the next case is in re asbestos products liability litigation  for our may please the court lewis photograph or helen's william schroeder at all this is the third time we're appearing before this court to discuss the implications of various actions briefly if possible but if not through the various divagations this these cases have taken over the years if you kid yeah well i'm sure you're more familiar with it and we are  used and i am but in what really brought this home to me is that going back to the mid eighty's when i was a state court trial judge i was handling some aspects of this cases and when i mentioned that to my locker who was working on this case recently that i had handled some of these cases in one nine hundred eighty six the quick response was i wasn't born y straightforward issue i understand but i'll then assault turn of the waiver in a second but to answer your question these cases were filed our master i think it would be fair to say in the northern district of sentially created his own m t l your so that what rather than in litigating these thousands of cases individually he was processing them in large numbers it was made  easier by the fact that most of the planes were represented by a single law firm most of the defendants were represented by a single law firm so that and i think this is important in understanding what happened with now on the waiver issues frequently it wasn't that filings were made in a specific case but a filing would be made that applied to a large part of the marduk docket and then  appendix that said this filing applies to all of these plaintiffs or all of these defendants and that does it that does have some implications for these three cases i think it is i think it is many occasions anyway so the cases were proceeding before personal jurisdiction issue decided the defendants were correct that the court lacked personal jurisdiction over many of them but also concluded that the correct remedy for that problem was not dismissal all but transfer under fourteen zero six or six n thirty one two would jurisdiction that had they would have had a personal jurisdiction now that would have the effect of breaking some of these cases up into multiple pieces because you have multiple can go into the details of down the road be a process was eventually hit upon where plenty were defendants were told that they had a fixed period of time in which to decide whether to waive personal jurisdiction and were separately told that they could waive person jurisdiction by filing an answer in the court that to answer was in effect to concede that you wish to be there now defendants tried to have it both ways they filed answers that a stance of we preserve a personal jurisdiction judge lambrusco clearly understood these answers to constitute waivers because he continued to litigate these cases for the next year and a half he prepared a number of cases for trial he eventually realized he had too many cases to try and announced that he was going to send a bunch of the cases off to be tried in the eastern district of michigan which is another one of these incidents that gets described in the papers he did send some of them to michigan where the defendants objected in the cases came back to him any of should not lead to a different result all of these cases were part of the motion of the hearings in one nine hundred eighty nine the motions practice to dismiss where the judge said i'm not going dismissing the transfer them for want of personal jurisdiction all these cases were part of the answering process just like the cases and brought in blue all of these cases were part of the motion by plaintiffs to transfer in toto when the plaintiff said well we don't want to yeah so these cases were subject to that motion the only thing the only distinct difference is that the forty four cases that when when judge lambert's got his first trial settings when he had the forty four cases that he wanted to send to michigan for trial because the resources in cleveland were just too taxed but the cases and brought in blue were in that forty four these cases were not but every one of the defendants before the court here was in one or more of those forty four cases and again to go back to the point i made beginning the way the pleadings will occur in these cases it's not that they filed they need some different statement about waiver in brawn than they made in the schroder they filed an answer the documentation is exactly the same the only difference is that technically these cases the th proceedings related to these conditions district of michigan are not part of the record in this case it i hope that's clear anyway to our mind the sixth circuit but the fact is you know on a transfer motion the way it is to object to transfer from the first way would have been to ask for an interlocutory appeal as they did but once that was denied the the opportunity they would have had to argue that the say even when we talk about is a circuit split even the panel one kilometer recognized that it was a perfectly reasonable reading of all of these documents to conclude that in partly for law the case reasons partly in the interest of justice but but i they did not you know they extend agree with us they did they did say that they distinguished wrong in blue and said well those cases involve the forty four cases that went to michigan but they don't really speak to why that should matter and indeed if we look well i won't bore you with all the quotes all the way through this record but let me just direct you to a couple of things on the record first as i said all of these cases including the cases in colombia were subject to our motion our pinus motion to transfer in toto when we didn't want the cases be split up thomson hind filed a response on behalf of all of its clients that were subject to more doc orders forty and forty one in which they said several nonresident defendants although not subject to personal jurisdiction this court nevertheless agreed to waive their personal jurisdiction defense as the quid pro quo to avoid the expense of litigating these cases in as many as thirteen different districts simultaneously and to take advantage of the consolidated handling in this court they also said  are extraordinarily big about which defendants but this was a docking problem behalf of all of their clients all of whom had an answer and there's no and there's nothing in the record that would have constituted a waiver other than the answer to the prior answers themselves another of the cases that were going to be transferred to the eastern district of michigan all of them and behalf of all of them thompson hundred said we did not agree or concede to trials of any of these cases in detroit we had a clerk actually on the record before but trials of the ohio cases detroit are something that our clients waived jurisdictional objections to proceed here in cleveland and again they can't point to anything in the record the constitute a waiver just as to those forty four cases that was distinct from answers and the response to the motion in toto are sufficient head to head but i don't know why did we do that well i think you would your honor because of the manner in which more lock was litigated where defendants it would be one i would agree with you that you know if i take a position on behalf of one client in one case and then in i'm up here again in the next case and taking a contribution i would be offended if you were to say to me well you can take a you just took the opposite position on behalf of your other client yes but remember here that all of these actions took place in court filings that were filed collectively they were not filed on behalf of mr braun mr blue mr schroeder and they were filed you know maxon navigate steamship company filed an answer that it applied to a thousand separate cases and they cases and but i think the eat the comments that are in the brief about opposing the transfer to herb that were made in the are going to opposing the transfer to michigan are references  to filings and actions that the thomson hind defendants had taken in other higher actions they take him but applied across the board not just to this particular case let me ask you something he's been a curiosity to me throughout looking at these cases would it would it be possible for any of these plaintiffs to refile if it were necessary in a clue were personal years diction exists or are they all beyond the statute of limitation well i would i would imagine they are all be honest that's a limitation as you know i think in less in less we have some jurisdiction with some very weird tolling provision  but i mean these cases were filed in the late eighty's so it would be hard to imagine that there mr schroeder lost on the statue limitations granted south carolina yes he did an following statement to suggest that the waiver applied to all of thomson hynes clients attorneys from thomson heinen florrie l o p represented that all of their clients did not agree or concede to trials of any of these cases in detroit of conduct on the part of the defendants that's the other way i mean was that really that the basis of both of those that they certainly do take that position your honor but i think and i and then and i can see that they included in their answer that even though judge amber judge lambert has had basically said by hands wringing i will understand you to have waived they did include a personal jurisdiction defense in their answer i think that was because they were trying simultaneously to get an interlocutory appeal certified which they s quickly judge were fourteen zero six and sixteen thirty one expressed a preference for transfer case the supreme court said that in gold lauer that you know the generally speaking we don't want to punish quite as for an inadvertent mistake about where they file a case the cases should be at the preferred remedy in the interest of justice should transfer thought involved under unresolved questions of arkansas law so even though he technically had to send it back to delaware he thought that you know we wanted an arkansas court to decide that the underlying legal issue and he sent it back with a recommendation that opinions focused on two specific events in each case and those events were confined to oppositions to transfers of forty four cases from eastern of the northern district of ohio to the eastern district of michigan and that's it that's the only factors that drove those to opinions the cases before this court were not among those ballots groups of forty four cases and therefore the discussion dealing with fiction at this stage i do not know your honor but given that we only represent on a limited number of potential defendants in these cases started off with typically one hundred different defendants with many different law firms including some different law firms representing ship owners so the idea of could all of those defendants be found  question is without an answer one would potentially face an argument that you've defaulted so it was it was an odd situation because the federal rules of civil procedure are your answer  the decision to split the cases and send them all over the country is the primary issue in a transfer is could case have been brought against all of these defendants in the receiving court issued to make sure are and accurately addressing or that was the order that you were referring to your previously george smith about setting up procedures and it was essentially going to scatter cases throughout the country and as i mentioned earlier the opposition to that order focused on the fact that it never addresses the fundamental question of could the case have been brought in the in the receiving court that was a fundamental flaw and it's  essential one of the things that even though i believe all of the discussion dealing with transfers to michigan are relevant because these cases weren't but in the oppositions are there there's a case cited from the us supreme court h versus blasphemy and that's an important case because that case says if a fourteen zero for a transfer occurs to a place where the receipt where it could not have been brought in the first place the receiving court does not acquire civil procedure the u s district judge doesn't not have the authority to require a defendant to waive a defense including personal jurisdiction in order to file an answer the sixth circuit addressed this directly in kilometers and points out that there is no authority this may be what the judge said but he did not have authority to require for creature of the for personal jurisdiction defense in order to that file an answer and raise other defenses so order before i forget a record just remind the court that there is a motion to dismiss the appeal filed by marine transport lines this is the appeal of a public schroeder for lack of a public jurisdiction based upon race so the basic issues of oppositions to various transfers including the transfer in total the focus of the ship owner of opposition to that as i mentioned earlier  very the failure of the district court to take the fundamental step of determining whether or not the receiving courts would courts in which the actions could have been brought so that the discussion is legally you don't have the power to do this other statements that crop in about other about some defendants had waived in trying to reconstruct what happened almost thirty years ago is it's my understanding that that referred to actions by a different law from the ray robinson law firm because those that firm did file a motion of civil actions to point out individual the northern district of ohio and that's a different one of their consents is there sort of joint appendix beginning page eleven fifty four it is a specific concern for a limited number of defendants in a number of cases and if the hearing of june twenty two nine hundred eighty nine which begins joint appendix page number sixty five statements by those lawyers sensually say the kinds of things that mr boat ride is saying but it was for a different law firm for different defendants not these compounds there is no similar type of document in the record that these defendants waived and consented to personal jurisdiction in the same sense that the ray robinson own client did in those two particular documents recall correctly or understand the record to reflect that after judge lamb bros ruled that he did not have personal years stiction defense counsel later became were were there after it came forward if it were to one or consolidation severance issues consolidation severance i that i do not recall that your honor  discussion about judge lambro finding lack of personal jurisdiction occurred on october third one thousand nine hundred eighty nine there was a follow up hearing in the month of november of one nine hundred eighty nine own attorney from pounce on him comes back and says our clients are not in a position to decide to to consent to jurisdiction in ohio obs i don't know if if that's what your honor was referring to actions or actions that were taken without dotting the legal eyes into us before being taken for example that underlying issue of would plaintiff say let's transfer everything in tot including people who were subject to personal jurisdiction in ohio without ever looking to see what's perceiving court and a place in which the action could have been brought up that violated fourteen zero four and when judge lamb dismiss and that did not occur until the judge were bruno got wedo you did you never asked for any transfers it but it seems that at least this i pad in congress that court has jurisdiction that's different than the u s district court and if you go court can receive cases from all over the country so individual jurisdictional issues are much different for a multitude of different litigation then they are for a district court which has the cases in the first instance and personal jurisdiction is a major issue in the cases brought in the first instance if you're going to transfer back to  jurisdiction cases ruling probable court system for over thirty years and given the fact that these could never have been dealt with in the northern district of ohio it's within his discretion to say dismissal is appropriate rather than transfer and as the sixth circuit held in colombia that was an appropriate exercise of discretion so that's the answer on the waiver the personal jurisdiction defense is a complete red herring is ridiculous he had already agreed with them that there was no personal jurisdiction that's why he was going to transfer the case to somewhere else he said if you don't want to transfer these cases somewhere else answer the discussions with clients that's all before january finn would rather be right that's in the in the colloquy as in both the october and november eighty nine hearing this mr murphy i believe for thompson on keeps requesting additional time saying he needs to consult his clients it's hard to tell but he agreed that it would be simpler to just answer as a way rather than having to file a separate jurisdictional waiver the there is nothing in the record after january well that's what it is he said it is there ever any answer that a consensus has been reached among the various different ways as to what they correct remedy would have been to send it back i think you know judge tranch in her concurrence in columbus strongly expresses the belief that in that the lek the option of returning the case to the transfer or court with a recommendation for subsequent transfer is an idea that should be considered in other cases apart from colombia we think particular in this case where whatever we can agree or disagree about what the record actually means as a legal matter it's i think beyond question that judge lamb bros understood the defendants to equate the jurisdiction that's what he continued to exercise authority over the case and the plaintiffs they people wouldn't felt the need to file with fifty defendants on on a single case they you know they could have filed the each each an appropriate jurisdictions that made a story part of it i also want to just respond to one thing my colleague said he suggests that that reference to waiver in the response to the motion to transfer in toto was not about his clients at all but as best he can well it's about this other law firm that had explicitly waive else's clients regarding a motion to transfer but also their suggestion is that those client that those other clients waived in order to be able to keep the cases consolidated and the whole point of the motion in toto was to prevent