NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-4148
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IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (No. VI)
JOSEPH E. BLUE; GEORGE A. PERDREAUVILLE,
Appellants
__________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Nos. 2-11-cv-33914, 2-11-cv-33906, and 2-02-md-00875)
District Judge: Honorable Eduardo C. Robreno
__________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 11, 2017
Before: VANASKIE, RENDELL, and FISHER, Circuit Judges
(Filed: December 28, 2017)
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OPINION *
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VANASKIE, Circuit Judge.
This case has its genesis in the late 1980s when Appellants George Perdreauville
and Joseph Blue filed lawsuits in the United States District Court for the Northern
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
District of Ohio against the Appellees under the Jones Act, 46 U.S.C. § 30104 et seq., and
general maritime law, alleging injury from exposure to asbestos while onboard the
Appellees’ various ships. A lengthy and complex procedural course ensued, and, in
1991, the suits were consolidated in the Asbestos Multidistrict Litigation (“MDL”) in the
United States District Court for the Eastern District of Pennsylvania. In 2014, that Court
dismissed the Appellants’ cases due to lack of personal jurisdiction. Perdreauville and
Blue subsequently filed this timely joint appeal, arguing, inter alia, that the Appellees
had waived their personal jurisdiction defenses.
We addressed precisely the same issue in a 2016 decision involving three different
MDL plaintiffs. See In re: Asbestos Prod. Liab. Litig., 661 F. App’x 173 (3d Cir. 2016)
(the “Braun” opinion). There, we agreed with the argument now put forth by the
Appellants and reversed the district court on grounds that the Braun appellees had waived
their personal jurisdiction defenses. Upon review of Braun and its application to the facts
at issue, we will reverse in the instant case as well.
I.
Joining several thousand other seamen, Appellants Perdreauville and Blue
commenced litigation in the Northern District of Ohio against various shipowner
defendants in the late 1980s. Appellants alleged that they had suffered damages after
being exposed to asbestos onboard the defendants’ vessels. Eventually, the cases were
consolidated in the Northern District of Ohio’s Maritime Docket (“MARDOC”) before
Judge Thomas Lambros. These various MARDOC plaintiffs, including Perdreauville and
Blue, were represented by one firm––the Jaques Admiralty Law Firm. The vast majority
2
of the MARDOC defendants, including Appellees Delta Steamship Lines, Inc. (“Delta”),
f/k/a Mississippi Shipping Co., Inc. (“Mississippi Shipping”), and Farrell Lines
Incorporated (“Farrell”) (together, the “Shipowner Appellees”), were represented by the
firm Thompson, Hine, & Flory LLP. 1
In 1989, Thompson, Hine, & Flory LLP moved on behalf of the Shipowner
Appellees in the Perdreauville case (though not in the Blue case) to dismiss for lack of
personal jurisdiction. Judge Lambros thereafter held two hearings on the issue and ruled
that the Northern District of Ohio did not have personal jurisdiction over a significant
number of the defendants, including Delta. Rather than dismissing the cases outright,
however, Judge Lambros afforded time so that plaintiffs could indicate “where each case
should be transferred and the defendants could decide if they preferred to remain in the
Northern District of Ohio by waiving their personal jurisdiction defenses.” In re:
Asbestos Prod. Liab. Litig., 661 F. App’x at 174.
In the months that followed, Judge Lambros issued two orders: MARDOC Order
40 and MARDOC Order 41. The former was issued on November 22, 1989, and directed
the plaintiffs to “report the choice of forum” for each case slated for transfer. (App. 582.)
It further stated that an appropriate transfer order would be issued in December 1989 and
1
Various corporate mergers and name-changes have taken place since the
commencement of this case. Delta Steamship Lines, In. (“Delta”), f/k/a Mississippi
Shipping Co., Inc., has since merged into Crowley Marine Services, Inc. Farrell Lines
Incorporated (“Farrell”) is the successor by merger to American Export Lines Inc., f/k/a
American Export Isbrandtsen Lines, Inc. See Appellees’ Br. at 2 n.2.
3
that “[p]arties who, upon reconsideration of their motions to dismiss or transfer, wish[ed]
to remain in this jurisdiction[,] need only file answers to the complaints” in order to
remain in the Northern District of Ohio. Id.
The latter order, MARDOC Order 41, was filed about a month later and again
recognized “the insufficiency of minimal state contacts to invoke in personam
jurisdiction” over a number of defendants in Ohio. Id. at 585. On that basis, MARDOC
Order 41 authorized the transfer of the cases involving those defendants to jurisdictions
which, according to the plaintiffs, had “sufficient contact [with the defendants] to sustain
. . . in personam jurisdiction . . . .” Id. Included among the group of cases to be
transferred were those filed by the Appellants. Id. at 607–09, 616–17.
The Shipowner Appellees, however, chose neither to submit to transfer nor to
waive their personal jurisdiction defense. Instead, Thompson, Hine, & Flory LLP filed
on behalf of its clients––including the Shipowner Appellees––Master Answer No. 1,
averring as an affirmative defense that the Northern District of Ohio “lack[ed] personal
jurisdiction over [each] defendant due to insufficient contacts of [the] defendant with” the
forum state. Id. at 1207. The Shipowner Appellees subsequently adopted Master Answer
No. 1 as to both Perdreauville and Blue. Id. at 1224, 1233.
Litigation proceeded in the Northern District of Ohio throughout the remainder of
1990 and, during that time, Judge Lambros divided the various suits into specific
“clusters” to aid case management. On January 8, 1991, the parties appeared before
Judge Lambros––who by then had become the Chief Judge of his District––to address
how the clusters should proceed to trial. Because the statements made at this proceeding
4
proved to be the linchpin of our holding in Braun, and, as explained in detail below, the
same statements from that January 1991 hearing apply with equal force to this case, it is
worth quoting the following passage from Braun in full, as it thoroughly recounts the
pertinent sequence of events vis-à-vis the issue of personal jurisdiction:
At the beginning of the hearing, [the parties] talked about how
they would proceed with the first cluster of twenty cases, four
of which had already been tried to a jury in the Northern
District of Ohio. After much discussion, it was resolved that
the remaining sixteen cases from [that] cluster would be tried
to [the] same jury in the Northern District of Ohio, a United
States Magistrate Judge would preside over thirteen of the
trials, and the remaining three trials would occur before Judge
Lambros . . . .
During the hearing Chief Judge Lambros made clear that he
intended to transfer four clusters of cases to the Eastern District
of Michigan for pretrial administration and trial . . . . After an
intervening discussion about the possibility of settlements and
the process for appealing verdicts in the sixteen cases that were
set to be tried in the Northern District of Ohio, the conversation
returned to the four clusters that were to be transferred to the
Eastern District of Michigan. Chief Judge Lambros explained
there was at that time a “Michigan cluster” and an “Ohio
cluster,” each made up of several sub-clusters. App. [702].
The former would “be transmitted to” the Eastern District of
Michigan, and “the management of those cases will be left to
the discretion of the Detroit judges.” App. [702]. As to the
Ohio cluster, “pretrial management matters, scheduling
matters, [and] discovery matters” would be referred to a
Magistrate Judge in the Northern District of Ohio. App. [702].
In re: Asbestos Prod. Liab. Litig., 661 F. App’x at 175.
Following a brief discussion about costs, severance, and third-party practice,
counsel from Thompson, Hine, & Flory LLP clarified to the court that the Shipowner
5
Appellees “did not agree or concede to trials of any of these cases in Detroit.” (App.
722.) Counsel continued:
We had put our objection on the record before, but trials of the
Ohio cases in Detroit are something that our clients waived
jurisdictional objections to proceed here in Cleveland. To go
to Detroit is something they don’t agree to.
Id. Counsel for all of the defendants then confirmed on the record their agreement with
that objection.
Notwithstanding the Shipowner Appellees’ objection, Chief Judge Lambros issued
Ohio Asbestos Litigation (“OAL”) Order 125 the next day, transferring four clusters of
cases––including the Appellants’––to the United States District Court for the Eastern
District of Michigan. The Shipowner Appellees promptly moved to vacate Chief Judge
Lambros’ Order, asserting that the cases “should be retained for pretrial management and
trial in Cleveland.” Id. at 752. Chief Judge Lambros denied the motion, prompting the
Shipowner Appellees to file a similar motion in the Eastern District of Michigan
requesting that the cases be returned to the Northern District of Ohio. The Magistrate
Judge to whom the motions were referred recommended that the Shipowner Appellees’
Motions to Retransfer be held in abeyance, a recommendation that the Shipowner
Appellees likewise objected to in a subsequent filing that requested “retransfer [of] all 40
Ohio cases to Ohio for handling . . . .” Id. at 820.
Eventually, in 1991, the Asbestos MDL was created in the Eastern District of
Pennsylvania. The Shipowner Appellees opposed the transfer of the MARDOC cases to
the Asbestos MDL and urged the Judicial Panel on Multidistrict Litigation (“JPML”) to
6
consolidate the cases in the Northern District of Ohio. In a filing with the JPML, counsel
requested on behalf of the Shipowner Appellees, “[i]f transfer is to take place, . . . that it
be to the Northern District of Ohio” because “[p]rocedures already are in place for the
pretrial management of seamen’s asbestos cases, and this is the district in which the
largest number of seamen’s cases is pending.” Id. at 902. Notwithstanding the
Shipowner Appellees’ objection, the MARDOC cases were transferred to the Asbestos
MDL, see In re Asbestos Prods. Liab. Litig. (No. VI), 771 F. Supp. 415, 417–18 (J.P.M.L.
1991), where they sat dormant until 2011 when Judge Robreno reactivated them.
Throughout 2012 to 2014, the Shipowner Appellees filed motions to dismiss based
upon lack of personal jurisdiction in the Appellants’ cases. In Perdreauville’s case, Judge
Robreno granted the Shipowner Appellees’ motion and dismissed the case via a
Memorandum and Order dated March 12, 2014. See Jacobs v. A–C Prod. Liab. Tr., No.
2 MDL 875, 2014 WL 944227 (E.D. Pa. Mar. 11, 2014). On October 10, 2014, Judge
Robreno dismissed Blue’s case as well, citing both Jacobs and Bartel v. Various
Defendants, 965 F. Supp. 2d 612 (E.D. Pa. 2013) for his reasoning and conclusions.
(App. 5.) In Jacobs and Bartel, Judge Robreno ruled that the defendants “had preserved
their personal jurisdiction defenses because they had raised the issue throughout the
litigation and there was no evidence to show that they had waived their defenses” as to
the relevant plaintiffs. In re: Asbestos Prod. Liab. Litig., 661 F. App’x at 176.
Moreover, Judge Robreno interpreted the defendants’ “opposition to the consolidation of
the MARDOC cases in the Asbestos MDL simply as resistance to the Asbestos MDL, not
as affirmative consent to litigate in Ohio.” Id. Following the dismissal of their cases,
7
Perdreauville and Blue filed this timely joint appeal challenging Judge Robreno’s
decision to grant the Shipowner Appellees’ motions to dismiss for lack of personal
jurisdiction.
II.
The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291. We review a trial court’s determination as to
waiver of personal jurisdiction for abuse of discretion. In re: Asbestos Prod. Liab. Litig.,
661 F. App’x at 176–77 (citing Lechoslaw v. Bank of Am., N.A., 618 F.3d 49, 55–56 (1st
Cir. 2010); Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 60 (2d Cir. 1999); United States
v. Ziegler Bolt & Parts Co., 111 F.3d 878, 882 (Fed. Cir. 1997)). “A court abuses its
discretion when its decision ‘rests upon a clearly erroneous finding of fact, an errant
conclusion of law or an improper application of law to fact.’” Id. (quoting Sharp v.
Johnson, 669 F.3d 144, 158 n.19 (3d Cir. 2012).
III.
As both parties acknowledge, we addressed the question of whether the Shipowner
Appellees waived their personal jurisdiction defenses in Braun. 2 The Shipowner
Appellees urge us to depart from Braun, contending that the Panel “paid only lip service”
to the abuse of discretion standard by failing to “identif[y] how Judge Robreno’s findings
2
Indeed, counsel in the instant case also represented the parties in Braun.
Additionally, the reasoning and conclusions forming the basis of the instant appeal––i.e.,
the District Court’s opinions in Jacobs v. A–C Prod. Liab. Tr., No 2 MDL 875, 2014 WL
944227 (E.D. Pa. Mar. 11, 2014) and Bartel v. Various Defendants, 965 F. Supp. 2d 612
(E.D. Pa. 2013)––likewise formed the basis of the appellants’ appeal in Braun.
8
of fact were clearly erroneous so as to constitute an abuse of discretion.” Appellees’ Br.
at 31. Moreover, the Shipowner Appellees maintain that Braun not only “substitute[ed]
its own factual conclusions for those of the MDL court,” but further drew “illogical and
erroneous” conclusions from those facts. Id. at 32. As we explain below, however,
Braun carefully applied the abuse of discretion standard and clearly articulated the
precise reasons as to why the record did not support Judge Robreno’s conclusions.
A.
In Braun, three plaintiffs appealed Judge Robreno’s dismissal of their claims for
lack of personal jurisdiction. See In re: Asbestos Prod. Liab. Litig., 661 F. App’x at 174.
We reversed and remanded, finding that the defendants had waived their personal
jurisdiction defenses at the January 8, 1991, hearing before Chief Judge Lambros. Id. at
178–79. Underlying our conclusion were three critical facts that plainly contradicted
Judge Robreno’s interpretation of the record: First, we explained that waiver occurred
when counsel for the Braun defendants consented to proceed with “these cases” in the
Northern District of Ohio because that statement “clearly refer[red] to the clusters [of
cases] that Chief Judge Lambros intended to transfer to the Eastern District of Michigan .
. . .” Id. at 177. “This is apparent,” we indicated, because defense counsel “specifically
opposed transfer of ‘these cases’ to Detroit, and the earlier mentions of Detroit at the
hearing related only to those clusters that Chief Judge Lambros intended to transfer to the
Eastern District of Michigan.” Id. (emphasis in original). 3 In other words, when counsel
3
To support this interpretation, we cited two statements made by Chief Judge
Lambros during the hearing, namely: (1) that he “ha[d] been in very close touch with
9
for the Braun defendants acknowledged that they had consented to jurisdiction in the
Northern District of Ohio, they did so in reference to the cases that were at risk of being
transferred by Chief Judge Lambros to Michigan. We concluded, therefore, that
counsel’s consent to proceed with litigation in Ohio amounted to “a clear waiver of the
personal jurisdiction defense . . . .” Id. at 178.
Second, we opined that Judge Robreno’s interpretation of the hearing transcript––
i.e., his assessment that defense counsel’s reference to “these cases” was limited to the
sixteen cases set for trial in the Northern District of Ohio––was belied by the record. In
fact, Chief Judge Lambros never suggested that the remaining sixteen cases from the first
cluster were at risk of being transferred to Michigan; to the contrary, it was decided on
the record that all sixteen cases would be tried to the same Ohio jury that heard the first
four cases from that cluster. Id.
Third, we stated in Braun that the defendants’ post-transfer filings further
confirmed that they had waived their personal jurisdiction defenses because, in those
filings, they specifically requested that the cases be transferred from the Eastern District
of Michigan and the JPML to Ohio. Id. In sum, we concluded in Braun that Judge
Robreno’s decision was “a further stretch than what . . . the facts support,” namely: that
Chief Judge Julian Cook” of the Eastern District of Michigan, and that the judges of the
Eastern District of Michigan “[were] asking [the Northern District of Ohio Court] to pack
up the first four clusters” and to send them “to Detroit” (App. 661–62); and (2) that the
management of the Michigan cluster would “be left to the discretion of the Detroit
judges.” (App. 702.) See In re: Asbestos Prod. Liab. Litig., 661 F. App’x at 177–78.
10
the shipowner defendants “waived their personal jurisdiction defenses and wished to
proceed to trial in the Northern District of Ohio.” 4 Id. at 177–78. (footnote omitted).
B.
Upon a review of Braun, we find that its reasoning and conclusion bear upon the
Appellants’ case as well. For one, the claims brought by Appellants Perdreauville and
Blue––like those filed by the Braun plaintiffs––were among those at risk of being
transferred from Ohio to Michigan in January 1991. (App. 652–53.) The Shipowner
Appellees, in turn, were represented by the same Thompson, Hine, & Flory LLP attorney
who consented at the January 8, 1991, hearing to jurisdiction in the Northern District of
Ohio. As explained above, this acknowledgement was a clear waiver of the Shipowner
Appellees’ lack of personal jurisdiction defenses. Taken together, these facts establish
that the Shipowner Appellees here––like those in Braun––indeed waived their lack of
personal jurisdiction defenses with regard to the Appellants’ cases.
Second, the Shipowner Appellees’ post-transfer filings confirm that they, like their
counterparts in Braun, equally waived their personal jurisdiction defenses with respect to
the Appellants. As a case in point, the Shipowner Appellees objected to OAL Order
125––which transferred 44 cases, including the Appellants’, to the Eastern District of
Michigan––by filing a motion to vacate OAL Order 125 and have the cases “retained for
4
Our colleagues in the Sixth Circuit reviewed our holding in Braun and reached
the same conclusion, stating: “The Third Circuit correctly determined that the MDL court
clearly erred when it found that the objection to transfer out of the N.D. of Ohio from the
January 8, 1991, hearing pertains only to sixteen cases that were not before the MDL
court in 2014.” Kalama v. Matson Navigation Co., Inc., 875 F.3d 297, 307 n.3 (6th Cir.
2017).
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pretrial management and trial in Cleveland.” (App. 752.) (emphasis added). These
filings, coupled with the clear waiver outlined above, lead us to conclude that the
Shipowner Appellees waived their personal jurisdiction defenses. 5
IV.
For the reasons set forth above, we vacate the order dismissing Appellants’ cases
for lack of personal jurisdiction, and remand this matter for further proceedings
consistent with this opinion.
5
Because of this ruling, we do not reach Appellants’ law-of-the-case argument.
12