decided before we even get to those two issues i think there are some other things we need to to look at ok there's an order dismissing this case yes there is a mistaken order apparently ye mistake under rule sixty b please fix it and in fact we have a similar specialist case like this where precisely that was done but not here so what can we do about that are appeal council mr henderson brought this issue and the rd circuit thought so little of it it didn't even remark upon it in its decision and sent the case back to judge replay now and they didn't even raise it there because the wilson decision from judge district court saying that your case was dismissed sure i don't believe it is a valid order ok then d than tell us why it's invalid what precedent were statute tells us that that court order was looking at here and he found that the that this dismissed all the december he did it under rule sixty right in that case right now he did not know that wasn't that wasn't the case where the the sixty b was granted dismissed the december th two thousand and ten on mosque dismissal right yes ok so the district court fixed that it did this record didn't fix this that's that's true he didn't in now you want us to fix it well i on the docket none of the defendants are marked closed none of the defendants are marked terminated as you would expect when a dismissal order comes through that happens in every case dismissed that that's really an issue at the clerk's office more than it is with the issuance of the order is not sure it can be but the clerk was working in conjunction with our firm the court personnel the judge all the parties in recognizing them and but no one corrected the order all those people are working together and no one corrects the order right and that tells me no one knew about it well some i mean someone had to because they issued it it seems and then but i mean if you want to if you want to pick apart the order i mean the order just says dismissal it doesn't say a dismissal with prejudice or without prejudice is true so i mean if it's a dismissal with prejudice then i mean i think it's maybe not an airtight rule but in most instances that's going to star time for appeal or for rule sixty dollars pretty fast sure sure if it's a dismissal without prejudice then it's not an airtight rule but maybe that's not a final appeal border there's instances where it could be yeah do you have a position on whether this dismissal should be one should be viewed as one with or without prejudice even though their silence on that issue well i would argue that it's if it's anything it's without prejudice because no one knows why it was entered but rule forty one dollars b talks about dismissals and it s basically unless you fit into a certain class of dismissal and i think they give three examples then the dismissal is with with prejudice not without prejudice and this one this one or maybe due to its uniqueness doesn't fit into that class of borders wrong at least neatly i don't see it maybe if you've got arguments that it does but i don't see it neatly and so that would suggest that this is a dismissal we're prejudice and if it's a dismissal with prejudice then that's quite that that's meaningful and even if it was in error someone had to find that otherwise there's consequences to not acting on to dismiss without correct with prejudice don't you think i ministerial corrections and your time to appeal that's that's a great argument if it's timely sure if it's timely but i think that in this case we're no party not even judge for bail himself knew that it existed  rule sixty requirements up there and i get that but i think the fact that nobody knew that this order existed so there's a discovery rule now for a court order how i am not saying that but what i am saying d is that certainly no one in this case not apologize that we have earned issues but yeah another strange aspect of this case to me is that i don't see anything that indicated that judge lambro was sitting  designation in the eastern district of michigan and one case so far as i can tell this case was an eastern district of michigan case that was sort of so isn't this a michigan case not a high a case you know just the fact that a judge who's in ohio works on the case doesn't mean that the case has been transferred from the eastern district of michigan from the  room higher does i think it does in this case because where does the transfer order where the transfer order is the judge baikonur from august of eighty eight or he says pursuant to an agreement between myself judge and ambrose and the th circuit judicial council judge lambert has been designated to handle all asbestos related cases filed by my firm judge lambert this whole process these cases as part of his marduk program which is a component of the ohio as best as litigation plan and he concludes is his order saying this accordingly all new filings and currently pending cases that are dressed in this order are subject to judge lamb gross as orders i think fraser's case clearly goes to ohio and we know that didn't know there was no you all transferred water yeah yeah i mean it is so troubling maybe maybe i'm too much of a stickler for court orders and the rules but you know this isn't the way cases get transferred from just your to i agree and it seems that you're asking us to forgive all these errors they're treated and mass and very interested in action but doesn't this court and every other court in a country have an interest in making sure that people who choose to file fifty thousand or ten thousand cases turn square corners and cross the t's and dot your shall we i think we all want that and there's that but you want to ignore court order the ice was dismissed and say trust us it's an accident everyone knew it was an accident don't worry about well i think in that case again if there's any question about that there's nothing stopping th you i believe there is a provision and it's been some months since i've looked at it but i do believe there's a provision in the federal rules of appellate procedure that do allow for this court to remain back to be the district court in  give it back it's hard to give something back that you've never had you don't have sure and i get that i understand that i think though that if the rule allows for the idea behind it is there are some things that if they can be fixed before they get to the appellate court they should be and these are the types of cases that should have been resolved on the merits and the defendants hitting the lottery by finding a mistaken dismissal eight years after the fact that no one was given notice to seems exactly the type of case that we don't want to have let out of the federal judiciary and the justice department technicality to me that seems the most fair thing to do especially in light of the fact that not even the court knew that this order existed  i have two and a half additional minutes i guess i'd like that question the court at this point would be ok to reserve that time or would you want me to begin sort of a truncated ability given my arguments sure as it relates to the waiver issue i the only wrinkle for this court to decide is if trades or states made it from michigan to ohio i believe we've already addressed that so i won't belabor that point any any further as to the nd issue before this court  transfer orders indicated the originating court rather than that quick transfer from michigan to ohio i see my time ok we'll hear you on a court order filed on the docket i mean if you don't as a matter of fact know about it when you concede that you're charged with knowledge of it yes i would believe that if it appears on the docket each party has constructive knowledge than one of these cases where both sides are saying you know there's a breakdown in the mail and this was now the old days alluding to electronic filing and nobody got this isn't one of those cases that is true you are but to so show you got it they got it been struck and everybody everybody kept litigating that it's true under so why why should we you know mr swofford i think you know makes a good equitable point why should we play gotcha games now and throw them out of court he's climbed out of court after after all this time and energy with both sides having a quote fair fight in front of a district judge who believed that he had jurisdiction over the matter the whole time several times about your honor st it is clear black letter law that the conduct of parties tend not to accord with subject matter jurisdiction they can perhaps give personal jurisdiction over the matter but it cannot best accord with subject matter jurisdiction so as regrettable as our eight years of continued  if the rules without prejudice so hard to question right because there can be dismissals without prejudice if someone has a complaint this dismissed without prejudice they may be given an opportunity to refile to make amendments to all these other would be one that is a dismissal without prejudice it's i don't know in transfer to a bankruptcy talk but that's the true of the final order in this case to alternately right now we get back to the same sort of order in two thousand and eighteen where the dismiss is on jurisdiction order them the order of two thousand and eighteen is not either but this court intruder found that that is a final appeal order and that's certainly the position we take your to and i don't see any reason to read the order as one of the dismissal without prejudice i mean the default rule is if the order does not specify whether it is with or without prejudice then it is the into the with prejudice and but you said you don't see any reason and i think the reason exists in the equities that you led instead we didn't know about it your posing counsel len said we didn't know about it and so we get begin to get to a point in time where we say we've got an order that doesn't specify whether it's with or without prejudice none the counsel for any of the parties knew about the order page it says these cases will remain seated in the eastern district of michigan it is not a transfer order and in any shape form or construction is not a transfer order it does purport to assign judge lambro to handle these cases that was the even this judge lambro had been properly designated an assigned to hear the case you would have to travel to michigan to hear the case you cannot be a judge sitting by designation and then sit in your own district you have to go d to the district waiver applies in this case is simply not a case like schroeder and then if in the final minute have slipped to me i could turn to the specifics of my client's case that sealand specifically now  sufficient to find waiver simply does not apply here if i could the central premise of schroeder and plaintiff argument is that we filed a master answer after judge lambro had a ready found that he did not have personal jurisdiction over us and that by finding the answer after such a finding we our personal jurisdictions objection there's a significant problem with that argument which i noticed for the st time is preparing this oral argument  exhibit a he again in the order lists those defendants that he believed do not properly subject to personal jurisdiction in the northern district of ohio sealand is not among those entities so in other words for reasons unknown i can explain why judge lambro at least implicitly denied see the man's motion to dismiss for lack of personal jurisdiction the entire premise that we filed an answer after having been told i mean agreed your honor i've never encountered a case like this before but so you know shrewder point to four things it is the objection to transfer my client never objected to transfer its motion to dismiss was in the alternative did dismiss or transfer nd schroder pointed to the request by the thompson hind attorneys for extra time to consider whether or not to accept transfer again we never made any requests because we didn't object to transfer rd the court pointed to the filing of the if if we disagree with you on that either because there's no explicit with prejudiced dismissal or for some other reason but we conclude that the case never left the eastern district of michigan before it was sent to the eastern district of pennsylvania and we sent it back down to judge her brain no telling him that this was an eastern district of michigan case that he got and then what happens i believe your honor that we are still in the same more or less the same position that we are right now it is an eastern district a michigan case and the relief that the plaintiff is requesting is to send it back to the northern district of ohio this case never came from the northern district of ohio part of the confusion is that there were four cases filed  behalf of mr trius or by the plaintiff firm they filed one case in the eastern district of michigan against the ship on the defendants and there were three cases filed against various groups of manufacturers in the northern district of heil but with no ship o manufacture cases went from ohio to pennsylvania then there was a consolidation order and the court designated an ohio case as the lead case so that all four got folded in them and were somewhat treated as a immaterial that they were actually michigan cases look at two it would have a degree that's correct your honor and one of the things for the courts sort of background understanding is that when these motions to dismiss for lack of personal jurisdiction filed in the eastern district of pennsylvania process motions were filed on behalf of it a defendant in large groups of cases for example don't go steamship lines case was filed with a case list of our motions to dismiss included a footnote which we cited in our brief that says that the majority of these cases came from ohio but there are also cases from michigan and the u s district of the virgin islands so the same arguments that were being presented had to be dealt with on moscow rather than in seven hundred and fifty individual d motions being filed all case specific to the various intricacies of each one and that's part of the india process to try to weed out and deal with common issues and get rid of parties and claims and causes that really shouldn't go forward now and granted there can be some confusion in the process that's background that's that's how this case wound up being treated in the in d l as though it were sort of an of ohio case when in fact it was a michigan case and the two thousand and ten dismissal order w schroeder dealt with although i respectfully disagree with how that case was decided the scenario in schroeder was that the the panel focused on objections of ship owners in ohio cases to being transferred to michigan that never happened here the poll lama opinion and matthew's opinion which we submitted recently as supplemental forty those opinions both dealt with situations where their cases never were in the group of forty four dollars were to be transferred so as as common point it out actions taken in one case don't do not bind the defendant in an are certainly binding it is the appropriate model under which to look at the waiver argument i would also just briefly point out if we mentioned to page seventeen of our police forty applied to quote all the parties not just the thompson hine defendants it's true the thompson hine defense counsel precipitated this idea of hey we ran out of time is there a different way we can not waiver and then everyone agreed yeah file an answer and judge lam gross cemented that understanding for all the parties and order number forty so it wasn't the identity of one's counsel that made a difference as to whether or not you waived in this case it was t look to that second of all as to trees or being a michigan case and not making it to the northern district of ohio jeff lambro certainly believe that case got there he issue using the electronic filing docket data in a case from one thousand nine hundred and nine doesn't always show everything that happened it didn't exist at the time those doctors were recreated we filed motions to substitute counsel that don't show up on the docket so i'm not sure that the docket from one thousand or whatever it was recreated to put a decade's worth of history in there is the best evidence for what did or did not happen in this case that they're not happy with the performance of the judge he said well let's let's try philadelphia they knock on the door this courthouse and they go find a judge in philadelphia that judge says welcome i'm happy to hear your  know we don't have a transfer order we have the judge i can form which to me it is clear forty that even though he didn't use the word transfer that's what that whole entire document is people do