ride in the run exceptions and one thing i would say that  subsequent to the initial briefing is one would look have to look extends beyond the record to things like a presumption that things have been resolved in bankruptcy court it's not nice and neat and i would suggest that if this court or de jurisdiction over this case it would require a further and then that or say excuse me to the ron rule or saying that the run rule doesn't apply to this can we not interpret ryan to mean that where there is been a resolution of some claims and then or as the parties and a dismissal of other parties where there is an intention to get an appeal that that indicates that there is a manufacture of jurisdiction and we  dismiss for the trial court to dismissed with prejudice right yes right and is that not exactly the situation we have here well i think it's also been a bright line rule and if we look at the criticism in the b case by the can by judge cuts in his concurring opinion one things he said that that is helpful the one thing he would give the run rule is it's clarity it is clear what about rule of compton in the comps is something completely after you submitted your brief that was a case where the rd circuit considered whether judge or brain had entered a final orderly where some of the defendants were dismissed for lack of personal just action and others were in bankruptcy and the rd circuit said that one is is the timing and the other's the pleadings as your honour's noted it was expressly disclaimed and i understand the dog analogy but one cannot call it a dog and then say it's a cat after final judgment the  minutes under rule fifteen turns on excuse me ends after summary judgment and that's what happened here it was a tactical decision to avoid maritime jurisdiction not to apply maritime law the raised and no subset of federal issue needs to be decided upon in order to establish the removing defendant's liability under the cause of action in the original an amended complaint and this is not from the state court action this is actually in the m t o record at document five  instruction getting an adverse jury verdict and then complaining the jury was missin structed it's more like that isn't it and that was the nd part of the argument judge it's a timing issue and i don't even read the other quote that that's here and this is when when this was opposing the remained so it got taken up to the federal court they argued to the federal court alabama quote not only does plaintiff complaint not a lead not was was an emphasis in the original allege the federal claims the complaint specifically discounts denies and disavows any federal claims the same thing is true after the report and recommendation do is no objection based on federal law robredo in her to do is order and this court has already observed that did not raise the issue of connor being a change of controlling law the can read a case tells us that even one even if a judge issues a decision it's not controlling law for that judge and after the after the excuse me the standard of review that applies when one doesn't raise that issue doesn't raise maritime law until later it can need to be deemed waived or it's read it's reviewed under plane air standard and consequently we believe the that's i want to address that for a moment the federal nine h provides that one can elect or not all that it's not mandatory but as for door sick out of the rd circuit tells us if there's no election then it's not an case the benefits of that i've mentioned to you if it's not an adult in case you have an opportunity for punitive damages and a jury which some which some plaintiffs are are interested in and believe would be advantageous bear in mind this entire time there was a there was a maritime proceeding for this plaintiff in the state of ohio it was proceeding on asbestos alone but when one looks at the existence of the pinning maritime claim there was pursuit all the way to conclusion with no effort to add this claim to it and when one considers the disclaimer in the initial pleadings the effort to oppose remand disclaiming federal claims disclose disclaiming maritime claims its evidence that plaintiff was aware that maritime been in play and tailored his his complaint of which he is the master to the fullest extent he possibly could to avoid invoking maritime jurisdiction waited until the case was over correct a failed litigation strategy that's what we have here it's not a case where he had no opportunity to have his day in court we don't have a change of law in conner he had a parallel maritime claim in that in this instance waited until after the state claims were unsuccessful on summary judgment to plead maritime jurisdiction really if one looks at the post shamo sions there there truly a motion to him in the pleadings reconsideration really doesn't fit the the law that was before the court when judge herb reno rendered his decision the law that was being decided by  disease a different law firm brought that case they sued in addition to products defend as they sued the boat owners under the jones act there's concurrent state and federal jurisdiction this case didn't have a joe and a claim against the navy obviously because you can't sue the navy need t claim against the employers on the context of the high c so i think the argument that that this somehow that the fact that there was a pending maritime case has any do with this is just wrong i mean it's a different completely but at the end of the day your honor the controversies alpha lowball was the st time that it was there were some clear guidance for cases before him deal a seventy five that you could have a products liability based maritime claim when the exposures occurred on the high seas which these clearly did and there's no prejudice to them they they did they were able to depose mr chorley extensively about all of his a specific splode years including the one he was sailing to and from china in the navy if at worst your honor if you were to reverse a remand this to have an evidentiary hearing as to whether maritime law should apply we would request that but i don't think this there is i don't think there's any other case that's ever been before this court where there were  sudden groundbreaking decision from the court that's got the case and it's going to have multiple similar cases shows up after summary judgment has been granted and for that reason i think the arguments of bend  context in till after the at least it had been there were a lot of cases and judges bring a ghost to them in the conover's to figure out what the law applies to what substantive law applies it's a choice of law question cation the rd circuit which said if somebody is exposed to a specialist both on the land and on the sea it wouldn't be maritime law appropriate i believe is the th circuit case called cochran that predates the group our case so the the case when it ended up in the to apply this it these you know i'm not going to follow legal picture because there's been a change in the supreme court precedent in one thousand nine hundred and five and yes that twenty five years ago was a long time ago but didn't remember it and the black hole in philadelphia sat there for many many years so with that your honor well as other questions i would just plead with the court to look at the substance of what this case is about and one thing that i'm curious about do your clients have any claims still pending in bankruptcy still do you know what the status of that is the peers of weight the unfortunate have a lot of experience with five hundred and twenty four g bankruptcies the trusts are set up when a company goes into bankruptcy and many times it takes years before the trust will begin to start paying claims the garlock bankruptcy was resolved which includes the caltech stuff in two thousand and seventeen the trust was set up in two thousand and eighteen i don't even know if anybody's gotten their claims process and paid through the